McGovern v. Mississippi Department of Corrections
89 So. 3d 69
| Miss. Ct. App. | 2011Background
- McGovern was convicted of selling amphetamines in 2002 and sentenced to 20 years with 14 suspended and 5 years post-release supervision.
- In 2008 he was released, then had his post-release supervision revoked and was returned to custody to serve the remaining 14-year balance.
- McGovern pursued parole eligibility through the MDOC Administrative Remedy Program (ARP) but was informed he was ineligible due to prior burglary conviction considered violent.
- After ARP exhaustion, McGovern sought a parole eligibility date in circuit court, arguing eligibility under the 2008 amendments to § 47-7-3; the circuit court denied.
- The Mississippi Court of Appeals affirmed, holding McGovern is ineligible for parole because of his conviction for selling amphetamines, and that 2008 amendments do not render him eligible; the ARP route is permissible for parole questions, but does not override statutory exclusions.
- There were amendments to § 47-7-3 since McGovern’s sentence, but the court held those amendments did not retroactively affect his parole eligibility.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McGovern is parole-eligible under § 47-7-3(l)(h) given his amphetamine sale conviction | McGovern argues the 2008 amendments render him eligible | MDOC argues sale of a controlled substance is not a nonviolent crime for parole purposes | Not eligible; amphetamine sale remains ineligible under the statute |
| Whether the 2008 amendments to § 47-7-3 apply retroactively to McGovern | Amendments should apply retroactively to his case | No retroactive effect; amendments do not create eligibility for him | No retroactive application to render McGovern eligible; amendments do not alter outcome in this case |
| Whether MDOC ARP can be used to challenge parole eligibility and whether its incorrect reasoning affects the outcome | ARP can be used to inquire about parole eligibility | MDOC's reasoning could be flawed but outcome depends on statute | ARP may be used for eligibility questions; ultimate ineligibility rests on statutory grounds (selling amphetamines) |
Key Cases Cited
- Taylor v. Petrie, 41 So.3d 724 (Miss. Ct. App. 2010) (standard of review for administrative decisions; deference except legal questions)
- Finn v. State, 978 So.2d 1270 (Miss. 2008) (statutory interpretation is de novo review)
- Lattimore v. Sparkman, 858 So.2d 936 (Miss. Ct. App. 2003) (ARP permissible vehicle to raise parole eligibility question)
- Heafner v. State, 947 So.2d 354 (Miss. Ct. App. 2007) (parole eligibility is normally executive, not judicial)
- McBride v. State, 914 So.2d 260 (Miss. Ct. App. 2005) (legislature may amend sentencing statutes without resentencing)