Ray v. State


<- Return to Search Results


Docket Number: 2006-CP-01824-COA

Court of Appeals: Opinion Link
Opinion Date: 03-04-2008
Opinion Author: GRIFFIS, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Revocation of parole - Sufficiency of evidence - Validity of pleas - Illegal sentence - Jurisdiction - Violation of due process - Ineffective assistance of counsel - Order inconsistency
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ.
Concurs in Result Only: IRVING, J.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 10-05-2006
Appealed from: Jackson County Circuit Court
Judge: Robert P. Krebs
Disposition: POST-CONVICTION RELIEF DENIED
Case Number: 2006-00,193(1)

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: BILLY LLOYD RAY




BILLY LLOYD RAY (PRO SE)



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY  

Synopsis provided by:

If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals
hand downs please contact Tammy Upton in the MLI Press office.

Topic: Post-conviction relief - Revocation of parole - Sufficiency of evidence - Validity of pleas - Illegal sentence - Jurisdiction - Violation of due process - Ineffective assistance of counsel - Order inconsistency

Summary of the Facts: After entering a guilty plea to the charge of sexual battery, Billy Lloyd Ray was sentenced to ten years with one year to serve and nine years suspended. Ray was placed on post-release supervision for nine years. Following a revocation hearing, the circuit court found that Ray had violated the conditions of his post-release supervision and sentenced him to serve the remaining nine years of his sentence. Ray then filed a motion for post-conviction relief that was denied by the circuit court. He appeals.

Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Ray argues that the circuit court’s revocation of his post release supervision was based on events fabricated by his wife; thus, there is not sufficient evidence to uphold his convictions for domestic violence and disorderly conduct. By pleading guilty, the opportunity to have a jury review the sufficiency of the evidence has been waived. Thus, Ray waived this argument by entering his guilty pleas. Issue 2: Validity of pleas Ray argues that the only reason he pleaded guilty to domestic violence and disorderly conduct was because he was told to do so by the public defender. However, Ray fails to offer any evidence of this allegation. Because there is no proof in the record that the pleas are invalid, this issue has no merit. Issue 3: Illegal sentence Ray argues that his sentence for sexual battery is an illegal sentence, because the nine years of post-release supervision violates the maximum of five years of post-release supervision that is allowed by statute. However, the supreme court has made it clear that post-release supervision is not limited to five years. The MDOC has the responsibility of monitoring the convicted defendant for the first five years after which the court assumes that responsibility for the remainder of the term of post-release supervision. Issue 4: Jurisdiction Ray argues that the Circuit Court of Jackson County did not have jurisdiction to revoke his post-release supervision that was imposed by a different court. This argument fails because the circuit court of the district where the defendant is arrested has the power to continue or revoke all or any part of post-release supervision. Issue 5: Violation of due process Ray argues that there were several violations of his right to due process, which occurred during the revocation hearing. The minimum requirements of due process, applicable in a revocation hearing, include written notice of the claimed violations of probation, disclosure to the probationer of the evidence against him, an opportunity to be heard and to present witnesses and evidence, the right to confront and cross-examine adverse witnesses, a neutral and detached hearing body, and a written statement by the fact-finders as to the evidence relied on and the reasons for revoking probation. There is no indication in the record, and, in fact, Ray does not argue, that any of these requirements were not met here. Issue 6: Ineffective assistance of counsel Ray argues that he was denied his right to effective assistance of counsel because of deficiencies in his representation at the revocation hearing. In cases involving post-conviction relief, where a party offers only his affidavit, then his ineffective assistance claim is without merit. During the revocation hearing, Ray’s counsel announced to the circuit court that Ray admitted testing positive for marijuana on March 3, 2003, and December 16, 2003. Ray claims that he never admitted to counsel that he smoked marijuana, but instead he told counsel that he was on medication prescribed by his doctor that caused the drug test to come back positive. Even assuming that this is true, Ray has failed to show any prejudice caused by this admission. His guilty pleas for domestic violence and disorderly conduct were sufficient for revocation without considering the marijuana violation. Ray further claims that counsel’s lack of objection to his probation officer’s testimony constitutes ineffective assistance of counsel. Even if counsel had objected and there had been no testimony about the charges that were dismissed, that still leaves Ray’s convictions for domestic violence and disorderly conduct. Those alone were enough to revoke his post-release supervision. Issue 7: Order inconsistency At the conclusion of the revocation hearing, the circuit judge found that Ray had admitted to smoking marijuana and had pleaded guilty to criminal charges. These were the sole reasons that the circuit judge announced as grounds for the revocation. However, in the written order, the circuit judge not only included the foregoing reasons, but also, he included all of the other violations alleged by the district attorney at the hearing. The violations pronounced by the circuit judge included Ray’s admission of marijuana use and his guilty pleas for domestic violence and disorderly conduct. Either of these violations was more than sufficient to revoke his post-release supervision. The only inconsistency is that the court’s written order contains violations that were not included in the court’s oral pronouncement. This does not create a true ambiguity because the same violations pronounced by the circuit judge at the hearing were also included in the written order. The intent of the circuit judge is clear and no direct conflict exists.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court