Clonelle Shields v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CA-00923-COA

CLONELLE SHIELDS A/K/A CLONELLE APPELLANT
DEMARCUS SHIELDS A/K/A CLONELLE D.
SHIELDS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/26/2016
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ERICH GREGG JERSCHEID
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DENIED PETITION TO ADJUDICATE
ELIGIBILITY FOR A PAROLE HEARING
AND DISMISSED PETITION FOR POST-
CONVICTION COLLATERAL RELIEF
DISPOSITION: AFFIRMED: 06/27/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

GRIFFIS, P.J., FOR THE COURT:

¶1. Clonelle Shields appeals the Madison County Circuit Court’s dismissal of his petition

for post-conviction collateral relief (PCCR) and the denial of his request for a parole-

eligibility hearing. We find no error and affirm the circuit court.

FACTS AND PROCEDURAL HISTORY

¶2. On June 24, 2010, Shields pled guilty to three counts of business burglary, two counts

of simple assault on a law enforcement officer, and possession of cocaine. The circuit judge
sentenced Shields as follows:

1. Sentenced to seven years for business burglary, in cause number 2010-
0155. However, after serving one day, release and place on five years
of post-release supervision.

2. Sentenced to seven years on each count of business burglary, in cause
number 2010-0156, Counts I and II, as a habitual offender, with
sentences to run consecutively, for a total of fourteen years.

3. Sentenced to five years on each count of simple assault on a law
enforcement officer, in cause number 2010-0494, Counts I and II.

4. Sentenced to four years for possession of more than 0.1 grams but less
than 2 grams of cocaine, in cause number 2010-0494, Count III.

5. The simple assault and possession charges, in cause number 2010-0494,
Counts I, II, and III[,] shall run concurrently with each other and
concurrently with the sentences imposed on the burglary charges, in
causes number 2010-0155 and 2010-0156, Counts I and II.

6. Upon release from MDOC, serve five years of post-release supervision
in cause number 2010-0155.

¶3. On April 7, 2016, Shields filed a “Petition to Adjudicate Eligibility for Parole Hearing

[and] for Leave to Correct/Review Sentence to Comply with Order.” After a hearing on the

petition, the circuit judge decided both issues and entered his Judgement of Dismissal and

Order Denying Petition. On the first issue, parole eligibility, the circuit judge declined to

recommend Shields to the Mississippi Parole Board for an eligibility hearing, pursuant to

Mississippi Code Annotated section 47-7-3(1)(g)(iii) (Rev. 2015). This portion of the

petition was denied.

¶4. With regard to the alleged sentencing conflict, the circuit judge found that the petition

did not fall within the exceptions to Mississippi Code Annotated section 99-39-5(2) (Rev.

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2015). Thus, this portion of the petition was dismissed as time-barred. The circuit court

further found that, notwithstanding the time-bar, it plainly appeared from the face of the

petition that Shields was not entitled to any relief. Consequently, the court also dismissed

the petition pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) of the

Uniform Post-conviction Collateral Relief Act.

¶5. Shields appeals the circuit court’s denial and dismissal of the requests set forth in his

petition.

STANDARD OF REVIEW

¶6. “We review the dismissal of a [PCCR] motion under an abuse-of-discretion standard.”

Barnett-Phillips v. State, 195 So. 3d 226, 228 (¶5) (Miss. Ct. App. 2016) (citation omitted).

“We will only reverse if the circuit court’s decision was clearly erroneous.” Id. “We review

questions of law de novo.” Id.

ANALYSIS

I. Denial of Parole Recommendation

¶7. Shields first argues that the circuit court erred when it denied his request to proceed

with a parole-eligibility hearing. He asserts that he completed twenty-five percent of his

sentence, and therefore, he was entitled to a parole-board determination as a statutory liberty

interest. The State of Mississippi contends that this appeal should be dismissed. The State

argues that the circuit court’s denial was not a final judgment from which Shields can appeal.

¶8. The first portion of Shields’s petition is essentially a request for a parole

recommendation. Section 47-7-3(1)(g)(iii) provides that “[a]ny offender who has not

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committed a crime of violence under section 97-3-2 and has served twenty-five percent . . .

or more of his sentence may be paroled by the parole board if . . . the sentencing judge . . .

authorizes the offender to be eligible for parole consideration.” (Emphasis added).

¶9. In his brief, Shields recites the statutory language of section 47-7-3. He recognizes

that a circuit judge must authorize a parole-eligibility hearing, yet he regards the requirement

as a mere procedural step. Shields argues that the eligibility determination remains within

the province of the parole board. While we agree that the eligibility determination does in

fact rest with the parole board, we must note that Shields has skipped the first step in the

parole-eligibility process. The parole board may only consider an offender for parole after

a circuit judge has authorized him to attend an eligibility hearing before the parole board.

Therefore, Shields’s assertion that completion of twenty-five percent of his sentence

automatically entitles him to an eligibility hearing is in error.

¶10. This Court previously held that the language of section 47-7-3 “unambiguously

provides . . . [a] circuit court judge [with] discretion to issue a positive or negative

recommendation for parole eligibility.” Barnett-Phillips, 195 So. 3d at 230 (¶15). The use

of “may” rather than “shall” evinces the Mississippi Legislature’s intent to vest the circuit

judge with discretionary authority over parole recommendations to the parole board. Id.

¶11. Here, the circuit judge considered Shields’s extensive criminal history and declined

to recommend parole eligibility. During the hearing, the circuit judge pointed out that

Shields had five criminal convictions prior to receiving the six convictions now at issue. The

circuit judge’s recommendation is the first step. There is no need to consider whether the

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parole board would ultimately determine that Shields is eligible for parole – he does not

reach this secondary step.

¶12. Furthermore, this Court previously held “that the denial of a recommendation to the

[p]arole [b]oard for an early release and/or parole, pursuant to section 47-7-3, ‘fails to

implicate an appealable judgment.”’ Id. at (¶16) (quoting Gamage v. State, No. 2015-CP-

00593-SCT (Miss. Oct. 8, 2015) (en banc order)). Thus, the order denying Shields’s request

is not a final judgment and therefore not an appealable order. This claim is without merit.

II. Petition for PCCR

¶13. Shields next challenges the circuit court’s dismissal of his petition for review and

correction of his sentencing order. He asserts that the circuit judge erred when he dismissed

the petition. The State argues that Shields’s petition was time-barred and therefore the

dismissal was proper. We agree.

¶14. “Under . . . section 99-39-5(2) . . . , a movant has three years to file a [PCCR] motion,

and failure to file a [PCCR] motion within the three years is a procedural bar.” Wood v.

State, 200 So. 3d 491, 493 (¶6) (Miss. Ct. App. 2016) (citation omitted). Shields pled guilty

and was sentenced on June 24, 2010. He did not challenge his sentence until April 7, 2016,

more than five years later. The petition is time-barred.

¶15. “However, ‘there are several statutory and judicially created exceptions to the

legislatively imposed time-bar. Section 99-39-5(2)(a)-(b) exempts from the time-bar cases

in which the movant can demonstrate new evidence [previously] not available at trial, an

intervening higher-court decision, or that the movant is being detained on an expired

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sentence.’” Id. at (¶7). Also excepted are “errors affecting fundamental constitutional

rights.” Id. (citing Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010)) (citation

omitted). “The movant bears the burden to prove [that] an exception applies.” Id. (citation

and quotation marks omitted).

¶16. Here, Shields claims no exception to the procedural time-bar. Instead, in an attempt

to advance his position, he mischaracterizes the holding in Armstead v. State, 503 So. 2d 281,

284 (Miss. 1987). He argues that he received multiple punishments under the same sets of

operative facts, which he asserts was plain error. Further, he claims that combining the

sentences was a violation of Mississippi Code Annotated section 99-19-21 (Rev. 2015).

¶17. In Armstead, the Mississippi Supreme Court held that a defendant could be prosecuted

for two separate charges even if the charges “arise out of the same occurrence or sequence

of events . . . .” Armstead, 503, So. 2d at 284. It further held that “upon such convictions,

separate and consecutive sentences may be imposed.” Id. Moreover, section 99-19-21 grants

the circuit court the discretion to allow subsequent convictions to “commence either at the

termination of the imprisonment for the preceding conviction or [to] run concurrently with

the preceding conviction.” Miss. Code Ann. § 99-19-21(1).

¶18. Notwithstanding the procedural time-bar, the circuit judge correctly held that the

petition was subject to dismissal on its face. In his petition, Shields asserted that his

sentencing order was ambiguous. This contention does not fall within the exceptions set

forth in section 99-39-5(2). We find no error and affirm the circuit court’s dismissal of

Shields’s petition for PCCR.

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¶19. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.

LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.

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