IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-CP-00912-COA DEMARIO WALKER A/K/A DEMARIO D. WALKER A/K/A DEMARIO DONTEZ WALKER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/23/2015 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO COURT FROM W HICH APPEALED: JEFFERSON DAVIS COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DEMARIO W ALKER (PRO SE) ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE JASON L. DAVIS NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED IN PART; REVERSED AND REMANDED IN PART - 10/18/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., WILSON AND GREENLEE, JJ. GREENLEE, J., FOR THE COURT: ¶1. This is an appeal f rom J ef f erson Davis Cou n t y C i r c u i t C o u r t o f the d ism issal of DeMario Wa l ker’s m otion f or p o st-conviction relief (PCR) f iled af ter his probation was revoked and he was sentenced to serve the f ull f ive y ears’ i ncarceration o f h i s s uspended

sentence f

or his f i rst technical violation. We a f f i r m in part and reverse and rem and in part f o r f u r t h e r consideration consistent with the provisions of Mississippi C ode Annotated section 47-7-37 (Supp. 2016) and this opinion.FACTS AND PROCEEDINGS BELOW

¶2. On July 2 3, 2013, W alker pleaded guilty in Jef f erson D avis C ounty Circuit Court to
t he c r im e of f

alse pretense under Mississippi Code Annotated section 97-19-55 (Supp. 2 0 1 6 )

. W a lker was sentenced to serve f i ve y ears’ incarceration, w ith i m p osition suspended pending successf ul com pletion of a f ive-y ear probationary period. W alker was additionally ordered to pay $ 1 ,018.57 in restitution and f ees. ¶3. On July 13, 2014, W alker was discharged f r om parole f

or an unrelated conviction and placed on probation f

or his July 23, 2013 conviction. On October 14, 2014, Richard Johnson, W a lker’s probation of

f i cer, f iled an af f idavit stating that W alker violated m ultiple conditions of his probation. S p e c i f

i cally , Johnson s tated in his af f i davit that W alker f

ailed to report

m onthly t o Johnson as d irected f rom July 2014 through October 2014, that his whereabouts

w e re unknown, that W alker f a iled to pay required f

ees, and that W alker f

ailed to pay resti t u t i o n t o Walker’s victim

. On October 16, 2014, the circuit court issued a w arrant f or W a lker’s arrest. W alker was l ater arrested i n Lam ar County

. On March 25, 2015, W alker signed three separate waivers of his r ight to a prelim inary probation-revocation hearing, his right t o n otice and a waiting period prior to his prelim inary probation h earing, and his right to notice and a waiting period prior to his probation-revocation hearing. ¶4. O n M a

r c h 2 7 , 2 0 1 5 , W a l k e r ’ s p r obation was revoked. At W alker’s revocation hear i n g , W a lker stated that Johnson told him he was on p robation and that W alker and Johnson had discussed W alker’s probation starting in July 2 014. W alker was sentenced to serve the f ull f ive y e ars’ i n carceration o f his suspended sentence. In response to the revocation of his

2probation, W alker m oved f o r PCR. On May 23, 2015, the c i rcuit court dism issed W alker’s

m otion f o r PCR. W alker now appeals the circuit court’s dism issal of his m otion f or PCR to this Court. DISCUSSION ¶5. The s tandard of review f o r a denial of a m otion f

or PCR is abuse of discretion, which this Court will not reverse unless the denial was clearly erroneous. Jackson v. State , 135 So. 3d 216, 218 (¶10) (Miss. Ct. App. 2014). ¶6. On appeal, W alker argu e s p r o s e that the court lacked j urisdiction and authority to revok e Wa l k e r’s p r obation, that W alker was denied due p rocess a t his revocation hearing, that the court' s r evocation of W alker’s probation was im proper, and that the C o urt’s sentencing W a lker to serve the f u l l t e rm o f his suspended f ive y ears’ incarceration was im p roper. I. Whether the court had jur i s d i ction and authority t o r evoke probation. ¶7. W a lker asserts that the c i r c u i t c o u r t did not have jurisdiction or a uthority to revoke his p robation because he had not begun his probation y et and was still serving sentences f or other convictions issued prior to the one involved in this case. ¶8. Mississippi C ode Annotated section 47-7-37(1) s tates that “[ t]he period of probation shall be f ixed by the court, and m ay at any ti me be extended or term inated by the court, or judge in vacation.” Further, it states that the c o urt “m ay continue or revoke all o r any part of the probation or the suspension of sentence.” Miss. Code Ann. § 47-7-37(5)(a). ¶9. T h e J e f

f e r s on Davis County Circuit Court was the court that i nitially s e n t e n c e d

3W a lker t o probation. Thus, th at court retained jurisdiction to revoke W alker’s p robation if

he violated the conditions o f his probation. W alker cites no law supporting his assertion that he was not on probation at the tim e of the alleged violation. Failure t o cite any authority m ay be treated as a procedural b ar, and the Court is under n o duty to consider the assignm ent of

error. W illiams v. State , 708 So. 2d 1358, 1361 (¶12) (Miss. 1998). This Court cannot f ind support f or W alker’s assertion t h a t h e w a s n ot on p robation because he had not y et begun probation and was s till serving sentences f or other convictions. Further, W alker adm itted at his hearing that his probation star ted in July 2014. Theref ore, we f

i nd this issue is procedurally

barred and without m erit. II. Whether Walker w as a f f o rded due process a t his r evocation hearing. A. Minim um Requirem ents ¶10. In p resenting his argum ent, W alker addresses each of the s ix prongs n ecessary to m e et
t h e m inim

um requirem ents f

or due process a t a probation revocation f ound in Gagn o n v
. Scarpelli , 411 U.S. 778, 786 (1973). 1 W alker asserts that he did not have written notice of

1 T h e G a gn o n C o u r

t h e ld th e req u irem e n ts w ere as f o llo w s: (a) Written n o tice o f th e claim ed v io latio n s o f p ro b atio n , (b ) d i sclo su re to th e p r o b a t i o n er o f th e ev id en ce ag ain st h i m , (c) th e o p p o r tu n ity to b e h eard i n p erso n an d to p resen t w i tn esses an d d o cu m e n tary ev id en ce, ( d ) t h e r ig h t to co n f ro n t an d cro ss ex am i n e ad v erse w itn esses (u n less th e h e a r i n g o f f i cer sp ecif ically f in d s g o o d c au se f

o r n o t allo w i n g co n f

ro n tatio n ) , (e) a n eu tral an d d etach e d h earin g b o d y su ch as a trad i tio n al p aro le b o ard , m em b ers o f w h ich n eed n o t b e j u d icial o f

f ice r s o r l aw y ers, an d (f

) a w r itten statem en t b y th e f actf in d e r[ (s)] as to th e e v id en ce relied o n an d reaso n s f o r rev o k in g p ro b atio n . G a gn o n , 4 1 1 U .S . at 7 8 6 (citin g M o rrisey v. B rew er , 4 0 8 U .S . 4 7 1 , 4 8 9 (1 9 7 2 )). 4the claim ed violations of probation, that the evidence against h im w as not disclosed to him ,

that he was not given an opportunity to be hear d i n p erson and present witnesses and docum entary

evidence, that he was not allowed the opportunity to cross-exam ine Johnson,

t h a t h e w a s n o t provided a written statem ent of the evidence relied on and the reasons f or revoking probation, and that he was not af f o rded a neutral and de t a c hed hearing body or of f icer. ¶11. Prior to his revocation hearing, W a l ker signed a waiver of his right to a prelim inary revocation h earing. The alleged probation violations and evidence aga i n s t h i m w ere listed

on the w aiver. At W alker’s revocation hearing , the judge inf o rm ed W alker of the charged probation violations against him , and the judge a sked W alker if he “dispute[ d] any of the allegations today or is there a m isunderstanding or do y ou acknowledge and adm it that y ou have violated [ y our probation] ? ” Wa l k e r only disputed whether he had started probation. W a lker went on to adm it that he h ad talked with Johnson, that Johnson told W alker he was

on probation, and that the two had established that probation would start i n July

. Johnson was present at the hearing and a v a i l able f or cross-exam i nation, but W a lker chose not to crossexam ine Johnson. W alker m ade no request f o r w i tnesses. At the hearing, W alker did ref erence two discharge certif i c a tes issued by the Mississippi Departm e nt of Corrections (MDOC), and the court acknowledged having the docum entation in its f ile. Both certif

icates

state that W alker was discharged on July 13, 2 014. T he circuit court issued an order in which it listed the evidence it had relie d upon and gave the reasons f or revoking W alker’s probation.

5¶12. W a lker f urther asserts he was not a f f orded a neutral and detached hearing because the circuit-court judge took on the role of prosecutor during W alke r ’ s r e v o cation hearing by calling witnesses and putting on the State’s case. Rule 1.15 of the Unif orm Rules of Circuit and County Court Practice allows any party to m o ve f or the recusal of a judge “if it appears that the judge' s im

partiality m ight be q u e s t i o ned by a r easonable p erson knowing all the circum stances.” Rule 1.15 a lso r e q u i r e s a m otion f or recusal to be f

i led “ within 30 day s f ollowing notif

ication to the parties of the n am es o f the judge a ssigned t o the c ase.” Id

. “The f ailure to s eek recusal g enerally is considered im p lied c onsent to h ave the judge go f orward in presiding over the c a s e . ” R ice v. State , 134 So. 3d 292, 299 (¶17) ( Miss. 2014) (citing Tubwell v. Grant , 760 So. 2d 687, 689 (¶8) (Mis s . 2 000)). The record ref lects that W alker

n e v e r r e q u e s t e d t h e c i rcuit j udge recuse h im self f rom the revocation hearing. Because W a l ke r

never raised the issue of recusal bef o re the circuit court, he c onsen t e d to h ave the judge preside over the revocation hearing. T hus, any argum ent that the circuit-court judge should have been recused is waived. ¶13. Notwithstanding the procedural bar, the propriety of the judge’s sitting is decided by the judge and s ub

j e c t t o r e view only in a case of m anif est abuse of discretion. Hubbard v. State , 919 So. 2d 1022, 1026 ( ¶12) (Miss. C t

. App. 2005) (quoting Collins v. Joshi , 611 So. 2d 898, 901 (Miss. 1992)). At the revocation h ea r i n g , the circuit-court judge r ecited the allegations to W alker and asked if W alker “dispute[ d ] any of the allegations today or is there

a m is u n d erstanding or do y ou acknowledge and a dm it that y ou have violated [ y our probation]? ” Af

ter W alker m ade his case, the judge a sked if J o h n son “[ h ad] any thing to

6add[ .]” T he circuit-court judge did not p rosecute f or the State when he recited the a llegations, asked W alker if he disputed or adm itted them o r i f there was som e m istake, and asked Johnson if

he had any

thing to add. Theref

ore, we f i nd that these claim s are without m erit. B. Presence of Counsel at a Probation-Revocation Hearing ¶14. W a lker asserts that he was denied counsel at his revocation hearing. W alker f urther

asserts that he required c ounsel b ecause his history of m ental illness p revented h im f rom being able to ef

f ectively def

end him self

against the charges that he violated the conditions of his p robation. However, probationers do not have a p er se right to counsel at probation-revocation hearings. Riely v. State , 562 So. 2d 1206, 1 209 ( Miss. 1990) (citing Lassiter v. Dep’t of Soc. Servs. , 452 U.S. 18, 26 (1981) (citing Gagnon , 411 U.S. at 778)). Wh en the issues relevant to the hearing are com plex or dif

f icult to develop, the court should provide counsel. Id

. “The court is not required to inquire into a person’s com p etency absent reasonable g rounds to believe that he is n ot com petent.” Staten v
. State , 967 So. 2d 678, 681 (¶10) (Miss. Ct. App. 2007) (citing Thorn v. State , 815 So. 2d 455, 4 57 (¶5) (Miss. Ct. App. 2002) (citing Edwards v. State , 800 So. 2d 454, 466 (¶¶33-34) (Miss. 2001))). ¶15. Wa l k e r ’ s p r obation of f icer alleged that W alker did not repo r t t o h i m f o r f o u r consecutive m onths, and that W alker did no t p a y the required f ees or restitution. The docum ents cited by W alker a t h i s revocation h earing were bef ore the court and conf

irm that he had b een discharged by MDOC on July 13, 2014. F urther, W alker adm itted that Johnson had told W alker he was on probation, and W alker adm itted that he and Johnson established that probation started in July 2 0 1 4

. T h e i s s ues relevant to the case were not dif f icult or

7com

plex to develop. ¶16. W a lker c laim s that he has a long history o f m ental illness and that that m e ntal illness should have been considered when evaluating the com plexity of the issues. As evidence of W a lker’s m ental illness, h e claim s that he was hospitalized throughout his e nt i r e t h i r t e e n - y ear period of incarceration with the MDOC. Upon review of the r ecord, no m ental illness was

ever raised bef

ore the circuit court, let alone “any reasonable grounds to believe that [ W alker] is not c o m

petent.” Staten , 967 So. 2 d at 681 (¶10). Even m ore, there is no indication any

w here in the entire record of W a lker’s alleged m ental illness or hospitalization, other than his own brief

. Regardless, W alker m ade no m enti o n o f h i s m ental illness at his revocation h earing a n d , a s noted above, the court is not required to inquire into a person’s

com petency absent reasonable grounds to believe he is incom p etent. Id

. W e f

ind these claim s are without m erit. III. Whether revocation of Walker’s probation w as proper. ¶17. W a lker asserts that revocation of his probation was not p roper because he was not on probation, because the c ourt f ailed to t ake into account his education and work e xperience, because t h e c o u r t ’s actions w ere arbitrary and capricious, and because h e substantially

com plied with the term s of his probation. For p robation revocation to be p roper, the State is only r equired to prove that the probationer “m o re likely than not” violated the term s of his probation. Braziel v. State , 186 So. 3d 424, 427 ( ¶14) (Miss. Ct. App. 2016) (citing Fairley v. State , 138 So. 3d 280, 282 (¶4) (Miss. Ct. App. 2014)). ¶18. Revocation o f W a lker’s probation was p roper based upon W alker’s conduct. W alker

8did not report to his probation o f f icer and did not pay the requisite f ees and restitution. At his h e a r i ng h e did not dispute any of these f acts, only whether or not he was on p ro b a t i o n . W a lker s ubsequently adm itted at his hearing that J ohnson t old h im h e w as on probation, and that he and Johnson established that his probation started in July 2014. By W alker’s own adm ission, he did, in f

act, violate the conditions of his probation. W alker did ref erence two discharge certif

icates i s s u e d b y the MDOC, and the court acknowledged having the docum entation in its f

ile. Both certif

icates stated that W a lker was d ischarged o n July 13, 2014. On appeal, W alker ref erences an MDOC prisoner tim e s heet a s proof that he was on parole and n ot probation. T he tim e sheet W alker ref e rences s t a t e s t h a t h e was released on probation on July 13, 2014. B ased on these f acts, we f ind that W a lker “m ore likely than not” violated his probation. Thus, revocation of W a lker’s probation was proper. Braziel , 186 So. 3d at 427 (¶14). Thus, we f ind this claim

is without m erit. IV. Whether the court’s sentencing Walker to serve the full five-y ear term of his suspended sentence w as proper. ¶19. W a lker asserts that being s entenced to serve the f ull f ive y ears’ incarceration of his suspended sentence was e xcessive. Mississippi C ode Annotated s ection 47-7-37(5)(a) states that “[ i]f the court revokes p robation f or a technical violation, the c ourt shall i m pose a period of im prisonm ent to be s erved i n either a technical violation center or a restitution center not
to exceed ninety days f

or the f irst technical violation.” 2 (E m phasis added). “‘Technical violation’ m eans an act or om ission by the p robationer that v iolates a c ondition or conditions

2 T h is statu te w as am en d ed b y th e M ississip p i L eg islatu re du r in g th e 2 0 1 4 r e g u l a r sessio n , an d th o se am en d m en ts w ere m ad e ef f ectiv e Ju ly 1 , 2 0 1 4

. S

ee 2 0 1 4 M iss. L aw s ch

. 4 5 7 , § 5 8 (H .B . 5 8 5 ). 9of probation placed on the probationer by the court or th e probation o f f icer.” Miss. Code Ann. § 47-7-2(q) (Rev. 2015). 3 Based on this Court’s review of the record, this is W alker’s f irst technical v i o l a t i o n of his probation. T hus, W alker should have been sentenced to not

m ore than ninety d ay s in a t echnical-violation center or restitution center, n ot to the f ull term of h is suspended sentence of f i ve y ears’ incarceration. T heref ore, we reverse and rem and to the circuit court on this issue f or resentencing consistent w it h t h e provisions of section 47-7-37. CONCLUSION ¶20. W e af

f irm the c ircuit court’s judgm ent revoking W alker’s probation. W e reverse and

rem and f or resentencing consistent with Mississippi Code Annotated section 47-7-37. ¶21. THE J UDGMENT OF T H E C I R C U I T C O U R T O F J E FFERSON DAVIS COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED IN P A RT A ND REVERSED AND REMANDED IN PART FOR F U R T H E R P R O CEEDINGS CONSISTENT W I T H T H I S O P I N I O N . A L L C O S T S O F THIS APPEAL ARE ASSESSED TO JEFFERSON DAVIS COUNTY. LEE, C . J . , I R

V I N G A N D G RI F F I S , P . JJ . , B A R N E S , I SHEE, CARLTON, FAIR, JAMES AND WILSON, JJ., CONCUR.

3 T h i s statu t e w as also am en d ed b y th e M ississip p i L e g islatu re du rin g th e 2 0 1 4 reg u lar s essio n an d th o se am en d m en ts w ere m a d e ef f ectiv e Ju l y 1 , 2 0 1 4

. S

ee 2 0 1 4 M iss. L aw s ch

. 4 5 7 , § 4 7 (H .B . 5 8 5 ). 1 0