Brian Wesley Creel v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-01723-COA
BRIAN WESLEY CREEL
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
8/2/2004
HON. ROBERT P. KREBS
JACKSON COUNTY CIRCUIT COURT
SAMUEL L. TUCKER
OFFICE OF THE ATTORNEY GENERAL
BY:
BILLY GORE
ANTHONY N. LAWRENCE, III
CIVIL - POST-CONVICTION RELIEF
REQUEST FOR POST-CONVICTION RELIEF
DENIED.
REVERSED AND REMANDED-11/01/2005
EN BANC.
ISHEE, J., FOR THE COURT:
¶1.
Brian Wesley Creel (“Creel”) filed a motion for post-conviction relief on June 11, 2004, which
Circuit Judge Robert P. Krebs denied. Aggrieved, Creel appeals. Finding error, we reverse and remand.
FACTS
¶2.
On September 2, 1999, Creel entered pleas of guilty to multiple counts of burglary of a dwelling
and grand larceny. On September 7, 1999, Jackson County Circuit Judge Kathy King Jackson sentenced
Creel to ten years for each count, with all sentences to run concurrently. In addition, Judge Jackson
recommended that Creel participate in the Regimented Inmate Discipline (“RID”) program, and retained
jurisdiction of the case pending Creel’s completion of the program. Creel completed the RID program,
and on March 23, 2000, Circuit Judge James Backstrom released Creel from MDOC custody on his own
recognizance pending a re-sentencing hearing. Creel’s re-sentencing hearing was originally scheduled for
April 6, 2000. However, because Creel suffered recurring medical problems and hospitalization, the
hearing was continued several times, and ultimately never occurred.
¶3.
In April 2004, Creel, still acting on his own recognizance, was detained pursuant to a traffic stop
and again placed in the custody of the MDOC to serve the remainder of his original ten year sentence.
Creel stated that this instance was the first notice he had that the MDOC still considered him to be subject
to its custody.
¶4.
On June 11, 2004, Creel filed a motion requesting post-conviction relief in the Circuit Court of
Jackson County. Judge Robert Krebs denied Creel’s motion, stating that he did not have jurisdiction to
re-sentence Creel due to the passage of more than one year following Creel’s placement into custody of
the MDOC. Aggrieved by this decision, Creel appeals, asserting that the trial court was in error in holding
that it did not have jurisdiction to re-sentence him.
STANDARD OF REVIEW
¶5.
In order for this Court to overturn a lower court’s denial of post-conviction relief, we must find that
the findings of the lower court were clearly erroneous. McClinton v. State, 799 So. 2d 123, 126 (¶4)
(Miss. Ct. App. 2001).
ISSUES AND ANALYSIS
¶6.
Mississippi Code Annotated § 47-7-47 (Rev. 2004) states, in pertinent part:
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(2)(a) Any circuit court or county court may, upon its own motion, acting upon the advice
and consent of the commissioner not earlier than thirty (30) days nor later than one (1) year
after the defendant has been delivered to the custody of the department to which he has
been sentenced, suspend the further execution of the sentence and place the defendant on
earned probation . . . .
In denying Creel’s motion for post-conviction relief, the circuit court judge sub judice reasoned that this
portion of § 47-7-47 prevented him from exercising jurisdiction to re-sentence Creel. We disagree.
¶7.
While there is scant law on the matter, the reasoning applied by the Mississippi Supreme Court in
Jenkins v. State, 733 So. 2d 833 (Miss. 1999) seems fully applicable to Creel’s situation. The appellants
in Jenkins had been released on appeal bond and did not serve more than one year in the MDOC’s
custody, even though more than one year passed before the lower court finally sentenced the appellants.
Id. at 835 (¶6). Creel was sentenced on September 7, 1999, and released by Judge Backstrom on March
23, 2000, pending re-sentencing. We find no significant difference in being released on appeal bond after
being in the custody of the MDOC for less than one year and being released pending re-sentencing after
completion of the RID program after approximately seven months.
¶8.
The Jenkins court clearly held “that the appellants were released on appeal bond shortly after
sentencing and have not served more than one year in the custody of the [MDOC],” thus holding that
continuous, actual physical custody of the defendant is required. Id. Therefore, where the defendant is at
liberty under bail, the time period is suspended for the purposes of this statute. It would then be
counterintuitive to label Creel as being “in custody” when he was released upon his own recognizance and
acting as an unincarcerated member of society. Persons “in custody” of the MDOC generally would not
even have the opportunity to be detained subsequent to a traffic stop, as Creel obviously did.
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¶9.
Furthermore, whatever “custody” the MDOC had over Creel during his participation in the RID
program was much more limited than that contemplated by § 47-7-47. Somewhat helpful is a 2004
opinion by the Mississippi Attorney General, which states in part:
It is our opinion that [Mississippi Code Annotated § 47-7-47] necessarily implies that the
[MDOC] does have the authority to accept limited custody of persons for the sole
purpose of participating in and completing a RID program as a condition of nonadjudication. Such person would not be an “inmate” or “convict.”
Regimented Inmate Discipline Program, Op. Att’y Gen. 2004-0275 (2004) (emphasis added). While
opinions of the Mississippi Attorney General are not binding on this Court, and this opinion specifically
deals with participation in the RID program as a condition of non-adjudication, this opinion nevertheless
reflects the view that, due to Creel’s status of being released on his own recognizance upon completion of
the RID program, he was not “in custody” so as to place him within the ambit of § 47-7-47. Creel’s time
in the RID program constituted only limited “custody” and even that “custody” ended when he was
released upon successful completion of the program. Judge Krebs, in asserting that he lacked jurisdiction
to re-sentence Creel, opined that Creel became an inmate as of the moment of his sentencing on September
7, 1999, and had not ceased to be classified as such. Creel was neither an “inmate” nor “in custody” of
the MDOC after being released pending re-sentencing. It seems illogical that Creel was in only limited
custody for little more than seven months, which is well under § 47-7-47's time frame, and yet would be
barred from receiving the same relief as the similarly situated appellants in Jenkins. That type of reasoning
would prohibit a trial judge from revoking a defendant’s probation after one year from the initial sentencing
date.
¶10.
Furthermore, the reason that Creel did not receive his re-sentencing hearing earlier was due to
documented serious health problems for which numerous continuances were obtained delaying the date of
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such hearing. It would create an injustice to allow Creel’s health problems to prevent him from receiving
the re-sentencing originally contemplated. For the above reasoning, we find that the trial court was clearly
erroneous in finding that it did not have jurisdiction to re-sentence Creel. Accordingly, we reverse and
remand for proceedings consistent with this opinion.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DENYING
POST-CONVICTION RELIEF IS REVERSED AND REMANDED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO JACKSON COUNTY.
KING, C.J., MYERS, P.J., CHANDLER AND BARNES, JJ., CONCUR. LEE, P.J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY BRIDGES, IRVING AND
GRIFFIS, JJ. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION.
LEE, P.J., DISSENTING:
¶12.
With respect to the majority, I dissent. I cannot find that the trial judge erred in denying Creel’s
motion for post-conviction relief. In ruling that he had no jurisdiction to reconsider Creel’s sentence, the trial
judge, relying upon Section 47-7-47, stated:
The plaintiff [Creel] was actually in the custody of the MDOC, and since the Court never
had the opportunity to reconsider the original sentence (ten years) within the one (1) year
limitation, that sentence remains currently in effect. While there is scant case law giving this
Court guidance on this unique situation, there is ample case law regarding the illegality and
consequences of a Court’s revisiting sentences where they have no jurisdiction to do so.
¶13.
The majority finds Jenkins v. State, 733 So. 2d 833 (Miss. 1999), to be persuasive, finding that
being released on appeal bond is similar to being released pending re-sentencing. However, I would agree
with the trial judge’s determination that Jenkins was inapplicable to Creel’s situation as the appellants in
Jenkins were not in custody of the MDOC and Creel was, in fact, in custody of the MDOC pending resentencing.
¶14.
Furthermore, the majority states that failing to grant Creel relief as the supreme court did for the
appellants in Jenkins would amount to prohibiting a trial judge from revoking a defendant’s probation after
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one year from the initial sentencing date. Clearly this is not the case as trial judges have the authority to
revoke a defendant’s probation if the defendant has been shown to violate the terms of probation, regardless
of whether one year has passed from the initial sentencing date.
¶15.
As I do not find that the trial judge erred in denying Creel’s motion for post-conviction relief, I
respectfully dissent.
BRIDGES, IRVING AND GRIFFIS, JJ., JOIN THIS SEPARATE WRITTEN OPINION.
IRVING, J., DISSENTING:
¶16.
I agree with the dissent authored by Judge Lee. However, I write briefly to comment upon what
appears to me to be a fact assumed by the majority: that Creel had a right to be resentenced following his
completion of the RID program. That is not the case. In the initial sentencing order, Creel was sentenced
to ten years is the custody of the Mississippi Department of Corrections (MDOC). I quote the relevant
portion of that order:
IT IS THEREFORE ORDERED that the defendant is hereby sentenced as follows:
1.
To serve a period of 10 years in the custody of the Mississippi Department of
Corrections on each count all to run concurrently.
2.
The Court recommends placement in the RID Program. This Court directs the
Mississippi Department of Corrections to send a letter to this Court upon the
defendant’s completion of the RID Program.
3.
The Court retains jurisdiction for all purposes, including but not limited to: placing
the Defendant on probation, consideration of non-adjudication, payment of court
costs, fines restitution, Mississippi Crime Lab fees if applicable, and/or district
attorney’s check unit fees if applicable.
4.
Further, the Defendant is remanded to the custody of the sheriff.
ORDERED on September 7, 1999.
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¶17.
Creel’s assertion that he did not know that he was still under the jurisdiction of the Mississippi
Department of Corrections is untenable. His initial sentencing order was clear. Perhaps some uncertainty
or confusion arose when he was erroneously released by the MDOC. However, the sentencing order
required that the sentencing judge be notified upon Creel’s completion of the RID Program, not that Creel
be released from either custody or the MDOC’s jurisdiction. That uncertainty or confusion may have been
enhanced by Judge Backstrom’s action in releasing Creel on Creel’s recognizance, but neither of these
events obliterates the fact that Creel was given a definite sentence of ten years in the custody of the MDOC.
¶18.
Even though this situation is unfortunate, I cannot agree that the trial court erred in denying post-
conviction relief when Creel never had a right to be resentenced. There was certainly good reason to
believe that he would be resentenced, but that does not equate to a right. He had already received a
definite sentence.
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