         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CP-01810-COA

BILLY WHEATER A/K/A BILLY NEAL                                               APPELLANT
WHEATER A/K/A BILLY N. WHEATER

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           09/20/2013
TRIAL JUDGE:                                HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED:                  DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     BILLY WHEATER (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: BARBARA BYRD
NATURE OF THE CASE:                         CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DENIED MOTION FOR POST-
                                            CONVICTION RELIEF
DISPOSITION:                                AFFIRMED - 03/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    In 2000, Billy Wheater was convicted in the DeSoto County Circuit Court of

aggravated assault. He was sentenced to twenty years in the custody of the Mississippi

Department of Corrections (MDOC), with six months to serve, and nineteen years and six

months of post-release supervision (PRS). He was also ordered to pay $6,025.33 in

restitution. After he was released in 2001, Wheater was ordered to pay monthly installments

toward his restitution as a condition of his PRS. Ten years later, the circuit court found that

Wheater had only paid $800 of his restitution and had willingly failed to make scheduled
payments, despite assistance from the court. Accordingly, his PRS was revoked. Aggrieved,

Wheater now appeals. Finding no error, we affirm.

                                STATEMENT OF FACTS

¶2.    This case stems from a fist fight involving multiple parties, including Wheater, in

DeSoto County, Mississippi. At some point during the fight, Wheater picked up a four-bar

tire iron and hit another man over the head with it. The man suffered from a fractured skull

and was sent to an intensive-care unit for some time. Although he fully recovered, the man

incurred over $6,000 in medical bills.

¶3.    In November 2000, Wheater pleaded guilty to aggravated assault following the

incident. After a lengthy discussion with Wheater, his attorney, the State’s attorney, and the

victim, the circuit judge sentenced Wheater to twenty years, with six months to serve in

custody followed by nineteen years and six months of PRS. The purpose of the sentence was

to create a better opportunity for Wheater to repay the victim for his medical bills by working

outside of a prison. During the sentencing hearing, Wheater testified that he worked in sales

at a flea market and would be able to make monthly payments upon his release from jail.

The circuit judge ordered Wheater to pay $200 a month in restitution beginning sixty days

after his release from prison. The circuit judge specifically asked Wheater if he understood

that the monthly payments were required to be made without fail or he would be sent back

to prison. Wheater acknowledged and accepted the terms and the consequences of the

ordered restitution.

¶4.    After serving six months in prison, Wheater was released on PRS. The record reflects

that in September 2001 and July 2002, the State filed respective motions requesting that


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Wheater’s PRS be revoked for his failure to make restitution payments. The first motion,

filed in 2001, was denied after Wheater promised the circuit court that he would make timely

payments. When Wheater again failed to make payments, the circuit court conducted a

hearing regarding the second motion. There, Wheater and his mother testified that the failure

to make payments was due to family problems and illnesses. However, Wheater and his

mother promised to become current on Wheater’s arrears — approximately $1,200 at the

time of the hearing — if the circuit judge were to grant them an extension of several weeks.

The circuit judge agreed.

¶5.    Nonetheless, Wheater failed to pay his restitution in a timely manner, and the State

filed another motion to revoke Wheater’s PRS in 2003. At the hearing on the motion,

Wheater again cited family trouble and an inability to find a job as the reasons for his failure

to pay. The circuit judge continued the matter for several more months in order to allow

Wheater the opportunity to find a job. The circuit judge threatened to send Wheater to a

restitution center for employment if he failed to find a job or, alternatively, to send Wheater

back to jail.

¶6.    In 2004, during a hearing involving another motion to revoke Wheater’s PRS for

failure to make restitution payments, Wheater informed the circuit judge that he was involved

in a civil lawsuit and was in the process of negotiating a settlement that would allow him to

pay the balance of the restitution he owed. The circuit judge ordered fifty-eight days of

Wheater’s suspended sentence to be revoked, and noted that Wheater “must keep [the]

clerk’s office informed of [the] civil lawsuit[’s] progress, give [the] name and telephone

[number] of [the] civil attorney [involved], and pay off all financial assessments immediately


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upon settlement of his civil case.”

¶7.     Over six years later, Wheater had not made any restitution payments despite warnings

from the circuit court and multiple continuances granted as opportunities for Wheater to find

employment and make payments. Accordingly, the State filed another motion to revoke his

PRS. At a hearing on the matter in January 2011, the circuit court offered Wheater the

opportunity to serve as a confidential informant (CI) for the DeSoto County Sheriff’s Office

Street Crimes Unit (SCU). Wheater accepted the job, and was ordered to make monthly

restitution payments of $100.

¶8.     Between January and July 2011, Wheater was paid approximately $2,200 for his work

as a CI. Nonetheless, he did not make any payments during that time. In September 2011,

Wheater was arrested after failing to appear for a hearing regarding the revocation of his

PRS. The circuit court ordered a hearing on October 24, 2011, to address Wheater’s

nonpayment of his restitution. At the hearing, the State entered a cost bill into evidence

showing that Wheater had only paid $800 of the $6,025.33 in restitution since his release in

2001.    Wheater disputed that amount, claiming he had paid approximately $1,200.

Regardless of the amount paid, the circuit judge determined that Wheater had willingly failed

to make restitution payments as ordered over the prior decade, despite being given multiple

opportunities to do so and being given a job. The circuit court then revoked Wheater’s PRS

and ordered him to serve the remaining fifteen years of his original sentence.

¶9.     In August 2013, Wheater filed a motion for post-conviction relief (PCR), claiming

that the circuit judge was without authority to revoke his PRS and that his sentence was

illegal. The circuit court denied the PCR motion. Wheater now appeals on the same grounds


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asserted in his PCR motion.

                                       DISCUSSION

¶10.   “When reviewing a [trial] court’s decision to deny a [PCR] petition[,] . . . [we] will

not disturb the trial court’s factual findings unless they are found to be clearly erroneous.”

Callin v. State, 975 So. 2d 219, 222 (¶8) (Miss. 2008). We review questions of law de novo.

Brown v. State, 71 So. 3d 1267, 1268 (¶4) (Miss. Ct. App. 2011).

¶11.   Wheater first argues that the circuit court was without authority to revoke his PRS on

the basis of his failure to make restitutions payments. Indeed, it is well settled that a court

may not imprison a defendant due to an inability to pay restitution; however, this does not

“preclude[] imprisonment for willful refusal to pay . . . .” Summerall v. State, 132 So. 3d

613, 615 (¶12) (Miss. Ct. App. 2013) (emphasis added) (quoting Williams v. Illinois, 399

U.S. 235, 242 n.19 (1970)). The United States Supreme Court has addressed this issue on

point and has stated:

       This distinction, based on the reasons for non-payment, is of critical
       importance here. If the probationer has willfully refused to pay the fine or
       restitution when he has the means to pay, the State is perfectly justified in
       using imprisonment as a sanction to enforce collection. Similarly, a
       probationer's failure to make sufficient bona fide efforts to seek employment
       or borrow money in order to pay the fine or restitution may reflect an
       insufficient concern for paying the debt he owes to society for his crime. In
       such a situation, the State is likewise justified in revoking probation and using
       imprisonment as an appropriate penalty for the offense. But if the probationer
       has made all reasonable efforts to pay the fine or restitution, and yet cannot do
       so through no fault of his own, it is fundamentally unfair to revoke probation
       automatically without considering whether adequate alternative methods of
       punishing the defendant are available.

Bearden v. Georgia, 461 U.S. 660, 668-69 (1983); see also Berdin v. State, 648 So. 2d 73,

78-79 (Miss. 1994) (overruled on other grounds by Smith v. State, 742 So. 2d 1146 (Miss.


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1999)).

¶12.   Here, the circuit court granted Wheater ten years worth of opportunities to make

payments toward his restitution. The record is riddled with hearings and dialogue between

the circuit judge and Wheater wherein Wheater promised to make payments by way of tax

refunds, future jobs, legal settlements, and borrowed money. After a decade of excuses, the

circuit judge ultimately sought out a job for Wheater through the SCU, which Wheater

accepted. Nonetheless, after $2,200 earned in income from his job as a CI, Wheater still

refused to contribute any of that money toward his over-$6,000 restitution bill. It is clear

from the record that the circuit judge made every effort to afford Wheater the opportunity to

make payments in the eleven years after his sentence was imposed. Despite a documented

$2,200 in earned revenue, Wheater still refused to pay the restitution. Wheater cannot claim

an inability to make payments toward his restitution when the SCU documented $2,200 in

payments to him over a seven-month period. On average, it would appear that Wheater made

approximately $315 a month with the SCU. Hence, the $100 monthly restitution payments

should have been made, at the very least, during those months. This issue is without merit.

¶13.   Next, Wheater cites Mississippi Code Annotated section 47-7-34(3) (Rev. 2011) for

the notion that his PRS was statutorily limited to a maximum of five years and, hence, the

sentence was illegal. Section 47-7-34(3) states: “[PRS] programs shall be operated through

the probation and parole unit of the Division of Community Corrections of the [MDOC].

The maximum amount of time that the [MDOC] may supervise an offender on the [PRS]

program is five (5) years.” (Emphasis added). Nonetheless, this does not strictly prohibit

a court from imposing PRS for longer than five years if the offender is supervised outside of


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the MDOC.

¶14.   Both this Court and the supreme court have previously addressed this issue, and have

explained it in the following way:

       [T]he supreme court has made it clear that [PRS] is not limited to five years.
       “While the statute unquestionably limits to five years the period of time that
       the MDOC may supervise an offender who is on [PRS], the clear language of
       the statute does not limit the total number of years of [PRS] to five years.”
       Miller v. State, 875 So. 2d 194, 199 (¶10) (Miss. 2004). The MDOC has the
       responsibility of monitoring the convicted defendant for the first five years[,]
       after which the court assumes that responsibility for the remainder of the term
       of [PRS]. Johnson v. State, 925 So. 2d 86, 102 (¶30) (Miss. 2006). . . . The
       statute imposes a limit on the burden that a court may place on the MDOC to
       supervise a defendant. But, as the supreme court noted, “the court is not so
       limited concerning the burden it may place on itself by way of monitoring a
       defendant’s behavior while the defendant is [on PRS].” Id.

Ray v. State, 976 So. 2d 398, 402 (¶15) (Miss. Ct. App. 2008). Accordingly, the circuit court

was operating with authority when it imposed a PRS term for nineteen years and six months

as part of its sentence.

¶15.   Wheater’s next assignment of error is based on Mississippi Code Annotated section

99-19-25 (Supp. 2014). He asserts that the circuit court was without authority to revoke his

PRS after five years. Section 99-19-25 states that circuit courts, “in misdemeanor cases, are

hereby authorized to suspend a sentence . . . on such terms as may be imposed by the judge

of the court. Provided, the suspension of imposition or execution of a sentence may not be

revoked after a period of five (5) years.”

¶16.   Wheater’s reliance on this statute is misplaced for two reasons. First, the statute only

applies to misdemeanors, not felonies. Aggravated assault is a felony, not a misdemeanor.

See Miss. Code Ann. § 97-3-7(1)-(2) (Supp. 2014). Second, it applies to suspended



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sentences, not sentences for PRS. A sentence of PRS is not the same judicial creature as a

suspended sentence. See Johnson v. State, 925 So. 2d 86, 93-94 (¶14) (Miss. 2006).

Accordingly, this issue is meritless.

¶17.   Finally, Wheater requests that he receive credit for time served toward his sentence.

However, this is an issue properly placed before the MDOC first. A petitioner “should send

such requests to the proper authorities within the [MDOC’s] administrative system. If [the

petitioner] is denied the proper relief, or credit for time served, by the administrative system,

he should then turn to the courts to seek remedy.” McDonald v. State, 16 So. 3d 83, 85 (¶6)

(Miss. Ct. App. 2009) (citation omitted). Hence, we are without authority to review

Wheater’s final assertion at this time.

¶18. THE JUDGMENT OF THE DESOTO COUNTY CIRCUIT COURT DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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