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Montalto v. State

Court of Appeals of Mississippi

May 21, 2019

STEPHEN MONTALTO APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 04/27/2018

          RANKIN COUNTY CIRCUIT COURT. HON. WILLIAM E. CHAPMAN III Judge.

          ATTORNEY FOR APPELLANT: STEPHEN MONTALTO (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY BY: DARRELL C. BAUGHN

          BEFORE J. WILSON, P.J., McCARTY AND C. WILSON, JJ.

          C. WILSON, J.

         Â¶1. Stephen Montalto appeals the circuit court's dismissal of his motion for post- conviction relief (PCR). We find the circuit court erred in finding that it lacked jurisdiction, so we reverse and remand.

         FACTS AND PROCEDURAL HISTORY

         ¶2. After pleading guilty to aggravated assault and kidnapping charges in 2008, Montalto was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) followed by five years of supervised probation. The kidnapping offense involved a young child, so he was also ordered to register as a sex offender.

         ¶3. Because Montalto pled guilty, he did not directly appeal his conviction and sentence. Montalto later filed two PCR motions, which the circuit court dismissed. Montalto v. State, 119 So.3d 1087, 1089 (¶1) (Miss. Ct. App. 2013). Montalto appealed both dismissals, asserting (1) that his due-process rights were violated and (2) that he received ineffective assistance of counsel. Id. at 1092-93 (¶9). This Court found Montalto's claims lacked merit and affirmed the circuit court's dismissals. Id. at 1097 (¶26).

         ¶4. The record indicates that while incarcerated, Montalto served in several jobs as a "trusty" and took advantage of self-improvement opportunities offered by MDOC, such that MDOC allowed him to earn credit toward his twenty-year sentence. On December 20, 2014, MDOC released Montalto from incarceration and placed him on earned-release supervision (ERS).[1] As part of this process, Montalto registered as a sex offender as previously ordered by the sentencing court.

         ¶5. Approximately three weeks after Montalto's release, a field officer filed a Rule Violation Report (RVR) with MDOC asserting Montalto's residence did not meet the sex offender registration requirements. Following an administrative hearing on the RVR, MDOC revoked Montalto's ERS for failure to abide by ERS conditions. Montalto was reclassified and returned to prison.

         ¶6. Montalto appealed the ERS revocation through MDOC's administrative remedy program (ARP). On March 17, 2015, MDOC noted that Montalto's "[f]ailure to complete the conditions of ERS ha[d] been investigated" and concluded that because his kidnapping conviction was statutorily classified as a sex offense, he had actually never been eligible for ERS.[2] As a result, MDOC denied Montalto's appeal and request for ERS reinstatement.

         ¶7. In April 2015, Montalto filed a writ of habeas corpus in federal court and claimed his revocation and reclassification were unlawful. The federal court dismissed the writ due to Montalto's failure to exhaust his state court remedies. Montalto v. Miss. Dep't of Corrections, ...


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