Nathan Sinko v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CA-00107-COA

NATHAN SINKO A/K/A NATHAN C. SINKO APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/08/2014
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JIM WAIDE
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
ANTHONY LOUIS SCHMIDT JR.
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DENIED
DISPOSITION: REVERSED AND RENDERED - 04/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

WILSON, J., FOR THE COURT:

¶1. In May 2012, Nathan Sinko pled guilty to manufacturing and possessing

methamphetamine. Under the statutes in effect at the time of Sinko’s plea and sentencing,

his conviction for manufacturing a controlled substance other than marijuana rendered him

ineligible for parole. Indeed, this Court made this point clear in McGovern v. Miss.

Department of Corrections, 89 So. 3d 69 (Miss. Ct. App. 2011). Nonetheless, for reasons

that have not been explained, prior to and continuing well after McGovern, the Mississippi

Department of Corrections (MDOC) classified Sinko and other offenders convicted of
manufacturing or selling a controlled substance other than marijuana as parole eligible.

Accordingly, MDOC continued to assign parole eligibility dates to these offenders, and the

Parole Board continued to grant them parole. It appears that this continued for at least two

and a half years after the McGovern decision. Thus, when Sinko entered MDOC custody in

2012, MDOC gave him a parole eligibility date, which was adjusted over time. In July 2014,

Sinko received an “Action of the Parole Board,” dated July 8, 2014, that indicated that he

would be paroled on September 22, 2014. However, before he was paroled, MDOC

informed Sinko that he was not eligible for parole, apparently because MDOC was

attempting to comply, belatedly, with the statutes that this Court interpreted in McGovern.

Sinko challenged MDOC’s determination by filing a motion for post-conviction relief (PCR)

in circuit court. After the circuit court denied his motion, he appealed.

¶2. On appeal, Sinko argues that legislation enacted in 2014 made him eligible for parole,

even though the statutes in effect at the time of his plea and sentencing provided that he was

ineligible. Sinko also argues that by depriving him of parole eligibility based on an

“arbitrarily selected ‘cut-off date,’” MDOC violated his rights under the Equal Protection

Clause and the Due Process Clause. Finally, Sinko argues that his 2011 guilty plea was

involuntary because the court did not inform him that he would be ineligible for parole. For

the reasons discussed below, we conclude that based on the changes to the law effective July

1, 2014, Sinko’s conviction for manufacturing methamphetamine does not render him

ineligible for parole. We do not hold that Sinko is entitled to be paroled; that is a decision

for the Parole Board. We hold only that his conviction for manufacturing methamphetamine

2
does not render him ineligible. Because we decide the case on statutory grounds, we do not

address Sinko’s constitutional claims.

FACTS AND PROCEDURAL HISTORY

¶3. In July 2011, the Oktibbeha County grand jury returned a three-count indictment

charging Sinko with manufacturing methamphetamine in violation of Mississippi Code

Annotated section 41-29-139 (Rev. 2009) (Count I); possessing more than thirty grams of

methamphetamine in violation of section 41-29-139 (Count II); and generating waste in

connection with the manufacturing of methamphetamine in violation of Mississippi Code

Annotated section 49-17-603 (Supp. 2011) (Count III). On May 2, 2012, Sinko pled guilty

to Count I and Count II. In exchange, the State dropped Count III.

¶4. At Sinko’s plea hearing, the circuit judge questioned Sinko thoroughly and found that

his plea was knowing and voluntary. As the factual basis for the plea, the State reported that

in March 2011 Sinko’s father-in-law alerted the sheriff’s department that Sinko was

operating a meth lab in a shed behind Sinko’s home. Deputies investigated and found Sinko

in possession of a cooler with several bottles “found to have a mixture of things in the middle

of a methamphetamine cook.” Nine bottles submitted to the crime lab were found to contain

a total of 172.1 grams of methamphetamine.1 On Count I, the court sentenced Sinko to

1
At Sinko’s sentencing hearing, his attorney suggested that this overstated the amount
of methamphetamine involved because the bottles did not contain “finished product” but
rather “a large quantity of . . . liquid that had some methamphetamine characteristics to it.”
A factual basis regarding the weight of the methamphetamine was necessary because Count
II required proof that Sinko possessed more than thirty grams of methamphetamine. See
Miss. Code Ann. § 41-29-139(c)(1)(D). With respect to Count I, the law in effect at the time
Sinko pled guilty did not require proof of the amount of methamphetamine that Sinko had
manufactured. As discussed below, section 41-29-139(b) was amended effective July 1,

3
twelve years in MDOC custody, a $5,000 fine, and five years of post-release supervision.

On Count II, the court sentenced him to twelve years in MDOC custody and a $5,000 fine,

with the sentence to run concurrently to the sentence on Count I.

¶5. On September 23, 2014, Sinko filed a pro se PCR motion. Sinko alleged that he pled

guilty with the understanding that he would be eligible for parole, and that he was given and

had always had a parole eligibility date “up to a few weeks ago,” but that his “parole date

[had been] taken away.” Sinko asked the court to “ORDER [his] parole date to be placed

back or allow [him] any type of [PCR].”

¶6. Sinko subsequently obtained counsel, and on November 13, 2014, he filed a new PCR

motion. In his new PCR motion, Sinko alleged that he had been “set to be released [on

September 22, 2014,] after being granted parole on July 8, 2014.” In support, Sinko

submitted an “Action of the Parole Board” that appears to reflect a decision of the Parole

Board to that effect. Sinko also submitted MDOC “Inmate Time Sheets” that he received in

2012, 2013, and 2014, each reflecting a parole eligibility date. Sinko alleged that sometime

after July 8, 2014, but before he was paroled, MDOC informed him that he was ineligible for

parole under Mississippi Code Annotated section 47-7-3, as interpreted in McGovern, supra.

Sinko alleged that until MDOC abruptly declared him ineligible for parole, similarly situated

offenders had been deemed parole eligible and paroled as a result of MDOC’s prior

“misinterpretation of the law.” Sinko alleged that MDOC’s decision to correct its

“misinterpretation” effective on an arbitrary “‘cut-off’ date” violated his rights to equal

2014. Under current law, the applicable sentencing range is dependent on the amount of
drugs that the defendant manufactured.

4
protection and due process. Sinko asked the court “to set[] his sentence aside” and “sentence

him to time served.”

¶7. On December 8, 2014, the circuit judge dismissed Sinko’s PCR petition. The court

ruled that it was without jurisdiction to reconsider or amend Sinko’s sentence and that Sinko

“failed to establish any claim which would warrant [PCR].” Sinko filed a timely notice of

appeal.

DISCUSSION

¶8. As stated in the introduction to this opinion, we conclude that based on statutory

amendments that went into effect on July 1, 2014, Sinko’s conviction for manufacturing

methamphetamine does not render him ineligible for parole. However, in the circuit court,

Sinko failed to make this argument and failed to request appropriate relief. Accordingly, we

must first consider whether the issue is properly before this Court.

I. Whether Sinko’s claim that he is eligible for parole is properly
before this Court.

¶9. In his first issue on appeal, Sinko argues that a PCR motion is a proper vehicle to

challenge MDOC’s determination that he is ineligible for parole. The State agrees with him,

and we do too. See Keys v. State, 67 So. 3d 758, 759-60 (¶¶6-9) (Miss. 2011) (holding that

a PCR motion is a proper vehicle for challenging a parole-eligibility determination).

¶10. A more difficult procedural issue is that Sinko’s claim that he is eligible for parole

plainly does not entitle him to the relief that he requested in the second or amended PCR

motion that he filed in the circuit court, which was to have his sentence set aside and to be

5
re-sentenced to time served.2 Moreover, in the circuit court Sinko did not raise the statutory

argument that he now advances on appeal. At oral argument, Sinko’s appellate counsel, who

is not the same attorney who represented him in the circuit court, candidly conceded these

points. He acknowledged that the “proper relief was not requested” in the circuit court and

that this Court “certainly” could affirm for that reason alone.

¶11. This is a problem for Sinko because a “trial judge cannot be put in error on a matter

which was not presented to him for decision.” Green v. State, 183 So. 3d 28, 30-31 n.1

(Miss. 2016) (quoting Holmes v. State, 798 So. 2d 533, 534 (¶16) (Miss. 2001)).3 The only

matter presented to the circuit judge for decision in this case was whether Sinko was entitled

to have his sentence set aside and to be re-sentenced to time served on constitutional grounds.

The circuit judge committed no error by ruling that he was not.

¶12. By failing to raise certain issues and request the proper relief in the circuit court,

Sinko clearly waived the right to raise those issues on appeal. But Sinko’s waiver does not

deprive this Court of jurisdiction or discretion to decide those issues. On appeal, both Sinko

and the State have briefed and ably argued the merits of the question whether he is eligible

for parole as a result of statutory amendments that went into effect on July 1, 2014. On that

issue, the record requires no further development. Moreover, the record suggests that if

2
Although Sinko’s pro se PCR motion lacked detail regarding the legal basis of his
claim, his pro se filing did more appropriately seek reinstatement of his parole date or, in the
alternative, “any type of [PCR].”
3
In general, we will not disturb a denial or dismissal of a PCR motion unless the
circuit court’s decision was clearly erroneous. Presley v. State, 176 So. 3d 158, 160 (¶8)
(Miss. Ct. App. 2015). However, we review questions of law de novo. Id.

6
Sinko’s interpretation of the 2014 amendments is correct, he should have been released on

parole over eighteen months ago. Under these circumstances, it would be unjust to require

Sinko to start over in a new circuit court action or administrative proceeding. Moreover, the

issue is an important one that deserves prompt resolution. At oral argument, the State agreed

with Sinko that there will be “numerous other appeals raising this same issue,” which appears

to affect potentially hundreds of inmates. In the interest of judicial economy, we have

discretion to address such issues on appeal even if they were waived and never properly

presented to the trial court. See, e.g., Tinnon v. Martin, 716 So. 2d 604, 613-14 (¶¶52, 57-58)

(Miss. 1998); Fordice v. Bryan, 651 So. 2d 998, 1001 (Miss. 1995); State Hwy. Comm’n of

Miss. v. McDonald's Corp., 509 So. 2d 856, 860, 863 (Miss. 1987). Accordingly, we will

address Sinko’s contention that he is eligible for parole notwithstanding his waiver.

II. Whether Sinko’s conviction for manufacturing methamphetamine
renders him ineligible for parole.

¶13. When Sinko pled guilty to manufacturing methamphetamine, he clearly was ineligible

for parole under the relevant statutes as they read at the time. Mississippi Code Annotated

section 47-7-3(h), which governs parole eligibility, then read, in relevant part, as follows:

No person shall be eligible for parole who is convicted or whose suspended
sentence is revoked after June 30, 1995, except that an offender convicted of
only nonviolent crimes after June 30, 1995, may be eligible for parole if the
offender meets the requirements in subsection (1) and this paragraph. . . . For
purposes of this paragraph, “nonviolent crime” means a felony other than
homicide, robbery, manslaughter, sex crimes, arson, burglary of an occupied
dwelling, aggravated assault, kidnapping, felonious abuse of vulnerable adults,
felonies with enhanced penalties, [or] the sale or manufacture of a controlled
substance under the Uniform Controlled Substances Law . . . . An offender
convicted of a violation under Section 41-29-139(a), not exceeding the
amounts specified under Section 41-29-139(b), may be eligible for parole.

7
In addition, an offender incarcerated for committing the crime of possession
of a controlled substance under the Uniform Controlled Substances Law after
July 1, 1995, shall be eligible for parole.

(Emphasis added). Section 41-29-139(a) is the provision of the Uniform Controlled

Substances Law that makes it unlawful to sell or manufacture a controlled substance. At the

time Sinko pled guilty and was sentenced, the only “amounts specified under Section 41-29-

139(b)” were amounts of marijuana or synthetic marijuana.4 Accordingly, any person

convicted of manufacturing or selling a controlled substance other than marijuana was

ineligible for parole. We specifically addressed this issue in McGovern, stating: “None of

the provisions of section 41-29-139(b) pertain to selling an amount of a controlled substance

other than marijuana. They do not apply to an offender convicted of selling amphetamines.

Because McGovern is incarcerated for selling amphetamines, he is not eligible for parole.”

McGovern, 89 So. 3d at 72 (¶8); accord Turner v. State, 169 So. 3d 945, 948-49 (¶¶10-14)

(Miss. Ct. App. 2014) (holding that a person convicted of selling cocaine was ineligible for

parole).

¶14. However, at the time McGovern was decided, MDOC apparently classified offenders

convicted of selling and manufacturing all types of controlled substances—not just

marijuana—as eligible for parole. Moreover, MDOC has acknowledged that even after the

McGovern decision, it continued, erroneously, to deem such offenders parole eligible.5 As

4
This sentence authorizing parole for persons convicted of selling or manufacturing
marijuana was added to section 47-7-3 effective July 1, 2008. See 2008 Miss. Laws ch. 438.
5
In both McGowan and Turner, MDOC had classified the offender as ineligible for
parole for other reasons. In both cases, this Court held that MDOC’s reasons for denying
parole eligibility were erroneous but that the offender was ineligible for parole because he

8
a result, MDOC continued to assign parole eligibility dates to offenders convicted of

manufacturing or selling all types of controlled substances, and the Parole Board continued

to parole these offenders. This policy continued until sometime after July 1, 2014, when, in

an apparent attempt to comply with the law, MDOC conducted an “audit” to identify

offenders, such as Sinko, who had been convicted of selling or manufacturing a controlled

substance other than marijuana and who had been erroneously classified as eligible for parole

and given parole eligibility dates.6

¶15. During the 2014 legislative session, the Legislature enacted comprehensive criminal

justice reform legislation, known as House Bill 585,7 which amended numerous statutes

related to parole and sentencing, including sections 47-7-3 and 41-29-139. These

amendments went into effect on July 1, 2014. The above-quoted paragraph of section 47-7-3

(the parole eligibility statute) was re-designated as paragraph (f) with only one change to its

text. The following sentence was added to the end of the paragraph: “This paragraph (f) shall

had been convicted of selling a controlled substance other than marijuana. See Turner, 169
So. 3d at 948-49 (¶¶11-13); McGovern, 89 So. 3d at 71-72 (¶¶7-8).
6
The audit may have been triggered by our decision in Turner, supra, which was
handed down on July 15, 2014. Sinko moved to supplement the record on appeal with
documents that allegedly show that more than 3,000 similarly situated offenders were
paroled erroneously after January 1, 2011, and that over 800 such offenders were re-
classified as ineligible for parole in connection with MDOC’s audit. We denied Sinko’s
motion to take judicial notice of these documents, but the State does not dispute that many
offenders were erroneously granted parole prior to the audit or that similarly situated
offenders were re-classified as ineligible for parole after the audit.
7
2014 Miss. Laws ch. 457 (hereinafter, “House Bill 585” or “H.B. 585”).

9
not apply to persons convicted on or after July 1, 2014[.]” H.B. 585, § 40.8 As amended, the

paragraph continues to provide that “[a]n offender convicted of a violation under Section 41-

29-139(a), not exceeding the amounts specified under Section 41-29-139(b), may be eligible

for parole.” Id.

¶16. While there were no substantial changes to the relevant paragraph of section 47-7-3,

significant amendments were made to section 41-29-139(b). See H.B. 585, § 37.

Specifically, section 41-29-139(b) was amended to establish weight- and unit-based

sentences for all Schedule I, II, III, IV, and V drugs. See id. Thus, in the language of section

47-7-3(f), there are now “amounts specified under Section 41-29-139(b)” for controlled

substances other than marijuana, including methamphetamine.

¶17. House Bill 585’s amendments to section 41-29-139(b) give rise to the issue of

statutory interpretation at the heart of this case. If we simply read the current versions of

sections 47-3-7(f) and 41-29-139(b), then Sinko appears to be eligible for parole. He was

convicted of a violation of section 41-29-139(a) for manufacturing methamphetamine.

However, he was not convicted of manufacturing more than the amount specified in section

41-29-139(b). (He was not convicted of manufacturing any specific amount of

methamphetamine. See supra n.1.) Therefore, Sinko appears to be eligible for parole under

section 47-7-3(f). This is Sinko’s basic argument.

¶18. The State counters that it would be “absurd” to interpret the relevant statutes to grant

parole eligibility to Sinko and other similarly situated offenders convicted prior to July 1,

8
A new paragraph (g) applies to persons convicted after July 1, 2014.

10
2014. The State reasons as follows: Prior to July 1, 2014, the only “amounts specified” in

section 41-29-139(b) were amounts of marijuana and synthetic marijuana. Therefore, in

prosecutions for the sale or manufacture of other controlled substances, including Sinko’s,

proof of the amount sold or manufactured was unnecessary. See supra n.1. Accordingly,

prior to July 1, 2014, “sentencing orders and indictments received by MDOC for offenders

convicted of sale or manufacture of a controlled substance (other than marijuana) [did] not

contain the actual amount of the controlled substance sold or manufactured.” Thus, the State

explains, for an offender convicted prior to July 1, 2014, MDOC cannot determine the

amount of the controlled substance that the offender sold or manufactured. Therefore, the

State argues that we must interpret section 47-7-3(f)’s seemingly straightforward reference

to “the amounts specified under Section 41-29-139(b)” to mean “the amounts specified under

Section 41-29-139(b) [as it read prior to July 1, 2014].”

¶19. “When construing the meaning of a statute, we must look at the words of the statute.”

Caldwell v. N. Miss. Med. Ctr., 956 So. 2d 888, 890-91 (¶10) (Miss. 2007). When we do so,

our “first question . . . is whether the statute is ambiguous. When a statute is unambiguous,

this Court applies the plain meaning of the statute and refrains from the use of statutory

construction principals [sic].” Gilmer v. State, 955 So. 2d 829, 833 (¶9) (Miss. 2007)

(citation omitted). That is, when a statute’s “language is plain, it will be enforced as

written.” In re AB Jr., 663 So. 2d 580, 581 (Miss. 1995). In this case, there is nothing

ambiguous about “the words” of section 47-7-3 or 41-29-139(b) or their interaction. The

statutes’ language is plain, and their meaning is straightforward: offenders convicted prior

11
to July 1, 2014, of selling or manufacturing controlled substances not exceeding the amounts

specified in section 41-29-139(b) may be eligible for parole. Sinko is such an offender;

therefore, in the absence of some other disqualification, he is eligible for parole under section

47-7-3(f).

¶20. The State relies on Belk v. Bean, 247 So. 2d 821, 828 (Miss. 1971), and Hassett v.

Welch, 303 U.S. 303, 314 (1938), for the proposition that where one statute adopts the

provisions of another statute by reference, the “adoption takes the statute as it exists at the

time of adoption and does not include subsequent additions or modifications by the statute

so taken unless it does so by express intent.” Hassett, 303 U.S. at 314. However, the State’s

reliance on this infrequently invoked canon of construction is misplaced because the canon

applies, at most, in cases in which “one section of a statute refers to another section which

alone is amended.” Id. (emphasis added); see also Belk, 247 So. 2d at 828 (explaining that

although the adopted statute was amended, the adopting statute “was not amended”). That

is not what occurred in House Bill 585. Here, in the same bill, the Legislature brought

forward and amended both section 47-7-3(f) and section 41-29-139(b). “While the edit [to

section 47-7-3(f)] may appear small it is sufficient to render the Hassett canon inapplicable

because it demonstrates that [section 47-7-3(f)] did not escape [the Legislature’s] notice at

the time it amended [section 41-29-139(b)].” New York ex rel. N.Y. State Office of Children

& Family Servs. v. U.S. Dep’t of Health & Human Servs. Admin. for Children & Families,

556 F.3d 90, 99 (2d Cir. 2009) (“[T]he Hassett canon is not a categorical rule that compels

courts to always read statutory cross-references as pointing to their original targets.” (internal

12
quotations omitted)). Given that the Legislature deliberately amended both of the relevant

statutes, it is logical to interpret the amended version of 47-7-3 to incorporate the amended

version of 41-29-139(b).

¶21. There are also significant practical difficulties with the State’s argument. Under the

State’s interpretation, parole eligibility determinations would require the reader to analyze

a combination of old and new statutes. The reader would be expected to divine that section

47-7-3(f) incorporates by reference an old version of section 41-29-139(b), rather than the

current version, even though nothing in the text of either provision so states. The State

suggests that the reader should infer incorporation of the old version of section 41-29-139(b)

because the Legislature amended section 47-7-3(f) to limit its application to offenders

convicted before July 1, 2014. However, the final sentence of section 47-7-3(f) only

describes the persons to whom it applies. There is no basis for us to conclude that the

Legislature intended the sentence to serve as a vague and obscure clue that the reader must

search out an old version of section 41-29-139(b). Rather, “[t]he Legislature is presumed to

know of the statutes it is enacting and of the subject matter affected.” Seward v. Dogan, 198

Miss. 419, 436, 21 So. 2d 292, 294 (1945).

¶22. Moreover, had the Legislature intended to enact the State’s interpretation of section

47-7-3(f), it could have done so expressly with relative ease. That is, if the Legislature

wanted to preclude parole for offenders convicted prior to July 1, 2014, of manufacturing or

selling controlled substances other than marijuana, it could have tweaked section 47-7-3(f)

to incorporate only subsections 41-29-139(b)(1)-(2), which specify amounts of marijuana

13
only. However, the Legislature did not do so. Instead, in House Bill 585, the Legislature

brought forward and re-enacted section 47-7-3’s broader reference to section 41-29-139(b),

which now specifies amounts of all controlled substances. Given that the Legislature passed

on this opportunity to limit parole eligibility within this class of offenders, we are unwilling

to write such a limitation in the statute. Cf. Roberts v. Grisham, 493 So. 2d 940, 942 (Miss.

1986) (declining to read into a statute an exception that “easily could have been included by

the legislature if it had intended”).

¶23. Finally, we cannot agree with the State’s argument that it would be “absurd” to

authorize parole for Sinko and similarly situated offenders. As discussed above, for years

MDOC deemed this very class of offenders, including Sinko himself, as eligible for parole.

Moreover, in House Bill 585, the Legislature purposefully provided that persons convicted

under 41-29-139(a) of manufacturing or selling methamphetamine and other controlled

substances after July 1, 2014, would be eligible for parole. See Miss. Code Ann. §§ 41-29-

139, 47-7-3(g), & 97-3-2. Thus, there is no dispute that, due to MDOC’s misinterpretation

of the law, similar offenders were deemed eligible for parole prior to July 2014; nor is there

any dispute that the Legislature has determined that similar offenders should be eligible for

parole going forward. Under these circumstances, it is not “absurd” to interpret House Bill

585 to extend parole eligibility to the otherwise similarly situated group stuck in the middle,

i.e., Sinko and others re-classified as ineligible for parole as a result of MDOC’s audit.

¶24. Accordingly, we hold that Sinko’s conviction for manufacturing methamphetamine

does not make him ineligible for parole. Because we decide the appeal on statutory grounds,

14
we do not address Sinko’s constitutional arguments. See Warner-Lambert Co. v. Potts, 909

So. 2d 1092, 1093 (¶3) (Miss. 2005) (“[A] constitutional question will be passed on where

the issues involved in a particular case are such that the case may be decided on other

grounds. . . . [W]hen there is no necessity to reach a [constitutional] question, we will not.”).

CONCLUSION

¶25. The decision to grant parole does not rest with this Court. See Lizana v. Miss. Dep’t

of Corr., 910 So. 2d 31, 34 (¶10) (Miss. Ct. App. 2005). Therefore, we hold only that

Sinko’s conviction for manufacturing methamphetamine does not render him ineligible for

parole. See Keys, 67 So. 3d at 761 (¶¶12-13). Although the record on appeal is limited, that

appears to have been the only reason that Sinko was deemed ineligible for parole in 2014.

It also appears that by that time the Parole Board had already determined that Sinko should

be paroled on September 22, 2014. Given that Sinko was scheduled to be paroled more than

eighteen months ago, MDOC and the Parole Board are directed to act as expeditiously as

possible to take any steps necessary to re-determine Sinko’s eligibility for parole; assuming

he is deemed eligible for parole, to issue a decision granting or denying parole; and if he is

granted parole, to release him on parole. On this basis, we reverse and render.

¶26. THE JUDGMENT OF THE OKTIBBEHA COUNTY CIRCUIT COURT IS
REVERSED AND RENDERED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLEE.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, FAIR, JAMES AND GREENLEE,
JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION. CARLTON, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION.

15