IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-CA-01724-SCT MISSISSIPPI DEPARTMENT OF CORRECTIONS

v. BENJAMIN COOK

DATE OF JUDGMENT: 10/13/2015 TRIAL JUDGE: HON. W . ASHLEY HINES COURT FROM W HICH APPEALED: SUNFLOW ER COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: ANTHONY LOUIS SCHMIDT, JR. OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ATTORNEY FOR APPELLEE: BENJAMIN M. COOK (PRO SE) NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: REVERSED AND RENDERED - 02/09/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE RANDOLPH, P.J., COLEMAN AND MAX W ELL, JJ. COLEMAN, JUSTICE, FOR THE COURT: ¶1. The Circuit Court of Sunf lowe r C o u n t y d i r e c t e d t h e M i ssissippi Departm ent of Corrections to issue B enjam in Cook (pro se) a parole case plan under Mississippi Code Section 47-7-3.1(1), which went into ef f ect on July 1, 2014. The Departm ent of Corrections appeals, arguing that Cook is not entitled to a parole case plan because he was convicted and sentenced prior to July 1, 2014. The sole issue o n appeal is whether Cook, a parole-eligible inm ate convicted and sentenced prior to July 1, 2014, is entitled to a parole case plan under Section 47-7-3.1(1). Because the Court held i n Fisher v . D rankus , 204 So. 3 d 1232 (Miss.2016), that a parole-eligible inm ate convicted and sentenced prior to July 1, 2014, was not entitled to receive a parole case plan under Section 47-7-3.1(1), we reverse and render.
FACTUAL BACKGROUND ¶2. C o o k i s a n inm ate in t he custody of t he Mississippi Departm ent o f C o r r e c t i o n s (MDOC). On August 11, 1 994, Cook pleaded g uilty to m urder and was sentenced to lif e in prison. 1 Cook had his f

irst parole hearing on July 8, 2013, a n d was denied parole. On May 4, 2015, C ook was denied parole f or t he second tim e, and Cook’s next parole hearing date

was set f or May 4, 2017. On July 1, 2015, Cook s ubm itted a grievance through the Adm inistrative Rem edies P rogram (ARP). Cook stated that he was a p arole-eligible inm ate and requested t hat the MDOC issue him a parole case p lan 2 i n accordance with Section 47-7-
3.1. ¶3. On July 7, 2015, the MDOC issued a f irst s t ep response deny ing Cook’s r equest. The
MDOC’s response provided: “House Bill 585 3 states that all of f enders who are [ parole] eligible, are to be issued a case plan at adm ission ef f ective 7/1/2014. However, t his Bill is

1 U n d er M ississip p i C o d e S ectio n 4 7

- 7 -3 (1 ), C o o k w as elig ib le f o r p aro le af

ter serv in g ten y ears o f h is lif e sen ten c e f

o r m u rd er an d ten y ears o f h i s co n s ecu tiv e t w en ty y ear sen ten ce f

o r arm ed ro b b ery . S

ee M iss. C o d e A n n . § 4 7

- 7 -3 (1 ) (R ev . 2 0 1 5 ).

2 M ississip p i C o d e S ectio n 4 7 -7 -2 d ef in es a “ p aro le c a se p lan ” as “ an in d iv id u alized , w r itten acco u n t ab i lity an d b e h av io r ch a n g e s t r a teg y d ev e lo p e d b y th e d e p artm en t in co llab o ratio n w ith t h e p aro le b o ard to p rep are o f f e n d ers f o r release o n p aro le a t th e p aro le elig ib ility d ate. T h e case p l an sh all f o cu s o n th e o f

f en d er’s crim in al risk f

acto r s t h a t , if ad d ressed , red u ce th e lik e lih o o d o f reo f f en d i n g . ” S e e M iss. C o d e A n n . § 4 7 -7 -2 (R ev . 2 0 1 5 ).

3 S ectio n 4 1

- 7 -3 .1 , w h ich b ecam e ef f ectiv e o n Ju l y 1 , 2 0 1 4 , w as created t h r o u g h th e p assag e o f

H o u se B ill 5 8 5

. S

ee M iss. C o d e A n n . § 4 7 -7

- 3 .1 (R ev . 2 0 1 5 ).

2not retroactive and o nly applies to of f enders sentenced on or af

ter 7/1/2014. Of

f enders who

were eligible f

or Parole bef

ore 7/1/2014 will continue to be considered f or Parole Docket and be reviewed by the Parole Board.” Cook appealed the decision and proceeded to step two of the ARP. On July

24, 2015, the MDOC issued a s econd s tep response, deny ing Cook’s appeal. The MDOC’s second step response provided: “House Bill 585, states a ca[ s]e plan will be m ade on [ ] p arole eligible of f enders sentenced on o r af ter July 1, 2014. This Bill is not retroactive and only applies to of f enders sentenced on or af ter July 1, 2014. Of

f enders who were eligible f

o r parole bef

o re July 1, 2014 will continue to be considered f or Parole via a Parole docket and be reviewed by the Parole Board.” ¶4. On August 19, 2015, Cook f iled a “m o tion f

o r judicial review” in t he Circuit Court of S unf lower County

. Cook requested that the circuit court o rder the MDOC t o prepare and issue him a case plan. Coo k a r g u e d t hat all p arole-eligible of f enders are entitled to a case plan under H ouse Bill 585 regardless of their date of parole eligibility

. The MDOC f iled a response and adm itted that Cook was parole-eligible. The Departm ent of Corrections also adm itted that H o u s e Bill 585 provided f o r case plans f

or inm a tes sentenced f

rom July 1, 2014, f o rward, but i t argued that the l aw w a s not retroactive. The MDOC a r gued that inm ates sentenced prior to July 1, 2014, were not eligible f o r parole case plans under House Bill 585 and m oved to dism i ss the case with prejudice. ¶5. On October 19, 2015, the c ircuit court f ound that Cook was entitled to a case plan and ordered the MDOC to issue Cook a parole case plan in accordan c e w ith Section 47-7-3.1.
On Novem

ber 5, 2015, the MDOC tim ely f iled a notice of

appeal.

3ANALYSIS

A. Standard of Review ¶6. The decision of an adm inistrative agency will be reversed only if the decision (1) was unsupported by substantial evidence; (2) was arbitrary and capricious; (3) b ey ond the power of the adm inistrative agency to m ake; or (4) violated the com plaining party ’s s t a t u t o r y or constitutional right. Miss. Methodist Hosp. & Rehab. C tr., Inc. v. Miss. D iv. of Medicaid , 21 So. 3d 600, 6 0 6 (¶14) ( M i s s . 2 0 0 9 )

. “An agency ’s interpretation o f a r ule or statute governing the agency ’s operation is a m atter of law that is reviewed de novo, b ut with great def erence to the agency ’s i nterpretation.” Id

. a t 6 0 6 ( ¶ 1 5 ). “However, i f an agency ’s interpretation is contrary to the u nam biguous t erm s or best reading of a statute, no d ef erence is due.” Id

. at 607 (¶16). “An agency ’s interpretation will not be u p h e l d i f it is s o plainly

erroneous or so inconsistent with either the underly i ng regulation or statute as to be arbitrary , capricious, an abuse of

discretion or otherwise not in accordance with law.” Id

. B. Section 47-7-3.1 ¶7. “ D u

r i n g t h e 2 014 legislative session, the Legislature enacted com p rehensi v e c r i m i n a l justice ref

orm legislat i o n , known as House B ill 5 85, which am ended num erous statutes related t o parole and s entencing[

. ]” Sinko v. State , 192 So. 3d 1069, 1075 (Miss. Ct. App. 2016). Cook argues that Section 47-7-3.1(1), which was created through the enactm ent of
House Bill 585, requires the M D OC to develop and issue him a c a se p l a n b e c a u se he is a parole-eligible inm ate. Section 47-7-3.1 provides: (1) In consultation with the Parole Board, the departm ent shall develop a c ase plan f or all parole eligible i nm ates to guide a n i nm ate’s rehabilitation w hile in

4t h e d e partm e nt’s custody and to reduce the likelihood of recidivism af t e r release. (2) W ithin ninety (90) day s of adm ission, t he departm ent shall com p lete a c ase plan on all inm ates which shall include, but [ be] not lim ited to (a) Program m ing and treatm ent requir e me n ts based on the results of a risk and needs assessm ent; (b) Any program m ing o r treatm ent requirem ents contained in the sentencing order; and (c) G eneral behavior requirem ents in accordance with the rules and policies of

the departm ent. ( 3 ) T h e departm e nt s hall provide the inm ate w ith a w ritten copy of the ca s e plan and the inm ate’s caseworker shall explain t he conditions set f orth in the case plan. (a) W ithin nine t y (90) day s o f adm ission, t he caseworker shall notif y the i nm ate of their parole eligibility date as c alculated in accordance with Section 47-7-3(3); (b) At the tim e a parol e - e l i g ible inm a te r eceives the case plan, the departm ent shall send the case plan to the Parole Board f or approval. (4) The depart m ent s h all ensure that the case p lan is achievable prior to inm ate’s parole eligibility date. (5) The c aseworker shall m eet with t he inm ate every eight (8) weeks f rom the date the of

f ender recei v e d the case plan to review the inm ate’s case p lan progress. (6) Every f

our (4) m onths the departm ent shall electronically subm it a progress report on each p a r o le-eligible inm ate’s c ase plan to the P arole B oard. The board m ay m eet to review an inm ate’s case plan a nd m ay p rovide w ritten input to the caseworker on the inm ate’s progress t oward com pletion of the case plan. (7) The Parole Board shall provide sem iannually t o t he Oversight Task Force the num ber of parole hearings held, the num ber of prisoners released to p arole without a hearing and the num ber of parolees released af

ter a hearing.

5Miss. Code Ann. § 47-7-3.1 (Rev. 2015).

¶8. In Drankus , the Court reversed a circuit court’s order directing the MDOC to issue

a case plan to M ichael D rankus, a parole eligible i n ma t e, who had been convicted and sentenced prior to July 1, 2 0 14. Drankus , 204 So. 3d at 1233 (¶ 1). T h e D r a n k u s Court determ ined that the M DOC’s interpretation of S ection 47-7-3.1 was reasonable and not inconsistent with the language of t he statute and ascertainable legislative intent. Id. at 1235 (¶ 9). The Court recognized that Section 47-7-3.1 contains operati v e ma ndates which indicate that the section’s parole case plan directive was intended to apply prospectively

. Id. ¶9. Specif

i cally , subsection ( 2) provides that the MDOC shall com plete a ca s e p l an f

or

a l l i nm ates within n inety day s of an inm ate’s adm i ssion. Miss. Code Ann. § 4 7-7-3.1(2)

. Paragraph (a) in subsection (3) prov i d e s t h a t a caseworker shall notif y the inm ate of his parole eligibility date within n i nety day s of the inm ate’s adm ission. Miss. Code A nn. § 47-7- 3.1(3)(a). The Court noted that provision c ould not be m et in Drankus’s case, since he was adm itted into the MDOC’s custody in 1987. Drankus , 204 So. 3d at 1235 (¶ 10). The Court also noted that subsection (4)’s m andate that the MDOC shall ensure that t he case p l a n is achievable prior to a n i n ma te’s parole eligibility date was i ndicative o f the MDOC’s interpretation t hat Section 47-7-3.1 was intended to apply prospectively . Miss. Code Ann. § 47-7-3.1(4). The Court concluded that Section 47-7-3.1 did not apply to Drankus because the s tatute does n o t clearly a nd unequivocally express an intention f or r etroactive applicability

. Drankus , 204 So. 3d at 1236 (¶¶ 1 4-15). L ike D r ankus, Cook, a parole6eligible inm ate convicted and sentenced prior to July 1, 2014, is not entitled to a parole case

plan under Section 47-7-3.1.
CONCLUSION ¶10. Because, pursuant to our holding in D rankus , C ook is not entitled a parole case plan under Section 47-7-3.1(1), we reverse t he judgm ent of the Sunf lower County C ircuit Court and render judgm ent here. ¶11. REVERSED AND RENDERED. WALLER, C.J., RANDOLPH, P.J., KITCHE N S , MAX WELL, BEAM AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN O P I N I ON. KING, J., CONCURS IN PART AND IN RESULT WITHOUT SEPARATE WRITTEN OPINION.

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