Michael Curry v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-00892-COA
MICHAEL CURRY
APPELLANT
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:
APPELLEE
5/8/2002
HON. ANDREW C. BAKER
PANOLA COUNTY CIRCUIT COURT
MICHAEL CURRY (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
JOHN CHAMPION
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED.
DISMISSAL OF POST-CONVICTION RELIEF
AFFIRMED BUT REMANDED FOR
RECONSIDERATION OF SENTENCING 06/24/2003
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE MCMILLIN, C.J., LEE AND IRVING, JJ.
LEE, J., FOR THE COURT:
¶1.
In 2000, Michael Curry was convicted on two counts of fondling and was sentenced to serve ten
years for each count. The Panola County Circuit Court suspended the sentences, placing him on probation
for five years. During the period that followed, Curry violated the conditions of his probation and, at his
request, was ordered to participate in the Regimented Inmate Discipline (RID) Program. The court
ordered that, should Curry fail to meet the requirements of the RID program, he would be sent to the
general prison population to serve the remainder of his sentence. In November 2001, through a routine
blood screening for new prisoners, Curry learned he had HIV. Rather than going to the RID program,
Curry was placed in the unit at Parchman designated for HIV-infected prisoners.
¶2.
In January 2002, Curry filed a motion for post-conviction relief. The circuit court dismissed the
motion, and Curry now appeals to this Court. With the appeal, Curry argues that the diagnosis of his HIV
status constitutes newly discovered evidence as would justify a reconsideration of his sentence. He also
argues that denial of his entry into the RID program and placement in the HIV unit constitutes cruel and
unusual punishment. We review Curry's arguments on these points and find the trial judge did not err in
dismissing Curry's motion for post-conviction relief. We do, however, remand to the circuit court for
proper sentencing, as explained herein.
DISCUSSION
I. DID THE TRIAL COURT ABUSE ITS DISCRETION IN DENYING THE
APPELLANT'S MOTION FOR POST-CONVICTION RELIEF?
¶3.
Curry argues that due to his having HIV he is entitled, via the Americans with Disabilities Act and
pursuant to caselaw from other states, to a mitigated sentence. "When reviewing a lower court's decision
to deny a petition for post-conviction relief this Court will not disturb the trial court's factual findings unless
they are found to be clearly erroneous." Smith v. State, 822 So. 2d 298 (¶3) (Miss. Ct. App. 2001).
¶4.
Curry's motion for post-conviction relief contained in the record concerns a conviction for
possession of cocaine. However, the record contains no documents relating to such conviction, and this
Court is puzzled as to why Curry referred to such offense in his motion for post-conviction relief when no
evidence exists that he was ever convicted of such crime. Regardless, Curry's claim on appeal that his HIV
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status constitutes "newly discovered evidence" as to entitle him to a reconsideration of his sentence is
without merit. Had such information been available to the judge, it would not have changed the fact that
Curry violated the terms of his probation in failing to report to his probation officer, failing to reside at the
address stated in his probation papers, and failing to pay fees, court costs and assessment as directed.
Accordingly, we affirm the dismissal of Curry’s motion for post-conviction relief insofar as he sought to set
aside the determination that a violation of probation had occurred. However, in light of the nature of
Curry’s sentence and ensuing events, we conclude that further consideration is warranted in the matter of
the court’s resulting sentence of Curry that permitted him to participate in the RID Program in hopes of
obtaining an early release from confinement.
¶5.
There is no question that the circuit court could have ordered Curry to immediately begin serving
the entire balance of his original sentence once the court determined that he had violated the terms of his
probation. However, it is also a fact that the circuit court has some discretion in the matter of further
punishment after adjudicating a violation and may, in the exercise of its sound discretion, sentence the
violator to something less than the entire unserved portion of the original sentence. Granting a probation
violator the opportunity to be confined for a relatively brief time under the RID Program with the
opportunity to earn an early release by successful completion of the program requirements is, in our view,
an appropriate exercise by the circuit court of the discretion afforded it under Section 47-7-37 of the
Mississippi Code. The opportunity to participate in the RID Program necessarily carries with it the
possibility that the participant will not successfully complete the program and thereby forfeit his chance for
an early release from confinement. However, in this case, Curry’s failure to successfully complete the RID
Program did not occur because of any misconduct or similar failure on his part. Rather, it arose by virtue
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of a medical condition unknown to the circuit court – and, insofar as the record shows, to Curry – at the
time of sentencing.
¶6.
It seems apparent that the circuit court, in sentencing Curry after his probation violation, concluded
that, despite his unsatisfactory behavior, he was nevertheless worthy of some additional consideration for
an appropriate sentence that was something less than the entire balance of his original sentence. Had Curry
been removed from the RID Program because of misconduct on his part, then we would consider it entirely
appropriate for him to be summarily returned to the general prison population to serve out the remainder
of his sentence. However, in this instance, when Curry’s inability to participate in the program arose from
a circumstance unknown to the sentencing court and one not traceable to any behavioral failing on Curry’s
part, we conclude that to require Curry to serve the entire balance of his sentence in the general prison
population does not necessarily reflect the evident intention of the trial court to devise an alternate sentence
that was less severe than this available option. Whether the circuit court, armed with knowledge of Curry’s
medical condition, would have arrived at a sentence that did not contemplate RID Program participation,
but that was nevertheless something less than the entire balance of Curry’s sentence cannot be answered
by this Court. That unanswered question on the present state of the record leads this Court to the
conclusion that there is at least a possibility, “[t]hat there exists evidence of material facts, not previously
presented and heard, that requires vacation of the . . . sentence in the interest of justice” within the meaning
of Section 99-39-5(1)(e) of the Mississippi Code. Miss. Code Ann. § 99-39-5(1)(e) (Supp. 2002).
Accordingly, we remand to the circuit court for purposes of conducting a hearing at which the circuit court
may reconsider Curry’s sentence if it determines that Curry’s medical condition is a “material fact” in the
matter of determining an appropriate sentence.
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¶7.
THE JUDGMENT OF THE PANOLA COUNTY CIRCUIT COURT DISMISSING THE
MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED BUT REMANDED FOR
RECONSIDERATION OF SENTENCING. COSTS OF THIS APPEAL ARE ASSESSED TO
PANOLA COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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