Timothy S. Thorn v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CP-00715-COA
TIMOTHY S. THORN
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
04/09/2001
HON. ROBERT WALTER BAILEY
KEMPER COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
BILBO MITCHELL
CIVIL - POST CONVICTION RELIEF
POST-CONVICTION COLLATERAL RELIEF
DISMISSED
AFFIRMED - 04/16/2002
5/7/2002
BEFORE McMILLIN, C.J., LEE, AND BRANTLEY, JJ.
LEE, J., FOR THE COURT:
¶1. Timothy Thorn appeals the Kemper County Circuit Court's dismissal of his motion for post-conviction
collateral relief. He asserts two issues: that he was denied due process in a parole revocation hearing, and
that he was entitled to the appointment of counsel to represent him in the hearing. Finding that the circuit
court did not err in dismissing his motion without a hearing, we affirm.
FACTS
¶2. Thorn pled guilty to burglary of a dwelling on January 20, 1998. He was sentenced to ten years
imprisonment, with ten years suspended on condition of probation. As part of his probation, Thorn was
required to undergo drug testing. He failed to present himself for the testing, or tested positive for marijuana,
on February, 23, 1999, March 22, 1999, April 19, 1999, and September 27, 1999. He also changed
residences without required approval. When Thorn reported to his probation officer, Ken Benson, on June
14, 2000, he was told his probation was being revoked, and he was arrested. On June 16, 2000, Benson
signed a petition to revoke Thorn's probation. This petition was signed by the circuit court on June 19,
2000. Thorn asserts he was not given any reason for the revocation for forty-two days, during which he
was incarcerated. However, the record shows that on June 19, 2000, Thorn signed a waiver of his right to
a preliminary probation revocation hearing, and he was given notice that he would not be provided with an
attorney because no new felonies were alleged, but was advised he could obtain an attorney at his own
expense.
I. DUE PROCESS
¶3. The minimum due process requirements in parole revocation cases were set forth in Morrissey v.
Brewer, 408 U.S. 471, 485-87 (1972), and those same due process requirements were found to apply to
the probation revocation procedure in Gagnon v. Scarpelli, 411 U.S. 778, 782, (1973). Our state
supreme court has held that the provisions of Mississippi Code Annotated § 47-7-37 (Rev. 2000) afford a
parolee with that minimum due process. Riely v. State, 562 So. 2d 1206, 1211 (Miss. 1990).
¶4. Thorn asserts that the probation officer did not give "immediate" notice of his arrest to either the
detaining authorities or the court. Mississippi Code Annotated section 47-7-37 (Rev. 2000) requires a
statement setting forth the reasons for an arrest without a warrant be given "at once" to the court. Thorn was
arrested on a Wednesday, and the circuit court did not receive the petition until the following Monday. The
circuit court's order found that:
[T]he Court has no record of what documentation was provided to the jail and has no record of the
reason for the time lapse before the Court signed the paperwork, other than June 16, 2000 was a
Friday and the court may have been in term elsewhere or the judge otherwise unavailable. Regardless
of the delay, the Court finds that there was no violation of § 47-7-37, MCA 1972, which would result
in the violation of due process rights of the Petitioner.
We find that the circuit court's ruling was correct and in accord with the due process required. Morrissey
requires "that some minimal inquiry [or preliminary hearing] be conducted at or reasonably near the place of
the alleged . . . violation or arrest and that as promptly as convenient after arrest while information is fresh
and sources are available." Morrissey, 408 U.S. at 485. A two day delay is insufficient to run afoul of the
statute's judicial oversight brought to this notice and opportunity to be heard requirement. Furthermore,
assuming arguendo that Thorn was not advised of the charges against him, he waived any error going to this
lack of notice when he waived his right to a preliminary hearing. There is no merit to his assertion that his
due process rights were violated, and this assignment of error is without merit.
II. RIGHT TO COUNSEL
¶5. Probationers do not have a per se right to counsel, but counsel may be required in cases that are
complex. Riely, 526 So. 2d at 1209. Thorn asserts that without advice of counsel he was "incapable" of
determining whether waiving his right to a preliminary hearing was "good or bad." Unless a person is
mentally incompetent to stand trial, he may knowingly waive his right to counsel, and unless there are
reasonable grounds to believe a person is mentally incompetent, there is no requirement that a court inquire
into competency. Edwards v. State, 800 So. 2d 454, 466 (¶¶33-34) (Miss. 2001). There was no
suggestion that Thorn lacked the mental capacity to waive his right to a preliminary hearing, and this
assignment of error is without merit.
¶6. THE JUDGMENT OF THE CIRCUIT COURT OF KEMPER COUNTY DISMISSING
THE PETITION FOR POST- CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO KEMPER COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
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