                   IN THE SUPREME COURT OF MISSISSIPPI

                              NO. 2015-CA-01905-SCT

MISSISSIPPI DEPARTMENT OF CORRECTIONS,
MARSHALL FISHER, EARNEST LEE AND
SONJA STANCIEL

v.

CHARLES D. ALLEN a/k/a CHARLES DAVID
ALLEN


DATE OF JUDGMENT:                        10/28/2015
TRIAL JUDGE:                             HON. MARGARET CAREY-McCRAY
TRIAL COURT ATTORNEYS:                   JAMES M. NORRIS
                                         CHARLES D. ALLEN (PRO SE)
COURT FROM WHICH APPEALED:               SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANTS:                ANTHONY LOUIS SCHMIDT, JR.
                                         OFFICE OF THE ATTORNEY GENERAL
                                         BY: DARRELL CLAYTON BAUGHN
ATTORNEY FOR APPELLEE:                   CHARLES D. ALLEN (PRO SE)
NATURE OF THE CASE:                      CIVIL - STATE BOARDS AND AGENCIES
DISPOSITION:                             REVERSED AND RENDERED - 01/26/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      EN BANC.

      KITCHENS, JUSTICE, FOR THE COURT:

¶1.   Charles Allen, a parole-eligible inmate in the custody of the Mississippi Department

of Corrections (MDOC), filed a request pursuant to the administrative review procedure

(ARP) that MDOC develop a case plan for him. MDOC denied the request and, after

exhausting his administrative remedies, Allen appealed to the Circuit Court of Sunflower

County. The circuit court found that Allen was entitled to receive a case plan under an
amendment to the Probation and Parole Law. MDOC appeals, arguing that the circuit court

lacked jurisdiction over Allen’s appeal because it was untimely, and, alternatively, that the

Probation and Parole Law does not entitle Allen to receive a case plan.

¶2.    Because MDOC’s argument that the circuit court lacked jurisdiction over Allen’s

action is not supported by the record, we do not consider it. We find that, based on our recent

holding in Fisher v. Drankus, 204 So. 3d 1232 (Miss. 2016), the Probation and Parole Law

does not entitle Allen to a case plan. Therefore, we reverse the decision of the circuit court

and render a decision in favor of MDOC.

                                           FACTS

¶3.    The record includes the first page of Allen’s circuit court appeal, which shows that

Allen filed an “Appeal from Administrative Decision” on September 16, 2015. Also included

is the first page of a supporting memorandum, which claims that MDOC, by adopting certain

regulations, violated state statutes by denying a case plan to Allen and other inmates.

Although MDOC’s designation of the appellate record requested all papers filed in the trial

court, no other pages of Allen’s appeal or memorandum were included in the record.1 On

November 2, 2015, MDOC filed a motion to dismiss, arguing that Allen had neither alleged

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          On November 14, 2016, this Court received a copy of Allen’s request for an
administrative remedy and MDOC’s First Step Response Form and Second Step Response
Form denying relief. A file stamp on these documents reflects that they were filed in the
circuit court on November 9, 2016, approximately one year after that court had rendered its
decision dated November 6, 2015. Because this filing was not a part of the record before the
circuit court at the time of its ruling, we do not consider it. See M.R.A.P. 10(f) (“[n]othing
in this rule shall be construed as empowering the parties or any court to add to or subtract
from the record except insofar as may be necessary to convey a fair, accurate, and complete
account of what transpired in the trial court with respect to those issues that are the bases of
appeal”).

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nor shown that he had exhausted his administrative remedies, that Allen’s claim was

procedurally barred, and that his appeal was not ripe for adjudication.

¶4.     On November 6, 2015, the circuit court entered an order granting Allen’s request for

a case plan. The circuit court found that Allen had sought relief through ARP, and that, on

July 21, 2015, MDOC had denied Allen’s request for relief on the ground that Mississippi

Code Section 47-7-3.1 did not apply “retroactively” to prisoners sentenced before the

effective date of the amendment on July 1, 2014. After examining Mississippi Code Section

47-7-3.1, the circuit court rejected MDOC’s position, finding that, because Section 47-7-

3.1(1) provides that MDOC shall develop a case plan for all parole-eligible inmates, the plain

language of the statute mandates that MDOC develop a case plan for all such inmates,

including Allen. Although Section 47-7-3.1(2) does say that MDOC must complete a case

plan within ninety days of an inmate’s admission to MDOC custody, the circuit court found

that Section 47-7-3.1(2) merely established a deadline for the completion of case plans for

new inmates. The circuit court ordered MDOC to complete Allen’s case plan within ninety

days.

                                       DISCUSSION

        I.    WHETHER THE CIRCUIT COURT HAD JURISDICTION OVER
              ALLEN’S APPEAL.

¶5.     Mississippi Code Section 47-5-807 provides that an inmate aggrieved by a decision

of MDOC under ARP may appeal within thirty days after the inmate receives MDOC’s final

decision. Miss. Code Ann. § 47-5-807 (Rev. 2015). MDOC contends that Allen received its

final decision on July 21, 2015, but that he did not file his appeal until September 16, 2015,


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well past the thirty-day period. MDOC argues that timely filing under Section 47-5-807 is

jurisdictional, Stanley v. Turner, 846 So. 2d 279, 282 (Miss. Ct. App. 2003), and that,

because Allen’s appeal was untimely, the circuit court lacked jurisdiction.

¶6.    Although MDOC asserts in its brief that Allen received its final decision on July 21,

2015, it fails to cite any record evidence that Allen received its final decision on July 21,

2015. And the record does not disclose the date that Allen received the department’s final

decision. “This Court will consider only those matters that actually appear in the record and

does not rely on mere assertions in briefs.” Touchstone v. Touchstone, 682 So. 2d 374, 380

(Miss. 1996). Accordingly, we do not consider this issue.

       II.    WHETHER ALLEN WAS ENTITLED TO A CASE PLAN UNDER
              SECTION 47-7-3.1 OF THE PROBATION AND PAROLE LAW.

¶7.    Effective July 1, 2014, the legislature amended the Probation and Parole Law to

require MDOC to develop a case plan for “all parole eligible inmates.” Miss. Code Ann. §

47-7-3.1(1) (Rev. 2015). A “parole case plan” is defined as “an individualized, written

accountability and behavior change strategy developed by the department in collaboration

with the parole board to prepare offenders for release on parole at the parole eligibility date.”

Miss. Code Ann. § 47-7-2(c) (Rev. 2015). Case plans must “focus on the offender’s criminal

risk factors that, if addressed, reduce the likelihood of reoffending.” Id.

¶8.    Under review is MDOC’s denial of Allen’s request for a case plan based on its

interpretation of the Probation and Parole Law. On review of the decision of an

administrative agency, this Court determines whether the agency’s decision was supported

by substantial evidence, was arbitrary and capricious, was beyond the agency’s power to

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make, or violated a party’s constitutional rights. Jones v. Miss. Emp’t Sec. Comm’n, 181 So.

3d 1001, 1003 (Miss. 2016). While this Court affords de novo review to an agency’s

interpretation of a governing statute, we give great deference to the agency’s interpretation.

Miss. Methodist Hosp. & Rehab. Ctr., Inc. v. Miss. Div. of Medicaid, 21 So. 3d 600, 606

(Miss. 2009) (citing Sierra Club v. Miss. Envtl. Quality Permit Bd., 943 So. 2d 673, 678

(Miss. 2006)). This Court’s polestar consideration when determining the meaning of a statute

is the legislative intent. Miss. Gaming Comm’n v Imperial Palace of Miss., Inc., 751 So.

2d 1025, 1028 (Miss. 1999).

¶9.    MDOC argues that Section 47-7-3.1(2), which requires that the case plan be

completed within ninety days of the inmate’s admission, and Section 47-7-3.1(4), which

provides that the case plan must be achievable before the inmate’s parole eligibility date,

indicate legislative intent to limit the case plan requirement only to those inmates admitted

after July 1, 2014, the effective date of the amendments to the Probation and Parole Law.

After the conclusion of briefing in this case, this Court held in Drankus, 204 So. 3d at 1232

(¶ 10), that the case plan requirement in Section 47-7-3.1(1) does not apply to inmates

admitted to MDOC custody before the effective date of the statute.2

¶10.   In Drankus, an inmate who had been sentenced in 1987 filed an ARP request for a

case plan. Drankus, 204 So. 3d at 1232 (¶ 2). MDOC denied the request on the ground that



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         Also, in Rochell v. State, 204 So. 3d 774 (Miss. 2016), the Court held that an
amendment to the Probation and Parole Law providing for presumptive parole did not apply
to an inmate sentenced before July 1, 2014. Id. at 776. To reach this conclusion, the Court
in Rochell relied in part on its determination that the case plan requirement did not apply to
such inmates. Id.

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Section 47-7-3.1 does not apply retroactively to inmates sentenced before July 1, 2014. Id.

at 1232 (¶ 3). Drankus appealed to the circuit court, which held that Mississippi Code Section

47-7-3.1 means that all parole eligible inmates, including Drankus, must receive a case plan.

Id. at 1232 (¶ 6). MDOC appealed, and this Court found that the department’s interpretation

of the Probation and Parole Law was reasonable and supported by the statutory language. Id.

at 1232 (¶ 10). The Court applied the rule that “[a] statute will not be construed to be

retroactive unless the words admit of no other construction or meaning, and there is a plain

declaration in the act that it is.” Id. at 1232 (¶ 13) (quoting Hudson v. Moon, 732 So. 2d 927,

931 (Miss. 1999)). A majority of this Court3 observed that Section 47-7-3.1(2) requires

MDOC to complete a case plan within ninety days of an inmate’s admission to MDOC

custody. Id. at 1232 (¶ 10). The majority further observed that Section 47-7-3.1(4) provides

that MDOC “shall ensure that the case plan is achievable prior to [an] inmate’s parole

eligibility date.” Id. at 1232 (¶ 7); Miss. Code Ann. § 47-7-3.1(4). The Court found that,

although Section 47-7-3.1(1) provides that “all parole eligible inmates” receive a case plan,

it would be impossible for MDOC to develop case plans for all such inmates and comply

with Section 47-7-3.1(2) and 47-7-3.1(4). Drankus, 204 So. 3d at 1232 (¶ 10). Therefore, the

Court held that Section 47-7-3.1 did not “clearly and unequivocally express an intention for

retroactive applicability”; thus, it did not apply to Drankus. Id. at 1232 (¶ 14).

¶11.   This Court’s holding in Drankus governs the outcome of this case. Like Drankus,

Allen, who was sentenced before July 1, 2014, filed an ARP request that MDOC develop a

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        Three justices disagreed with the reasoning of the majority. Id. at 1232 (¶¶ 16-29)
(Dickinson, P.J., concurring in result only; Kitchens, J., dissenting, joined by King, J.).

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case plan for him. MDOC denied Allen’s ARP request on the ground that Section 47-7-3.1

does not apply to inmates sentenced before July 1, 2014. Although the circuit court reversed

MDOC’s decision, on appeal this Court held that the department’s interpretation of the

Probation and Parole Law was reasonable. Applying Drankus, we hold that, because Allen

was sentenced before the effective date of the Probation and Parole Law, he is not entitled

to a case plan. Therefore, we reverse the decision of the circuit court and render a decision

in favor of MDOC.

                                      CONCLUSION

¶12.   This Court determined in Fisher v. Drankus, 204 So. 3d 1232, that, under the

Probation and Parole Law, an inmate sentenced before July 1, 2014, is not entitled to receive

a case plan. Therefore, because Allen was sentenced before July 1, 2014, he is not entitled

to a case plan. We reverse the decision of the circuit court and render a decision in favor of

MDOC.

¶13.   REVERSED AND RENDERED.

     WALLER, C.J., RANDOLPH, P.J., KING, COLEMAN, MAXWELL, BEAM
AND CHAMBERLIN, JJ., CONCUR. DICKINSON, P.J., CONCURS IN PART AND
IN RESULT WITHOUT SEPARATE WRITTEN OPINION.




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