
    STATE of Mississippi, Appellant v. Charles MONTGOMERY, Jr. a/k/a Charles Montgomery a/k/a Charlie Montgomery, Jr., Appellee
    NO. 2016-CA-00849-COA
    Court of Appeals of Mississippi.
    10/31/2017
    
      Attorneys ' for appellant: OFFICE OF THE ATTORNEY GENERAL BY: DARRELL CLAYTON BAUGHN ANTHOÑY LOUIS SCHMIDT JR.
    ATTORNEY' FOR APPELLEE: CHARLES MONTGOMERY JR. (PRO SE)
    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 post-conviction 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

■ 12. 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 Cov-ington 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

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 [Bjoard 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 PGR 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 Mississippi Supreme Court’s recent holding in Drankus v. Mississippi Parole Board, 224 So.3d 83, 85 (¶ 7) (Miss. 2017), 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 samé.”).

¶ 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. 
      
      . 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).
     