Davarrius Brown v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-00006-COA
DAVARRIUS BROWN A/K/A DEVARRIUS APPELLANT
DEONTAY GARRETT A/K/A DEVARRIUS
GARRETT A/K/A DEVARRIUS GARRETT
BROWN A/K/A DEVARIOUS DEONTAY
BROWN A/K/A DEVARIOUS GARRETT
BROWN A/K/A DEVARIOUS DONTAY BROWN
A/K/A DEVARRIOUS GARRETT A/K/A
DEVARRIUS D. GARRETT A/K/A DEVARRIUS
DEONTAY GARRETT BROWN A/K/A
DEVARIUS GARRETT BROWN A/K/A
DEVARIUS DEONTAY BROWN
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/04/2015
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DAVARRIUS BROWN (PRO SE)
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DARRELL CLAYTON BAUGHN
JASON L. DAVIS
ANTHONY LOUIS SCHMIDT JR.
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED - 03/21/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GREENLEE, J., FOR THE COURT:
¶1. Davarrius Brown appeals pro se to this Court arguing that the Mississippi Department
of Corrections (MDOC) incorrectly computed the date of his parole eligibility following
sentencing for his fifth and sixth felony convictions. Finding no error, we affirm.
FACTS AND PROCEEDINGS BELOW
¶2. In 2012, Brown pleaded guilty to one count of felony shoplifting, and had a previous
nonadjudication for one count of felony shoplifting set aside. In 2013, Brown pleaded guilty
to yet another count of felony shoplifting. For each of these three convictions, Brown was
sentenced to ten years, with five years to serve followed by five years of post-release
supervision. All together, the time to serve amounted to three consecutive five-year terms.1
Brown was enrolled in the Intensive Supervision Program (ISP) and began serving these
sentences under “house arrest.”
¶3. In May 2014, while still under the ISP and wearing an ankle monitor, Brown was
arrested for felony shoplifting from a department store. Later that day, while still being
processed in booking, Brown escaped police custody due to a faulty jail-cell door. The
authorities promptly tracked him through his ankle monitor, and he was apprehended. Brown
pleaded guilty to felony shoplifting and escape, and was sentenced in March 2015 to a total
of fifteen years (ten for shoplifting and five for escape, with the sentences to run
consecutively to each other). The 2015 sentencing order is silent as to how the new sentences
should run in relation to the 2012 and 2013 sentences.
¶4. Brown was not sentenced as a habitual offender. MDOC gave him a parole-eligibility
date of January 21, 2020. This was calculated by first measuring twenty-five percent of his
2012 and 2013 consecutive sentences (3.75 years) followed consecutively by twenty-five
1
The sentencing orders specified that the sentences were to run consecutively.
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percent of his 2015 sentences (an additional 3.75 years). Brown filed a motion in the Circuit
Court of Madison County, arguing that the 2012 and 2015 sentences should be treated as
concurrent for purposes of calculating parole eligibility. Treating Brown’s motion as a
motion for post-conviction relief, the circuit court summarily dismissed it. Brown appeals.
DISCUSSION
¶5. An inmate may contest the computation of a parole-eligibility date as an original
action in circuit court without first exhausting administrative remedies. Keys v. State, 67 So.
3d 758, 760 (¶9) (Miss. 2011); Ducksworth v. State, 103 So. 3d 762, 765-66 (¶14) (Miss. Ct.
App. 2012); Lattimore v. Sparkman, 858 So. 2d 936, 938 (¶7) (Miss. Ct. App. 2003). The
State failed to identify or distinguish this line of controlling cases in its brief, pointing instead
to the requirement in Mississippi Code Annotated section 47-5-803 (Rev. 2015) that “no state
court shall entertain an offender’s grievance or complaint which falls under the purview of
the administrative review procedure unless and until such offender shall have exhausted the
remedies as provided in such procedure.” But as this Court discussed in detail in Lattimore,
parole eligibility does not clearly fall under the purview of the administrative-review
procedure. Lattimore, 858 So. 2d at 938 (¶7). Therefore we follow the rule that inmates
may—but are not required to—use the administrative-review procedure as a way of
challenging parole eligibility. Id.
¶6. Brown’s argument that he has a liberty interest in parole is without merit. Mississippi
law is settled that criminal offenders have “no constitutionally recognized liberty interest in
parole.” Vice v. State, 679 So. 2d 205, 208 (Miss. 1996). By statute, the Mississippi Parole
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Board has the exclusive responsibility and discretion over whether to grant an inmate parole.
Miss. Code Ann. § 47-7-3(3) (Supp. 2016).
¶7. Brown’s argument that his sentences should run concurrently fails due to the
provisions of Mississippi Code Annotated section 99-19-21(2) (Rev. 2015), which states:
When a person is sentenced to imprisonment for a felony committed while the
person was on parole, probation, earned-release supervision, post-release
supervision or suspended sentence, the imprisonment shall commence at the
termination of the imprisonment for the preceding conviction. The term of
imprisonment for a felony committed during parole, probation, earned-release
supervision, post-release supervision or suspended sentence shall not run
concurrently with any preceding term of imprisonment . . . .2
Here, Brown was under the ISP for his 2012 convictions when he committed felony
shoplifting. Following the requirement that his new sentences “shall not run concurrently
with any preceding term of imprisonment,” his 2012 and 2015 sentences must be treated as
running consecutively. Id. When arriving at Brown’s January 2020 parole-eligibility date,
MDOC did not err in placing the minimum he must serve on his 2015 sentences consecutive
to the minimum he must serve on his 2012 and 2013 sentences.
¶8. Brown points to the general rule that when a sentencing order is silent as to how two
sentences will run in regard to each other, the sentences will be construed as running
concurrently. Shinn v. State, 74 So. 3d 901, 906 (¶14) (Miss. Ct. App. 2011). However, as
discussed above, this rule is not applicable to the circumstance where the new crime was
committed while the defendant is still under supervision for a previous conviction. We also
note that “[c]oncurrent sentences do not necessarily begin and end at the same time—they
2
See also Miss. Code Ann. § 47-7-29 (Rev. 2015).
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simply run together during the time that they overlap.” Smith v. State, 853 So. 2d 1277, 1279
(¶6) (Miss. Ct. App. 2003). Therefore even if we had grounds to find that Brown’s sentences
should run concurrently, his 2015 sentence would not date back to 2012 as Brown argues.
CONCLUSION
¶9. This Court has jurisdiction to hear Brown’s argument that his parole-eligibility date
was incorrectly calculated. However, Brown’s 2013 and 2015 sentences may not be served
concurrently pursuant to Mississippi Code Annotated section 99-19-21(2). We therefore
affirm the circuit court’s denial of relief.
¶10. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND WESTBROOKS, JJ., CONCUR. WILSON, J., CONCURS IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.
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