IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-CP-01145-COA THOMAS HOLDER A/K/A THOMAS L. HOLDER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/12/2016 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: THOMAS HOLDER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/21/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WILSON, J., FOR THE COURT: ¶1. Thom as Holder pled guilty to touching a child f or lustf u l p urposes and was sentenced

to f if teen y ears in the custody of the Mississippi Departm ent of C o rrections (MDOC). However, the entire sentence (save f or tim e served) was suspended s ubject to Holder’s good behavior and com

pliance with c ert a i n c o nditions. Holder prom ptly violated one of those conditions by providing a f alse address on his sex of

f ender registration f

orm . As a result, the

c i r c u i t c ourt revoked his suspended sentence and ordered him to serve the f ull sentence i n MDOC custody

. Holder later f i led a m otion f

o r post-co n v i c tion relief (PCR). T he circuit

court denied the m otion, and t his Court af f irm ed. Holder v. State , 137 So. 3d 8 84 (Miss. Ct.App. 2013). Holder then f iled a second PCR m otion. The circuit court denied the m otion, and Holder appealed. ¶2. I n t h e present a

ppeal, Holder argues that h is “ original s e n t e n c i n g t o a n i l l e g a l banishm ent condition rendered his guilty plea void.” This argum e nt ref e rs to a condition of Holder’s suspended sentence t hat requir e d h i m t o “[ d]epart f rom Hattiesburg” and stay at least one hundred m iles away f rom H a ttiesburg “f

or the entire period of his suspended sentence.” Holder specif ically agreed to this condition in his plea petition. ¶3. Holder’s revocation h a d n o t h i n g t o d o w i t h t h e “ banishm e nt condition.” His

s u s p e n ded sentence w as revoked because he provided a f a l se address on his sex of f en d e r registration f

orm . 1 The banishm ent condition does not render his g uilty plea void. Nor does it af f ect the order revoking his suspended sentence due to h is violation of an u n r e l a t e d condition. R atcliff v. S

tate , 224 So. 3d 9 9, 101-02 (¶¶9-10) (Miss. C t

. A p p . 2016), cert. denied , 222 So. 3 d 311 (Miss. 2017). Ac c o r d i n g l y , the circuit court correctly denied Holder’s second PCR m o tion. ¶4. The dissent w ould rem and th e c a s e t o t h e c i r c u it court f or f indings regarding the validity of the banishm ent condition. 2 H owever, t he issue is now m o ot. Upon revocation, the c ircuit court sentenced Holder to serve the rem a i nder of his sentence in MDOC custody

.

1 H o l d er co m

p lied w ith th e b an ish m en t co n d i tio n . H e w a s in A l co rn C o u n ty , n early th ree h u n d red m iles f

ro m H attiesb u rg , w h en h e p r o v id ed th e f alse ad d ress.

2 O u r S u p rem e C o u rt h as h eld th a t a “co u rt m a y n o t b an ish a p erso n co n v icted o f a crim e w i th o u t f

irst ex p lain in g , o n th e reco rd , th e reaso n s f o r an d b en ef

its o f th e b an ish m en t

. . . as t h ey relate to th e d ef en d an t.” M

ea n s v. S ta te , 4 3 S o . 3 d 4 3 8 , 4 4 5 (¶2 4 ) (M iss. 2 0 1 0 ). 2In addition, because Holder was “convicted o f a s e x crim e,” he i s not eligible f or parole, earned tim e, or trusty tim e. M iss. Code Ann. §§ 47-5-139(1)(d), 47-5-138.1(2)(c), & 47-7- 3(1)(b) (Rev. 2015). The banishm ent condition was a c o n dition of Holder’s suspended sentence, but h is suspended sentence has now b een revoked, and he will s e rve the rem ainder of his sentence in MDOC custody

. Theref ore, the b anishm e nt condition has no c ontinuing ef f ect on Holder, and t he i ssue is m oot because a ruling in Holder’s f avor would be of no practical benef

it to hi m. H

unt v. MDOC , 217 So. 3d 789, 791 (¶6) (Miss. Ct. A pp. 2017).
W e decline to require the circuit judge to adjudicate or m ake f indings on a m oot question. ¶5. AFFIRMED.
L E E , C . J . , G R I F F I S , P . J . , B A RNES, CARLTON, GREENLEE A ND TIN D E L L , JJ., CONCUR. IRVIN G , P . J ., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION . WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION. FAIR, J., NOT PARTICIPATING. WESTBROOKS, J., DISSENTING: ¶6. I am of the opinion th a t H o l d e r ’ s original sentence, which included a banishm ent clause, was illegal and void. Theref ore, I respectf

ully dissent. ¶7. The m ajority asserts that “Holder’s revocation had nothing to do with the ‘banishm ent condition,’” and that the “banishm ent condition does n ot render his guilty plea void.” Maj. Op. at (¶3). I agree that Holder’s suspended s entence was revoked f or reasons entirely unrelated to the banis h m ent clause. However, our Suprem e Court has outlined the im p ortance o f conducting a n on-the-record determ ination f or the necessity and validity o f a banishm ent clause in a sentencing order.
3In considering the paucity of banishm ent cases in Mississippi, this Court has e x p r e ssed serious concerns. Although this Court has not specif ically f o r b i d d e n banishm ent, prior decisions clearly establish that arbitrary banishm ent will not be upheld; that i s, justif

ication f or the banishm ent m

ust clearly be established in the record. Mackey v. State , 37 So. 3d 1161, 1163 (¶7) (Miss. 2010). ¶8. I f ind that we m

u st reverse and rem and, b ecause the c ircuit court did not conduct an “o n - t he-record explanation f or the banishm ent clause,” required by Means v. State , 43 So. 3d 438, 446 (¶26) (Miss. 2010), and Mackey

. ¶9. The M ississippi Suprem e Court has held that “the judge m ust articulate, on the record, the reasons f

or and benef

its of t he banishm ent.” Id. “Th i s i s b e c a u s e t h e judge m ay not restrict the def

endant’s personal liberty of f ree m ovem ent without f

ollowing

. . . due process

. . . . ” Id

. Here, the circuit c ourt’s order m ad e n o s p e c i f i c f actual f indings relating the banishm ent clause to Holder’s actions. ¶10. It is im

portant that circuit c o u r t s ma k e f a c tual f indings s upporting the f

ollowing f actors provided f

or in M cCreary v. State , 5 8 2 S o . 2 d 425, 427 ( Miss. 1991) (citation

om itted): [ T]hat the banishm e nt provision bore a reasonable relationship to t he purpose of p robation; that the ends of justice and the best interest of the def endant and the public would be s e r v e d ; that p ublic policy was not violated and the rehabilitative purpose of p r obation was not def eated; and that [ the petitioner’s] rights under the First, Fif

th[, ] and Fourteenth Am e ndm ents to the United States Constitution were not violated. ¶11. However, the c ircuit c ourt m erely read t he McCreary f actors in the record, f

ailing to explain specif

i cally how they a p p l i e d t o Holder. W hen circuit courts im pose banishm ent
4clauses or provisions as conditions of suspended sentences , t h e y m u st a dhere to the guidelines and f

a ctors s et f

orth in McCreary

. And so, because the circuit court d id not state

on the record its reasoning f or the im p lem entation of the b anishm e nt clause, I w ould f ind not only that Holder’s PCR m otion i s excepted f rom the procedural bar, b ut that his sentence is illegal and void. ¶12. The m ajority contends that t he “issue [ r egarding the validity of the b anishm ent clause] is now m oot.” Maj. O p. a t (¶4). The m ajority ’s com partm e n talization o f the reasons f or the revocation does not negate the f act t hat the revocation ord e r w a s a derivative of an illegal sentence as a result of

an illegal banishm ent clause. ¶13. Theref

ore, respectf

ully , I dissent.

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