Kenneth S. Cunningham v. Mississippi Department of Corrections

• Court: Court of Appeals of Mississippi
• Decided: May 17, 2022
• Docket: 2021-CP-00428-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CP-00428-COA

KENNETH S. CUNNINGHAM APPELLANT

v.

MISSISSIPPI DEPARTMENT OF APPELLEE CORRECTIONS

DATE OF JUDGMENT: 03/31/2021 TRIAL JUDGE: HON. MARGARET CAREY-McCRAY COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: KENNETH CUNNINGHAM (PRO SE) ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KIMBERLY PINE TURNER MELISSA ASHLEY MARTIN GRAY NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: AFFIRMED - 05/17/2022 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE WILSON, P.J., McDONALD AND SMITH, JJ.

SMITH, J., FOR THE COURT:

¶1. Kenneth Cunningham sought administrative-remedy relief through the Administrative

Remedy Program (ARP) of the Mississippi Department of Corrections (MDOC). Following

MDOC’s denials of his two ARP requests, Cunningham filed an unsuccessful motion for

judicial review in the Sunflower County Circuit Court. Because we find no reversible error

in the circuit court’s denial of Cunningham’s motion for judicial review, we affirm the circuit

court’s judgment.

FACTS

¶2. On June 12, 2014, Cunningham was arrested in Neshoba County, Mississippi, on three separate charges of possession of controlled substances. On August 5, 2015, Cunningham

was transferred to Lauderdale County, Mississippi. In March 2016, Cunningham was

convicted in Neshoba County in Cause Number 15-CR-0091-NS-C and was sentenced to

time already served as reflected on his commitment order. Cunningham’s time served

included the 419 days of pretrial detention he spent in Neshoba County before his transfer

to Lauderdale County. In August 2016, Cunningham was convicted in Lauderdale County

in Cause Numbers 253-14 and 292-14 and sentenced as a habitual offender to serve

consecutive terms of seven years followed by one day of a twenty-five-year term in MDOC’s

custody.

¶3. On November 27, 2018, Cunningham filed a request for an administrative remedy

through MDOC’s ARP. Cunningham claimed that he was never sentenced in Neshoba

County and that his 419 days of pretrial detention in Neshoba County should be credited

toward the sentences he was currently serving for Cause Numbers 253-14 and 292-14. After

finding that Cunningham’s request exceeded the time limit for filing a grievance, MDOC

denied the request as untimely. On June 13, 2019, Cunningham filed a second request

through MDOC’s ARP. MDOC denied the second request because it raised the same issue

that had been addressed in the denial of Cunningham’s first request. Aggrieved by MDOC’s

denials of his administrative-remedy requests, Cunningham filed a motion for judicial review

in the Sunflower County Circuit Court.

¶4. By its order filed on March 31, 2021, the circuit court addressed Cunningham’s

motion for judicial review. The circuit court found that the relief sought in Cunningham’s

2 ARP requests involved the computation of his sentence and that, if meritorious, the matter

could affect the remaining amount of time Cunningham served in custody. As a result, the

circuit court concluded MDOC had erred by simply denying Cunningham’s first

administrative-remedy request as time-barred. The circuit court further found, however, that

Cunningham’s 419 days of pretrial detention in Neshoba County had been applied toward

his sentence in Neshoba County in Cause Number 15-CR-0091-NS-C. As a result, the circuit

court held the same time could not also be applied toward Cunningham’s current sentences

in Lauderdale County in Cause Numbers 253-14 and 292-14. The circuit court therefore

denied Cunningham’s motion for judicial review of MDOC’s decisions. Aggrieved,

Cunningham appeals.

STANDARD OF REVIEW

¶5. “This Court reviews a circuit court’s decision regarding an agency’s actions using the

same standard of review as trial courts.” Roberson v. Fisher, 303 So. 3d 788, 790 (¶8) (Miss.

Ct. App. 2020) (quoting Jobe v. State, 288 So. 3d 403, 408 (¶18) (Miss. Ct. App. 2019)). We

examine “whether the circuit court exceeded its authority, bearing in mind that a rebuttable

presumption exists in favor of the action of the agency, and the burden of proof is on the

party challenging the agency’s action.” Id. (quoting Jobe, 288 So. 3d at 408 (¶18)).

“Appellate review of an agency decision is limited to the record and the agency’s findings.”

Smith v. State, 293 So. 3d 238, 241 (¶12) (Miss. 2020) (quoting Bd. of Law Enf’t Officers

Standards & Training v. Butler, 672 So. 2d 1196, 1199 (Miss. 1996)). “The Court will not

disturb a decision of an administrative agency, like [MDOC], unless the decision is

3 unsupported by substantial evidence, is arbitrary or capricious, is beyond the agency’s scope

or powers, or is a violation of the party’s constitutional rights.” Williams v. State, 312 So.

3d 384, 384 (¶2) (Miss. Ct. App. 2020) (quoting Thomas v. Miss. Dep’t of Corr., 248 So. 3d

786, 789 (¶8) (Miss. 2018)).

DISCUSSION

¶6. On appeal, Cunningham challenges the circuit court’s determination that his time

spent in pretrial detention in Neshoba County was credited toward his sentence in Neshoba

County in Cause Number 15-CR-0091-NS-C and therefore could not be applied toward his

sentences in Lauderdale County in Cause Numbers 253-14 and 292-14.1 Other than his own

bare assertions, however, Cunningham has failed to provide any “supporting documents to

serve as a factual foundation for his appeal.” Ballard v. State, 130 So. 3d 87, 90 (¶13) (Miss.

Ct. App. 2013). The record before us contains no documents pertaining to Cunningham’s

pretrial detention in Neshoba County or to his convictions and sentences in Neshoba and

Lauderdale Counties that would support the allegations asserted in his appeal. “As the

appellant, it is [Cunningham’s] responsibility to provide this Court with a record sufficient

to review his asserted issues.” Id. Because Cunningham has failed to do so, we find there

is insufficient evidence to demonstrate that the circuit court exceeded its authority or

otherwise erred by denying Cunningham’s motion for judicial review of MDOC’s ARP

1 Cunningham asserts additional arguments in his appellate brief, but because he failed to raise these assignments of error before the circuit court, we decline to address them on appeal. See Simpson v. State, 282 So. 3d 663, 665 (¶5) (Miss. Ct. App. 2019) (recognizing that matters not raised before the trial court are procedurally barred from appellate review).

4 decisions.

¶7. Even with Cunningham’s failure to meet his evidentiary burden, we recognize that the

Sunflower County Circuit Court specifically stated in its order that in Neshoba County Cause

Number 15-CR-0091-NS-C, Cunningham was “sentenced to time served as reflected on his

commitment order.” The circuit court’s order further provided that “Petitioner’s Amended

Commitment Record in [Cause Number] 15-CR-0091-NS-C includes the pretrial detention”

and that Cunningham therefore “received credit for the subject time period as time already

served in Neshoba County [Cause Number] 15-CR-0091-NS-C.” Thus, based on our review

of the Sunflower County Circuit Court’s order, we conclude that Cunningham received credit

for his pretrial detention in Neshoba County and that the circuit court properly denied his

motion for judicial review. See Foster v. Durr, 123 So. 3d 940, 941 (¶8) (Miss. Ct. App.

2013) (affirming the circuit court’s determination that a prisoner “cannot receive credit twice

for the same presentence jail-time served for multiple offenses”).

CONCLUSION

¶8. Because we find no error, we affirm the circuit court’s judgment denying

Cunningham’s motion for judicial review.

¶9. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE, McCARTY AND EMFINGER, JJ., CONCUR.