Demario Walker v. State of Mississippi ( 2017 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2015-CT-00912-SCT
DEMARIO WALKER a/k/a DEMARIO D. WALKER
a/k/a DEMARIO DONTEZ WALKER
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 05/23/2015
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
TRIAL COURT ATTORNEYS: LISA McGLOFLIN
LINDSAY WATTS
DEMARIO WALKER (PRO SE)
COURT FROM WHICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT
COURT
ATTORNEY FOR APPELLANT: DEMARIO WALKER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS AFFIRMED IN PART AND
REVERSED AND RENDERED IN PART.
THE JUDGMENT OF THE CIRCUIT COURT
OF JEFFERSON DAVIS COUNTY IS
REINSTATED AND AFFIRMED - 09/21/17
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
RANDOLPH, PRESIDING JUSTICE, FOR THE COURT:
¶1. After Demario Walker’s probation was revoked and he was sentenced to serve the full
five years of his suspended sentence, Walker filed a motion for post-conviction relief (PCR).
The Jefferson Davis County Circuit Court dismissed Walker’s petition, and Walker appealed.
The Court of Appeals affirmed in part and reversed and remanded in part the judgment of
the circuit court. We granted certiorari review and hold that the Court of Appeals did not err
in finding that (1) the circuit court had jurisdiction and authority to revoke Walker’s
probation, (2) Walker was afforded due process at his revocation hearing, and (3) revocation
of Walker’s probation was proper. However, the Court of Appeals did err in finding that the
circuit court’s sentencing Walker to serve the full, five-year term of his suspended sentence
was improper. Therefore, we affirm in part and reverse and render in part the Court of
Appeals judgment, and we reinstate and affirm the circuit court’s judgment.
FACTS AND PROCEDURAL HISTORY
¶2. After pleading guilty in Jefferson Davis County Circuit Court to the crime of false
pretense under Mississippi Code Section 97-19-55, Walker was sentenced to serve five years’
incarceration, with imposition suspended pending successful completion of a five-year
probationary period. See Miss. Code Ann. § 97-19-55 (Supp. 2016). Walker also was
ordered to pay $1,018.57 in restitution and fees.
¶3. Approximately one year later, Walker was discharged from parole for an unrelated
conviction. He then was placed on parole for his false-pretense conviction. After Walker
failed to report monthly for four months to his probation office, failed to pay required fees,
and failed to pay restitution to his victim, Walker’s probation officer Richard Johnson filed
an affidavit, resulting in the circuit court issuing a warrant for Walker’s arrest.
¶4. Subsequently, Walker’s probation was revoked. At his revocation hearing, Walker
stated that Johnson had told him he was on probation. Walker was sentenced to serve the full
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five years’ incarceration of his suspended sentence. In response to the revocation of his
probation, Walker moved for PCR, which motion was dismissed by the circuit court. Walker
appealed the circuit court’s dismissal, and the Court of Appeals affirmed in part and reversed
and remanded in part for further consideration consistent with its opinion. Both the State of
Mississippi and Walker filed petitions for certiorari, both of which were granted by this
Court.
ANALYSIS
¶5. In his petition for certiorari review, Walker raises two issues. First, he argues that no
evidence was presented that he violated the terms and conditions of his probation in a
material respect. Second, Walker argues that he was not on probation in Jefferson Davis
County at the time his alleged violations occurred. In its petition, the State argues that the
Court of Appeals erred as a matter of law and fact in holding that (1) Walker could only be
sentenced to not more than ninety days and (2) this was Walker’s “first technical violation.”
I. Standard of Review
¶6. Our standard of review of the trial court’s denial of a PCR motion is clear. We will
not reverse the factual findings of the trial court unless they are clearly erroneous. Brown v.
State, 731 So. 2d 595, 598 (Miss. 1999). All questions of law are reviewed de novo. Id.
II. Violation of Parole
¶7. Walker argues that the trial court improperly found that he violated the terms of his
parole because no evidence was presented at his revocation hearing to substantiate the
allegations alleged in Johnson’s affidavit against him.
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¶8. As the Court of Appeals held, Johnson swore an affidavit that Walker had not
properly conducted himself [and] had violated the conditions of his probation
in a material respect by:
Condition (c) Report to MDOC as directed by it; Offender
Walker failed to report for the month of July 2014, August 2014,
September 2014, and October 2014; Offender[’s] location is
unknown; Offender has absconded probation.
Condition (i) Pay required fee during each month of probation
to MDOC; Offender Walker currently owes $412.00.
Condition (l) Defendant shall pay restitution; Offender currently
owes $968.57.
Walker was provided a copy of these violations and the evidence presented against him in
a waiver of his right to a preliminary revocation hearing, which he signed. At his hearing,
Walker did not dispute any allegations, called no witnesses, and did not cross-examine
Johnson. We find this issue to be without merit.
III. Timing of Probation
¶9. Walker also argues that he was not on probation during the time of these alleged
violations. However, Walker admitted that Johnson informed him he was on probation and
that both agreed his probation started in July 2014. Both the trial court and Court of Appeals
determined that Walker was, in fact, on probation at the time the violations occurred. This
issue is without merit.
IV. Mississippi Code Section § 47-7-37-(5)(a)
¶10. At Walker’s revocation hearing, the trial court revoked his probation and sentenced
him to the entirety of his original five-year sentence. The Court of Appeals reversed and
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remanded, finding that, because this was Walker’s first technical violation of his probation,
he should have been sentenced to not more than ninety days. Subsection (5)(a) of Mississippi
Code Section 47-7-37 reads in pertinent part:
. . . If the court revokes probation for a technical violation, the court shall
impose a period of imprisonment to be served in either a technical violation
center or a restitution center not to exceed ninety (90) days for the first
technical violation and not to exceed one hundred twenty (120) days for the
second technical violation. For the third technical violation, the court may
impose a period of imprisonment to be served in either a technical violation
center or a restitution center for up to one hundred eighty (180) days or the
court may impose the remainder of the suspended portion of the sentence. For
the fourth and any subsequent technical violation, the court may impose up to
the remainder of the suspended portion of the sentence. The period of
imprisonment in a technical violation center imposed under this section shall
not be reduced in any manner.
Miss. Code Ann. § 47-7-37 (Rev. 2014).
¶11. In its petition for certiorari, the State argues that Walker violated three conditions of
his parole, as reflected by Johnson’s affidavit. The State submitted that each individual
violation was a separate technical violation as contemplated by Section 47-7-2(q). Section
47-7-2(q) defines “technical violation” as “an act or omission by the probationer that violates
a condition or conditions of probation placed on the probationer by the court or the probation
officer.” Miss. Code Ann. § 47-7-2 (Rev. 2014).
¶12. After filing its petition, the State informed this Court of the recent decision by the
Court of Appeals, in which it acknowledged that “the conclusion in Walker is contrary to the
plain language of the statute and should be overruled.” Cobbert v. State, No.
2016-CP-00446-COA, 2017 WL 2781962, at *3 (Miss. Ct. App. June 27, 2017). In Cobbert,
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the Court of Appeals distinguished between a “technical violation” and a “revocation order,”
which could be made up of numerous technical violations. Id. at *2.
At Cobbert’s first revocation hearing, the State established three technical
violations: that Cobbert failed to report to his probation officer, that he failed
to pay required fees, and that he failed to pay court costs. At Cobbert’s second
revocation hearing, the State established that Cobbert had failed to report once
again, his fourth technical violation. Cobbert thus committed four separate acts
or omissions that violated a condition or conditions of his PRS. Therefore,
under the plain language of the statute, the circuit court was within its
authority to impose the remainder of the suspended portion of Cobbert’s
sentence.
Id.
¶13. Today’s case presents similar facts. While this is Walker’s first revocation hearing,
he committed three technical violations of his probation. Pursuant to the relevant code
section, the trial court properly sentenced Walker to serve the remaining five years of his
original sentence. We adopt the Court of Appeals holding in Cobbert that a proper
interpretation of Section 47-7-37(5)(a) requires a finding of each separate violation of parole
to be a separate and distinct technical violation. Walker committed three separate acts or
omissions, each of which violated a condition or conditions of his probation.
CONCLUSION
¶14. Although the Court of Appeals improperly reversed the trial court’s imposition of the
full remainder of Walker’s sentence, it recognized its error in Cobbert. Therefore, we affirm
in part and reverse in part the judgment of the Court of Appeals, and we reinstate and affirm
the judgment of the circuit court.
¶15. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED IN PART
AND REVERSED AND RENDERED IN PART. THE JUDGMENT OF THE
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CIRCUIT COURT OF JEFFERSON DAVIS COUNTY IS REINSTATED AND
AFFIRMED.
WALLER, C.J., KITCHENS, P.J., KING, COLEMAN, MAXWELL, BEAM
AND CHAMBERLIN, JJ., CONCUR. ISHEE, J., NOT PARTICIPATING.
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