Kerry Louis Morgan v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-00428-COA
KERRY LOUIS MORGAN A/K/A BONES
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
2/28/2007
HON. ANDREW C. BAKER
YALOBUSHA COUNTY CIRCUIT COURT
KERRY LOUIS MORGAN (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DESHUN TERRELL MARTIN
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED-04/22/2008
BEFORE LEE, P.J., BARNES AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Kerry Louis Morgan was convicted of burglary and the aggravated assault of a police officer
on January 29, 2004, by the Circuit Court of Yalobusha County. He was sentenced to thirty years
in the custody of the Mississippi Department of Corrections (MDOC) but placed under a term of
twenty-eight years and eleven months of post-release supervision. Morgan was subsequently
arrested for forgery. As a result, his post-release supervision sentence was revoked by the trial
court, and he was remanded into the custody of the MDOC. Morgan appeals the trial court’s
dismissal of his motion for post-conviction relief contending: (1) he was denied due process of the
law, in violation of his Fifth and Fourteenth Amendment rights, where his probation or post-release
supervision was revoked without a sustained conviction of a crime or other violation of his release
and (2) the trial court erred in summarily dismissing his motion for post-conviction relief without
conducting an evidentiary hearing nor requiring the State to file an answer to the motion. Finding
no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On January 29, 2004, Morgan pleaded guilty to burglary of a dwelling and the aggravated
assault of a police officer in the Yalobusha County Circuit Court. Morgan was sentenced to thirty
years as a habitual offender under Mississippi Code Annotated Section 99-19-81 (Rev. 2007). He
was given credit for time served, amounting to three hundred and eighty-six days in the custody of
the MDOC. Upon release, Morgan was placed under a term of twenty-eight years and eleven
months of post-release supervision, with the first five years reporting to a probation officer. The
relevant terms of Morgan’s post-release supervision included that he commit no crimes, avoid
injurious or vicious habits, and avoid persons or places of disreputable character.
¶3.
Morgan was subsequently arrested on the charge of forgery. Based on this charge, the State
filed a petition to revoke his post-release supervision sentence. A hearing was held on March 11,
2005, at which the State put on evidence showing that Morgan committed four instances of forgery
in November 2004. Specifically, Morgan was accused of forging checks belonging to his stepfather
and attempting to use them at several businesses throughout Yalobusha County. After considering
the evidence, the trial court revoked Morgan’s post-release supervision and sentenced him to serve
twenty-eight years and eleven months in the custody of the MDOC.
¶4.
On December 4, 2006, Morgan filed a motion for post-conviction relief to vacate and set
aside the revocation of his suspended sentence. The motion was dismissed, and subsequently,
Morgan filed this appeal.
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STANDARD OF REVIEW
¶5.
This Court's standard of review for the denial of a motion for post-conviction relief is well
established. We will not alter the findings of the trial court unless they are clearly erroneous. Smith
v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002). Questions of law are reviewed de novo.
Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
ISSUES AND ANALYSIS
1.
¶6.
Whether Morgan was denied due process of the law where his post-release
supervision was revoked without the trial court finding him guilty of any crime
or other condition of release.
Morgan contends that he is being illegally confined and that his probation was unlawfully
revoked because the trial court failed to sustain a conviction of a crime or other term and condition
of release before directing Morgan to be confined in prison. Specifically, Morgan argues that even
though he was arrested and charged with forgery, he was never actually convicted of the crime.
Therefore, the trial court could not have held that he violated his probation. Accordingly, Morgan
argues that he was denied due process of the law in violation of his Fifth and Fourteenth Amendment
rights.
¶7.
“The minimum due process requirements applicable to probation revocation hearings were
set forth by the United States Supreme Court in Gagnon v. Scarpelli, 411 U.S. 778, 781-82, 36 L.
Ed. 2d 656, 93 S. Ct. 1756 (1973) [superceded by statute], and were incorporated into Mississippi
law through Miss. Code Ann. § 47-7-37 (Rev. 2000).” Payton v. State, 845 So. 2d 713, 719 (¶22)
(Miss. Ct. App. 2003). These requirements are:
(1) written notice of the claimed violations of probation; (2) disclosure to the
probationer of the evidence against him; (3) an opportunity to be heard in person and
to present witnesses and documentary evidence; (4) the right to confront and
cross-examine adverse witnesses (unless the hearing officer finds good cause for not
allowing such confrontation); (5) a neutral and detached hearing body or officer; and
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(6) a written statement by the fact finder as to the evidence relied on and reasons for
revoking the probation.
Id.
¶8.
We find that Morgan was accorded the minimum due process requirements to which he was
entitled at his revocation hearing. Morgan was given notice that he violated his probation and the
reasons thereof as outlined by the State’s petition to revoke his post-release supervision filed with
the court on December 30, 2004, and in its amended petition filed on January 5, 2005. Morgan
himself responded to the State’s petition by filing a motion to dismiss the petition. A revocation
hearing was held on April 13, 2005, at which Morgan represented himself. It was at this time that
the evidence against him was presented, and he was given an opportunity to be heard. Morgan was
also given the opportunity to cross-examine the State’s witnesses and call witnesses of his own. The
hearing was presided over by a detached and neutral judge of the Circuit Court of Yalobusha
County. Further, after hearing the evidence, the trial judge issued an order revoking Morgan’s
probation and outlining the reasons and authority supporting his decision. At this revocation
hearing, Morgan was afforded all due process rights to which he was entitled.
¶9.
Morgan’s only contention is that he should not have been held to have violated his probation
because he was never actually convicted of forgery. However, Morgan is wrong in his assertion that
the trial court was required to sustain a conviction of the second crime in order to revoke his
probation. It is not necessary that a defendant be convicted of crimes charged to suffer revocation
of his probation. Younger v. State, 749 So. 2d 219, 222 (¶12) (Miss. Ct. App. 1999) (citing Berdin
v. State, 648 So. 2d 73, 79 (Miss. 1994) (overruled on other grounds)). Further, “a hearing on a
petition to revoke probation is not a criminal case,” and therefore, “evidence for revocation does not
have to be beyond a reasonable doubt.” Ray v. State, 229 So. 2d 579, 581 (Miss. 1969). Instead,
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probation may be revoked upon a showing that the defendant "more likely than not" violated the
terms of probation. Younger, 749 So. 2d at 222 (¶12).
¶10.
As previously stated, a condition of Morgan’s probation was that he “commit no crimes.”
At the revocation hearing, the trial judge was presented with sufficient evidence to determine that
Morgan, more likely than not, committed four instances of forgery in violation of his probation.
This evidence included two eyewitnesses offered by the State who identified Morgan as the
perpetrator of the forgery. Further, Morgan’s mother, who was his only witness, testified that he
admitted to her that he committed the forgery. We find no error on the part of the trial court in
revoking Morgan’s probation and reinstating his original sentence. "[W]hen a defendant is found
to have violated the terms and conditions of his probation, the court has the power to ‘impose any
sentence which originally could have been imposed.’" Johnson v. State, 753 So. 2d 449, 455 (¶15)
(Miss. Ct. App. 1999) (quoting Leonard v. State, 271 So. 2d 445, 447 (Miss. 1973)). This claim for
relief is without merit.
2.
¶11.
Whether the trial court erred in dismissing Morgan’s post-conviction relief
motion without conducting an evidentiary hearing or requiring the State to file
an answer.
Morgan contends that he should have been granted an evidentiary hearing before the trial
court denied his post-conviction relief motion. He argues that an evidentiary hearing was necessary
because the court failed to sustain a conviction of a crime before revoking his probation. Further,
the revocation was based solely upon the information and allegations made by the State at the
revocation hearing.
¶12.
A trial court enjoys wide discretion in determining whether to grant an evidentiary hearing.
Hebert v. State, 864 So. 2d 1041, 1045 (¶11) (Miss. Ct. App. 2004). Accordingly, "[n]ot every
motion for post-conviction relief filed in the trial court must be afforded a full adversarial hearing."
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Id. The statute relating to post-conviction relief includes the following provision: “If it plainly
appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that
the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the
prisoner to be notified.” Miss. Code Ann. § 99-39-11(2) (Rev. 2007). "Furthermore, where the trial
court summarily dismisses the post-conviction relief claim, it does not have an obligation to render
factual findings and ‘this Court will assume that the issue was decided consistent with the judgment
and . . . will not be disturbed on appeal unless manifestly wrong or clearly erroneous.’" Culbert v.
State, 800 So. 2d 546, 550 (¶9) (Miss. Ct. App. 2001) (quoting Par Indus., Inc. v. Target Container
Co., 708 So. 2d 44, 47 (¶4) (Miss. 1998)).
¶13.
We find that the trial court's dismissal is consistent with the evidence and testimony
presented in the record. Accordingly, we find this issue to be without merit.
¶14.
THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES,
ROBERTS AND CARLTON, JJ., CONCUR.
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