Jerry P. Roark v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-01201-COA
JERRY P. ROARK A/K/A JERRY ROARK A/K/A APPELLANT
JERRY ROARK, JR. A/K/A JERRY P. ROARK,
JR.
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/17/2014
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: KEVIN DALE CAMP
JOEL CHARLES REYNOLDS JR.
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
JASON L. DAVIS
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POSTCONVICTION RELIEF
DISMISSED
DISPOSITION: AFFIRMED - 10/25/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
ISHEE, P.J., FOR THE COURT:
¶1. On July 19, 2004, Jerry Roark pleaded guilty in the Rankin County Circuit Court to
charges of gratification of lust and sexual battery. He was sentenced to fifteen years, with
six years suspended, for gratification of lust, to be served concurrently to twenty years, with
seven years suspended, for sexual battery, all in the custody of the Mississippi Department
of Corrections (MDOC). Roark was also sentenced to serve five years of postrelease
supervision (PRS) following his release from jail.
¶2. In 2011, after Roark served his sentence with MDOC, he had his PRS transferred to
Nevada pursuant to an interstate-compact agreement between Nevada and Mississippi. In
2013, the probation officer assigned to him while in Nevada found that Roark had violated
the agreement, and Roark was sent back to Mississippi. In Mississippi, it was alleged that
Roark violated the terms of his probation and, after a revocation hearing, the circuit court
revoked his probation. Roark filed a motion for postconviction relief (PCR) asserting that
his probation was wrongfully revoked, which the circuit court dismissed. Aggrieved, Roark
filed this appeal. Finding no error, we affirm.
FACTS
¶3. In 2011, Roark was granted a transfer of his PRS to Nevada pursuant to an interstate-
compact agreement, which required Roark to abide by Nevada probation rules along with
the required terms and conditions for sex offenders. After being released from MDOC
custody, Roark moved to Nevada, where he was supervised by the division of parole and
probation of the Nevada Department of Public Safety (NDPS). Nevada’s terms and
conditions for sex offenders included that Roark not possess sexually explicit material that
is deemed inappropriate by the parole officer assigned to him.
¶4. In 2013, Roark’s parole office filed a petition and affidavit alleging Roark violated
Nevada’s sex-offender terms and conditions. Roark received notice that he would have a
preliminary hearing to determine whether he had violated the terms of his parole.
Specifically, Roark was accused of possessing sexually explicit material and accessing the
2
internet through an electronic device that was not approved by his parole officer. However,
instead of having a preliminary hearing, Roark signed a waiver admitting to violating his
PRS in Nevada. Thereafter, Roark was transferred to Mississippi.
¶5. On February 10, 2014, Roark appeared in the Rankin County Circuit Court for a
formal revocation hearing. The State argued that, in addition to violating the interstate-
compact agreement, Roark failed to pay court costs. The circuit court found Roark violated
his parole and revoked Roark’s PRS. Roark filed a PCR motion, which the circuit court
dismissed. This appeal ensued.
LAW AND DISCUSSION
¶6. This court will not reverse a circuit court’s dismissal of a petition for PCR unless the
circuit court’s decision was clearly erroneous. Agent v. State, 30 So. 3d 370, 370 (¶5) (Miss.
Ct. App. 2010). A circuit court may summarily dismiss a PCR motion where “it plainly
appears from the face of the motion, any annexed exhibits and the prior proceedings in the
case that the movant is not entitled to any relief.” White v. State, 59 So. 3d 633, 635 (¶4)
(Miss. Ct. App. 2011) (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2010)). Questions of
law receive a de novo review. Id.
¶7. Roark argues that he did not violate the terms of his PRS and, therefore, it was
wrongfully revoked. At the hearing, eleven images, which were gathered from the computer
used by Roark, depicting naked children between the ages of eight and twelve were entered
into evidence. There were also computer screenshots that provided the computer user’s
information and proved that Roark had viewed the images. At the hearing, Roark testified
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that the images were from a popular video-sharing website, YouTube, depicting “Adam and
Eve.” Roark argued that the website filters out sexually explicit content and, therefore, he
did not violate the conditions of his parole. Roark further testified that the computer he used
to access the video was being monitored and had been approved by his parole officer.
¶8. The circuit court found that the images “were not sexually explicit in the terms of sex
acts being depicted” and that they were not necessarily pornographic. Nonetheless, the
circuit court concluded that nude images of children under the age of sixteen, particularly in
light of Roark’s underlying offenses with females in a similar age group, were inappropriate
for Roark to view.
¶9. Furthermore, as the circuit court noted, there is no indication from the images
provided to the court that they were taken from a video-sharing website. Assuming it was
viewed on the particular website noted by Roark, there is still no evidence of a filter having
been used to prohibit pornographic or illegal content. We also point out that what might be
deemed sexually explicit or inappropriate by a parole officer may not be filtered out by a
website, as this determination is on a case-by-case basis for a parole officer. Roark violated
his agreement by possessing “sexually explicit material that is deemed inappropriate by the
parole and probation officer assigned to the defendant.” We find the record supports the
circuit court’s finding, and this argument is without merit.
¶10. Roark also argues that he was coerced into signing the waiver in Nevada and, thus,
his admission is inadmissable. However, Roark’s testimony is the only support for his claim
that the admission was coerced due to the threat of incarceration in Nevada before returning
4
to Mississippi for a hearing.1 Waiver aside, Roark admitted at the formal revocation hearing
to having watched a video with naked children. Despite the admission contained in the
waiver, the circuit court made an independent finding that the images were inappropriate for
Roark to view. Finally, the record indicates that Roark failed to pay court costs. We find
that the circuit court did not err in revoking Roark’s PRS. Hence, we affirm the circuit
court’s dismissal of Roark’s PCR motion as it was not clearly erroneous.
¶11. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, JAMES, WILSON
AND GREENLEE, JJ., CONCUR. IRVING, P.J., NOT PARTICIPATING.
1
Nothing in the record disproves that Roark may be incarcerated in Nevada for
violating his probation while there and prior to his transfer to Mississippi.
5