        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2017-KA-01170-COA

RODNEY WAYNE SMITH A/K/A HOT ROD                                            APPELLANT

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          07/06/2017
TRIAL JUDGE:                               HON. DINA RICHELLE LUMPKIN
COURT FROM WHICH APPEALED:                 PEARL RIVER COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    OFFICE OF STATE PUBLIC DEFENDER
                                           BY: DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: ALICIA AINSWORTH
DISTRICT ATTORNEY:                         HALDON J. KITTRELL
NATURE OF THE CASE:                        CRIMINAL - FELONY
DISPOSITION:                               AFFIRMED - 10/09/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., FAIR AND WILSON, JJ.

       WILSON, J., FOR THE COURT:

¶1.    Following a jury trial in the Pearl River County Circuit Court, Rodney Wayne Smith

was convicted under Mississippi Code Annotated section 97-9-45 (Rev. 2014), which makes

it a crime for “any person sentenced to the Mississippi Department of Corrections [(MDOC)]

for any term [to] escape or attempt to escape from his particular unit or camp of confinement

or the boundaries of the penitentiary as a whole.” At the time of his “escape,” Smith was on

“house arrest” under the jurisdiction of the MDOC in the “Intensive Supervision Program”

(ISP). See Miss. Code Ann. §§ 47-5-1001 through -1015 (Rev. 2015). Smith cut his

monitoring device off his ankle and fled. Smith claims that his conviction must be reversed
and rendered because an escape from house arrest does not constitute an escape from the

“penitentiary” under section 97-9-45. However, the Legislature has made clear that an

escape from house arrest is a felony escape. See Miss. Code Ann. § 47-5-1007(8) (Rev.

2015). Therefore, Smith’s conviction under section 97-9-45 is affirmed.

                         FACTS AND PROCEDURAL HISTORY

¶2.    The only issue that Smith raises on appeal is an issue of statutory interpretation that

does not turn on the particular facts of his case. Therefore, we only generally summarize the

underlying facts that led to his indictment and conviction in this case.1

¶3.    On May 12, 2014, Smith pled guilty to racketeering, Miss. Code Ann. § 97-43-5 (Rev.

2014), and was sentenced to twenty years in MDOC custody, with eighteen years suspended,

two years of ISP (house arrest), and eighteen years of post-release supervision. While on

ISP, Smith was required to wear an electronic monitoring device on his ankle at all times,

and he was allowed to leave his home in Poplarville only to go to work or to attend other

meetings or activities preapproved by his ISP officer, Scott Davis. On December 22, 2014,

Smith failed to report to Davis as required by his ISP agreement. Davis used Smith’s

electronic monitoring device to locate him at his girlfriend’s house in Picayune.2 However,

by the time Davis reached Smith’s girlfriend’s house, Smith had already left. Davis then

received notice of a “device tamper,” which meant that Smith had cut his monitoring device

off of his ankle. Smith had left the device at his house. Davis tried to call Smith several


       1
         “[W]e view the evidence in the light most favorable to the State . . . .” Lenoir v.
State, 222 So. 3d 273, 279 (¶25) (Miss. 2017).
       2
           Smith’s girlfriend was also on house arrest.

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times, but Smith would not answer his phone.

¶4.    On January 6, 2015, Davis received information that Smith was at another house in

Pearl River County. Davis went to the house with two officers from the Pearl River County

Sheriff’s Department, but when they arrived at the house, Smith fled into the woods and

escaped. United States Marshals finally caught Smith on January 13, 2015, at his ex-wife’s

house in Hancock County.

¶5.    Smith was indicted for escape under section 97-9-45, supra, as a nonviolent habitual

offender. See Miss. Code Ann. § 99-19-81 (Rev. 2015). Smith filed a pretrial motion to

dismiss the indictment, arguing that his escape from house arrest was not subject to

prosecution under section 97-9-45; however, the circuit court denied his motion. Smith was

then convicted following a jury trial in the Pearl River County Circuit Court. The court

sentenced him to serve five years in MDOC custody as a nonviolent habitual offender.

                                       ANALYSIS

¶6.    As stated above, Smith raises only one issue on appeal: he argues that an escape from

house arrest is not an escape within the meaning of section 97-9-45.

¶7.    In relevant part, section 97-9-45 makes it a crime for “any person sentenced to the

[MDOC] for any term [to] escape or attempt to escape from his particular unit or camp of

confinement or the boundaries of the penitentiary as a whole.” The Legislature has defined

“the penitentiary” as follows:

       The plantation known as Parchman owned by the state in Sunflower and
       Quitman Counties, and in such other places as are now or may be hereafter
       owned or operated by the state for correctional purposes shall constitute the
       facilities of the correctional system for the custody, punishment, confinement


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       at hard labor and reformation of all persons convicted of felony in the courts
       of the state and sentenced to the custody of the department, and whenever the
       term “penitentiary” or “state penitentiary” appears in the laws of the State of
       Mississippi, it shall mean any facility under the jurisdiction of the Department
       of Corrections which is used for the purposes described herein.

Miss. Code Ann. § 47-5-3 (Rev. 2015). The Legislature has defined “facility,” as used in the

above definition, to include “any facility for the custody, care, treatment and study of

offenders which is under the supervision and control of the [MDOC], including but not

limited to the State Penitentiary property located in Sunflower and Quitman Counties.” Id.

§ 47-5-4(d) (Rev. 2015).       The “correctional system” includes all MDOC “facilities,

institutions, programs and personnel . . . utilized for adult offenders who are committed to

the custody of the [MDOC].” Id. § 47-5-4(i).

¶8.    The ISP or “house arrest” is “used as an alternative to incarceration” for certain

classes of offenders. Miss. Code Ann. § 47-5-1003(1) (Rev. 2015). An offender placed on

house arrest is “confine[d] . . . to his place of residence under the terms and conditions

established by the [MDOC],” and he “is under the full and complete jurisdiction of the

[MDOC].” Id. §§ 47-5-1001(e) & 47-5-1003(3).

¶9.    Our Supreme Court has held that the ISP constitutes “imprisonment.” Tipton v. State,

150 So. 3d 82, 85-86 (¶¶9-13) (Miss. 2014). In fact, the Supreme Court went so far as to say

that ISP is “best characterized” as like “‘being in the penitentiary except sleeping at home.’”

Id. at 86 (¶11) (quoting the circuit judge in Ivory v. State, 999 So. 2d at 420, 423 (¶3) (Miss.

Ct. App. 2008)). “[T]he purpose of the ISP is to confine inmates who are under the complete

jurisdiction of the ISP. . . . [P]risoners in the ISP are, for all intents and purposes, prisoners



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with the same liberty interests as those in actual prisons.” Id. at (¶13). The offender must

“submit completely to the MDOC, giving the State access to his home and his body,” and he

must “forego several significant constitutional rights enjoyed by free Americans.” Id.

¶10.   Smith claims that his “escape” from the ISP did not amount to an “escape from his

particular unit or camp of confinement or the boundaries of the penitentiary as a whole.”

Miss. Code Ann. § 97-9-45. We disagree.

¶11.   As noted above, the Legislature has made clear that “the penitentiary” includes not

only the State Penitentiary at Parchman but also any other “facility under the jurisdiction of

the [MDOC]” that is used for correctional purposes. Miss. Code Ann. § 47-5-3. Moreover,

the Legislature has addressed this issue directly by providing that “[n]otice shall be given to

[an offender placed on house arrest] that violation of the order of home detention shall

subject the participant to prosecution for the crime of escape as a felony.” Miss. Code Ann.

§ 47-5-1007(8). We can only interpret the statute’s reference to “the crime of escape as a

felony” as a reference to section 97-9-45, as we can identify no other crime that this phrase

could describe.

¶12.   “It is a well-settled rule of statutory construction that when two statutes pertain to the

same subject, they must be read together in light of legislative intent.” Tunica Cty. v.

Hampton Co. Nat’l Sur., 27 So. 3d 1128, 1133 (¶15) (Miss. 2009). “[I]n construing statutes

in pari materia, . . . all of the relevant statutes must be taken into consideration, and a

determination of legislative intent must be made from the statutes as a whole.” Martin v.

State, 501 So. 2d 1124, 1127 (Miss. 1987). “Statutes on the same subject . . . should if



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possible be construed in harmony with each other to give effect to each.” Roberts v. Miss.

Republican Party State Exec. Comm., 465 So. 2d 1050, 1052 (Miss. 1985). Applying these

principles, we must read section 97-9-45 together with the specific, on-point statement found

in subsection 47-5-1007(8). We conclude that an escape from house arrest is a crime under

section 97-9-45. Therefore, Smith’s conviction and sentence are AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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