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Date: 04-28-2021

Case Style:

Merlin Hardison v. State of Mississippi

Case Number: 2018-CP-01193-COA

Judge: Donna M. Barnes

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD

Defendant's Attorney:


Criminal Defense Lawyer Directory


Description:

Jackson, MS - Criminal defense attorney represented Merlin Hardison with one count of armed
robbery and two counts of aggravated assault charges



On remand, as part of a plea agreement, Hardison entered a guilty plea to one count
of armed robbery and one count of aggravated assault on July 1, 2014; the remaining charge
of aggravated assault was remanded to the files. House Bill (H.B.) 585 went into effect aslaw on the day of Hardison’s plea; so the plea petition was amended to note the “[n]ew
sentencing guidelines[,] which may allow for earlyrelease after serving 50% oftime per H.B.
585 effective July, 2014.” At the plea hearing, Hardison’s attorney, Brent Southern,
addressed the recent changes to the law and the amendment to the petition:
BY MR. SOUTHERN: Your Honor, if I may just for a brief moment. You
may have noticed it by now, but the plea petition that we were using, the form
this morning, there is a cross through on, I think, the second page -
BY THE COURT: I’m looking at it.
BY MR. SOUTHERN: - where it talks about House Bill 585, which becomes
law effective today,July 1, 2014, which eliminates armed robbery as a specific
crime whereby the defendant would not be eligible for early release. Under
House Bill 585, he will be eligible for early release provided he meets certain
other criteria during the time of his incarceration.
I had Mr. Hardison initial the cross[-]through, so I went through it with him
and he understands it.
BY THE COURT: I note the change in the petition.
. . . .
BY [THE STATE]: Your Honor, as far as any amendment to the plea petition
as to [H.B.] 585, I am not - I’ll say 585, it’s my understanding, does set forth
parameters which he may be eligible under 585 for early release. I’m not
aware of that. I don’t -- I don’t deal with [Mississippi Department of
Corrections (MDOC)] once they’re out of my hands, which is why I had no
objection to the amendment to the plea petition.
. . . .
BY THE COURT: . . . I’ll note the - this writing in the petition to plead guilty.
And Ishare the prosecutor’s and your own attorney’s lack of ability to interpret
House Bill 585, but I believe it accurately represents what the bill stands for.
But that’s above my pay grade. Somebody else at the MDOC is going to have
to deal with that as far as whether or not to apply those early release dates.
2(Emphasis added). The trial court thereby sentenced Hardison to serve two concurrent
sentences in the custody of the MDOC—thirty years for the armed-robbery conviction and
twentyyears for the aggravated-assault conviction—with twenty-three yearsto be served and
seven years suspended.
¶3. Once in custody, Hardison claims he was informed that he was not eligible for early
release; so Hardison filed a motion for post-conviction relief (PCR) on November 28, 2016,
requesting that the trial court either allow him to withdraw his guilty pleas or enforce the
conditions of his plea agreement (i.e., provide him with eligibility for early release). He also
requested an evidentiary hearing.
¶4. To support his claim, Hardison cited Mississippi Code Annotated section 47-7-3.2(1)
(Supp. 2014), enacted by H.B. 585, which provides:
Notwithstanding Sections 47-5-138, 47-5-139, 47-5-138.1 or 47-5-142, no
person convicted of a criminal offense on or after July 1, 2014, shall be
released by the department until he or she has served no less than fifty percent
(50%) of a sentence for a crime of violence pursuant to Section 97-3-2 or
twenty-five percent (25%) of any other sentence imposed by the court.
(Emphasis added). Without holding an evidentiary hearing, the trial court denied Hardison’s
PCR motion on September 21, 2018, finding:
Hardison pled guilty to these crimes on July 1, 2014. This was also the
effective date for H.B. 585, codified as Mississippi Code Annotated § 47-7-
3.2. This statute gave violent offenders the chance for parole after serving
fifty percent of their sentence. Hardison claims [the] new law was his main
incentive for pleading guilty and asserts he was misled by his attorney to
accept the agreement. The Mississippi Legislature enacted another law in
2016, Mississippi Code Annotated § 47-7-3, that made any person convicted
of a violent crime on or after July 1, 2014, ineligible for parole. The two laws
were contradictory; however, the Attorney General clarified the issue holding
the latest statute, Mississippi Code Annotated § 47-7-3, as the binding
3authority.
[1]
Accordingly, since Hardison was sentenced on or after July 1, 2014 and was
convicted of violent offenses, he is not eligible for parole or early release. At
the time of his guilty plea, his attorney advised him of the correct law and is
not responsible for a legislative change two years after sentencing.
Hardison appeals the trial court’s ruling, arguing that (1) his plea was involuntary because
he relied on his attorney’s representation that he would be eligible for parole after serving
fifty percent of his sentence, and (2) the court erred in its ex post facto2
application of the
2016 amendment to his sentence. Hardison, therefore, requests that this Court reverse and
render his sentence, as he has already served over fifty percent of that sentence.
¶5. The State asserts that “Hardison’s claim that the trial court enacted or enforced an ex
post facto law through its order is without merit” and that Hardison is not parole eligible.
The State does concede, however, that Hardison was “entitled to an evidentiary hearing on
the issue of whether he voluntarily, knowingly, and intelligently entered his guilty plea,” as
counsel’s advice “regarding his eligibility for early release was erroneous.” Therefore, the
1 The trial court is apparently referencing Mississippi Attorney General Opinion,
2017-00409, 2018 WL 1401723, Dale at *1 (Feb. 16, 2018), in which the Attorney
General’s office was asked to clarify whether the crimes of armed robbery and seconddegree murder would qualify for parole eligibility after fifty-percent of the sentence was
served, in light ofsection 47-7-3(1)(g)(i), “which was enacted in 2016” and prohibits parole
release of any person convicted of a crime of violence. The AttorneyGeneral concluded that
“when statutory provisions conflict, the provisions of the latest statute prevails.” Id.
However, as we will address in more detail, section 47-7-3(1)(g)(i) was enacted in 2014, not
2016.
2 The Ex Post Facto clauses of the United States and Mississippi Constitutions (U.S.
Const. art. I, § 10, cl. 1; Miss. Const. art. 3, § 16) prohibit the creation of “a new offense or
chang[ing] the punishment, to the detriment of the accused, after the commission of the
crime.” Ross v. Epps, 922 So. 2d 847, 849 (¶5) (Miss. Ct. App. 2006) (quoting Knowles v.
State, 708 So. 2d 549, 553 (¶6) (Miss. 1998)).
4State requests that this Court remand for further proceedings merely to allow Hardison to
present any evidence that he relied on his attorney’s misrepresentation “when entering his
guilty plea.”
¶6. At the outset, we find the trial court erroneously stated that Mississippi Code
Annotated section 47-7-3(1)(g)(i) was “enacted” in 2016.3 Enacted by H.B. 585, section 47-
7-3(1)(g)(i) went into effect on July 1, 2014, and provides, “No person who, on or after July
1, 2014, is convicted of a crime of violence pursuant to Section 97-3-2, a sex crime or an
offense that specifically prohibits parole release, shall be eligible for parole.” For this
reason, we cannot find merit to Hardison’s argument that the court applied an ex post facto
law.
¶7. We also find that Hardison is not parole eligible because he was convicted of two
crimes of violence under Mississippi Code Annotated section 97-3-2(1) (Rev. 2014).
Nevertheless, the State has conceded that defense counsel’s advice regarding parole
eligibility was “erroneous” and that “this case should be remanded for an evidentiary
hearing” based on his claims. Accordingly, we reverse and remand to the trial court for an
evidentiary hearing on the voluntariness of Hardison’s guilty plea.
STANDARD OF REVIEW
¶8. “This Court employs the clearly-erroneous standard of review when reviewing a trial
court’s summary dismissal of a PCR motion.” Smith v. State, 291 So. 3d 1, 5 (¶8) (Miss. Ct.
3 As the State correctly notes, the only amendment to section 47-7-3 in 2016 was to
re-write paragraph (1)(f), which “had no bearing on Hardison’s parole eligibility.” The
State, however, does not address the Attorney General’s Dale opinion.
5App. 2019) (quoting Lofton v. State, 233 So. 3d 907, 908 (¶4) (Miss. Ct. App. 2017)). We
will affirm a court’s “summary dismissal of a defendant’s PCR motion ‘if he fails to
demonstrate a claim procedurally alive substantially showing the denial of a state or federal
right.’” Id. (quoting Moore v. State, 248 So. 3d 845, 848 (¶7) (Miss. Ct. App. 2017)).
Questions of law, however, are reviewed de novo. Id. (citing Lofton, 233 So. 3d at 908 (¶9)).
DISCUSSION
¶9. As in his PCR motion, Hardison contends that section 47-7-3.2 grants him eligibility
for early release from custody. Hardison argues that he entered his guilty plea believing that
“he would be eligible for parole after serving [fifty] percent (50%) of his sentence pursuant
to [H.B.] 585 effective July 1, 2014.” Yet when he re-entered MDOC’s custody, his new
time sheet “reflected that he must serve the entire [twenty-three-year] sentence rather than
receiving a [fifty] percent reduction to be release on parole or early release after serving 11 ½
years as promised in the agreement.”
¶10. The State asserts that notwithstanding the language of section 47-3-3.2, “Hardison
was not eligible for parole at the time he pleaded guilty because both of his crimes were
classified as crimes of violence pursuant to [section] 97-3-2.” Section 97-3-2(1), also
enacted in 2014, enumerated specific crimes of violence, including armed robbery and
aggravated assault.4
See Miss. Code Ann. § 97-3-2(1). While we have found no cases
addressing if or how section 47-3-3.2 affects an inmate’s parole eligibility, the supreme court
did address in Fogleman v. State, 283 So. 3d 685, 691 (¶22) (Miss. 2019), the interplay
4 Neither party disputes that Hardison was convicted of crimes of violence as defined
under section 97-3-2(1).
6between section 47-7-3(1)(g)(i) and section 97-3-2(2). Specifically, the supreme court was
asked to consider if the petitioner was entitled to parole or early release under subsection (2)
of section 97-3-2.5 Pertinent to our analysis is the supreme court’s conclusion in Fogleman:
Instead of just declaring that Section 43-7-3(1)(g)(i)’s parole-elimination
provision trumps, our law requires us, if possible, to harmonize these two
parole-related provisions so as not to render the last sentence of Section
97-3-2(2) meaningless. We find Section 43-7-3(1)(g)(i) does apply to the per
se crimes of violence listed in subsection (1) of Section 97-3-2 because Section
97-3-2(1) is silent about parole eligibility. But Section 43-7-3(1)(g)(I) does
not apply to the trial court’s discretionary designation of a “crime of violence”
under subsection (2) of Section 97-3-2. Rather, subsection (2)’s specific
parole-and-early-release-eligibility provision controls.
Id. at 691-92 (¶23) (emphasis added). In Bowman v. State, 283 So. 3d 154, 169 (¶¶57, 59)
(Miss. 2019), the supreme court revisited its Fogleman holding, finding that because the
defendant was convicted of a crime of violence, he would “have to serve the entirety of his
ten-year sentence.” However, because the trial judge in Bowman “did not have the benefit
of [the supreme court’s] decision in Fogleman and “was under the opposite impression that
[s]ection 97-3-2(2)’s [fifty] percent parole eligibility applied to all of [s]ection 97-3-2,” the
5
Subsection (2) provides:
(2) In any felony offense with a maximum sentence of no less than five (5)
years, upon conviction, the judge may find and place in the sentencing order,
on the record in open court, that the offense, while not listed in subsection (1)
of this section, shall be classified as a crime of violence if the facts show that
the defendant used physical force, or made a credible attempt or threat of
physical force against another person as part of the criminal act. No person
convicted of a crime of violence listed in this section is eligible for parole or
for early release from the custody of the Department of Corrections until the
person has served at least fifty percent (50%) of the sentence imposed by the
court.
(Emphasis added).
7supreme court reversed and remanded forresentencing, “allow[ing] the judge to fashion what
he believes to be an appropriate sentence[.]” Id. at 169-70 (¶¶59-60).
¶11. Our Court has since followed the Fogleman precedent. In Wilson v. State, 295 So. 3d
566, 567 (¶¶2, 6-9) (Miss. Ct. App. 2020), we held that a petitioner was “not entitled to
parole under Mississippi law” because his 2016 convictions of armed robbery and
kidnapping fell “within the statutorily defined crimes of violence . . . in section 97-3-2(1).”
(Citing Fogleman, 283 So. 3d at 692 (¶23); Miss. Code Ann. § 47-7-3(1)(g)(i)); see also
Gava-Hudson v. State, No. 2020-CA-00246-COA, 2021 WL 248152, at *2 (¶10) (Miss. Ct.
App. Jan. 26, 2021) (recognizing Fogleman “specifically held that ‘[s]ection 47-7-3(1)(g)(i)
does apply to the per se crimes of violence in subsection (1) of [s]ection 97-3-2,’ meaning
[the defendant] must serve her time without eligibility for parole”); Freelon v. State, 285 So.
3d 701, 701-03 (¶¶2, 9) (Miss. Ct. App. 2019) (observing that petitioner, who was “convicted
of two statutorily enumerated violent crimes” in 2016, was “not eligible for parole” under
section 47-7-3(1)(g)(i) and the supreme court’s holding in Fogleman). Therefore, in
accordance with this precedent, Hardison is not parole eligible, as he was convicted of two
enumerated crimes of violence.
¶12. Returning to the immediate issue before us—whether sections 47-7-3.2 and 47-7-
3(1)(g)(i) are in conflict—we note that the supreme court has held, “This state’s policy in
regard to conflicting statutes is to construe them in harmony with each other so as to give
force and effect to each, as far as reasonably possible.” Metts v. State Dep’t of Pub. Welfare,
430 So. 2d 401, 405 (Miss. 1983). Section 47-7-3(1)(g)(i) is clear—no one convicted on or
8after July 1, 2014, of a crime of violence under section 97-3-2 “shall be eligible for parole.”
Hardison argues that section 47-7-3.2, on the other hand, gives “violent offenders the chance
for parole after serving [fifty] percent of their sentence.” However, we believe that section
47-7-3.2 only applies to the same crimes identified in Fogleman as being parole
eligible—those which the trial judge designates as violent crimes under section 97-3-2(2).
Because Hardison was convicted of crimes of violence under section 97-3-2(1), section 47-3-
3.2 is inapplicable.6
¶13. As to whether Hardison was entitled to an evidentiary hearing in order to establish that
his plea was involuntary, Hardison was required to show that he was “affirmatively
misinformed regarding the possibility of parole and ple[d] guilty in reliance on the
misinformation.” Moore v. State, 248 So. 3d 845, 852 (¶17) (Miss. Ct. App. 2017) (emphasis
omitted). Here, the State has conceded that the advice provided by defense counsel
“regarding his eligibility for early release was erroneous,” with counsel stating at the plea
hearing that “[u]nder [H.B.] 585, [Hardison] will be eligible for early release provided he
meets certain other criteria during the time of his incarceration.” See Manuel v. State, 304
So. 3d 713, 717-18 (¶¶11-15) (Miss. Ct. App. 2020) (reversing and remanding for an
evidentiary hearing because defense counsel misinformed defendant regarding his parole
eligibility and earned/trusty time). However, given the discussion at the plea hearing as to
6
In his separate opinion, Presiding Judge Wilson does not dispute that both section
47-7-3(1)(g)(i) and section 47-7-3.2 apply to parole eligibility for violent offenders.
However, he concludes that “[t]here is no conflict between the two statutes.” We disagree.
We find the better course is to acknowledge the conflict, as the Attorney General did in
Dale, supra n.1, follow the supreme court’s reasoning in Fogleman, and harmonize the two
statutes.
9the “lack of ability to interpret House Bill 585,” we cannot ascertain that the State’s
concession of “erroneous” advice of counsel equates to affirmative misinformation as
required by Moore. Therefore, we find the issue is more appropriate for the trial court to
consider on remand. See Tiller v. State, 440 So. 2d 1001, 1006 (Miss. 1983) (recognizing
the supreme court was “without power to adjudicate the merits” of a PCR motion and
remanding to the trial court for an evidentiary hearing). We reverse and remand for the trial
court to conduct an evidentiary hearing on the voluntariness of Hardison’s guilty plea.

Outcome: REVERSED AND REMANDED.

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