Benjamin Roberson v. Commissioner Marshall Fisher ( 2020 )


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  •         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
    NO. 2018-CP-01465-COA
    BENJAMIN ROBERSON                                                        APPELLANT
    v.
    COMMISSIONER MARSHALL FISHER                                               APPELLEE
    DATE OF JUDGMENT:                         12/14/2017
    TRIAL JUDGE:                              HON. M. JAMES CHANEY JR.
    COURT FROM WHICH APPEALED:                ISSAQUENA COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                   BENJAMIN ROBERSON (PRO SE)
    ATTORNEY FOR APPELLEE:                    DARRELL CLAYTON BAUGHN
    NATURE OF THE CASE:                       CIVIL - OTHER
    DISPOSITION:                              AFFIRMED - 04/07/2020
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE WILSON, P.J., GREENLEE AND LAWRENCE, JJ.
    GREENLEE, J., FOR THE COURT:
    ¶1.    Benjamin Roberson appeals from the Issaquena County Circuit Court’s dismissal of
    his motion for judicial review of an Administrative Remedy Program (ARP) decision.
    Finding no reversible error, we affirm.
    FACTS AND PROCEDURAL HISTORY
    ¶2.    In 2009, Roberson was convicted in the Washington County Circuit Court of sexual
    battery, and he was sentenced to serve twenty years in the custody of the Mississippi
    Department of Corrections (MDOC). On October 17, 2016, Roberson filed a request for an
    administrative remedy with MDOC, challenging the legality of MDOC Policy Number 15-
    03-01, which restricted sex offenders from receiving meritorious earned time—a conditional
    reduction in a sentence that operates as an “incentive for offenders to achieve positive and
    worthwhile accomplishments for their personal benefit or the benefit of others.” 
    Miss. Code Ann. § 47-5-142
    (1) (Rev. 2015). On October 20, 2016, through the ARP, MDOC rejected
    the request because the “[r]elief [was] beyond the power of the Mississippi Department of
    Corrections to grant.” Roberson received notice of the rejection on October 31, 2016. And
    on November 9, 2016, Roberson filed a motion for judicial review in the Issaquena County
    Circuit Court.1
    ¶3.    MDOC filed an answer and alleged, among other things, that Roberson’s motion
    failed to state a claim upon which relief could be granted; Roberson was ineligible to receive
    meritorious earned time due to his sex-offender status; the court lacked jurisdiction because
    MDOC had not received or waived service of process; and MDOC’s internal statute of
    limitations had been violated. MDOC later amended its pleadings to challenge venue.
    MDOC also filed a motion to dismiss and a motion to quash the summons. Attached to the
    motion to quash was an affidavit, which stated that MDOC had not received service of
    process.
    ¶4.    In response, Roberson stated that the certificate of service indicated that he mailed a
    copy of his motion for judicial review to the Attorney General’s Office. He also attached an
    Issaquena County Correctional Facility mail log to his response, which stated that the motion
    for judicial review was mailed to “Issaquena Co. Circuit Clerk, Attorney General Jim Hood.”
    ¶5.    On December 14, 2017, the circuit court granted MDOC’s motion to dismiss. The
    1
    The motion was styled “Benjamin Roberson v. Commissioner Marshal[l] Fisher
    Mississippi Department of Corrections.”
    2
    court stated that “even disregarding [Roberson’s] clear deficiencies regarding venue and
    service of process” he was a convicted sex offender and therefore was not eligible to receive
    meritorious earned time.
    ¶6.    On February 6, 2018, Roberson filed a motion to reopen the time for appeal, claiming
    that he had not received a copy of the court’s order dismissing his motion for judicial review.
    And on March 2, 2018, Roberson filed his notice of appeal.2 In October 2018, the court
    entered an order stating that the clerk’s office “inadvertently failed to process the appeal or
    notify the court of the filing.” The court ordered the clerk to “process the appeal at once.”
    And the court ruled that Roberson’s motion to reopen the time for appeal was moot because
    the court had previously ordered the clerk’s office to file and process the appeal.
    ¶7.    Roberson raises two issues on appeal: (1) whether sex offenders are eligible to receive
    meritorious earned time under Mississippi Code Annotated section 47-5-142, and (2) whether
    the restrictions in Mississippi Code Annotated section 47-5-139 (Rev. 2015) apply to section
    47-5-142. We consolidate these issues and address whether the circuit court erred by
    dismissing Roberson’s motion for judicial review.
    STANDARD OF REVIEW
    ¶8.    “This Court reviews a circuit court’s decision regarding an agency’s actions using the
    same standard of review as trial courts.” Jobe v. State, 
    288 So. 3d 403
    , 408 (¶18) (Miss. Ct.
    App. 2019) (citing Brady v. Hollins, 
    192 So. 3d 1066
    , 1068 (¶4) (Miss. Ct. App. 2016)).
    “We look to see whether the circuit court exceeded its authority, bearing in mind that a
    2
    The Notice of Appeal was styled “Benjamin Roberson v. Commissioner Marshall
    Fisher.”
    3
    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.
     The court examines “whether the order
    of the administrative agency (1) was unsupported by substantial evidence, (2) was arbitrary
    or capricious, (3) was beyond the power of the administrative agency to make, or (4) violated
    some statutory or constitutional right of the aggrieved party.” 
    Id.
     “Whether the circuit court
    has jurisdiction is a question of law and is reviewed de novo.” 
    Id.
     (citing Mangum v. Miss.
    Parole Bd., 
    76 So. 3d 762
    , 765-66 (¶6) (Miss. Ct. App. 2011)).
    DISCUSSION
    ¶9.    The Special Assistant Attorney General assigned to MDOC argues that there were
    several procedural bars to Roberson’s motion for judicial review. Specifically, he argues that
    the circuit court properly dismissed Roberson’s motion because (1) MDOC was not made a
    party to the proceedings, (2) MDOC had not received or waived service of process, (3) venue
    was improper, and (4) MDOC’s internal statute of limitations had been violated. We will
    briefly address these procedural arguments before turning to the merits of Roberson’s appeal.
    1.     Necessary Party
    ¶10.   MDOC argues it was a necessary party but was not made a party to the proceedings
    in the circuit court. Roberson’s motion for judicial review was styled “Benjamin Roberson
    v. Commissioner Marshal[l] Fisher Mississippi Department of Corrections.” Although
    Roberson’s appeal is styled “Benjamin Roberson v. Commissioner Marshall Fisher,” MDOC
    does not seem to take issue with the parties on appeal.3 Furthermore, Marshall Fisher was
    3
    The Court notes that MDOC could have moved under Mississippi Rule of Appellate
    Procedure 43(b) to substitute the current commissioner of MDOC but did not. We also note
    4
    the Commissioner of MDOC at the time, and “this Court has addressed the merits of prior
    cases concerning an appeal from the ARP, although the MDOC was not included as a party.”
    See Leavitt v. Carter, 
    178 So. 3d 334
    , 339 n.3 (Miss. Ct. App. 2012).
    2.     Service of Process
    ¶11.   Next, MDOC claims the circuit court lacked personal jurisdiction because MDOC did
    not receive or waive service of process. Roberson claims the certificate of service indicates
    that he mailed a copy of his motion for judicial review to the Attorney General’s Office. And
    he points out that an Issaquena County Correctional Facility mail log indicates that the
    motion was mailed to “Issaquena Co. Circuit Clerk, Attorney General Jim Hood.”
    ¶12.   This Court recently held that judicial review of an ARP decision “is not a ‘new filing’
    or a new lawsuit that would require service of process on MDOC (or the Attorney General
    for MDOC).” Jobe, 288 So. 3d at 408 (¶20). Therefore, the circuit court did not lack
    personal jurisdiction.
    3.     Venue
    ¶13.   Next, MDOC claims the Issaquena County Circuit Court was not the appropriate
    venue. However, this Court has held that in an appeal from an administrative agency
    decision, “jurisdiction is proper in the county where the defendant resides,” which in this
    case would be Roberson’s county of incarceration. Stokes v. State, 
    984 So. 2d 1089
    , 1091
    (¶7) (Miss. Ct. App. 2008) (citing Guy v. State, 
    915 So. 2d 508
    , 510 (¶6) (Miss. Ct. App.
    that “[w]hen a public officer is a party in an official capacity to an appeal or other
    proceeding in either appellate court and, during its pendency, the officer dies, resigns, or
    otherwise ceases to hold office . . . the public officer’s successor is automatically substituted
    as a party.” M.R.A.P. 43(c)(1).
    5
    2005)). MDOC admitted that Roberson was housed in Issaquena County. Therefore, the
    Issaquena County Circuit Court was the appropriate venue for Roberson’s motion.
    4.     Statute of Limitations
    ¶14.     Finally, MDOC claims Roberson failed to comply with the thirty-day statute of
    limitations. The statute concerning the right of judicial review of prisoners’ requests, or
    complaints to MDOC, Mississippi Code Annotated section 47-5-807 (Rev. 2015), reads:
    Any offender who is aggrieved by an adverse decision rendered pursuant to
    any administrative review procedure under Sections 47-5-801 through 47-5-
    807 may, within thirty (30) days after receipt of the agency’s final decision,
    seek judicial review of the decision.
    ¶15.     Roberson received MDOC’s denial of his request on October 31, 2016. And he filed
    his motion for judicial review on November 9, 2016, which was within the thirty-day appeal
    deadline. Therefore, Roberson sought his judicial review within the thirty days required by
    the statute, and the circuit court had jurisdiction to consider it.
    ¶16.     To the extent MDOC argues that Roberson’s request for administrative remedy
    violated MDOC’s internal statute of limitations, the matter is outside the record. Therefore,
    we will not consider it. See Johnson v. State, 
    281 So. 3d 1221
    , 1227 (¶28) (Miss. Ct. App.
    2019).
    5.     Merits
    ¶17.     Roberson claims he is eligible for meritorious earned time and bases his argument on
    section 47-5-142(1), which states that “any offender shall be eligible” to receive meritorious
    earned time, “subject to the provisions of this section . . . as distinguished from earned time
    for good conduct and performance.” He points out that nothing in section 47-5-142 expressly
    6
    prohibits him from being eligible.
    ¶18.   A similar argument was raised in Mason v. Mississippi Department of Corrections,
    
    248 So. 3d 840
     (Miss. Ct. App. 2017). This Court noted that section 47-5-139(1)(d)
    provides, “An inmate shall not be eligible for the earned time allowance if the inmate was
    convicted of a sex crime.” Mason, 
    248 So. 3d at 841
     (¶3) (quoting 
    Miss. Code Ann. § 47-5
    -
    139(1)(d)). And this Court has repeatedly held that “notwithstanding the broad language in
    section 47-5-142, eligibility for meritorious earned time is controlled by section 47-5-139.”
    
    Id. ¶19
    .   The circuit court correctly dismissed Roberson’s complaint because having been
    convicted of a sex crime, Roberson was not eligible to have his sentence reduced for
    meritorious earned time.
    ¶20.   AFFIRMED.
    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., WESTBROOKS,
    TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
    7
    

Document Info

Docket Number: NO. 2018-CP-01465-COA

Judges: Greenlee, Barnes, Carlton, Wilson, Westbrooks, Tindell, McDonald, Lawrence, McCarty, Wilson

Filed Date: 4/7/2020

Precedential Status: Precedential

Modified Date: 10/5/2024