        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CP-01292-COA

TERRENCE CLARK A/K/A TERRANCE CLARK                                        APPELLANT

v.

MISSISSIPPI DEPARTMENT OF                                                    APPELLEE
CORRECTIONS

DATE OF JUDGMENT:                          02/19/2013
TRIAL JUDGE:                               HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:                 CARROLL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    TERRENCE CLARK (PRO SE)
ATTORNEYS FOR APPELLEE:                    ANTHONY LOUIS SCHMIDT JR.
                                           JAMES M. NORRIS
NATURE OF THE CASE:                        CIVIL - OTHER
TRIAL COURT DISPOSITION:                   AFFIRMED THE ADMINISTRATIVE
                                           REMEDY PROGRAM’S DENIAL OF
                                           MERITORIOUS EARNED TIME
DISPOSITION:                               AFFIRMED: 09/30/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Terrence Clark was denied meritorious earned time by the Mississippi Department of

Corrections (MDOC). Clark appealed the decision to the circuit court, which affirmed, and

now appeals to this Court. Clark argues that he was denied due process and equal protection

of the law. We find no error and affirm.

¶2.    Terrence Clark is incarcerated with the MDOC. He is currently serving three

sentences: a six-year, two-month sentence as a habitual offender for armed robbery, a seven-

year sentence as a habitual offender for burglary, and a two-year sentence as a non-habitual
offender for possession of contraband in prison. The sentences are to run consecutively.

¶3.      In February 2012, Clark inquired about receiving meritorious earned time. He was

told he was ineligible to receive meritorious earned time as a habitual offender; but he could

be eligible for meritorious earned time on his two-year sentence.

¶4.      Clark filed a grievance with MDOC’s Administrative Remedy Program. He claimed

that he should be eligible to receive earned-time credit on his habitual sentences. Clark’s

request was denied through both his first and second steps of the program. He then filed with

the circuit court a motion to show cause, or in the alternative, a motion for post-conviction

collateral relief. This motion sought judicial review of the MDOC decision that found that

he was not entitled to earned time. The circuit court affirmed and found that the decision was

supported by substantial evidence, was not arbitrary or capricious, was within the scope and

power of the MDOC, and did not violate Clark’s rights.

¶5.      This Court cannot disturb the decision of an administrative agency “unless the

decision was unsupported by substantial evidence, was arbitrary or capricious, was beyond

the agency's scope or powers, or violated the constitutional or statutory rights of the

aggrieved party.” Siggers v. Epps, 962 So. 2d 78, 80 (¶4) (Miss. Ct. App. 2007) (citing

Edwards v. Booker, 796 So. 2d 991, 994 (¶10) (Miss. 2001)). The standard of review for the

trial court’s decision to affirm or deny an administrative agency's findings and decisions is

abuse of discretion. Brandon v. Miss. Emp’t Sec. Comm'n, 768 So. 2d 341, 343 (¶7) (Miss.

2000).

¶6.      Clark argues that both the MDOC and trial court denied him due process and equal

protection of the law when it failed to allow him meritorious earned time. The State responds


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that Clark’s status as a habitual offender makes him ineligible to receive meritorious earned

time.

¶7.     Mississippi Code Annotated section 47-5-142 (Rev. 2011) provides that any offender

shall be eligible, subject to the provisions of that section, to receive meritorious earned time,

as distinguished from earned time for good conduct and performance. However, meritorious

earned time is subject to the approval by the Commissioner of Corrections. Id. This Court

has held that “the awarding of meritorious earned time is within the discretion of the MDOC

officials.” Green v. Sparkman, 829 So. 2d 1290, 1291 (¶2) (Miss. Ct. App. 2002) (citing

Miss. Code Ann. § 47-5-142 (Rev. 2000)).

¶8.     In Smith v. State, 75 So. 3d 82, 84 (¶5) (Miss. Ct. App. 2011), this Court held that the

inmate was not entitled to earned time because he was a habitual offender. The Court cited

Mississippi Code Annotated section 47-5-139(1)(b) (Rev. 2011), which provides that “an

inmate shall not be eligible for earned time allowance if . . . [t]he inmate was convicted as

a habitual offender under Sections 99-19-81 through 99-19-87[.]” In essence, earned time

is a reduction in sentence. Lee v. Kelly, 34 So. 3d 1203, 1206 (¶13) (Miss. Ct. App. 2010).

¶9.     Of Clark’s three consecutive sentences, he is serving two terms as a habitual offender

under section 99-19-81. “As a [s]ection 99-19-81 habitual offender, [Clark's] sentence

cannot ‘be reduced or suspended nor shall [he] be eligible for parole or probation.’”

Williams v. State, 98 So. 3d 484, 489 (¶17) (Miss. Ct. App. 2012). Further, “any inmate

sentenced as a habitual offender is not [to] be eligible for earned-time allowance.” Id. (citing

Miss. Code Ann. § 47-5-139(1)(b) (Supp. 2007)).

¶10.    We find no merit to Clark’s issue on appeal. The circuit court was correct to find that


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as a habitual offender, Clark was not eligible to receive meritorious earned time. MDOC’s

decision was supported by substantial evidence, was not arbitrary or capricious, was within

the scope and power of the MDOC, and did not violate Clark’s rights. We affirm.

¶11. THE JUDGMENT OF THE CARROLL COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CARROLL
COUNTY.

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




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