Anderson v. State
| Docket Number: | 2010-CP-01628-COA Linked Case(s): 2010-CT-01628-SCT ; 2010-CP-01628-COA ; 2010-CT-01628-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 11-29-2011 Opinion Author: Roberts, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Illegal sentence - Section 47-7-34(1) - Revocation hearing - Jurisdiction - Section 47-7-37 - Due process - Double jeopardy - Ineffective assistance of counsel - Judicial misconduct - Findings of fact - M.R.C.P. 52 - Section 99-39-11 - Affidavits Judge(s) Concurring: Lee, C.J., Griffis, P.J., Ishee, Carlton, Maxwell and Russell, JJ. Non Participating Judge(s): Myers, J. Concur in Part, Concur in Result 1: Irving, P.J. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 09-20-2010 Appealed from: Panola County Circuit Court Judge: James McClure, III Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: CV2010-0259MP2 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Ira Lee Anderson, II |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR. |
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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. |
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| Topic: | Post-conviction relief - Illegal sentence - Section 47-7-34(1) - Revocation hearing - Jurisdiction - Section 47-7-37 - Due process - Double jeopardy - Ineffective assistance of counsel - Judicial misconduct - Findings of fact - M.R.C.P. 52 - Section 99-39-11 - Affidavits |
| Summary of the Facts: | Ira Anderson pled guilty to aggravated assault and was sentenced to five days, with ten years of post-release supervision. At the conclusion of the hearing, Anderson was given credit for time served and began serving the PRS portion of his sentence. Less than six months later, Anderson was again before the circuit court representing himself at his PRS revocation hearing. After hearing evidence from the State and Anderson, the circuit judge entered an order revoking eight years of Anderson’s PRS because Anderson violated the terms of his PRS by failing to pay any of the court-ordered restitution and costs, not reporting to his probation officer, not having suitable employment, testing positive for marijuana use, driving under the influence, careless driving, speeding, having no insurance, and driving with a suspended driver’s license. Anderson filed a motion for post-conviction relief which the court denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Illegal sentence Anderson argues that the sentence he received at his PRS revocation hearing was illegal. He argues he was originally sentenced to serve five days in the custody of the MDOC, with no years suspended and ten years of PRS. He further contends that no portion of his sentence was suspended originally; therefore, the circuit judge could not order him to serve any more time in jail. The record shows that Anderson understood he faced up to possibly ten more years in the custody of the MDOC. Further, under section 47-7-34(1), it was proper for the circuit court to give Anderson a PRS sentence in addition to the five days he was ordered to serve in custody. The statute contains no language that a suspended sentence must be given if the circuit court also wants to impose PRS. Likewise, it contains no language prohibiting the circuit court from suspending a portion of the sentence as long as the remaining portion of the sentence “includes a term of incarceration in a state or local correctional facility[.]” Issue 2: Jurisdiction Anderson argues the circuit court lacked jurisdiction because he never received a suspended sentence at his sentencing hearing; thus, the court did not have jurisdiction to later revoke a suspended sentence when he violated the terms and conditions of PRS. When the circuit court revoked Anderson’s PRS and ordered him to serve the remaining portion of his suspended sentence, it was not attempting to alter or amend the sentence; it was merely enforcing the sentence originally given. Anderson also argues that Panola County did not have jurisdiction to hold his PRS revocation hearing since he was arrested in Quitman County. Pursuant to section 47-7-37, the original sentencing circuit court has jurisdiction to hear the PRS revocation unless it grants written permission to the circuit court in the county where the PRS violation and arrest occurred to handle the PRS revocation hearing. Issue 3: Constitutional violations Anderson argues he was denied due process at his PRS revocation hearing. Anderson was given the opportunity to cross-examine all State witnesses at the revocation hearing. Anderson was provided at least twenty days’ notice prior to his hearing, which gave him ample time to prepare his defense. The evidence presented at the hearing was sufficient to show that Anderson more likely than not violated conditions of his PRS. Anderson argues that the revocation of his PRS and the subsequent imposition of eight years in the custody of the MDOC exceed his original sentence which exposes him to double jeopardy. Contrary to Anderson’s claims, the circuit judge did not impose an additional sentence; he merely revoked Anderson’s PRS and enforced the original sentence imposed. Anderson argues that his attorney failed to subpoena any of his requested witnesses because he would show that the witnesses perjured themselves when giving their statements to the police. Anderson fails to take into consideration that he is challenging the revocation of his PRS, not the entry of his guilty plea. At the PRS revocation hearing, Anderson chose to represent himself. Therefore, he cannot claim that his attorney was ineffective at the revocation hearing since he represented himself. Issue 4: Judicial misconduct Anderson argues the circuit judge’s actions of not knowing the following are acts of willful misconduct and bad faith: 1. PRS is not the same as a suspended sentence; 2. to have a suspended sentence, a definite sentence must be ordered with a portion suspended and a period of probation ordered; 3. Anderson’s violation of his PRS could only result in the reinstatement of the original sentence; 4. Anderson could not be re-sentenced to a term longer than his original sentence; and 5. PRS does not automatically convert into a prison sentence if a term of PRS is violated. The cases provided by Anderson are not relevant to support his claim in a PCR motion. Thus, the Court will not consider this issue. Issue 5: Findings of fact Anderson argues that the circuit court erred when it did not issue findings of fact and conclusions of law when he requested them as required by M.R.C.P. 52. Section 99-39-11 places two obligations on the circuit court when dismissing a PCR motion: make an order of dismissal and cause the prisoner to be notified. The circuit court satisfied these two requirements in its order. The trial court is under no obligation to render findings of fact and conclusions of law where it has dismissed a motion for post-conviction collateral relief under section 99-39-11. Issue 6: Affidavits Anderson argues that the circuit court erred when it found he had not attached any affidavits in support of his PCR motion. When considered in the correct context, the circuit court was correct in finding that Anderson did not submit any affidavits to support his ineffective-assistance-of-counsel claim. |
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