Eugene A. Loisel, III v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01807-COA
EUGENE A. LOISEL, III
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
09/16/2007
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
EUGENE A. LOISEL III (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
- DENIED
AFFIRMED-11/25/2008
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
In October 2005, Eugene A. Loisel III pleaded guilty in the Circuit Court of Harrison
County to robbery. Loisel was given a sentence of ten years, with two years to be served in
the custody of the Mississippi Department of Corrections, eight years suspended, and three
years of post-release supervision.
¶2.
After serving two years in the custody of the MDOC, Loisel was released and
committed to the Department of Corrections Restitution-Correctional Center in Pascagoula,
Mississippi. Successful completion of his commitment to the Restitution-Correctional
Center was a condition of his probation. After receiving two rule violation reports from the
Restitution-Correctional Center, the circuit court revoked Loisel’s probation in October
2006. He was subsequently sentenced to seven years in the custody of the MDOC and given
credit for time served.
¶3.
Aggrieved, Loisel now appeals, asserting that: (1) his waiver of a preliminary
revocation hearing was not knowing, intelligent, or voluntary; (2) the circuit court denied
Loisel his due process rights by failing to take into account the fact that Loisel was on
medication before revoking his probation; (3) the circuit court denied Loisel his due process
rights by failing to provide a written statement setting forth the basis of why his probation
was revoked; (4) the circuit court denied Loisel his due process rights by failing to find him
guilty of a crime before revoking his probation; and (5) Loisel was prejudiced when the
original circuit court judge in his post-conviction proceedings recused herself and assigned
another judge to his case. Finding no error, we affirm the judgment of the circuit court
denying Loisel’s motion for post-conviction relief.
STANDARD OF REVIEW
¶4.
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 circuit 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).
DISCUSSION
(1) Loisel was not coerced into signing a preliminary hearing waiver.
¶5.
Loisel argues that he was coerced into signing a waiver of his right to a preliminary
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revocation hearing under Rule 32.1 of the Federal Rules of Criminal Procedure. Loisel is
correct that Rule 32.1 deals with revoking or modifying probation or supervised release and
that a waiver of the preliminary hearing guaranteed under Rule 32.1(b)(1) must be voluntary;
however, this rule does not apply in Loisel’s case.
¶6.
First, the Federal Rules of Criminal Procedure are federal rules. Even if Loisel had
signed a federal waiver in relation to this case, it would have no bearing. Loisel was
incarcerated and released on probation by the State of Mississippi; therefore, he is subject
to Mississippi’s rules governing criminal procedure and probation revocation. Second, the
record does not reflect that Loisel ever signed such a waiver. It is possible that he is
confused on this issue, and that he actually signed another waiver and misrepresented it as
a federal waiver in his brief. Accordingly, we find that this issue is without merit.
(2) Loisel was not denied due process by any failure of the circuit court to take note
of his medications.
¶7.
Loisel asserts that during his revocation hearing, he was on medication for depression
and anxiety. As a result, he claims that he felt “extremely uncomfortable” at the hearing and
was denied due process. “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 as follows:
(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
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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 (6) a written statement by the fact-finder as to the
evidence relied on and reasons for revoking the probation.
Id.
¶8.
Nothing in the record indicates that the subject of Loisel’s medications or mental state
was ever brought up during the initial revocation hearing in relation to that proceeding. His
previous problems with depression and anxiety were noted by the circuit court. The first
reference to his medications and mental state with respect to a proceeding occurred during
the hearing to reconsider his sentence after his probation was revoked, when his counsel said
that there were some things Loisel wanted to say, but did not as a result of his anxiety.
Loisel provides no cogent argument on how his feeling “extremely uncomfortable” during
the initial revocation hearing resulted in a denial of due process. He was represented by
counsel and given an opportunity to be heard, to present evidence, and to examine witnesses.
Therefore, we find that this argument is without merit.
(3) Loisel was not otherwise denied due process.
¶9.
In his third and fourth issues, which we will combine, Loisel asserts that the circuit
court erred in refusing his motion for post-conviction relief and that this resulted in the
denial of his due process. First, Loisel contends that he was denied due process by the
circuit court’s failure to provide a written statement of the reasons why his probation was
revoked. However, the record shows that the circuit court judge provided a written order in
which he found that Loisel admitted at the revocation hearing to violating his probation, and
it was this admission that served as the basis for the revocation. Loisel did, in fact, admit to
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receiving two rule violation reports and to being discharged from the RestitutionCorrectional Center. We find that this was an adequate basis for the circuit court to
determine that he violated his probation.
¶10.
Next, Loisel contends that he was denied due process by the circuit court’s failure to
require that he be found “guilty” of a crime before revoking his probation. Loisel argues that
a defendant must be found guilty of a crime before his probation may be revoked. He
believes that because he never appeared before a disciplinary committee for his rule
violations, he was never found “guilty” of a crime, and the revocation of his probation
should be reversed.
¶11.
To the contrary, “our supreme court has stated that a conviction is not necessary to
revoke probation. Probation may be revoked upon a showing that the defendant ‘more likely
than not’ violated the terms of probation.” Younger v. State, 749 So. 2d 219, 222 (¶12)
(Miss. Ct. App. 1999) (citation omitted). In this case, Loisel failed to contest one of the two
rule violations at the revocation hearing. Furthermore, the requirement of his probation
agreement was that he successfully complete his commitment at the Restitution-Correctional
Center. The center discharged him because he violated the rules; therefore, he did not
successfully complete his commitment. We agree with the circuit court that there was
sufficient evidence to determine that Loisel “more likely than not” violated the terms of his
probation agreement. Accordingly, we find that this issue is without merit.
(4) Loisel was not prejudiced by the assignment of another circuit court judge to his
case.
¶12.
Finally, Loisel argues that he was prejudiced because the original circuit court judge
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who was assigned to his post-conviction relief case recused herself, rescinded a previous
order setting a date for the State to respond to his petition, and assigned another judge to his
case. However, Loisel does not cite any authority to support his argument, nor does he offer
any evidence to show how he was prejudiced. As a result, we find that his argument on this
issue is without merit.
¶13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS,
BARNES, ROBERTS AND CARLTON, JJ., CONCUR.
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