Karanja L. Cobbert v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CP-00446-COA

KARANJA L. COBBERT A/K/A KARANJA APPELLANT

LEVON COBBERT A/K/A KARANJA COBBERT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/27/2015

TRIAL JUDGE: HON. PRENTISS GREENE HARRELL

COURT FROM WHICH APPEALED: LAMAR COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: KARANJA L. COBBERT (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: ABBIE EASON KOONCE

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-

CONVICTION RELIEF

DISPOSITION: AFFIRMED - 06/27/2017

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

WILSON, J., FOR THE COURT:

¶1. Karanja Cobbert argues that the circuit court exceeded its authority by imposing the

full remainder of the suspended portion of his sentence after the court revoked his post-

release supervision (PRS) for a second time based on “technical violations.” Cobbert argues

that because this was only his second revocation, the circuit court lacked authority to impose

a period of imprisonment of more than 120 days to be served at a technical violation center

(TVC). See Miss. Code Ann. § 47-7-37 (Rev. 2015). Cobbert’s argument confuses the

statutory definition of a “technical violation” with a revocation order, which may be based

on one or more technical violations. Cobbert had committed four technical violations, so the

circuit court was within its authority to impose the full remainder of the suspended portion

of his sentence. We therefore affirm the circuit court’s order denying Cobbert’s subsequent

motion for post-conviction relief (PCR).

FACTS AND PROCEDURAL HISTORY

¶2. In 2008, Cobbert pled guilty in the Lamar County Circuit Court to the charge of

commercial burglary. The court sentenced Cobbert to serve seven years in the custody of the

Mississippi Department of Corrections (MDOC), with six years suspended and five years of

supervised PRS. The sentence was to be served consecutively to another sentence that

Cobbert was then serving.

¶3. In December 2014, Cobbert’s PRS was revoked because he had violated three

conditions of his PRS: he failed to report to his probation officer, he failed to pay required

supervision fees to MDOC, and he failed to pay court costs. The circuit court imposed a

period of imprisonment of ninety days to be served at a TVC.

¶4. After Cobbert was released from the TVC, he again failed to report to his probation

officer. He was also arrested and charged with residential burglary and receiving stolen

property. At his subsequent revocation hearing, Cobbert admitted that he failed to report to

his probation officer as required by the terms of his PRS. The circuit judge then revoked

Cobbert’s PRS based on Cobbert’s admission that he failed to report, which made it

unnecessary for the court to consider the new charges against Cobbert. The judge then

ordered Cobbert to serve the remainder of his suspended sentence.

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¶5. In August 2015, Cobbert filed a PCR motion. As relevant to this appeal, Cobbert

eventually argued that the circuit court lacked authority to impose a period of imprisonment

in excess of 120 days at a TVC because his PRS was revoked based on a “technical

violation.” See Miss. Code Ann. § 47-7-37(5). The circuit court denied Cobbert’s PCR

motion, and Cobbert filed a timely notice of appeal from the final judgment.

DISCUSSION

¶6. We affirm because the circuit court was within its authority when it ordered Cobbert

to serve the remainder of his suspended sentence. Mississippi Code Annotated section 47-7-

37(5)(a) provides in relevant part:

If the court revokes probation for a technical violation, the court shall impose

a period of imprisonment to be served in either a technical violation center or

a restitution center not to exceed ninety (90) days for the first technical

violation and not to exceed one hundred twenty (120) days for the second

technical violation. For the third technical violation, the court may impose a

period of imprisonment to be served in either a technical violation center or a

restitution center for up to one hundred eighty (180) days or the court may

impose the remainder of the suspended portion of the sentence. For the fourth

and any subsequent technical violation, the court may impose up to the

remainder of the suspended portion of the sentence.

Id. (emphasis added). A “[t]echnical violation” is defined as “an act or omission by the

probationer that violates a condition or conditions of probation placed on the probationer by

the court or the probation officer.” Id. § 47-7-2(q).

¶7. As described above, Cobbert’s PRS was revoked for his fourth technical violation.

At Cobbert’s first revocation hearing, the State established three technical violations: that

Cobbert failed to report to his probation officer, that he failed to pay required fees, and that

he failed to pay court costs. At Cobbert’s second revocation hearing, the State established

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that Cobbert had failed to report once again, his fourth technical violation. Cobbert thus

committed four separate acts or omissions that violated a condition or conditions of his PRS.

Therefore, under the plain language of the statute, the circuit court was within its authority

to impose the remainder of the suspended portion of Cobbert’s sentence.

¶8. In arguing that the circuit court was limited to sending Cobbert to a TVC for 120 days,

both Cobbert and the dissent confuse a “technical violation” with a revocation order based

on one or more technical violations. The dissent argues that since this was only the second

time Cobbert’s PRS had been revoked because of technical violations, Cobbert could not be

imprisoned for more than 120 days. However, that simply is not what the relevant statutes

say. In effect, the dissent would rewrite section 47-7-37(5)(a) to read as follows:

If the court revokes probation for a technical violation, the court shall impose

a period of imprisonment to be served in either a technical violation center or

a restitution center not to exceed ninety (90) days for the first [revocation

based on the commission of one or more] technical violation[s] and not to

exceed one hundred twenty (120) days for the second [revocation based on the

commission of one or more] technical violation[s]. For the third [revocation

based on the commission of one or more] technical violation[s], the court may

impose a period of imprisonment to be served in either a technical violation

center or a restitution center for up to one hundred eighty (180) days or the

court may impose the remainder of the suspended portion of the sentence. For

the fourth and any subsequent [revocation based on the commission of one or

more] technical violation[s], the court may impose up to the remainder of the

suspended portion of the sentence. The period of imprisonment in a technical

violation center imposed under this section shall not be reduced in any manner.

Either that, or the dissent would rewrite section 47-7-2(q) as follows:

“Technical violation” means [a revocation of probation based on one or more

violations of] an act or omission by the probationer that violates a condition or

conditions of probation placed on the probationer by the court or the probation

officer.

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¶9. As rewritten by the dissent, a probationer could commit numerous technical violations

before the circuit judge would have the authority to impose the remainder of his suspended

sentence. This is contrary to the plain language of the relevant statutes, which permit the

circuit judge to do so “[f]or the third technical violation.”

¶10. When interpreting a statute, “we simply cannot . . . ignore [its] plain language.”

Bester v. State, 188 So. 3d 526, 529 (¶10) (Miss. 2016). Regardless of what we might think

that the Legislature meant, “[w]hatever the Legislature says in the text of the statute is

considered the best evidence of the legislative intent.” Miss. Dep’t of Transp. v. Allred, 928

So. 2d 152, 155 (¶14) (Miss. 2006) (quoting Pegram v. Bailey, 708 So. 2d 1307, 1314 (Miss.

1997)). “If the words of a statute are clear and unambiguous, the Court [simply] applies the

plain meaning of the statute . . . .” Lawson v. Honeywell Int’l Inc., 75 So. 3d 1024, 1027 (¶7)

(Miss. 2011). “We do so because of our ‘constitutional mandate to faithfully apply the

provisions of constitutionally enacted legislation.’” Bester, 188 So. 3d at 529 (¶10) (quoting

Univ. of Miss. Med. Ctr. v. Easterling, 928 So. 2d 815, 820 (¶23) (Miss. 2006)). “The

function of the Court is not to decide what a statute should provide, but to determine what

it does provide.” Lawson, 75 So. 3d at 1027 (¶7). Under the plain language of the relevant

statutes, the circuit court was within its authority when it ordered Cobbert to serve the full

remaining portion of his suspended sentence based on his fourth technical violation.

¶11. The dissent also emphasizes that section 47-7-2(q) defines a technical violation as “an

act or omission that violates a condition or conditions of probation.” Post at (¶23) (emphasis

added by the dissent). The dissent reasons that under this definition “there could potentially

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be more than one condition within a single violation.” Id. (emphasis added). We agree with

this interpretation of the definition. Separate conditions of PRS commonly include orders

not to commit any new criminal offenses (misdemeanor or felony), to “avoid injurious or

vicious habits,” to “avoid persons or places of disreputable or harmful character,” not to

possess or consume any alcohol or drugs, and not to possess firearms or other weapons. It

is easy to see that such conditions may overlap so that in some cases a single “act or

omission” by a probationer may “violate[] a condition or conditions of probation.” Miss.

Code Ann. § 47-7-2(q) (emphasis added). Such an “act or omission” would be a single

“technical violation” under the law. The dissent is correct to say this situation “could

potentially” arise. Post at (¶23) (emphasis added).

¶12. However, that is not what happened in this case. Cobbert’s PRS was first revoked

because he failed to report to his probation officer, he failed to pay court costs, and he failed

to pay required fees.1 Cobbert’s PRS was revoked a second time because he again failed to

report to his probation officer. Section 47-7-2(q) defines a technical violation as “an act or

omission that violates a condition or conditions of probation.” Cobbert committed four

separate acts or omissions, each of which violated a condition or conditions of his PRS.

Again, the dissent is correct that “there could potentially be” a case in which a single “act or

omission” by a probationer “violates . . . [multiple] conditions of [his] probation.” Post at

(¶22). But such a hypothetical case has nothing to do with the actual facts of this case, which

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Even if we treated Cobbert’s failure to pay fees to MDOC and failure to pay court

costs as a single omission, that would still leave three technical violations, which would

have permitted the circuit court to impose the full remainder of the suspended portion of

Cobbert’s sentence. See Miss. Code Ann. § 47-7-37(5)(a).

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involve four separate acts or omissions by Cobbert.

¶13. We do acknowledge that this Court recently reached a different result in Walker v.

State, No. 2015-CP-00912-COA, 2016 WL 6083239, at *4 (¶19) (Miss. Ct. App. Oct. 18,

2016) (rehearing denied April 11, 2017; petition for writ of certiorari filed April 21, 2017).

Walker decided the issue in a single paragraph without discussing the proper interpretation

of the statute. Walker’s argument was buried at the end of the third of five issues in a

lengthy, handwritten pro se brief. As a result, the State may have overlooked the issue of

statutory interpretation and did not address it directly until its motion for rehearing, which

we recently denied. In retrospect, we should have requested supplemental briefing before

deciding Walker. In any event, the conclusion in Walker is contrary to the plain language of

the statute and should be overruled.

¶14. The dissent concludes with an assertion that “[t]he majority’s opinion is regressive.”

Post at (¶27). However, our role is to apply the text of the statute as it was enacted by the

Legislature, not to rewrite the law because we think it is “regressive” as written. The dissent

also asserts that this opinion will “defeat the purpose of the statute,” which the dissent

understands to be “creating uniformity among revocation sentences in Mississippi.” Id.

Assuming the dissent is correct about the statute’s purpose, this assertion simply begs the

question. Was the Legislature’s purpose to promote uniform treatment of first, second, third,

and fourth revocations, as the dissent thinks best? Or was the Legislature’s purpose to

promote uniform treatment of first, second, third, and fourth technical violations? The text

of the statute uses the latter term, which the Legislature specifically defined. “Whatever the

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Legislature says in the text of the statute is considered the best evidence of the legislative

intent.” Allred, 928 So. 2d at 155 (¶14) (quoting Pegram, 708 So. 2d at 1314).

¶15. In summary, the circuit court had authority under the plain language of section 47-7-

37(5)(a) to impose the full remainder of the suspended portion of Cobbert’s sentence based

on his fourth technical violation of his PRS. We therefore affirm the circuit court’s order

denying Cobbert’s subsequent PCR motion.

¶16. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT DENYING

THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS

OF THIS APPEAL ARE ASSESSED TO LAMAR COUNTY.

GRIFFIS, P.J., ISHEE, CARLTON AND FAIR, JJ., CONCUR. GREENLEE,

J., CONCURS IN PART AND DISSENTS IN PART WITHOUT SEPARATE

WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITH SEPARATE

WRITTEN OPINION, JOINED BY IRVING, P.J., AND BARNES, J.; LEE, C.J., AND

GREENLEE, J., JOIN IN PART.

WESTBROOKS, J., DISSENTING:

¶17. I believe that the circuit court exceeded its authority by imposing the full remainder

of the suspended portion of Cobbert’s sentence. Therefore, I respectfully dissent.

PROCEDURAL HISTORY

¶18. On May 12, 2008, Cobbert pleaded guilty to commercial burglary. The trial court

sentenced him to seven years, with one year to serve in the custody of the MDOC, six years

suspended, and five years of PRS. An order of revocation (first revocation) was filed on

December 5, 2014, indicating Cobbert violated the conditions of his PRS by failing to: report,

pay the required fees, and pay court costs. For his first revocation, Cobbert was ordered to

serve ninety days in a technical-violation center. Shortly after being released, an arrest

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warrant was issued for Cobbert, charging him with residential burglary and receiving stolen

property. During this revocation hearing (second revocation), the trial court noted that it

would disregard the arrest, since Cobbert had not been indicted on the two criminal charges

and no witness was present at the hearing to testify as to the probability of Cobbert’s guilt.

The trial court revoked Cobbert’s PRS due to Cobbert’s admission that he had failed to report

to his probation officer. Cobbert was ordered to serve the remainder of his sentence.

¶19. Cobbert filed a PCR motion alleging that the trial court failed to find he had more

likely than not committed the crimes of residential burglary and receiving stolen property.

The trial court denied Cobbert’s PCR motion, finding that Cobbert’s PRS was not revoked

due to the pending criminal charges; rather, it was revoked due to Cobbert’s failure to report

to his probation officer. Cobbert then filed a motion for rehearing, asserting that if the trial

court used the technical violation for revoking his PRS, then he should have been sent to a

technical-violation center for 120 days pursuant to Mississippi Code Annotated section 47-7-

37(5)(a) (Rev. 2015). I agree with Cobbert’s assertion regarding sentencing.

¶20. Section 47-7-37(5)(a) was amended effective July 1, 2014, to provide for graduated

penalties for technical violations. Uniformity among revocation sentencing was the

legislative purpose for the amendment. See also Miss. Code Ann. § 47-7-38 (Rev. 2015)

(imposed graduated sanctions as an alternative to revocation for offenders who committed

technical violations while on probation). Prior to July 2014, the concept of “technical

violations” did not exist in Mississippi, but disparity among sentencing at revocation hearings

did. The probation procedures apply to PRS. See also Miss. Code Ann. § 47-7-37(9).

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¶21. Section 47-7-37(5)(a) states the following:

The probation and parole officer after making an arrest shall present to the

detaining authorities a similar statement of the circumstances of violation. The

probation and parole officer shall at once notify the court of the arrest and

detention of the probationer and shall submit a report in writing showing in

what manner the probationer has violated the conditions of probation. Within

twenty-one (21) days of arrest and detention by warrant as herein provided, the

court shall cause the probationer to be brought before it and may continue or

revoke all or any part of the probation or the suspension of sentence. If the

court revokes probation for a technical violation, the court shall impose a

period of imprisonment to be served in either a technical violation center or a

restitution center not to exceed ninety (90) days for the first technical violation

and not to exceed one hundred twenty (120) days for the second technical

violation. For the third technical violation, the court may impose a period of

imprisonment to be served in either a technical violation center or a restitution

center for up to one hundred eighty (180) days or the court may impose the

remainder of the suspended portion of the sentence. For the fourth and any

subsequent technical violation, the court may impose up to the remainder of

the suspended portion of the sentence. The period of imprisonment in a

technical violation center imposed under this section shall not be reduced in

any manner.

(Emphasis added).

¶22. The majority contends that Cobbert committed a total of four technical

violations—three violations addressed in his first revocation and one violation addressed in

his second revocation—thus, the trial court properly ordered Cobbert to serve the remainder

of his sentence. However, the first revocation order indicated that Cobbert violated three

conditions of his PRS: failure to report, failure to pay the required fees, and failure to pay

court costs. The trial court ordered him to serve ninety days in a technical-violation center.

The second revocation order noted that Cobbert failed to report to his probation officer,2

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The order also stated Cobbert had been charged with residential burglary and

receiving stolen property. As noted, the trial court disregarded this for purposes of

revocation, since there was no evidence Cobbert more likely than not committed the crimes

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which the State contends is actually Cobbert’s fourth technical violation.

¶23. Mississippi Code Annotated section 47-7-2(q) (Rev. 2015) defines a technical

violation as “an act or omission by the probationer that violates a condition or conditions of

probation placed on the probationer by the court or the probation officer.” (Emphasis added).

The plain reading of the statutes indicates that there could potentially be more than one

condition within a single violation. Revocation hearings typically follow after the

probationer has committed multiple violations, like in Cobbert’s situation where his first

revocation hearing encompassed violating three conditions of his PRS. Under the majority’s

rationale, if a person faces reinstatement of the remainder of his sentence after the first or

second hearing, then the purpose of amending the statute to include the structured graduated

schedule is defeated. Cobbert, and others similarly situated, would face either full- or

remainder-sentence reinstatement at the time of the first revocation hearing. This would

eviscerate the statute.

¶24. The trial court revoked Cobbert’s PRS and sentenced Cobbert to ninety days in the

restitution center as the first technical violation. Accordingly, pursuant to section 47-7-

37(5)(a), Cobbert’s second violation for failure to report to his probation officer should have

resulted in a sentence of 120 days in the restitution center. Both the majority and I agree that

the circuit revoked Cobbert’s PRS without considering the new charges of residential

burglary and receiving stolen property. Therefore, the only issues before the court were

Cobbert’s failure to report and failure to pay fees.

charged.

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¶25. For these reasons, I also opine that Walker v. State, 2015-CP-00912-COA, 2016 WL

6083239, at *4 (¶19) (Miss. Ct. App. Oct. 8, 2016) (rehearing denied April 11, 2017; petition

for writ of certiorari filed April 21, 2017), does not contradict the statute. In Walker, this

Court reversed and remanded for resentencing on a similar issue. There, the defendant’s

probation was revoked, and he was ordered to serve the remainder of his sentence. Id. at *1

(¶1). The defendant’s revocation was based on several violations, including failure to report,

to pay fees, and to pay restitution. Id. at *4 (¶18). However, this Court found, pursuant to

section 47-7-37(5)(a), that it was the defendant’s “first technical violation of his probation.”

Id. Thus, we found the defendant “should have been sentenced to not more than ninety days

in a technical-violation center or restitution center, not to the full term of his suspended

sentence . . . .” Id. at (¶19). Walker is consistent with the statute.

¶26. Also, it is important to note that most, if not all, revocations consist of more than one

technical violation. I will go as far to say that a trial judge will always be presented with a

defendant who has failed to pay and report—the two violations usually go hand in hand.

Moreover, the facts in Cobbert are the exact same as the “hypothetical” case the majority

identifies in its opinion. Maj. Op. at (¶12).

¶27. Here, it was Cobbert’s second technical violation of his PRS; thus, he should have

been sentenced to not more than 120 days in a technical-violation center. Accordingly, I

would find that the circuit court exceeded its authority by imposing the full remainder of

Cobbert’s sentence. The majority’s opinion is regressive and would defeat the purpose of

the statute: creating uniformity among revocation sentences in Mississippi. To be clear, I do

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not contend that the statute is regressive. The majority’s application of the statute is

regressive, because the opinion opposes the spirit of the statute.

¶28. Therefore, I would reverse and remand for resentencing.

IRVING, P.J., AND BARNES, J., JOIN THIS OPINION; LEE, C.J., AND

GREENLEE, J., JOIN THIS OPINION IN PART.

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