         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2013-CP-02023-COA

COURTNEY ELKINS A/K/A CORTNEY ELKINS                                           APPELLANT


v.

STATE OF MISSISSIPPI                                                             APPELLEE

DATE OF JUDGMENT:                            11/01/2013
TRIAL JUDGE:                                 HON. RICHARD A. SMITH
COURT FROM WHICH APPEALED:                   SUNFLOWER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      COURTNEY ELKINS (PRO SE)
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                          CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                     PETITION FOR POST-CONVICTION
                                             COLLATERAL RELIEF DISMISSED
DISPOSITION:                                 AFFIRMED - 04/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Courtney Elkins appeals the circuit court’s dismissal of his petition for post-conviction

collateral relief. After this Court’s decision in Elkins v. State, 116 So. 3d 185 (Miss. Ct. App.

2013), the circuit court held an evidentiary hearing and upheld the revocation of Elkins’s

parole. The court found that “the State clearly proved that [it] was more likely than not that

[Elkins] committed an act in violation of his parole.” We find no error and affirm.

                                            FACTS

¶2.    The basic facts were summarized in Elkins, 116 So. 3d at 186-87 (¶¶2-5).
      On February 17, 1995, Elkins [pleaded] guilty in the Sunflower County Circuit
      Court to murder and was sentenced to life imprisonment. Twelve years later,
      the Mississippi Parole Board granted Elkins conditional parole and allowed
      him to relocate to Chicago, Illinois.

      While in Chicago, Elkins was arrested on June 4, 2009, and charged with
      domestic battery, after he allegedly pushed down his girlfriend. Upon learning
      of his arrest, a preliminary parole hearing was held in Illinois to determine
      whether there was probable cause that Elkins had violated the conditions of his
      parole. The hearing officer concluded there was probable cause and
      recommended a parole-violation hearing be conducted. But two days later, on
      June 19, 2009, the Chicago Police Department dismissed by a nolle prosequi
      (or “nol-prossed”) the domestic-battery charge against Elkins.

      In August 2009, Elkins was extradited to Mississippi. Elkins waived his right
      to a preliminary parole-revocation hearing and requested he be returned to
      custody for a final parole-revocation hearing before the Mississippi Parole
      Board. Though the Illinois charge had been nol-prossed months earlier, and
      the purported victim provided the Board an affidavit in which she recanted the
      battery allegation, the Board revoked Elkins's parole on November 4, 2009.
      As a result, Elkins was sent back to prison for life.

      Elkins filed a PCR motion on April 29, 2011, alleging his parole had been
      unlawfully revoked. The trial court summarily dismissed Elkins's PCR motion
      without conducting a hearing.

¶3.   On appeal, this Court remanded to the circuit court for an evidentiary hearing to

determine what evidence the Mississippi Parole Board relied upon in revoking Elkins’s

parole. Following our remand, an evidentiary hearing was held in August 2013. At the

hearing, testimony was given by Elkins, Nadeja Beasley, and Stephanie Skipper.

¶4.   Beasley, Elkins’s former girlfriend whom he allegedly battered, testified that Elkins

did not hurt her. She now claims that she called the police because she was angry with

Elkins, and she knew that an arrest would cause problems with his parole. After Elkins’s




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arrest, she wrote an affidavit explaining what happened on the day of the incident and sought

to have the charges against Elkins dropped.

¶5.    Skipper, an employee of the Mississippi Parole Board, recorded Elkins’s parole

hearing. According to Skipper, the Board also considered an earlier arrest in Chicago, where

Elkins stabbed his father with a knife. This arrest occurred in February 2008. After this

arrest, Illinois allowed Elkins to continue on parole and ordered him to attend anger-

management classes and family counseling. Based on the Board’s record of the hearing,

Elkins admitted to both incidents of domestic violence, stabbing his father and pushing

Beasley.

¶6.    The circuit court then denied Elkins’s PCCR petition after finding “that [it] was more

likely than not that [Elkins] committed an act in violation of his parole.” Elkins now appeals.

                                STANDARD OF REVIEW

¶7.    “A circuit court’s denial of post-conviction relief will not be reversed absent a finding

that the court’s decision was clearly erroneous.” Morris v. State, 66 So. 3d 716, 719 (¶13)

(Miss. Ct. App. 2011). But “when issues of law are raised, the proper standard of review is

de novo.” Id.

                                         ANALYSIS

¶8.    Elkins argues that his parole should be reinstated because the charges stemming from

both incidents of domestic violence (stabbing his father and pushing Beasley) were dropped.

But even when a parolee is acquitted in a criminal proceeding, this “does not per se preclude




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parole revocation predicated upon facts and circumstances giving rise to the criminal

charge.”   Williams v. Castilla, 585 So. 2d 761, 764 (Miss. 1991).

¶9.    In revoking parole, “before one released on parole may be returned to custody, it must

be shown that he has violated the terms and conditions of parole.” Moore v. State, 587 So.

2d 1193, 1196 (Miss. 1991). “[A]n arrest alone is not sufficient to prove that the defendant

committed the act which violated the parole.” Morris, 66 So. 3d at 719-20 (¶17). “[W]hen

there is an acquittal or dismissal of the underlying criminal charges, [before the accused’s

parole may be revoked], the State must offer actual proof that he committed an act violating

the terms and conditions of his parole, and the mere fact that he was arrested and charged

with [a crime] may hardly suffice.” Elkins, 116 So. 3d at 188 (¶13). “The Board may not

rely on the mere fact that the parolee has been charged with a felony.” Williams, 585 So. 2d

at 764. On review, it must be shown “that reasonable grounds existed for revocation of . .

. parole outside of the . . . charge itself.” Moore v. State, 605 So. 2d 794, 795 (Miss. 1992).

¶10.   After this Court remanded, an evidentiary hearing was held, and Elkins was given “an

opportunity to prove his claim that his parole had been unlawfully revoked.” Moore, 587 So.

2d at 1196. “The burden was on [Elkins] to prove by a preponderance of the evidence that

he was entitled to reinstatement of his parole.” Id.

¶11.   During the evidentiary hearing, the State presented evidence that Elkins had

previously been arrested due to acts of domestic violence. In 2008, Elkins stabbed his father

during an argument. The Chicago police arrested him and charged him with domestic




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battery. Illinois permitted Elkins to continue on parole upon the condition that he attend

anger-management classes and move to a new address.

¶12.   Skipper testified during the hearing in circuit court that the Board became aware of

Elkins’s first charge for domestic violence against his father when Illinois sent Elkins back

to Mississippi. According to Skipper, during the hearing with the Board, Elkins admitted to

pushing Beasley and hurting her wrist. Elkins was also asked about the first incident of

domestic violence with his father. He admitted that he stabbed his father during an argument.

Skipper testified that the Board made its decision based on both instances of domestic

violence, not just the arrest resulting from the incident with Beasley.

¶13.   This Court finds that the circuit court did not err in upholding Elkins’s parole

revocation. Elkins failed to prove by a preponderance of the evidence that he is entitled to

a reinstatement of his parole. Furthermore, the State showed that reasonable grounds outside

of Elkins’s charge of domestic violence existed for the revocation of parole.

¶14. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT
DENYING THE PETITION FOR POST-CONVICTION COLLATERAL RELIEF IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER
COUNTY.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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