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Thomas v. State

Court of Appeals of Mississippi

July 31, 2018

JAMES LEE THOMAS A/K/A JAMES L. THOMAS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/10/2017

          JONES COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT TRIAL HON. DAL WILLIAMSON JUDGE

          ATTORNEY FOR APPELLANT: JAMES LEE THOMAS (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          CARLTON, J.

          ¶1. In June 2008, James L. Thomas pleaded guilty to armed robbery. Thomas was sentenced to serve twenty years, with eight years to be served in the custody of the Mississippi Department of Corrections (MDOC), and nine years suspended. Thomas's sentence was also conditioned on him successfully completing three years on post-release supervision (PRS); successfully completing the circuit court's community service program; and paying court costs and restitution totaling $4, 699.00.

         ¶2. Thomas was released on PRS on February 19, 2015. In July 2016, the Circuit Court of Jones County (Second Judicial District) found that Thomas had committed two technical violations of his PRS conditions. It ordered that Thomas's PRS would be extended for an additional two years beyond the original PRS expiration date, and that Thomas should be transported to the Pascagoula Restitution Center where he would remain until all court costs and restitution were paid.

         ¶3. Thomas was discharged from the restitution center on August 26, 2016. In September 2016, the State petitioned to revoke Thomas's probation due to several alleged violations of certain conditions of his PRS. A revocation hearing was held, and the circuit court found that Thomas had committed three technical violations of his PRS conditions. The circuit court revoked Thomas's PRS and ordered Thomas to serve his nine-year suspended sentence. The circuit court summarily dismissed Thomas's subsequently filed motion for postconviction relief (PCR).

         ¶4. On appeal, Thomas asserts, pro se, that his PRS was unlawfully revoked because (i) his due process rights were violated during his September 9, 2016 revocation hearing; (ii) the circuit court erred in reinstating Thomas's suspended sentence based upon three technical violations because the court's actions were not within the guidelines of Mississippi Code Annotated section 47-7-37 (Rev. 2015); and (iii) his original sentence was illegal because he had not signed the acknowledgment on page four of the June 6, 2008 sentencing order, and thus the circuit court was without authority to reinstate his suspended sentence. We find no violation of Thomas's due process rights at the September 9, 2016 revocation hearing, and we further find that the circuit court was within its authority to impose Thomas's suspended sentence. We therefore affirm the circuit court's order denying Thomas's PCR motion.

         FACTS AND PROCEDURAL HISTORY

         ¶5. On June 3, 2008, Thomas filed a petition to plead guilty to the charge of armed robbery. As part of Thomas's plea agreement, the State dropped an aggravated assault charge against Thomas, and a separate felony-malicious-mischief charge (Cause No. 207-269-KR2) against him. Thomas, however, was still required to pay $4, 023.50 in restitution to Veronica McCollum for her car relating to the felony-malicious-mischief charge.

         ¶6. Thomas's guilty-plea hearing took place on June 6, 2008. After accepting Thomas's guilty plea, the circuit court sentenced Thomas to serve twenty years, with eight years to be served in the full-time custody of MDOC, and nine years suspended, conditioned upon his successful completion of three years on PRS and his successful completion of the circuit court's community service program. Thomas was also required to pay court costs in the amount of $250.50; $425 restitution to the victim of the armed robbery; and, as noted above, $4, 023.50 restitution to Veronica McCollum relating to the separate felony-malicious-mischief charge, totaling $4, 699.00. The first installment on these payments was due within thirty days of Thomas being placed on PRS, and each installment was to be paid at the rate of $135 per month until paid in full. The sentencing order was entered June 6, 2008.

         ¶7. Thomas was released on PRS on February 19, 2015. The record indicates that on July 8, 2016, the circuit court issued a summons and order to show cause as to why Thomas's suspended sentence should not be revoked. The revocation hearing was set for July 26, 2016. The show-cause order was based upon Thomas's failure to pay any of his installments on his court costs and restitution obligations; his failure to perform community service as ordered; and his failure to pay community-service supervision fees. Thomas was served with the summons and show-cause order on July 17, 2016.

         ¶8. The show-cause hearing was held on July 26 to allow Thomas to appear in open court so the circuit court could determine whether Thomas was in compliance with the PRS conditions of the June 6, 2008 sentencing order. At the hearing, the circuit court heard testimony from the Director of the Circuit Court Community Service Program, Jerald Parrish, who stated that Thomas had only participated in community service five times in 2016; failed to participate in community service since May 14, 2016; and had a supervision-fee arrearage of $600, with a total supervision-fee balance of $1, 250. The record also contains a printout from the Jones County Circuit Clerk showing no payments had been made on Thomas's restitution or court costs obligations. The circuit court had the printout entered into evidence at the July 26 hearing.

         ¶9. On July 28, 2016, the circuit court issued an order modifying its original sentencing order. Based on the evidence before it, the circuit court found that Thomas had committed his first and second technical violations of the conditions of his PRS, namely (1) failure to make payments towards court costs and restitution as required; and (2) failure to report to community service and pay supervision fees as required. The circuit court ordered that Thomas's PRS would be extended for an additional two years beyond the original PRS expiration date, and that Thomas should be transported to the Pascagoula Restitution Center where he would remain until all court costs and restitution were paid.

         ¶10. Less than a month later, on August 26, 2016, Thomas was discharged from the restitution center. On September 7, 2016, Donald C. Rogers, MDOC Probation and Parole Agent, filed an affidavit related to Thomas's conduct while on PRS, which set forth the following PRS violations:

Condition b) The Defendant shall obey all orders of the Court and the Probation/Parole Agent. . . . Defendant was order[ed] on July 28[, ] 2016 [to] be transported to the Pascagoula Restitution Center to stay until [he] completed [his court costs and restitution] payment[s]. The Defendant has failed to complete the Restitution Center by being kicked out due to failing to abide by the rules and regulations (failed to keep a job; testing positive for THC; and encouraging other[s] to refuse work, or participating in work stoppage on 8/26/16).
Condition h) The Defendant shall [p]ay court costs, community service fees, fines and restitution. . . . Defendant has made no payments towards the court and owes $4, 699.00. The Defendant has failed to pay community service fees and is in arrears of $1, 250.00.
Condition k) The Defendant shall participate in the District 18 Community Service Program. The Defendant has failed to participate in the program.

         ¶11. Based on the affidavit of Agent Rogers, the circuit court judge issued a warrant for Thomas. A hearing was held before the circuit court on September 9, 2016, to determine whether Thomas violated the terms of his PRS. Thomas was present and represented by counsel.

         ¶12. MDOC Officer Carrol Windham testified at the hearing as to the violations set forth in Agent Rogers's affidavit, including Thomas's discharge from the Pascagoula Restitution Center on August 26, 2016; his failure to make payments toward court costs and restitution as required; and his failure to participate in community service and pay participation fees as required. Regarding Thomas's failure to pay his installments on the court costs and restitution, the circuit court also examined a printout from the circuit clerk's office showing no payments had been made as of September 9, 2016, and entered that record into evidence.

         ¶13. Officer Shirlean Anderson, an employee of the Pascagoula Restitution Center, testified at the hearing about Thomas's discharge from the center. She described Thomas threatening bodily harm to her when she asked him to pick up his clothes off the floor.[1]Officer Anderson also testified about Thomas's work history, namely that he was working for a landscaping company, and when she came back from two days off of work, Thomas was no longer working at the landscaping job. She further testified that Thomas and three others were then sent to work at Boggy Vineyard, and "the guy [from Boggy Vineyard] called and said come pick them up, they didn't want to work anymore."

         ¶14. Mr. Jerald Parrish testified about Thomas's record and performance of his community service obligations for 2016 up until July 28, 2016, when Thomas was sent to the restitution center. In that time period, Thomas had twenty-eight opportunities to report and reported only five times.

         ¶15. Thomas testified on his own behalf that he never threatened Officer Anderson; he had not lost his jobs for wrongdoing; and he had receipts and check stubs showing that he had made payments while he was at the restitution center but that they were at his house. Thomas testified that if he could go back to work, he could pay his fines. The trial court then asked ...


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