Billy Lloyd Ray v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-01824-COA
BILLY LLOYD RAY
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/5/2006
HON. ROBERT P. KREBS
JACKSON COUNTY CIRCUIT COURT
BILLY LLOYD RAY (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
AFFIRMED: 03/04/2008
BEFORE MYERS, P.J., GRIFFIS AND CARLTON, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
After entering a guilty plea to the charge of sexual battery, Billy Lloyd Ray was sentenced
to ten years with one year to serve and nine years suspended. Ray was placed on post-release
supervision for nine years. Following a revocation hearing held on April 30, 2004, the circuit court
found that Ray had violated the conditions of his post-release supervision and sentenced him to serve
the remaining nine years of his sentence in the custody of the Mississippi Department of Corrections.
Ray then filed a motion for post-conviction relief that was denied by the circuit court. On appeal,
Ray argues that: (1) there is insufficient credible evidence to support his convictions for domestic
violence and disorderly conduct, (2) he entered guilty pleas to domestic violence and disorderly
conduct only because his attorney told him to do so, (3) his sentence is illegal, (4) the circuit court
did not have jurisdiction to revoke his post-release supervision, (5) his due process rights were
violated at the revocation hearing, and (6) he was denied effective assistance of counsel. We find
no error and affirm.
FACTS
¶2.
Ray was indicted as a habitual offender in Washington County on charges of kidnaping, rape,
sexual battery, and directing or causing a felony to be committed by a person under seventeen years
of age. On November 17, 1999, he entered a guilty plea to the crime of sexual battery and was
sentenced to ten years with one year to serve and nine years suspended. Ray was placed on postrelease supervision for nine years.
¶3.
On April 30, 2004, a revocation hearing was held in the Circuit Court of Jackson County to
determine whether Ray had violated the terms of his post-release supervision. At that hearing, the
State alleged that Ray had violated the following conditions:
1.
2.
offender failed to remain free of firearms by having several weapons in his
residence,
3.
offender failed to abide by the law by being arrested and charged with
possession of a weapon by a convicted felon, domestic violence, simple
assault, possession of spotted fawn, and illegal possession of a deer at night,
4.
offender failed to avoid injurious and vicious habits by testing positive for
controlled substances and using alcoholic beverages, and
5.
¶4.
offender failed to remain free from controlled substances by testing positive
for the illegal drug, marijuana, in samples obtained on March 3, 2003, and
December 16, 2003,
offender failed to pay the Court of Washington County.
At the revocation hearing, Ray, through counsel, confessed that he had violated the terms of
his post-release supervision by testing positive for marijuana on March 3, 2003, and December 16,
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2003. Each of the other alleged violations arose from an incident involving Ray’s wife, which
occurred on December 16, 2003.
¶5.
That day, Mrs. Ray called 911 to report that Ray was pointing a rifle at her and threatening
to kill her. The following day, the police placed Ray in custody and conducted a search of the home.
They found a muzzle loader, a .22 rifle, and a 12-gauge shotgun inside the house. A .270 bolt action
rifle was found in a shed behind the house. Mrs. Ray told the investigating officer that, on the
previous night, she walked behind the shed and found Ray fondling her eighteen-year-old daughter
while his pants were down. Then, as she tried to leave with her children, Ray stood at the doorway
of the vehicle, pointed the rifle at her, and threatened to kill her. As a result of the incident, Ray
pleaded guilty to misdemeanor charges of domestic violence and disorderly conduct.
¶6.
During her testimony at the revocation hearing, Mrs. Ray changed her account of the events
of December 16, 2003. She testified that she saw Ray and her daughter behind the shed but his pants
were not down, and he was not fondling her daughter. She also testified that Ray tried to keep her
from leaving, but he did not threaten her with a gun. Mrs. Ray further claimed that none of the guns
found in the home belonged to Ray.
¶7.
After the hearing, the circuit court revoked Ray’s suspended sentence and post-release
supervision, sentencing him to serve nine years in prison. The circuit court stated that the grounds
for the revocation were Ray’s admission that he smoked marijuana and his guilty pleas for domestic
violence and disturbing the peace. We now consider the appeal of the circuit court’s denial of Ray’s
motion for post-conviction relief.
STANDARD OF REVIEW
¶8.
A trial court’s denial of post-conviction relief will not be reversed absent a finding that the
trial court’s decision was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct.
3
App. 2002). However, when reviewing issues of law, this Court’s proper standard of review is de
novo. Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
ANALYSIS
1.
¶9.
Sufficiency of the Evidence
The majority of Ray’s argument on appeal is that the circuit court’s revocation of his post-
release supervision was based on events fabricated by his wife; thus, there is not sufficient evidence
to uphold his convictions for domestic violence and disorderly conduct. Ray argues that “this entire
case was based on Mrs. Ray’s lies to have him put in prison.” Both he and Mrs. Ray now contend
that Ray did not fondle her daughter or threaten to kill her with the rifle. Instead, Ray argues that,
because his wife allegedly lied about Ray’s actions that resulted in charges of domestic violence and
disorderly conduct, his post-release supervision should not have been revoked based on those
allegations.
¶10.
Ray entered guilty pleas to both domestic violence and disorderly conduct. “A guilty plea
operates to waive the defendant’s privilege against self-incrimination, the right to confront and
cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution
prove each element of the offense beyond a reasonable doubt.” Jefferson v. State, 556 So. 2d 1016,
1019 (Miss. 1989).
¶11.
This Court decided a similar issue in Steele v. State, 845 So. 2d 758 (Miss. Ct. App. 2003).
There, the defendant also argued that the evidence was insufficient to uphold his conviction despite
the fact that he entered a guilty plea. Id. at 759 (¶4). We declined to address the issue because, by
pleading guilty, the opportunity to have a jury review the sufficiency of the evidence had been
waived. Id. Similarly, Ray argues that there is insufficient evidence to uphold his criminal
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convictions which resulted in the revocation of his post-release supervision. However, Ray waived
this argument by entering his guilty pleas. That being so, we decline to review the issue.
2.
¶12.
Validity of Ray’s Guilty Pleas
Ray argues that the only reason he pleaded guilty to domestic violence and disorderly conduct
was because he was told to do so by the public defender. Ray fails to offer any evidence of this
allegation. This Court is required to “decide each case by the facts shown in the record, not
assertions in the brief, however sincere [Ray] may be in those assertions. Facts asserted to exist must
and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we
cannot know them.” Mason v. State, 440 So. 2d 318, 319 (Miss. 1983).
¶13.
Ray failed to raise this issue until his motion for post-conviction relief. No evidence was
presented at the revocation hearing about the validity of his guilty pleas. Because there is no proof
in the record that the pleas are invalid, this issue has no merit.
3.
¶14.
Illegal Sentence
Ray claims that his sentence for sexual battery is an illegal sentence. He was sentenced to
ten years, the first year to serve and the remaining nine years suspended conditioned upon his
obedience to the terms of nine years of post-release supervision. Ray argues that the nine years of
post-release supervision violates the maximum of five years of post-release supervision by the
Mississippi Department of Corrections (“MDOC”) that is allowed by statute. Mississippi Code
Annotated section 47-7-34(3) (Rev. 2004) states that the “maximum amount of time that the
Mississippi Department of Corrections may supervise an offender on the post-release supervision
program is five (5) years.”
¶15.
However, the supreme court has made it clear that post-release supervision is not limited to
five years. “While the statute unquestionably limits to five years the period of time that the MDOC
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may supervise an offender who is on post-release supervision, the clear language of the statute does
not limit the total number of years of post-release supervision to five years.” Miller v. State, 875 So.
2d 194, 199 (¶10) (Miss. 2004). The MDOC has the responsibility of monitoring the convicted
defendant for the first five years after which the court assumes that responsibility for the remainder
of the term of post-release supervision. Johnson v. State, 925 So. 2d 86, 102 (¶30) (Miss. 2006).
This period after the first five years is known as “unsupervised” or “non-reporting” post-release
supervision. Id. The statute imposes a limit on the burden that a court may place on the MDOC to
supervise a defendant. But, as the supreme court noted, “the court is not so limited concerning the
burden it may place on itself by way of monitoring a defendant’s behavior while the defendant is
serving a [term of] ‘non-reporting’ post-release supervision.” Id. Thus, Ray’s argument that his
sentence was illegal is flawed because, while it is true that he will only be supervised by the MDOC
for a maximum of five years, he remains under the supervision of the court for the portion of the
sentence above that five years. We find that Ray’s sentence imposed by the circuit court is valid;
thus, this issue has no merit.
4.
¶16.
Jurisdiction of the Circuit Court of Jackson County
Ray contends that the Circuit Court of Jackson County did not have jurisdiction to revoke
his post-release supervision that was imposed by a different court. This argument fails because the
circuit court of the district where the defendant is arrested has the power “to continue or revoke all
or any part of [post-release supervision].” Miss. Code Ann. § 47-7-37 (Rev. 2004). In its order
denying Ray’s motion for post-conviction relief, the circuit court properly held that it had jurisdiction
to revoke Ray’s post-release supervision because Ray was arrested and pleaded guilty to crimes that
occurred in Jackson County. Accordingly, this issue has no merit.
5.
Violation of Due Process
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¶17.
Ray claims that there were several violations of his right to due process, which occurred
during the revocation hearing. Such alleged violations include: (1) the circuit judge showed bias by
allowing the district attorney to bring forth false allegations by Ray’s wife, (2) the district attorney
made false statements about Ray, and (3) the district attorney improperly introduced evidence of
Ray’s conviction for sexual battery.
¶18.
The minimum requirements of due process, applicable in a revocation hearing, include
written notice of the claimed violations of probation, disclosure to the probationer of the evidence
against him, an opportunity to be heard and to present witnesses and evidence, the right to confront
and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement
by the fact-finders as to the evidence relied on and the reasons for revoking probation. Riely v. State,
562 So. 2d 1206, 1210 (Miss. 1990). There is no indication in the record, and, in fact, Ray does not
argue, that any of these requirements were not met here.
¶19.
Almost the entire hearing consisted of controverted evidence about whether Mrs. Ray lied
about Ray’s actions on December 16, 2003. There was also mention of Ray’s prior conviction of
sexual battery. However, this evidence was not necessary to revoke Ray’s post-release supervision.
Indeed, the circuit judge based the revocation on the guilty pleas entered by Ray and his admission
that he tested positive for marijuana. The circuit judge stated:
Well, Mr. Ray, I could put a lot in the record about the credibility of [your wife], but
that’s not necessary to the Court. You’ve violated the terms of your probation. You
admitted smoking marijuana, you’ve pled guilty to two charges in county court, and
that’s all I need to hear.
Because the alleged due process violations listed above in no way affected the circuit judge’s
decision to revoke Ray’s post-release supervision, we find no reversible error.
¶20.
Additionally, Ray claims that it was a violation of due process that: (1) only statements and
not actual evidence of the drug test were admitted and (2) his probation officer refused to allow him
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to take a second drug test after he informed her that he was taking prescription medication that
caused him to test positive for marijuana. Again, the record of the revocation hearing shows no
evidence of any violation of the minimum due process requirements. Most importantly, Ray had an
opportunity to present this argument at the revocation hearing. There, he had the chance to produce
witnesses and evidence regarding his medical condition and the drugs prescribed by his physician.
Instead, Ray admitted that he had used marijuana and eliminated the need for the district attorney
to produce further evidence of the drug test.
¶21.
We also note that Ray’s admission regarding the marijuana use was not necessary for the
circuit judge to revoke his post-release supervision. His convictions for domestic violence and
disorderly conduct were sufficient in and of themselves to support the revocation; thus, error as to
evidence of his marijuana use, if any, was harmless in nature. This issue has no merit.
6.
¶22.
Ineffective Assistance of Counsel at the Revocation Hearing
Ray claims that he was denied his right to effective assistance of counsel because of
deficiencies in his representation at the revocation hearing. He asserts the following errors: (1)
counsel admitted that Ray had tested positive for marijuana use and (2) counsel did not object to the
introduction into evidence of “false allegations” of charges that had previously been dismissed.
¶23.
To prove ineffective assistance of counsel, a defendant must show that: (1) his counsel’s
performance was deficient and (2) this deficiency prejudiced his defense. Strickland v. Washington,
466 U.S. 668, 687 (1984). The burden of proof rests with the defendant to show both prongs of the
Strickland test. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Under Strickland, there is
a strong presumption that counsel’s performance falls within the range of reasonable professional
assistance. Strickland, 466 U.S. at 689. To overcome this presumption, “[t]he defendant must show
that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of
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the proceeding would have been different.” Id. at 694. In cases involving post-conviction relief,
“where a party offers only his affidavit, then his ineffective assistance claim is without merit.”
Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995).
a.
¶24.
Admission of Marijuana Use
During the revocation hearing, Ray’s counsel announced to the circuit court that Ray
admitted testing positive for marijuana on March 3, 2003, and December 16, 2003. Now Ray claims
that he never admitted to counsel that he smoked marijuana, but instead he told counsel that he was
on medication prescribed by his doctor that caused the drug test to come back positive. Even
assuming that this is true, Ray has failed to show any prejudice caused by this admission. The
admission was one of the circuit judge’s reasons for revoking Ray’s post-release supervision;
however, his guilty pleas for domestic violence and disorderly conduct were sufficient for revocation
without considering the marijuana violation. Ray has not shown that, but for the alleged error, the
outcome of the hearing would have been any different. According, this issue has no merit.
b.
¶25.
Evidence of Charges That Were Dismissed
Ray further claims that counsel’s lack of objection to his probation officer’s testimony
constitutes ineffective assistance of counsel. He states that the probation officer testified to “false
allegations of charges that had been dismissed,” including charges of being a felon in possession of
a weapon, possession of a spotted fawn, and illegal possession of a deer at night. Once again, he
fails to show how this alleged error resulted in any type of prejudice. Even if counsel had objected
and there had been no testimony about the charges that were dismissed, that still leaves Ray’s
convictions for domestic violence and disorderly conduct. Those alone were enough to revoke his
post-release supervision; thus, Ray has not shown that the outcome would have been different absent
9
the alleged error by counsel. We find no showing of ineffective assistance of counsel. This issue
has no merit.
7.
¶26.
Ineffective Assistance of Counsel at the Plea Hearing
Ray also contends that his attorney, who provided representation when he entered his guilty
pleas for domestic violence and disorderly conduct, was ineffective. Specifically, he claims that he
would not have entered guilty pleas if counsel had warned him that such pleas would be grounds for
revoking his post-release supervision. However, Ray has not presented any proof of this alleged
deficiency. He offers only his affidavit; thus, his ineffective assistance claim is without merit. See
Vielee, 653 So. 2d at 922.
8.
¶27.
Inconsistency Between the Circuit Court’s Oral Pronouncement of Revocation and
the Written Sentencing Order
In its brief, the State brings our attention to the inconsistency that exists between the oral
pronouncement of revocation and the written sentencing order. At the conclusion of the revocation
hearing, the circuit judge found that Ray had admitted to smoking marijuana and had pleaded guilty
to criminal charges. These were the sole reasons that the circuit judge announced as grounds for the
revocation. However, in the written order, the circuit judge not only included the foregoing reasons,
but also, he included all of the other violations alleged by the district attorney at the hearing. Ray
does not specifically state this as an error, but we may infer that he claims such as error due to his
extensive argument concerning violations that were not orally pronounced by the circuit judge.
¶28.
A majority of jurisdictions hold that, where an oral pronouncement and a written order
conflict, the oral pronouncement controls. See Boutwell v. State, 847 So. 2d 294, 295-96 (¶¶6-8)
(Miss. Ct. App. 2003). Here, however, it is not necessary that we consider the differences between
the oral pronouncement and the written order. The violations pronounced by the circuit judge
included Ray’s admission of marijuana use and his guilty pleas for domestic violence and disorderly
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conduct. Either of these violations was more than sufficient to revoke his post-release supervision.
The only inconsistency is that the court’s written order contains violations that were not included in
the court’s oral pronouncement. Indeed, this does not create a true ambiguity because the same
violations pronounced by the circuit judge at the hearing were also included in the written order. The
intent of the circuit judge is clear and no direct conflict exists.
¶29.
Indeed, there is no ambiguity that would allow Ray to be entitled to relief. Ray’s sentence
was clear and not ambiguous. Both the circuit court’s oral pronouncement and the written order
sentenced Ray to serve nine years in prison. Since there is no ambiguity as to the violations in both
the oral pronouncement and the written order, we hold that the additional violations included in the
written order constitute harmless error.
¶30. THE JUDGMENT OF THE CIRCUIT COURT OF JACKSON COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO JACKSON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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