        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-CP-00860-COA

BENJAMIN MOSES COOK A/K/A BEN                                              APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         05/18/2018
TRIAL JUDGE:                              HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED:                PIKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   BENJAMIN MOSES COOK (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: DARRELL CLAYTON BAUGHN
NATURE OF THE CASE:                       CIVIL - OTHER
DISPOSITION:                              AFFIRMED - 08/20/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

       BARNES, C.J., FOR THE COURT:

¶1.    In 1994, Benjamin Cook was convicted of murder and armed robbery by a Pike

County Circuit Court jury. The circuit court sentenced him to life in the custody of the

Mississippi Department of Corrections for murder; for armed robbery, he received a twenty-

year sentence.

¶2.    Cook became eligible for parole in 2013. He was denied parole on three occasions

between 2013 and 2017. On July 19, 2017, the Mississippi Parole Board granted Cook

parole but subsequently rescinded it on September 19, 2017, due to the serious nature of the

offense and community response in opposition to parole.

¶3.    On January 19, 2018, Cook filed a “Motion to Correct the Judgment of Parole” as a
petition for post-conviction relief (PCR) under the Uniform Post-Conviction Collateral Relief

Act (UPCCRA) in Pike County.1 He argued that the Parole Board unlawfully revoked his

parole, and he requested that his parole be reinstated. The circuit court dismissed the motion,

finding that it had “no jurisdiction over the action or inaction of the Mississippi Parole

Board.” Cook appeals, and finding no error, we affirm.

                                       DISCUSSION

       I.        Whether the circuit court erred in dismissing Cook’s motion.

¶4.    Cook challenges the circuit court’s dismissal of his motion, arguing that (1) the Parole

Board “overstepped its statutory authority by deciding to grant parole and two months later[,]

denying that parole”; and (2) the circuit court had jurisdiction over the unlawful revocation

of his parole.

¶5.    We find no merit to Cook’s claims. “By statute, the Parole Board is given ‘absolute

discretion’ to determine who is entitled to parole within the boundaries of factors set forth

in Miss[issippi] Code Ann[otated section] 47-7-3.” Cotton v. Miss. Parole Bd., 863 So. 2d

917, 921 (¶11) (Miss. 2003). Thus, “the 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. Miss. State Parole Bd., 212 So. 3d 80, 86 (¶19) (Miss. Ct. App. 2016).

¶6.    Regarding the circuit court’s jurisdiction, we find it important to emphasize that

Cook’s parole was not revoked.2 As the circuit court aptly notes, the Parole Board “revoked


       1
           Miss. Code Ann. § 99-39-1, et seq. (Rev. 2015).
       2
         Revocation of parole would have given the circuit court jurisdiction under
Mississippi Annotated Code section 99-39-5(1)(h) (Rev. 2015), which provides that a

                                              2
[its] decision and den[ied] his parole.” (Emphasis added). In Cotton, the Mississippi

Supreme Court upheld a circuit court’s dismissal of a prisoner’s petition for lack of

jurisdiction because there was no statute “granting circuit courts jurisdiction over appeals

concerning the denial of parole.” Cotton, 863 So. 2d at 921 (¶10). Even though a

“constitutional challenge can justify the assertion of jurisdiction, . . . that duty only arises

when certain criteria are met.” Id. at 921 (¶11). Because a defendant has “no liberty interest

in obtaining parole in Mississippi, he cannot complain of the denial of parole based on an

allegation of a denial of due process, abuse of discretion, or consideration of false or

improper factors.” Mangum v. Miss. Parole Bd., 76 So. 3d 762 768-69 (¶17) (Miss. Ct. App.

2011). Here, Cook was never released on parole; the Parole Board changed its decision and

denied Cook parole. Accordingly, this case is not one of unlawful revocation of parole.

Therefore, Cook failed to state a claim upon which the circuit court could assert jurisdiction,

and we affirm the dismissal of the motion.3

       II.    Whether the circuit court should have denied Cook’s motion to
              proceed in forma pauperis on appeal.

¶7.    Cook filed his motion as a PCR petition under the UPCCRA, challenging the

“unlawful revocation” of his parole. The State asserts that Cook’s motion was not a PCR

motion but a purely civil action; therefore, the circuit court erred in granting Cook leave to


petitioner may file a PCR motion alleging that his sentence has expired, that his parole was
unlawfully revoked, or that “he is otherwise unlawfully held in custody.”
       3
        The State raises several other bases for the dismissal of Cook’s motion (e.g., failure
to serve process on defendants, improper venue, statute of limitations, etc.). We find it
unnecessary to address these arguments based on our determination of the jurisdictional
issue.

                                               3
file his appeal in forma pauperis.

¶8.    Mississippi Code Annotated section 99-39-25 (Rev. 2015) “expressly permits a

claimant under the [UPCCRA] to appeal ‘on such terms and conditions as are provided for

in criminal cases.’” Jefferson v. State, 96 So. 3d 709, 712 (¶13) (Miss. Ct. App. 2012) (citing

Miss. Code Ann. § 99-39-25 (Rev. 2007)).4 Therefore, a petitioner proceeding under the

UPCCRA “is allowed to proceed [IFP] in perfecting his appeal to the Mississippi Supreme

Court.” Morris v. State, 125 So. 3d 79, 80 (¶2) (Miss. Ct. App. 2013). Cook filed his motion

under the UPCCRA alleging the unlawful revocation of his parole.                 Although he

misinterpreted the effect of the Parole Board’s decision, he has alleged unlawful revocation

of parole both at trial level and on appeal. Accordingly, there was no error in the circuit

court’s decision to grant him leave to proceed in forma pauperis on appeal.

¶9.    AFFIRMED.

    CARLTON AND J. WILSON, P.JJ., GREENLEE, TINDELL, McDONALD,
LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. WESTBROOKS, J.,
CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD, J.;
McCARTY, J., JOINS IN PART.

       WESTBROOKS, J., CONCURRING:

¶10.   I completely agree with the majority’s opinion. It is clear that the circuit court does

not have the authority to determine an inmate’s entitlement to parole. It is also true that

circuit courts do not have any statutory authority to hear appeals for parole denials. I write

separately only to respectfully discourage parole boards from rescinding grants of parole

even in the wake of community pressure as it potentially undermines the rehabilitative nature

       4
           The statutory language from the 2007 revision and the 2015 revision is identical.

                                               4
of punishment.

¶11.   The Supreme Court has held that a trial judge should consider retributive theories as

well as utilitarian theories (deterrence, separation from society, and rehabilitation) at

sentencing; though not the sole justification for punishment, offender rehabilitation remains

a consideration. Taggart v. State, 957 So. 2d 981, 994 (¶31) (Miss. 2007). In other words,

we do not punish solely to rehabilitate the offender but also so that the offender may

demonstrate reformation.5 Such transformation should be encouraged amongst those

incarcerated and the eligibility for parole is a method of accomplishing that goal. It is my

opinion that it is not unreasonable for a parole board to consider the same theories that are

imposed upon a trial judge at sentencing.

¶12.   Cook’s 23 years of incarceration satisfies the retributive theory as well as the

separation from society’s aspect of the utilitarian theory.      Clearly, Cook must have

       5
           Professor Chad Flanders explains:

       The idea of rehabilitation as moral reform is in fact a very old idea, and
       possibly the oldest association between punishment and rehabilitation. It is
       at least as old as the penitentiary, where convicts were meant to go and, in
       solitude, reflect on their wrongs and show penance for them. We punish with
       the hope that this will induce the offender to reflect and become a morally
       better person; but of course punishment is neither necessary nor sufficient for
       a person to reform. You can be punished but not reform, and you can reform
       without being punished. Reform does not happen by punishing; rather, it is
       what punishing is supposed to spur. It is not obvious how this reform was
       supposed to happen. Perhaps being punished was enough to induce in the
       offender feelings of remorse and repentance. Perhaps it was through being
       isolated from outside, corrupting influences that prisoners could finally have
       a chance to reform. Or perhaps it was a little of both.

Chad Flanders, The Supreme Court and the Rehabilitative Ideal, 49 Ga. L. Rev. 383, 400
(2015).

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demonstrated a remarkable transformation and satisfactorily proven he was deterred from

further criminal behavior if the parole board granted him parole, despite three separate prior

parole denials. The board was also required to give notice to the victim’s families under

Mississippi Code Annotated Section 47-7-17 (Rev. 2015) and likely heard from them prior

to granting Cook parole status in light of the serious nature of the underlying conviction.

Because Cook was considered and was deemed eligible for parole, it is my humble opinion

he should have retained the grant of parole.6

     McDONALD, J., JOINS THIS OPINION.                     McCARTY, J., JOINS THIS
OPINION IN PART.




       6
        “[I]t does not follow that we should continue to punish the prisoner who
demonstrates a transformation.” Michael Vitiello, Reconsidering Rehabilitation, 65 Tul. L.
Rev. 1011, 1046 (1991).

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