IN THE SUPREME COURT OF MISSISSIPPI
NO. 2018-CP-01235-SCT DONALD KEITH SMITH a/k/a DONALD SMITH a/k/a DONALD K. SMITH

v. STATE OF MISSISSIPPI
DATE OF JUDGMENT: 08/02/2018 TRIAL JUDGE: HON. ROBERT P. KREBS COURT FROM W HICH APPEALED: GREENE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DONALD KEITH SMITH (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN NATURE OF THE CASE: CIVIL - STATE BOARDS AND AGENCIES DISPOSITION: VACATED AND REMANDED - 03/26/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE KITCHENS, P.J., COLEMAN AND GRIFFIS, JJ. GRIFFIS, JUSTICE, FOR THE COURT: ¶1. Donald K eith S m ith appeals the circuit court’s deci s i o n to s u m m arily af f irm his Petition Seeking Judicial Review of an Adverse Adm inistrative Rem edy Decision. W e f ind that the circuit court lacked personal jurisdictio n over the Mississippi Departm ent of Corrections (MDOC) and theref o re vacate and rem and.
FACTS AND PROCEDURAL HISTORY ¶2. On June 3, 2009, Sm ith pled guilty to one count of kidnapping, arm ed carjacking, and
f elony f leeing. Approxim a t e l y t w o y e ars later, Sm ith f iled a pro se m otion f

or postconviction relief

, attacking his arm ed-carjacking conviction. See Sm ith v . State , 149 So. 3d1027 (Miss. 2014), overruled by Pitchford v. State , 240 So. 3d 1061 (Miss. 2 017). This

Court rem anded the case to t he trial court f or an evidentiary hearing. Id. at 1035. Af ter an evidentiary

hearing, the trial court determ ined that Sm i th had not received the com petency evaluation the trial c ourt had o rdered. So the trial court reversed Sm ith’s conviction. Sm ith was later evaluated and f

ound to be com

petent. ¶3. O n D ecem

ber 15, 2016, Sm ith pled guilty t o attem pted kidnappin g , 1 a

r m e d c a r j a c k i n g , and f e lony f leeing. The trial court sentenced Sm ith to thirty y ears, with eigh t e e n y e a r s to

s e rve, f or attem pted kidnapping, thirty y ears, with eighteen y ears to s erve, f or arm e d carjacking, and f

ive y ears f

or f elony f leeing. ¶4. In J uly 2 017, the trial c ourt a m ended Sm i th’s sentencing order to ref lect that h e should be s entenced to serve ten y ears f or attem pted k i d n a p p ing. The rem ainder o f Sm ith’s sentencing order stay e d the sam e. ¶5. Sm ith f

iled an initial grievance through the Adm inistrative Rem edy Program (ARP) at the MDOC. In his grievance, Sm ith asserted that his tim e com putation was incorrect. ¶6. The A RP was a two-step process. In t he f irst r esponse, the MDOC auditor determ ined that Sm i th’s t im e was correctly calculated. T h e s e c ond response concluded that Sm ith received credit f

or tim e served and received f ederal credit. 2 A dditionally , the MDOC auditor
f ound that Sm ith was not entitled to parole or early release because he had com m itted crim es of violence under Mississippi Code Section 97-3-2 (Rev. 2014).

1 T h e S tate am en d ed S m ith ’s in d ictm e n t f ro m k i d n ap p in g to a ttem

p ted k id n ap p i n g . 2 In A p ril 2 0 1 6 , S m i th w a s co n v icted in a f ed eral d i strict co u rt f

o r b an k ro b b ery an d sen ten ced to six ty

m o n th s, w ith cred it g iv en f o r tim e serv ed sin c e O c to b er 2 0 1 5

. 2¶7. On October 10, 2017, a f t er Sm ith recei v ed his second-step response, he f iled a Petition Seeking Judicial Review of an Adverse A d mi n i s t rative Rem edy D ecision in the Greene County

Circuit Court. ¶8. Af ter review, the c ircuit court f o und that “the crim e of arm ed carjacking is included
in M ississippi Code Section 97-3-2[ (1)](m ) [ (Rev. 2014)] by ref erence to Mississippi Code Section 9 7 -3-117 [ (Rev. 2014)], which contains the elem ents and p unishm e nt f or both carjacking and arm ed carjacking.” Further, the circuit court stated that “ [ t]his opinion is in line w ith MDOC’s response to Sm ith that his crim es are ones of violence.” The circuit court held that “the decision rendered by the ARP was not arbitrary or capricious, was supported by substantial e vidence, was not bey ond the powers of the ARP, and w as not in violation of

t he rights of t h e p etition.” The circuit court theref o re a f f irm ed the decision of t h e A R P

. Sm ith tim ely

appealed. ¶9. On appeal, S m ith asserts two issues. First, he contends t h a t Section 97-3-2(1)(m ) incorporates by ref

e r e n c e arm ed carjacking. Second, h e c ontends that S ection 97-3-2(2) (Rev. 2014) entitles him to parole or early r elease af ter serving 50 percent of the sentenced
im p osed. The State, however, argues that because Sm ith f ailed to tim ely p etition f

o r judicial review and f

ailed to provide n otice of his petition to the M D O C, t he circuit c ourt lacked jurisdiction. 3 ¶10. On Novem

ber 4, 2019, Sm ith f

i led with this Court a Motion t o Expedite Judgm ent. This opinion disposes of

Sm ith’s m otion.

3 N o tab ly , th e j u risd ictio n a l issu e s w ere n o t raised u n til th is ap p eal. 3STANDARD OF REVIEW

¶11. “The decision of an adm inistrative agency is not to be disturb e d u nless the agency order was unsupported by substantial evidence; was arbitrary or capricious; was bey ond the
agency ’s scope o r p owers; or violated the c onstitutional or statutory r ights of the aggrieved party .” Bd. of

Law E nf’t Officers Standards and T raining v. Butler , 672 So. 2d 1196, 1199 (Miss. 1996) (citing S

prouse v. Miss. Em

p ’t Sec. C

om m ’n , 639 So. 2d 901, 902 (Miss. 1994)). “There is a rebuttable presum ption in f avor of the agency ’s d ecisions; the burden of proving to the contrary is on the challenging party .” Id. (citing S prouse , 639 So. 2d at 902). ¶12. “Appellate r eview of an agency decision is l im ited to the record and t he agency ’s
f indings.” Id. (citing Miss. Com m ’ n on E nvtl. Q ua lity v. Chickasaw Cty. Bd. of Supervisors , 621 So. 2d 1211, 1216 (Miss. 1993)). “The reviewing c ourt cannot substitute its judgm ent f

or that of the agency or reweigh t he f acts of the case.” Id. ( citing Sprouse , 639
So. 2d at 902). “Chancery and circuit courts are held to the sam e s tandard as this Court when reviewing agency

decisions.” Id. (citing Chickasaw Cty. , 621 So. 2d at 1215). ¶13. “An adm inistrative a gency ’s interpretation of a statute governing the agency ’s operation is a m a tter of law subject to de novo r eview.” Nissan N. Am ., I nc. v. Tillm an , 273 So. 3d 710, 714 (Miss. 2019) (citing King v. Miss. Military Dep’t , 245 So. 3d 404, 407-08 (Miss. 2018)).
DISCUSSION
I. W hether the circuit court had jurisdiction to hear Smith’s petition for judicial review.
A. Statute of Limitations

4¶14. The State c ontends that “[ t]he statute of l im itations (30 day s) had run f o r the tim e to appeal an Adm inistrative Rem e dy Program decision.” This Court disagrees. ¶15. Under Mississippi Code Section 4 7-5-807 (Rev. 2015), “ [ a]ny of f end e r who is aggrieved by a n adverse d e cision rendered pursuant to any adm inistrative review procedure under Section 4 7

- 5-801 through 47-5-807 m ay , w ithin thirty (30) day s af t er receipt of the
agency ’s f

inal decision, seek judicial review of the decision.” Miss. Code A nn. § 47-5-807. ¶16. The State assert s t h a t the statute of lim itations had run f or Sm i th to tim ely seek judicial r eview o f t he M DOC’s decision, but i t f ails to cite the dates f

or t his Court to consider. 4 The record indicates t hat the Chief R ecords O f f icer signed Sm ith’s “Second Step Response” on August 2 5 , 2 0 1 7, and Sm ith r eceived his “Second Step Response” on Septem ber 1 9, 2017. As stated a bove , S m i th f

iled his petition f

or judicial review in the circuit c o urt on O ctober 10, 2 017. 5 Thus, Sm ith f iled his petition approxim a tely twenty -one day s af ter receipt of t he MDOC’s f inal decision. As a r e s u l t , S mi t h tim ely petitioned f or judicial review under Section 47-5-807.
B. Service of Process

4 T h e S tate’s “S tatem en t o f th e C ase” s t ates th at “S m ith w aited E I G H T (8 ) Y E A R S b ef o r e f i lin g h is A R P ! T h u s, th is A R P w as o u tsid e M D O C ’s in tern a l th irty (3 0 ) d ay statu te o f lim i tatio n s.” T h e S tate r elies u p o n its o w n st a tem en t th at “im m ed i ately u p o n in carceratio n in Ju n e 2 0 0 9 , M D O C ex p lain ed to S m ith arm ed carj ack in g w as a d ay -f o r-d ay crim e, M D O C g av e h im a tim e sh eet th at ref lected th e sam e, an d th en M D O C g a v e h im a co p y o f h is tim esh eet tw en ty -tw o (2 2 ) m o re tim es b ef o re h is tran sf

er to f e d e ral p r iso n .” T h is tim esh eet is n o t in th e reco rd

. T h eref o re, th is C o u rt h as n o b asis to co n s id er th is assertio n .
5 S ee E a sley v. R o a ch , 8 7 9 S o . 2 d 1 0 4 1 , 1 0 4 2 (M iss. 2 0 0 4 ) (h o ld in g th at “a p ro se p lead in g is co n s id ered ‘f

iled ’ w h en m ailed b y th e in m ate an d n o t w h en it i s receiv ed b y th e circu i t clerk ”). 5¶17. The State f urther contends that it never received notice of Sm ith’s p etition f or judicial review and was never legally s um m oned a n d served t hrough the Of f i c e o f t h e Attorney General under Mississippi Rule of Civil Procedure 4(d)(5). W e agree. ¶18. In Jobe v

. S tate , 288 So. 3d 403, 406 (Miss. Ct. App. 2 019), Jobe f i led a m otion f

or judicial review i n the circuit court. The MDOC f iled a m otion to quash the sum m ons based

on the circuit court’s lack o f personal jurisdiction over MDOC because of im proper service of process. Id. S p e c i f

i cally , the MDOC asserted that Jobe had f ailed to have the attorney
g e n eral served with process. Id. The M DOC also f iled a m otion t o dism iss on the same grounds. Id. The Court of Appeals considered whether the circuit court had jurisdiction to hear Jobe’s petition f

or judicial review. Id. at 408. ¶19. The Court of

Appeals f

irst considered Section 47-5-807, and held, [ t]he statute is silent as to the pr o c e d ure f or seeking judicial review, but it is clearly t he last step in the Adm inistrative Review Procedure. It is n ot a “new f iling” or a n e w l awsuit that would require s ervice of process on MDOC (or the Attorney General f or MDOC). Rather, a s the f inal step in the adm inistrative procedure outlined by the statute, no m o re than noti c e to the MDOC of

intent to appeal should be required.
Id. at 408. The Court of Appeals clarif ied that “there is n o requirem ent of s e rvice of process when a prisoner f

i les a petition f

or review o f an ARP decision in circuit court.” Id. at 409. Thus, the Court of

Appeals held that,

to appeal an A RP decision to circuit court, a prisoner m ust, within thirty d ay s of receiving t he ARP d e cision, subm it f or m a iling “a written notice of appeal” to the circuit court clerk accom panied by a certif

icate of service and provide “[ a] copy of that notice

. . . to all parties or their attorney s of record and the . . . lower authority

whose order or judgm ent is being appealed.”
Id. a t 410 ( quoting UCRCCC 5.04). Ultim a t ely , the Court o f Appeals held that “[ n]o service

6of

process was required, and the circuit court had personal jurisdiction over MDOC.” 6 Id. ¶20. Sm ith t im ely f

iled his petition f

or judicial review in the c ircuit court. Essentially , this petition was an e xtension of his adm inistrative rem edy p r o v i d e d f or b y Section 47-5-807. Approxim ately three m onths later, Sm ith f iled a “Motion f

or Court to Issue Sum m ons/Serve
Process Pursuant to Mississippi Rules o f C ivil P rocedure Rule 4.” In that m otion, Sm ith asked the c ircuit court to issue a sum m ons and ef f e ctuate service upon the State. The record neither indicates that the circuit c ourt i ssued a sum m ons nor i ndicates that it served the State. ¶21. Additionally , the recor d does not indicate t hat t he MDOC (or the attorney general) receive d n o tice o f Sm ith’s intention to s eek judicial review o f its f inal adm inistrative decision. Af

ter Sm ith r eceived h is “Second S tep Response,” there does not appear to be any other com m

unication between Sm ith and the MDOC bef ore or af t er Sm ith f

iled his petition seeking judicial review. The c ertif icate of s ervice attached to Sm i th’s p etition lists only the Greene County

Circuit Clerk. ¶22. Because Sm ith f

ailed t o provide the MD O C w i t h notice of his petition f o r judicial review, the circuit court lacked personal jurisdiction over the MDOC. See id.
CONCLUSION ¶23. The record sho w s t h a t Sm ith tim ely s ought judicial r eview of t he MDOC’s f inal

a d mi n i s trative decision. But the record does not show that the M DOC received notice o f

6 Bef ore Jobe , t h e Court of Appeals dealt with a sim ilar issue b ut f o und that the inm ate f ailed to properly serve MDOC through the Of f ice of the Attorney General. Cratin v. Fisher , 235 So. 3d 1434, 1436 (Miss. Ct. App. 2017). Since Cratin d i d n o t p r o p e r l y com ply w ith Rule 4(d)(5), the court f ound that the circuit c o urt lacked jurisdiction over the appeal. Id. Notwithstanding this procedural b ar, the circ u i t court acknowledged the untim e liness of

the appeal. Id. 7Sm ith’s petition f or judicial review. Because Sm ith f ailed to provide the M DOC with notice

o f his p etition f

or judicial r eview, the circuit court lacked personal j urisdiction ove r t h e MDOC. Theref

o r e, we vacate the circuit court’s judgm ent and r em and the case to the circuit court f or dism issal f

or a lack of jurisdiction. ¶24. VACATED AND REMANDED. RANDOLPH, C .J., KITCHENS AND KING, P.JJ., COLEMAN, M AX WELL, BEAM, CHAMBERLIN AND ISHEE, JJ., CONCUR.

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