IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI FILED JUL OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS. BRIEF FOR Appellant BY:

Transcription

1 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CP COA COURTNEY ELKINS, vs. STATE OF MISSISSIPPI FILED JUL OFFICE OF THE CLERK SUPREME COURT COURT OF APPEALS Appellant APPELLEE BRIEF FOR Appellant BY: (14"-'4 tw~ Courtney Elkins Unit 28, #35270 Parchman, MS ORAL ARGUMENT NOT REQUESTED PRO SE PRISONER BRIEF

2 TABLE OF CONTENTS CERTIFICATE OF INTERESTED PERSONS... 3 STATEMENT OF ISSUES... 4 STATEMENT OF INCARCERATION... 4 STATEMENT OF CASE STANDARD OF REVIEW... 5 SUMMARY OF ARGUMENT ARGUMENT ISSUE ONE ISSUE TWO CONCLUSION CERTIFICATE OF SERVICE

3 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CP COA COURTNEY ELKINS Appellant v. STATE OF MISSISSIPPI APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned Appellant, Courtney Elkins, certifies that the following listed persons have an interested in the outcome of this case. The representations are made in order that the Justices of this Court may evaluate possible disqualification or recusal. 1. Courtney Elkins, Appellant pro se. 2. Honorable Jim Hood, and Staff, Attorney General. 3. Honorable, Circuit Court Judge Richard A. Smith. 4. Honorable Jim Norris, MDOC Staff Attorney. Respectfully Submitted, BY: Cab ~..Df;~ Courtney Elkins Unit 28, #35270 Parchman, MS Appellant 3

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI No CP COA COURTNEY ELKINS v STA TE OF MISSISSIPPI Appellant APPELLEE ' STATEMENT OF ISSUES A. ~ Whether trial court erred in failing to grant relief where Appellant demonstrated, by a preponderance of the evidence, that charges in which the parole violation was based it's violation upon was dismissed by charging authority and where witness testified that charges of Appellant assaulting her was exaggerated and untrue. B. Whether trial court applied incorrect standard in finding, without proof, that it was more likely than not that Petitioner committed an act in violation of his parole. ~ STATEMENT OF INCARCERATION The Appellant is presently incarcerated and is being housed in the Mississippi Department of Corrections and assigned to the Mississippi State Penitentiary at Parchman in service of the prison term imposed. Appellant has been continuously confined in regards to such sentence since date of revocation of his parole. STATEMENT OF CASE Appellant would assert to the court that once the State of Mississippi filed charges and revocation proceedings against Appellant and used such charges to cause 4

5 a violation of Appellant's parole, without any other underlying reasons, the State of Mississippi was obligated to secure a conviction or to release Appellant where no conviction or finding of any wrong doing on Appellant's part was made. The State Of Mississippi never attempted to reconcile the petition once there was no finding or conviction in Illinois where the charges which were made by police were subsequently dropped and where such dropped charges initiated the arrest and preliminary reason for detaining Appellant and finding a parole violation. The State of Mississippi was therefore required to reinstate Appellant's parole and release Appellant. STANDARD OF REVIEW The proceeding conducted by the trial court in this case was required to be considered under the "preponderance of the evidence standard." Miss. Code Ann (7) (Supp. 2001). If the Appellant establishes by a preponderance of the evidence that he is entitled to post-conviction relief, then such relief should be granted. McClendon v. State, 539 So.2d 1375, 1378 (Miss. 1989). SUMMARY OF ARGUMENT 1 Appellant would continue to acknowledge that he carried burden to prove, by a I 1 I t l 1 I 1 I l! 1 preponderance of the evidence, that he was entitled to the requested post-conviction relief. Miss. Code Ann. (7) (Rev. 2007). Appellant was previously granted a reversal of this case by this court. ). Here, however, that is not the case. Appellant carried his burden of proof in the trial court. Appellant will show that he fully satisfied the preponderance of the evidence standard which is required for relief under the Post Conviction Relief Act. Miss. Code Ann (7). This standard is proven by the 5

6 fact that during the evidentiary hearing in this case the state admitted that the charges in Illinois was dropped and that witness testified that Appellant did not assault her. ARGUMENT Whether trial court erred in failing to grant relief where Appellant demonstrated, by a preponderance of the evidence, that charges in which the parole violation was based it's violation upon was dismissed by charging authority and where witness testified that charges of Appellant assaulting her was exaggerated and untrue. After having been granted parole to the State of Illinois pursuant to a sentence of life imprisonment imposed by Sunflower County Mississippi Circuit Court on February 17, 1995, Elkins was arrested in Chicago, Illinois by the Police Department and charged with assaulting his wife, Nadeja Beasley. As a result of this charge Elkins parole was violated. There had also been allegations that Elkins stabbed his father which where both charges were dropped and Elkins were never prosecuted for or convicted of either. Nevertheless, the State of Mississippi continued to detain Elkins for parole violation solely on the basis of such charges and have continued to detain Elkins solely on the basis of this violation for a period in excess of 10 years. After this case having been previously reversed and remanded to the trial court by this court on this issue, the trial court conducted a hearing which revealed that there was no other basis to violate Appellant's parole. While the trial court entered a lengthy order attempting to detail the events, the evidentiary hearing record deonstrate that the state was unable to muster any reason for the parole violation other than charges which had been dismissed and allegations exaggerated by the Chicago Police Department and subsequently dismissed when the police discovered that Elkins had not assaulted 6

7 Beasley at all. Moreover, Beasley dropped the charges and denied any misconduct on Elkins part or that an assault had occurred. It should be noted that the State of Mississippi filed a Petition to Revoke Elkins Parole. Such Petition, based upon an allegation that Elkins had assaulted Nadeja Beasley, resulted in revocation of parole proceedings being conducted and the revocation of parole. The petition claimed this as the sole reason for the parole revocation proceedings. 1 The Appellant was never convicted of any felony or misdemeanor offense while on parole or in connection with such arrest. The police subsequently dropped all charges against Elkins after the parole officer had founds probable cause for parole revocation hearing on these same charges. That as a result of the state having petitioned for revocation, the Movant's parole was revoked and violated. Appellant was placed in the custody of Mississippi Department of Corrections to serve out the term of life imprisonment The State of Illinois never made any attempt to convict Appellant of any crime since the date of his parole was revoked. Appellant have been in prison since that time. That Appellant have been denied any re-parole on several times since the date of the revocation even in the face of no viable parole violation being committed to result in Appellant being revoked and re-incarcerated 1 Beasley testified and explained to the Court during the hearing in regards to the matter that she never told the police that Elkins assaulted her. Beasley testified that the police was there and that her and Elkins was doing nothing but having a conversation. She was never on the ground and the scares on her body which the police observed was something from her job in the streets as a sanitation worker. According to Beasley's testimony, no altercation never took place. (Tr ) 7

8 That Appellant has been denied due process of law where the law clearly required that Appellant be released when the charges which caused the revocation of his parole ended in dismissal, acquittal, or in any fashion other then a finding or a plea of guilty on the merits. Moreover, the state presented no other underlying reasons, such as violation of the conditions of parole, to require the Movants parole to be revoked. The trial court asserts that Appellant admitted matters which constituted grounds to revoke parole. However, this information referred to by the trial court is not signed by Elkins and there is no transcript of any proceedings conducted by the parole board in regards the hearing which was conducted. It follows that any information placed in the record by the parole board, and not signed by Elkins, is statements and conclusions by the parole board, not a statement or admission made by Elkins. Appellant would acknowledge that in the trial court he had the burden to prove, by a preponderance of the evidence, that he was entitled to the requested post-conviction relief. Miss. Code Ann. (7) (Rev. 2007). However, after having been granted an evidentiary hearing by this Court, the burden shifted to the state to prove due process had been followed and that Elkins had been afforded the protections of the law as well as that he had committed acts which violated the terms and conditions of his parole. Here the state failed to meet that burden of proof. The trial court attempted to assist the state in presenting it's proof but even with that, there was insufficient proof to demonstrates that Elkins had violated the condition of parole. The state called Sephanie Skipper to testify from here records. Ms. Skipper had no personal knowledge of any facts regarding the actual alleged violation of the parole. 8

9 Skipper testified that Elkins had been arrested prior to the arrest which resulted in the parole violation and that this initial arrest was for stabbing his father. The Mississippi Parole Board never heard any issues on this arrest because the Illinois Parole Board didn't see reason to revoke Elkins and dismissed the charge. Mississippi had delegated supervision of Elkins to the Illinois Parole Board which was required to handle the matter as the Illinois Parole Board seen fit. Unless the Illinois Parole Board seen reason to notify Mississippi of the alleged violation, Mississippi had no say in the matter. This charge was subsequently dismissed by Illinois. This dismissed charge cannot now be used or referred to as the reason for parole violation in any direct or underlying manner. Parole revocation proceedings are quasi criminal proceedings and double jeopardy should protect from re-use of a finally adjudicated charge which had been dismissed by the Illinois Parole Board by their decision to take no action. Ms. Skipper testified that it was the decision of Illinois Parole Board to continue Elkins on parole and to not involve Mississippi Parole Board in regards to the first domestic violence charge. Such an action was the Illinois Parole Board's authority to do since supervision and decision making process on Elkins had been delegated, asssiged and waived to that board. Moreover, the Illinois Parole Board dismissed all charges at the request of Elkins Father, the alleged domestic violence victim. (Tr. 29) Ms. Skipper testified that her record showed Elkins answered yes to the questions asked by some unidentified parole board member but she had no transcript to demonstrate such actions nor any document signed by Appellant asserting that he pleaded guilty to the charges and sentenced himself to life imprisonment even after the Police in Chicago had desmissed 9

10 the charges and his with had said the charges of assaulting her never occurred. Ms. Skipper was allowed to testify as to what questions some other person was asking Elkins without that third party being present. Moreover, Ms. Skipper never introduced any part of her record to demonstrate that the questions and answers she quoted were genuine. Ms. Skipper testifed that the questions were answered by satelite. Elkins was not physically present and could not have possibly signed any papers in which Skipper was reading from. (Tr. 32) (Ex S-2) The trial court was able to consider evidence that Elkins stabbed his father and pushed his wife on the basis of hearsay statements and a record which was not signed or confirmed by Elkins at all. Moreover, the charges which the parole board's hearsay information asserts Elknis pleaded guilty to was dismissed by the authorities in Illinois. Appellant would assert to the court that once the state filed charges and revocation proceedings against Appellant and used such charges to cause a violation of Movant's parole, without any other underlying reasons, the State of Mississippi was obliged to sustain a conviction or to release Appellant where no conviction or finding of any wrong doing on Appellant's part was made. The state of Mississippi never attempted to reconcile the petition once there was no finding or conviction in the State of Illinois where the changes were made. Courtney Elkins would demonstrate that he was never convicted of any offense in connection with the alleged parole violation which resulted in his revocation and confinement. Elkins would assert that there was no condition of his parole violated which would sustain or merit a violation of his parole. The state has continuously denied 10

11 Appellant parole since the date of revocation where Appellant have committed no new offense or violated no condition of parole which would warrant his being denied parole or having his parole revoked. Moreover. the parole board never alcually allowed Elklnso to appear before the parole board before sustaining a violation of parole. Such appearance was by satelite according to the testimony of the state's witness, Ms. Skipper. The law is clear that the mere fact of being arrested and charged with a felony is not, per se, a violation of probation, parole, or suspended sentence. While the acquittal of the charged felony does not, per se, preclude revocation predicated upon facts and circumstances giving rise to charge, the state must offer actual proof that the individual committed an offense violating the terms and condition of parole, suspended sentence, or probation before such parole or probation may be revoked. Williams v. castilla, 585 So. 2d 761 (Miss. 1991). Here the state offered no actual proof other than asserting that Elkins admitted her did the acts which was subsequently dismissed by the authorities for which Mississippi had transferred custody and supervision to. Mississippi was bound by the actions of the agency which it delegated supervision to. In Williams, supra, the Appellant had been released on parole, but was arrested and for carrying a concealed weapon, charged with kidnapping, rape, and two counts of sexual battery. Nine days later the board violated the parole and returned William to prison. The complaint alleged Williams had violated three conditions of parole, 1. being arrested, 2. having knife used in kidnapping, 3. Missing five report periods. Williams was subsequently acquitted of the kidnapping, sexual battery and rape 11

12 charges. William then filed in the local Circuit Court seeking release on parole since he had been acquitted of the charges, which caused the violation. The Circuit Court denied relief and dismissed the petition. The Supreme Court reversed and held that mere arrest, without conviction, cannot be basis of violation of parole. 2 Also see Moore v. Ruth. 556 So. 2d 1059 (Miss. 1990). In the instant case Elkins was merely arrested and accused of wrong doing by the state. There was never a conviction or finding by any court that a condition of parole had been violated while the parole board may have been justified in revoking Elkins parole temporarily, Elkins should have been reinstated once the arresting agency declined to prosecute. There was no other underlying reason to revoke parole. Skipper testified, without proof, that well we got him to admit to the charges. The only reason for the arrest and revocation proceedings in this case was the alleged domestic dispute which occurred in the State of Illinois where Mississippi had paroled Elkins to. Illinois declined to prosecute. The Supreme Court of this State have stated that a conviction is not necessary to ' l! revoke probation. Murphy v. Lawhon. 213 Miss 513, 57 So. 2d 154 (1952). However, a showing must be made that the defendant "More likely than not" violated the terms of probation. Wallace v. State. 607 So. 2d 1184, 1190 (Miss. 1992).An indictment is merely a determination by a grand jury that probable cause exists to hold a person for trial on the charge. Bodre v. King. 835 So. 2d 52, 59 (725) (Miss. 2003). The 2 While the Appellant in Williams was a parolee and Appellant here was a parolee as well. The law should be applied. The procedures which should be applied is the procedures set out by the court in Gagon v. Scanpelli. 41 l U.S. 778, , for revocation of parole as established in Morrisey v. Brewer. 408 U.S. 471, 488, 89 (1972). 12

13 Commission of a felony while on parole constitutes grounds for revocation. Bobkoskie v. State. 495 So. 2d 497, 500 (Miss. 1986). In the instant case Appellant has never been convicted of a felony or misdemeanor while on parole release and the revocation of his parole, where the state in which the Appellant was arrested, refused to prosecute on the domestic related charges. Appellant was therefore denied due process of law. B. Whether trial court applied incorrect standard in finding, without proof, that it was more likely than not that Petitioner committed an act in violation of his parole. The trial court clearly applied the wrong standard of proof in considering and determining the issues presented. The Order rendered by the trial judge states clearly that the Court applied the standard that it is was more likely than not that petitioner committed an act in violation of his parole. (R. 16, finding # 42) The trial court failed to indicate which act petitioner committed since the only reasons for violation of Elkins parole had been dismissed and no longer applicable under the standard set by the Supreme Court in Williams v. Castilla, 585 So. 2d 761 (Miss. 1991). The trial court totally ignored the standards set by the Supreme Court in it's decisions and substituted such for the standard that it was more likely true tan not that petitioner committed some act in violation of his parole. Everyone commits some act, during the course of a parole period, which would violate some condition of parole, however, this must be charged and properly proven by admissible evidence. In this case it was not. The state was permitted to ask Skipper many leading questions which still produced no evidence which could sustain that Elkins committed an assault upon Beasley. This was the only 13

14 issue relevant to the case since it was the only issue for parole revocation. Beasley stated that Elkins did not and the Illinois authorities dropped all charges. The correct standard in which the court should have applied in considering the issues here would be the one found in Williams v. castilla. 585 So. 2d 761 (Miss. 1991). "mere arrest, without conviction, cannot be basis of violation of parole." The trial court here attempts to apply the probation standard to a parole case which is two different creatures and is determined by different standards. Wallace v. State. 607 So. 2d 1184, 1190 (Miss. 1992). This Court should reverse the trial court and grant relief where the State of Mississippi failed to present adequate and credible proof that Elkins violated parole. Respectfully submitted on this ~ rt-d day of July, 2015 BY: ~c~ Courtney Elkins Unit 28, #35270 Parchman, MS

15 CERTIFICATE OF SERVICE This is to certify that I, Courtney Elkins, have this date served a true and correct copy of the above and foregoing Brief for Appellant by United States Postal Service, first class postage prepaid, to Honorable Jim Hood Attorney General P. 0. Box220 Jackson, Ms Honorable Richard A. Smith Honorable Jim Norris Circuit Court Judge Attorney for State P. 0. Box P. 0. Box 36 Greenwood, MS Parchman, MS This, the ~ca~ day of July' Respectfully submitted, BY: CewJ4 t~ Courtney Elkins Unit 28, #35270 Parchman, MS