Turner v. State

169 So. 3d 945, 2014 WL 3409191, 2014 Miss. App. LEXIS 389
CourtCourt of Appeals of Mississippi
DecidedJuly 15, 2014
DocketNo. 2013-CP-00445-COA
StatusPublished
Cited by4 cases

This text of 169 So. 3d 945 (Turner v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Turner v. State, 169 So. 3d 945, 2014 WL 3409191, 2014 Miss. App. LEXIS 389 (Mich. Ct. App. 2014).

Opinion

BARNES, J.,

for the Court:

¶ 1. Sam Turner filed a motion for post-conviction relief (PCR) in Lowndes County Circuit Court. Finding that Turner’s claims were excepted from certain procedural bars, the circuit court addressed the merits, but denied Turner’s motion. On appeal, we affirm the circuit court’s judgment.

FACTS AND PROCEDURAL HISTORY

¶ 2. In April 2004, Sam Turner was indicted as a habitual offender in Lowndes County, Mississippi, on two counts of the sale of cocaine. He had two prior convictions: possession of cocaine (August 27, 1997) and aggravated assault (August 20, 1998). As a result of a plea bargain, however, Turner pleaded guilty to one count of sale of cocaine on November 19, 2004, and he was sentenced as a non-habitual offender to twenty years in the custody of the Mississippi Department of Corrections (MDOC). The second count was dismissed.

¶ 3. Turner filed a complaint through the MDOC’s Administrative Remedy Program (ARP), arguing that his time sheet was incorrectly computed and that the MDOC breached his plea agreement because of its refusal to assign him a parole date. The MDOC denied Turner relief, stating that he was not eligible for parole because of his prior conviction for aggravated assault, which is considered a violent crime.1

¶ 4. Turner subsequently filed a PCR motion with the Lowndes County Circuit Court on January 3, 2013. The circuit court found that Turner’s PCR motion was proeedurally barred as a successive writ; he had previously filed a PCR motion in 2007. See Miss.Code Ann. § 99-39-23(6) (Supp.2013). The motion was also time-barred because it was not filed within three years of the entry of his guilty plea. See Miss.Code Ann. § 99-39-5(2) (Supp. 2013). However, “[ejrrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Mississip[947]*947pi Uniform Post-Conviction Collateral Relief Act].” Rowland v. State, 42 So.3d 503, 507 (¶ 12) (Miss.2010). The circuit court, therefore, addressed the merits of Turner’s motion, considering it to fall within an exception to the statutory bars. The circuit court denied Turner any relief, finding that Tuner was not promised parole at his guilty-plea colloquy and that the computation of Turner’s sentence and determination of parole eligibility were “solely under the province of the [MDOC]” and the Mississippi Parole Board. For this reason, the circuit court did not provide a substantive discussion regarding whether Turner is eligible for parole.

¶ 5. Turner reasserts his claims on appeal. Although we find the MDOC’s basis for determining Turner’s parole ineligibility was erroneous, we conclude that he was not eligible for parole based upon the nature of the crime for which he was in custody. Thus, we affirm the circuit court’s denial of the PCR motion.

STANDARD OF REVIEW

¶ 6. A circuit court’s denial of a PCR motion will not be disturbed unless we find that the “decision to deny the motion was clearly erroneous.” Ford v. State, 121 So.3d 325, 327 (¶ 7) (Miss.Ct.App.2013) (quoting Johnson v. State, 70 So.3d 262, 263 (¶ 4) (Miss.CtApp.2011)). “However, when reviewing issues of law, this Court’s proper standard of review is de novo.” Id.

DISCUSSION

I. Whether the circuit court had jurisdiction to consider Turner’s parole-eligibility claim.

¶ 7. The State argues that since Turner has no constitutionally recognized liberty interest in parole, the determination of parole eligibility is vested with the MDOC and Mississippi Parole Board, not the circuit court. The State is correct in that an inmate has “ ‘no constitutionally recognized liberty interest’ in parole.” Vice v. State, 679 So.2d 205, 208 (Miss.1996) (quoting Smith v. State, 580 So.2d 1221, 1225-26 (Miss.1991)). A prisoner’s parole eligibility “is normally an executive decision and not one for the judiciary to determine.” Heafner v. State, 947 So.2d 354, 357 (¶ 11) (Miss.Ct.App.2007).

¶ 8. However, an inmate may “pursue a change to his parole eligibility date by using the internal grievance procedure^] ... [or he] may contest matters such as this as an original action in circuit court.” Lattimore v. Sparkman, 858 So.2d 936, 938 (¶ 7) (Miss.Ct.App.2003); see also Keys v. State, 67 So.3d 758, 760 (¶¶ 7-8) (Miss.2011) (holding prisoner not required to exhaust his administrative remedies pri- or to filing PCR motion and challenging his parole eligibility). In this case, Turner properly appealed his parole through the MDOC’s ARP process. Consequently, we find the circuit court had jurisdiction to consider Turner’s claim regarding his parole eligibility in his motion for PCR.

¶ 9. Although Turner’s PCR motion would otherwise be procedurally barred, we agree with the circuit court that his claim is excepted from such procedural bars, and we now address the merits of Turner’s argument.

II. Whether Turner is eligible for parole.

¶ 10. Turner contends that he was induced to enter his guilty plea because he was promised he would be sentenced as a non-habitual offender and would receive parole. However, as the circuit court notes, the record does not support Turner’s claim. During his guilty-plea colloquy, Turner told the judge that no one had promised him “any kind of rewards or [948]*948hopes of leniency” to obtain his guilty plea. At no point during the hearing was Turner told he would be eligible for parole.

¶ 11. We also find no merit to Turner’s claim that the MDOC erred in determining that he was not eligible for parole. This Court considered a similar situation in McGovern v. Mississippi Department of Corrections, 89 So.3d 69 (Miss.Ct.App.2011). Like the case before us, the “sole issue on appeal” in McGovern was whether the prisoner was eligible for parole on the sentence he was then serving. Id. at 71 (¶ 6). Peter McGovern was convicted of selling amphetamines and sentenced to twenty years in MDOC custody, with fourteen years suspended and five years of post-release supervision. He was serving his term of post-release supervision (PRS) when he committed an act that resulted in the revocation of his PRS and a return to custody. Id. at 70 (¶ 2). Once in custody, McGovern claimed he should have been eligible for parole, and he filed an appeal through the ARP. However, the MDOC denied his appeal, reasoning that a prior conviction for burglary precluded him from parole eligibility. Id. at 70 (¶ 3).

¶ 12. Our Court in McGovern discussed the criteria for parole eligibility as established in Mississippi Code Annotated section 47-7-3 (Rev.2011), which provides in pertinent part:

No person shall be eligible for parole who is convicted or whose suspended sentence is revoked after June 30, 1995, except that an offender convicted of only nonviolent crimes after June 30, 1995, may be eligible for parole if the offender meets the requirements in subsection (1) and this paragraph.

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Bluebook (online)
169 So. 3d 945, 2014 WL 3409191, 2014 Miss. App. LEXIS 389, Counsel Stack Legal Research, https://law.counselstack.com/opinion/turner-v-state-missctapp-2014.