        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CP-00353-COA

GARY WAYNE STACKS A/K/A GARY WAYNE                                        APPELLANT
STACKS, JR. A/K/A GARY STACKS A/K/A
GARY W. STACKS
v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                         04/03/2017
TRIAL JUDGE:                              HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                CLAY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   GARY WAYNE STACKS (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: KATY GERBER
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              AFFIRMED - 03/20/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Gary Wayne Stacks appeals from the denial of his motion for post-conviction relief

(PCR). The circuit court terminated Stacks’s term of post-release supervision (PRS) and

recommitted Stacks to the custody of the Mississippi Department of Corrections (MDOC)

after Stacks violated multiple conditions of his PRS. In his PCR motion, Stacks argued that

the circuit court lacked authority to recommit him to MDOC custody because his original

sentencing order did not expressly impose a suspended sentence to correspond with his term

of PRS. This Court rejected the same argument in Anderson v. State, 89 So. 3d 645, 649-51

(¶¶7-12) (Miss. Ct. App. 2011). Therefore, we affirm the circuit court’s order denying
Stacks’s PCR motion.

¶2.    In 2007, Stacks pled guilty to manufacturing methamphetamine. Pursuant to a plea

agreement, the State recommended a sentence of ten years in MDOC custody followed by

five years of PRS and a fine.1 The State also agreed to retire a second charge to the files.2

The circuit court accepted Stacks’s plea, followed the State’s recommendation, and sentenced

Stacks to ten years in MDOC custody to be followed by five years of PRS, a $5,000 fine, and

court costs. At his plea/sentencing hearing, the court specifically warned Stacks of the

consequences of a violation of the conditions of his PRS:

       The Court:       [Y]ou [are] sentenced to 10 years in the Department of
                        Corrections . . . to be followed by 5-years post-release
                        supervision. Pay the minimum fine of $5,000 and all cost of
                        court. The fine and the court cost will be paid as a condition
                        of the 5-years post-release; which means if you do not pay it,
                        you’ll have to pick up and serve the other five. Do you
                        understand that?

       Stacks:          Yes, sir.

       ....

       The Court:       Now, there are some other conditions to a post-release sentence.
                        The other conditions are these: You must be a honest
                        law-abiding citizen.

       Stacks:          Yes, sir.

       The Court:       You must report to the Department of Corrections as they direct,

       1
        The maximum sentence for Stacks’s offense was thirty years’ imprisonment. See
Miss. Code Ann. § 41-29-139(b)(1) (Rev. 2005).
       2
           The record in this appeal does not reflect the nature of the charge retired to the files.

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                     usually once a month.

       Stacks:       Yes, sir.

       The Court:    Each time you report, you’re required to pay the State of
                     Mississippi $45 as a supervision fee. But if you don’t have the
                     money you still report. You can use no illegal drugs: cocaine,
                     LSD, heroin, marijuana, speed.

       Stacks:       Yes, sir.

       The Court:    No alcohol: beer, wine, or whiskey. And they’re going to be
                     testing you.

       Stacks:       Yes, sir.

       The Court:    Again, if you violate any of these conditions, Mr. Stacks, you
                     have to pick up and serve the other five years.

       Stacks:       Yes, sir.

       The Court:    Do you have any questions about the sentence?

       Stacks:       No.

(Emphasis added).

¶3.    Stacks completed his ten-year term in MDOC custody in 20163 and was discharged

to begin PRS. About six months later, a warrant was issued for his arrest for multiple


       3
         Stacks’s PCR motion states that he was paroled in 2009 and served the remainder
of his term in MDOC custody on parole. See Sinko v. State, 192 So. 3d 1069, 1070-71 (¶1)
(Miss. Ct. App. 2016) (explaining that for several years MDOC classified persons convicted
of manufacturing controlled substances other than marijuana as eligible for parole even
though the parole statute then in effect clearly provided that they were not eligible for
parole). There is nothing else in the record to confirm this statement, but the State does not
dispute it. In any event, an “offender while on parole shall remain in the legal custody of
[MDOC].” Miss. Code Ann. § 47-7-17 (Rev. 2015).

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violations of the conditions of his PRS: he failed to report in July and August 2016, failed

to pay his supervision fees, failed to pay his fine and court costs, twice tested positive for

amphetamine and methamphetamine, and failed to attend required drug and alcohol

treatment. The circuit court held a revocation hearing, found that Stacks had violated the

conditions of his PRS, and sentenced him to serve his term of PRS (5 years) in MDOC

custody. Stacks subsequently filed a PCR motion challenging his revocation, which the

circuit court denied. He then filed a timely notice of appeal.

¶4.    Stacks argues that the circuit court lacked authority to sentence him to serve five years

in MDOC custody for violating the conditions of his PRS. Stacks argues that his entire

sentence had expired before he was placed on PRS because the original sentencing order did

not impose a suspended sentence to correspond with his five-year term of PRS.

¶5.    This Court rejected the same basic argument in Anderson, supra. Anderson originally

was sentenced to serve five days in MDOC custody, with no suspended sentence and ten

years of PRS. Anderson, 89 So. 3d at 649 (¶7). Anderson subsequently violated the terms

of his PRS, and the circuit court revoked eight years of his PRS and sentenced him to serve

the same amount of time in MDOC custody. Id. at 648 (¶3). In a PCR motion, Anderson

argued that because “no portion of his sentence was suspended originally . . . , the circuit

judge could not order him to serve any more time in jail.” Id. at 649 (¶7). On appeal, this

Court rejected “[t]his assertion [as] clearly erroneous.” Id.

¶6.    We first pointed out that at Anderson’s original sentencing hearing, the judge clearly


                                               4
informed him that “he faced up to possibly ten more years in [MDOC] custody” if he violated

the conditions of his PRS, and “Anderson answered in the affirmative when asked if he

understood.” Id. at (¶8). Second, we emphasized that Mississippi Code Annotated section

47-7-34 (Rev. 2015), which governs the imposition and termination of PRS, “contains no

language that a suspended sentence must be given if the circuit court . . . wants to impose

PRS” following a term in MDOC custody. Id. at 650 (¶9). Thus, we held that even if an

offender’s original sentence does not expressly include a “suspended sentence,” if the

offender subsequently violates the conditions of his PRS, the circuit court has the authority

to terminate the offender’s PRS and recommit the offender to MDOC custody for all or part

of the term of PRS. See id. at 650-51 (¶¶9-12). As a practical matter, Anderson treats a term

of PRS as inclusive of an implied suspended sentence, even if the offender’s sentencing order

does not expressly reference a suspended sentence.

¶7.    The result in this case is the same as in Anderson. At Stacks’s plea/sentencing

hearing, the circuit court clearly informed him that he faced five additional years in MDOC

custody if he violated the conditions of his PRS, and Stacks stated that he understood. In

addition, as Anderson holds, section 47-7-34 does not require the circuit court to expressly

suspend part of the defendant’s sentence when the court imposes a term of PRS. Therefore,

the circuit court had the authority to sentence Stacks to serve five years in MDOC custody

after Stacks violated multiple conditions of his PRS. Stacks’s argument to the contrary “is




                                             5
without merit.” Anderson, 89 So. 3d at 651 (¶12).4

¶8.    In Anderson, we stated, “It is customary procedure for the circuit court to suspend a

portion of the sentence when utilizing PRS. For clarity and consistency in sentencing, we

encourage such practice.” Id. at 650 (¶10). We further stated that “the most logical way to

utilize PRS is to impose a term of incarceration, suspend a portion of the term, and place the

defendant on a period of PRS.” Id. at (¶11). We again encourage circuit courts to follow this

customary practice and to suspend a portion of the offender’s sentence when imposing a term

of PRS. However, as Anderson holds, a technical deviation from this customary practice

does not limit the circuit court’s authority to terminate an offender’s PRS and order him to

be recommitted to MDOC custody if the offender violates the conditions of his PRS.

¶9.    AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE,
WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., CONCURS IN
RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.




       4
          Stacks also argues that the circuit court’s order terminating his PRS and
recommitting him to MDOC custody exposed him to double jeopardy. However, Anderson
rejected this claim as well. Id. at 653 (¶24) (“Contrary to Anderson’s claims, the circuit
judge did not impose an additional sentence; he merely revoked Anderson’s PRS and
enforced the original sentence imposed.”). Stacks also argues that his court-appointed
attorney was ineffective because she failed to make a double jeopardy argument at his
revocation hearing. This claim also fails for the same reason.

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