        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CA-00849-COA

STATE OF MISSISSIPPI                                                       APPELLANT

v.

CHARLES MONTGOMERY, JR. A/K/A                                                APPELLEE
CHARLES MONTGOMERY A/K/A CHARLIE
MONTGOMERY, JR.

DATE OF JUDGMENT:                         05/17/2016
TRIAL JUDGE:                              HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:                LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  OFFICE OF THE ATTORNEY GENERAL
                                          BY: DARRELL CLAYTON BAUGHN
                                          ANTHONY LOUIS SCHMIDT JR.
ATTORNEY FOR APPELLEE:                    CHARLES MONTGOMERY JR. (PRO SE)
NATURE OF THE CASE:                       CIVIL - POSTCONVICTION RELIEF
DISPOSITION:                              REVERSED AND RENDERED - 10/31/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND CARLTON, JJ.

       CARLTON, J., FOR THE COURT:

¶1.    Charles Montgomery filed a motion to vacate, set aside, and correct the decision of

the Mississippi Parole Board (Parole Board), which the Lauderdale County Circuit Court

treated as a motion for postconviction relief (PCR), alleging that the Parole Board violated

Mississippi Code Annotated section 47-7-18(6) (Rev. 2015) by imposing a four-year setoff

until his next parole hearing. The circuit court granted Montgomery’s PCR motion and

referred the matter to the Parole Board to provide a parole-hearing date in accordance with

section 47-7-18(6). Finding error, we reverse and render the circuit court’s judgment.
                                          FACTS

¶2.    In July 1982, a Lauderdale County jury convicted Montgomery of capital murder. The

circuit court sentenced Montgomery to life in prison. In May 1983, a Covington County jury

convicted Montgomery of two counts of forgery, for which he received two twelve-year, six-

month sentences that were ordered to run consecutively. Montgomery’s Mississippi

Department of Corrections (MDOC) sentence-computation record reflects that the circuit

court ordered that Montgomery’s forgery sentences run consecutively to his life sentence for

capital murder. The MDOC sentence-computation record also listed Montgomery’s initial

parole-eligibility date as March 28, 1998.

¶3.    The record reflects that on March 24, 2016, the Parole Board denied Montgomery

parole and set off Montgomery’s next parole-eligibility hearing for four years. On May 9,

2016, Montgomery filed his motion to vacate, set aside, and correct the decision of the Parole

Board in accordance with section 47-7-18(6). In his motion, Montgomery alleged that he is

entitled to receive a parole hearing at least “once per year”; therefore, he argued that the

Parole Board lacked authority to impose a four-year setoff.

¶4.    On May 17, 2016, the circuit court, treating Montgomery’s pleading as a PCR motion,

entered an order granting Montgomery’s request for relief. The circuit court acknowledged

that at the time the Parole Board set off Montgomery’s next parole-eligibility-hearing date,

section 47-7-18(6) “had been in effect since July 1, 2014.” The circuit court also recognized

“that [the] Parole Board has full discretion in deciding who is eligible for parole.” However,

the circuit court held that



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       the issue in this matter is whether the [Parole] Board’s four[-]year set[]off is
       in compliance with the applicable statute. This court is not convinced of its
       jurisdiction and finds that this matter should be referred to the [P]arole [B]oard
       for review to ensure that they provide a parole[-]hearing date that is in
       compliance with . . . [section] 47-7-18(6).

¶5.    The State of Mississippi subsequently filed its notice of appeal.

                                STANDARD OF REVIEW

¶6.    “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only

disturb the trial court’s factual findings if they are clearly erroneous; however, we review the

trial court’s legal conclusions under a de novo standard of review.” Lackaye v. State, 166

So. 3d 560, 562 (¶5) (Miss. Ct. App. 2015).

¶7.    The record reflects that Montgomery failed to file an appellate brief. We have held

that “[a]n appellee’s failure to file a brief on appeal is tantamount to [a] confession of the

errors alleged by the appellant. However, automatic reversal is not required if this Court can

say with confidence that the case should be affirmed.” Clack v. City of Ridgeland, 139 So.

3d 778, 781 (¶17) (Miss. Ct. App. 2014) (quoting Chatman v. State, 761 So. 2d 851, 854 (¶9)

(Miss. 2000)).

                                        DISCUSSION

¶8.    The State argues that the circuit court lacked jurisdiction to hear Montgomery’s PCR

claim regarding the Parole Board’s decision to set off his parole-eligibility-hearing date.

¶9.    “[T]he grant or denial of parole is entirely within the Parole Board’s discretion, and

the denial of parole is not subject to a statutory right of appeal.” Willard v. Mississippi State

Parole Bd., 212 So. 3d 80, 86 (¶19) (Miss. Ct. App. 2016). This Court has recognized the



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Mississippi Supreme Court’s recent holding in Drankus v. Mississippi Parole Board, 224 So.

3d 83, 85 (¶7) (Miss. 2017),1 that when a petitioner files a PCR motion in the circuit court

to appeal the Parole Board’s decision to set off his parole-eligibility-hearing date, the circuit

court lacks jurisdiction to hear the appeal. Drankus v. State, 215 So. 3d 1000, 1001 (¶7)

(Miss. Ct. App. 2017). In explaining its decision, the supreme court cited Cotton v.

Mississippi Parole Board, 863 So. 2d 917, 920-21 (¶10) (Miss. 2003), stating “the circuit

court had no authority to adjudicate the matters presented because there was no statutory

mandate granting circuit courts jurisdiction over appeals concerning the denial of parole.”

Drankus, 224 So. 3d at 85 (¶¶6-7); see also Smith v. State, 742 So. 2d 1188, 1189 (¶6) (Miss.

1999) (Circuit courts lack jurisdiction to consider an issue directly under the exclusive

purview of the Parole Board “in the absence of a statute authorizing the same.” ).

¶10.   As a result, we find that the circuit court lacked jurisdiction to grant Montgomery’s

PCR motion. We therefore reverse the judgment and render a judgment of dismissal without

prejudice.

¶11.   REVERSED AND RENDERED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.         TINDELL, J., NOT
PARTICIPATING.




       1
         In Drankus, the supreme court held that “the circuit court . . . ha[d] no jurisdiction
to hear an appeal of the [P]arole [B]oard’s decision to set[ ]off [the petitioner’s] next parole
hearing for three years.” Drankus 224 So. 3d at 85 (¶7).

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