IN THE SUPREME COURT OF MISSISSIPPI

NO. 2000-CA-00283-SCT

VINCENT RYDELL EDWARDS

v.

WALTER BOOKER, SUPERINTENDENT OF MISSISSIPPI DEPARTMENT OF

CORRECTIONS

DATE OF JUDGMENT: 02/11/2000

TRIAL JUDGE: HON. GRAY EVANS

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: ROY O. PARKER

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: JAMES M. NORRIS

 JANE L. MAPP

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: REVERSED AND REMANDED- 07/26/2001

MOTION FOR REHEARING FILED: 8/24/2001; denied 10/18/2001

MANDATE ISSUED: 10/25/2001

BEFORE McRAE, P.J., DIAZ AND EASLEY, JJ.

McRAE, PRESIDING JUSTICE, FOR THE COURT:

¶1. Vincent Rydell Edwards, an inmate in the custody of the Mississippi Department of Corrections,

appeals from the Sunflower County Circuit Court's dismissal of his action seeking judicial review of the

Department's decision finding him guilty of a rules violation and removing him from a house arrest program

and placing him in the general prison population. The circuit court correctly held that Edwards had no

liberty interest in his inmate classification, and was therefore not denied constitutional due process.

However, the right to judicial review of final decisions of the classification committee is conferred by statute.

Miss. Code Ann. §§ 47-5-801 through 47-5-807 (1999). Because Edwards exhausted his administrative

remedies, the circuit court had jurisdiction to hear his complaint pursuant to section 47-5-803(2), and this

case is therefore remanded for a judicial hearing to determine whether Edwards in fact violated the terms of

his house arrest.

¶2. Furthermore, the classification committee acted arbitrarily and capriciously in refusing to allow

Edwards's retained attorney to participate in the hearing and in refusing to allow Edwards to present

witnesses and documents in violation of its own procedures. The circuit court also erred in refusing to allow

Edwards to make a proffer of evidence. This case is therefore reversed and remanded for proceedings

consistent with this opinion.

FACTS

¶3. On September 8, 1998, Vincent Rydell Edwards was convicted of possession of cocaine with intent to

sell, and was sentenced to twenty years' imprisonment in the Mississippi Department of Corrections.
Pursuant to Miss. Code Ann. § 47-5-1001, Edwards was placed in the Intensive Supervision Program,

more commonly known as "House Arrest."

¶4. On or about June 17, 1999, Edwards was in the Intensive Supervision Program ("House Arrest"). The

terms of the program required Edwards to be home between the hours of 8:00 p.m. and 8:00 a.m. During

the day he was permitted to leave home for certain approved activities, such as employment and running

errands during meal breaks.

¶5. On the evening in question, Edwards was employed as a barber at StyleMaster Barbershop. Between

4:30 and 5:00 p.m., Edwards left to take his dinner break with his sister, Sharon Duffy. At approximately

5:10 and 5:30 p.m. Edwards's field officer, Michael Lewellen, phoned the barbershop and was informed

that Edwards was not there. Lewellen called Edwards's residence some time shortly after 6:00 p.m. and

spoke with Duffy, who informed him that Edwards had just dropped her off and was returning to work.

Lewellen then called Edwards's personal line a few minutes later, and again spoke with Duffy. Before

leaving work shortly thereafter, Lewellen filed a Rules Violation Report against Edwards, noting on the

report that it was not to begin until 8:00 p.m.

¶6. Edwards returned home at approximately 7:15 p.m.,called Lewellen's office, and was informed that

Lewellen had left for the day. Pursuant to the report, filed before 8:00 p.m., a warrant was issued for

Edwards's arrest, and was served at approximately 10:00 p.m. that night.

¶7. Edwards retained attorney, Roy O. Parker, who requested that MDOC permit him to be present at

Edwards's disciplinary hearing to present witnesses and other evidence in defense of Edwards. MDOC

denied this request, gave no notice to his attorney, and conducted the hearing on June 29, 1999, without

Parker. Edwards was found guilty of the rule violation, was removed from the "House Arrest" program, and

placed in the general prison population.

¶8. Edwards appealed the decision of the disciplinary committee. On July 12, 1999, the Community

Services Director affirmed the decision of the committee. Thereafter, Edwards requested judicial review in

the Sunflower County Circuit Court by means of a writ of habeas corpus, filed October 13, 1999. On

February 11, 2000, the circuit court dismissed the writ, holding that it lacked jurisdiction to review actions

of the Classification Committee without a due process violation. Edwards appeals and raises the following

issues:

I. Whether the actions of MDOC were arbitrary and capricious when it refused to:

A. allow Edwards's attorney to know when the revocation hearing was to be held.

B. allow Edwards's attorney to attend the revocation hearing.

C. allow Edwards to present witnesses and documents at the hearing.

D. inform Edwards's attorney that the appeal had been denied.

II. Whether the circuit court had jurisdiction to review the decision of MDOC.

III. Whether the circuit court erred in refusing to allow Edwards's attorney to make a

proffer of evidence that would show that Edwards did not violate the terms of his House
Arrest.

IV. Whether Edwards violated any provision of the rules and regulations regarding his

house arrest.

STANDARDS OF REVIEW

¶9. Whether a circuit court has jurisdiction to hear a matter is a question of law and is therefore reviewed

de novo. Wright v. White, 693 So.2d 898, 900 (Miss.1997).

¶10. "The decision of an administrative agency shall not be disturbed unless unsupported by substantial

evidence; arbitrary or capricious; beyond the agency's scope or powers; or violative of the constitutional or

statutory rights of the aggrieved party." Miss. State Bd. of Pub. Accountancy v. Gray, 674 So.2d

1251, 1253 (Miss.1996) (emphasis added).

DISCUSSION

I. Whether the actions of MDOC were arbitrary and capricious when it refused to:

A. allow Edwards's attorney to know when the revocation hearing was to be held.

B. allow Edwards's attorney to attend the revocation hearing.

C. allow Edwards to present witnesses and documents at the hearing.

D. inform Edwards's attorney that the appeal had been denied.

1.

¶11. The State argues that this is basically a due process argument, and "since no liberty interest was

involved with Edwards's removal from ISP he was not entitled to due process protections. This does not

change simply by terming the actions arbitrary and capricious." The State cites Sandin v. Conner, 515

U.S. 474, 115 S. Ct. 2293, 132 L.Ed. 2d 418 (1995) for the proposition that no due process violation

was found where Sandin was not allowed to call witnesses at a disciplinary hearing.

¶12. What the State fails to recognize is that MDOC procedures require a hearing before a disciplinary

committee where the accused can be heard and present evidence. MDOC Standard Operating Procedure

18.02.01, Disciplinary Procedures, Formal Resolutions at 4. The procedures specifically provide that

inmates may call witnesses and present documentary evidence in their defense unless to do so would be: 1)

unduly hazardous to safety and security, or, 2) the witness was not present when the violation occurred or

has no personal knowledge of the incident, 3) the witness does not want to appear, or, 4) if testimony

would be cumulative, the accused may only present two witnesses, 5) if the witness is unavailable, a

statement obtained by the investigator or transcribed telephone statement may be used instead of live

testimony, or, 6) "revealing the identity of the witness may subject him to personal danger." Id. at 4-5. "Any

witnesses called by the accused offender or by the disciplinary committee will be given the opportunity to

make a statement concerning the charge." Id. at 6.

¶13. If the disciplinary committee refuses to follow its own administrative review procedures, then its

decision is by definition arbitrary and capricious. The disciplinary committee acted arbitrarily in refusing to
allow Edwards to present witnesses and evidence in violation of its own administrative review procedures.

2.

¶14. It is true that Edwards did not have a constitutional right to state-appointed counsel at the disciplinary

hearing of the classification committee. However, Edwards retained counsel specifically for the purpose of

representing him at the classification committee hearing. MDOC's own regulations provide him the right to

examine witnesses and present evidence, though not specifically granting nor denying the right to

representation by retained counsel.

¶15. The cases cited by Edwards, Riely v. State, 562 So.2d 1206 (Miss. 1990); Gagnon v. Scarpelli,

411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed. 2d 656 (1973); and Ex parte Laird, 305 So.2d 357 (Miss.

1974), all involve the right to counsel at Probation and Parole Board hearings. These cases stand for the

proposition that an accused has a right to counsel at such hearings in cases which are complex or difficult to

develop, and when, after being informed of his right to request counsel, the accused makes such a request,

based on a timely and colorable claim.

¶16. Riely and Gagnon involve the right to court-appointed counsel, and are therefore distinguishable

from the case at bar. In Laird, we held that the hearing officer violated the rules of the Probation and Parole

Board by refusing to allow her counsel to participate in the proceedings where the Board's own rules

provide "an absolute right to retain counsel for a preliminary hearing." Id. at 357.

¶17. MDOC Standard Operating Procedure 18.02.01 does not provide for such a right, nor does it deny

it. However, common sense and the interest of justice dictate that, where one takes the initiative and goes to

the expense of hiring an attorney to speak for him, the attorney should be allowed to represent his client.

Neither in the State's brief nor in the record was a reason given for refusing to allow Edwards's attorney to

participate in the proceedings. The committee therefore acted arbitrarily or capriciously in refusing to allow

Edwards's attorney to participate in the hearing in any way.

II. The circuit court had jurisdiction to review the decision of MDOC.

¶18. The circuit court held that it "lacks jurisdiction to review the actions of the Classification Committee

absent due process violation, this court found none here." The circuit court correctly interpreted Mississippi

law in finding that Edwards did not have a liberty interest in his inmate classification. Carson v. Hargett,

689 So.2d 753, 755 (Miss. 1996); Lewis v. State, 761 So.2d 922 (Miss. Ct. App. 2000) (holding that

removal from house arrest and return to general prison population was a matter of inmate classification).

¶19. Absent the infringement of a significant constitutional right, there can be no deprivation of constitutional

due process. However, Miss. Code Ann. §§ 47-5-801 to 47-5-807 (1999), authorizes MDOC to adopt

its administrative review procedures and creates a statutory scheme of due process.

¶20. Section 47-5-807 expressly provides for the right of judicial review as follows: "Any offender who is

aggrieved by an adverse decision rendered pursuant to any administrative review procedure under Sections

47-5-801 through 47-5-807 may, within thirty (30) days after receipt of the agency's final decision, seek

judicial review of the decision." This right is limited by a preceding section, 47-5-803, which provides that

"[n]o state court shall entertain an offender's grievance or complaint which falls under the purview of the

administrative review procedure unless and until such offender shall have exhausted the remedies as

provided in such procedure." (emphasis added).
¶21. The Court of Appeals has recently interpreted section 47-5-801 to hold that the administrative review

procedures are the sole means to review decisions of the classification committee. In Morris v. State, 767

So.2d 255, 261 (Miss. Ct. App. 2000), the appellate court used section 47-5-807 to hold Morriss's

petition time-barred as not brought within the requisite 30 days. The court ignored the remaining language

of that section, which states that inmates who are aggrieved by a decision rendered pursuant to

administrative review may "seek judicial review." The appellate court concluded bluntly that "[t]here is no

right to appeal to a court from this review." Id. at 261. This cannot be correct. We have stated:

[I]t is . . . a cardinal rule of exposition, that the intention is to be deduced from the whole and every

part of the statute, taken and compared together--from the words and the context--and such a

construction adopted as will best effectuate the intention of the law-giver. . . .

Green v. Weller, 32 Miss. (3 George) 650, 678 (1856). The legislature clearly intended to confer upon

"any offender" the right to "seek judicial review of the decision."

¶22. Section 47-5-803 (2) allows a state court to review a decision of the administrative body, so long as

the offender has first exhausted all administrative remedies. Section 47-5-807 grants to offenders the right

to judicial review, so long as it is brought within 30 days of receipt of the agency's decision. Together, these

statutes provide that an inmate may challenge an adverse decision of the classification committee, so long as

he has exhausted all administrative remedies and has brought the petition within 30 days of receipt of the

agency's final decision. Morris is therefore overruled to the extent that it is inconsistent with this principle.

¶23. Later, in Jensen v. State, No. 1999-CA-01747-SCT, 2001 WL 171322 (Miss. 2001), we held that

"Jensen's remedy was to pursue the MDOC grievance procedure rather than filing his petition in circuit

court." We went on to hold as follows:

Only after all administrative remedies have been exhausted will Jensen be entitled to petition for

judicial review of his case . . . and we reverse so that Jensen may properly pursue the offender

grievance procedures.

Jensen, at 3. It is clear from both statutory and case law that an inmate may petition the circuit court after,

and only after, following MDOC's grievance procedure to its conclusion.

¶24. MDOC's Disciplinary Procedures provide that classification committee decisions may be appealed to

the Institutional Superintendent/Community Services Director within 15 days of notification of the decision.

Mississippi Department of Corrections, Standard Operating Procedure 18.02.01, Disciplinary Procedures,

Formal Resolutions at 8 (effective 1/15/99). The parties agree in their briefs that Edwards appealed the

committee's decision, which was affirmed by John Brinson, prior to filing his writ of habeas corpus in the

circuit court. Edwards had therefore properly exhausted his administrative remedies prior to filing his writ of

habeas corpus. The circuit court had jurisdiction to hear it, but failed to exercise it. This case is therefore

remanded for further proceedings consistent with this opinion.

III. Whether the circuit court erred in refusing to allow Edwards's attorney to make a

proffer of evidence that would show that Edwards did not violate the terms of his House

Arrest.

¶25. The State addresses this issue as follows: "Whether Edwards could present evidence that he did not
actually violate the terms of his house arrest is irrelevant since he could not prove a due process or other

constitutional violation." The circuit court agreed, holding as follows: "I find no circumstances under which

any proof you offer would change this situation at all . . . there's no constitutional violation under present

law, therefore, I don't see any reason for an offer of proof."

¶26. In Pennington v. State, 437 So.2d 37, 39 (Miss. 1983), we held that "[t]he trial judge should

always permit attorneys to make a record of objectionable testimony or proffer of same in order that this

Court may know whether it is relevant or material." See also Lloyd v. State, 755 So.2d 12, 14 (Miss. Ct.

App. 1999)("When a trial court prevents the introduction of certain evidence, it is incumbent that a proffer

be made of the potential testimony of the witness or the point is waived for appellate review.").

¶27. The purpose of a proffer is to produce a more complete record, increasing judicial economy. The

parties were already before the circuit court. To allow a proffer of evidence into the record at this stage of

the proceedings would not have imposed any additional hardship on the court. Edwards did not demand

that his witnesses actually testify, but merely that their testimony be summarized by counsel so that it may be

preserved in the record for appeal. The circuit court erred in not allowing Edwards to make a proffer of

evidence.

IV. Whether Edwards violated any provision of the rules and regulations regarding his

house arrest.

¶28. The State has not specifically briefed this issue and does not challenge Edwards's version of the facts.

It does state the following: "Whether Edwards could present evidence that he did not actually violate the

terms of his house arrest is irrelevant since he could not prove a due process or other constitutional

violation."

¶29. Edwards claims he was prepared to offer into evidence that Doc Robbins, Lewellen's supervisor,

would be called as a witness and was prepared to testify that Edwards was not in violation of his house

arrest and that he was exactly where he was supposed to be. He would have testified that Edwards was

required to work and was allowed to have a lunch break and perform personal errands on the lunch break.

Edwards was required to be at his residence only during the hours between 8:00 a.m. and 8:00 p.m.

¶30. Edwards also intended to call his attorney's legal secretary, Lisa Keeler, who personally dealt with the

MDOC staff:

She was prepared to testify that the MDOC refused to allow Edwards's attorney to be present,

refused to inform him when the hearing would take place, and refused to allow witnesses to be

present at the hearing or to present any relevant documents. The only documents allowed were letters

from family and friends informing the committee of the character of the accused. She would further

testify that the MDOC failed to keep Edwards's attorney informed of the status of the appeal.

¶31. Sharon Duffy testified by deposition to the facts as purported by Edwards. She stated that she picked

Edwards up from work on the evening in question between 4:30 p.m. and 4:45 p.m., and that they

proceeded to a dry cleaners in Tupelo. She testified that the cleaners had lost some of Edwards's clothes,

and that after haggling for approximately 20 to 25 minutes, Edwards emerged from the cleaners with a

check for approximately $500.

¶32. Duffy testified that she and Edwards then proceeded to a Wendy's restaurant, and then to a dry
cleaners in Verona to drop off some of Edwards's clothes. Edwards then took her home and returned to

work. Duffy further testified that she spoke to Lewellen when he called the house on both occasions. She

stated that she explained to him Edwards's whereabouts, and that Edwards called Lewellen's office when he

returned home from work at approximately 7:00 p.m.

¶33. Edwards also argues that a note in the violation report that Edwards did not work on Wednesdays

was incorrect. He states that Cordell Edwards was prepared to testify that Edwards did work on

Wednesdays, though the shop was sometimes closed on Wednesdays.

¶34. This case is remanded to the circuit court for a factual determination of this issue. If Edwards is found

to have not violated the terms of the Intensive Supervision Program, then the decision of the Classification

Committee should be vacated.

CONCLUSION

¶35. As this case is remanded for further proceedings, it is unnecessary to address the additional issues

raised in this appeal. The classification committee acted arbitrarily and capriciously in refusing to allow

Edwards to present witnesses and documents in violation of its own procedures and in refusing to allow his

retained counsel to participate in the hearing. Also, the circuit court should have allowed Edwards to make

a proffer of evidence.

¶36. The right to judicial review of final decisions of the classification committee is conferred by statute.

Because Edwards exhausted his administrative remedies, the circuit court has jurisdiction to hear his appeal,

and this case is remanded for a factual determination of whether Edwards in fact violated the terms of his

house arrest. For these reasons, the judgment of the Sunflower County Circuit Court is reversed, and this

case is remanded for proceedings consistent with this opinion.

¶37. REVERSED AND REMANDED.

PITTMAN, C.J., BANKS, P.J., SMITH, MILLS, WALLER, DIAZ AND EASLEY, JJ.,

CONCUR. COBB, J., CONCURS IN PART AND DISSENTS IN PART WITHOUT

SEPARATE WRITTEN OPINION.