Arvin D. Rochell v. State of Mississippi

IN THE SUPREME COURT OF MISSISSIPPI

NO. 2015-CP-01151-SCT

ARVIN D. ROCHELL a/k/a ARVIN DALE
ROCHELL

v.

STATE OF MISSISSIPPI

DATE OF JUDGMENT: 07/17/2015
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: CALHOUN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ARVIN D. ROCHELL (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 12/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

LAMAR, JUSTICE, FOR THE COURT:

¶1. Arvin Rochell, pro se, appeals the Calhoun County Circuit Court’s denial of his

petition for post-conviction relief. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 1992, Arvin Rochell was indicted for two counts of capital murder for killing Hazel

and Nell McMahan, and for one count of arson. Rochell v. State, 748 So. 2d 103, 105 (Miss.

1999). In 1994, Rochell pleaded guilty to one reduced count of murder and to arson. Id. at
105-06. The trial judge sentenced him to life for the murder and to twenty years for the

arson, to run concurrently. Id. at 106.

¶3. Rochell filed the petition for post-conviction relief at issue in this appeal on May 12,

2015. Rochell styled his petition as a “Motion to Clarify Parole Eligibility” and argued that

he was “being unlawfully held in custody due to [the] Mississippi Department of

[Corrections’] holding that he is ineligible for parole under [Mississippi Code Section] 47-7-

18(1)[.]” Rochell cited the first part of Section 47-7-18(1), which states that “Each inmate

eligible for parole pursuant to Section 47-7-3, shall be released from incarceration to parole

supervision on the inmate’s parole eligibility date, without a hearing before the board, if . .

. .”1 Relying on this language, Rochell argued that all parole-eligible inmates like himself

“are now subject to the new parole release procedures in 47-7-18.” As such, argued Rochell,

1
The entirety of Section 47-7-18(1) reads as follows:

(1) Each inmate eligible for parole pursuant to Section 47-7-3, shall be
released from incarceration to parole supervision on the inmate’s parole
eligibility date, without a hearing before the board, if:

(a) The inmate has met the requirements of the parole case plan
established pursuant to Section 47-7-3.1;

(b) A victim of the offense has not requested the board conduct
a hearing;

(c) The inmate has not received a serious or major violation
report within the past six (6) months;

(d) The inmate has agreed to the conditions of supervision; and

(e) The inmate has a discharge plan approved by the board.

Miss. Code Ann. § 47-7-18(1) (Rev. 2015).

2
the Mississippi Department of Corrections (MDOC) was incorrect when it determined that

Section 47-7-18 applied only to inmates sentenced after July 1, 2014, the date that Section

47-7-18 took effect.

¶4. The trial judge denied2 Rochell’s petition, finding that Section 47-7-3.1 “contemplates

inmates sentenced after July 1, 2014,” as it provides that the MDOC shall complete a case

plan for all inmates “within ninety (90) days of admission.” Miss. Code Ann. § 47-7-3.1(2)

(Rev. 2015).3 As such, the trial judge ruled that Rochell was not entitled to a case plan and

therefore was not entitled to any relief. Rochell now appeals and presents two issues:

I. Whether [Section] 47-7-18 applies retroactively to all parole-eligible
offenders; and

II. Whether [Section] 47-7-18(1) creates a liberty interest protected by the
Due Process Clause.

We find Rochell’s first issue dispositive and therefore decline to address his second issue.

2
The trial court initially had dismissed Rochell’s petition and directed him to “first
pursue this request within the Mississippi Department of Corrections Administrative Review
Program.” Rochell then filed a “Notice of Exhaustion,” explaining that he previously had
sought relief with the MDOC, but was informed by the MDOC that it “does not handle
Parole Board Matters.” But the trial court again dismissed Rochell’s petition, finding that
he had failed to name the proper party as a defendant. Rochell then filed a “Motion for
Relief From Judgment” and asked the trial court to “relieve him of the prior dismissal and
reopen the proceedings.” The trial court then considered the merits of Rochell’s petition and
ultimately denied it, as detailed above.
3
Although the trial judge did not specifically reference Section 47-7-18, we note that
the first requirement for an inmate to receive parole without a hearing under that section is
that the inmate “has met the requirements of the parole case plan established pursuant to
Section 47-7-3.1.” See Miss. Code Ann. § 47-7-18(1)(a) (Rev. 2015). Both Sections 47-7-
18 and 47-7-3.1 were added to the statutory scheme via House Bill 585, which took effect
on July 1, 2014.

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 ANALYSIS

¶5. “When reviewing a lower court’s decision to deny a petition for post conviction relief

this Court will not disturb the trial court’s factual findings unless they are found to be clearly

erroneous.” Brown v. State, 731 So. 2d 595, 598 (Miss. 1999). But when questions of law

are raised, the applicable standard of review is de novo. Id. Statutory interpretation is a

question of law. Tipton v. State, 150 So. 3d 82, 84 (Miss. 2014).

¶6. Rochell argues that “Section 47-7-18(1) makes release mandatory upon certain

findings.” Specifically, Rochell argues that Section 47-7-18(1)’s language is “plain and

unambiguous” and emphasizes the word “shall”: “[e]ach inmate eligible for parole pursuant

to Section 47-7-3, shall be released from incarceration to parole supervision on the inmate’s

parole eligibility date . . . .” Based on this language, Rochell argues that “all offenders

eligible for parole pursuant to [Section ] 47-7-3 are now subject to the parole release

procedures in [Section] 47-7-18, as a matter of statutory law notwithstanding when

convicted.”

¶7. The State argues that Section 47-7-18 does not apply retroactively to offenders

sentenced prior to July 1, 2014. But Rochell counters that Section 47-7-18 “does not state

that it only applies to inmates sentenced after July 1, 2014. If the [Legislature] wanted to

limit applicability of [Section] 47-7-18 to inmates convicted after July 1, 2014, it could have

easily done that. But, there is no exclusion clause in the Statute.”

¶8. But this Court consistently has held the exact opposite: that statutes will be applied

prospectively, unless the statute clearly provides that it is retroactive. In Mladinich v. Kohn,

4
this Court wrote that “[a] statute will not be given retroactive effect unless it is manifest from

the language that the legislature intended it to so operate.” Mladinich v. Kohn, 186 So. 2d

481, 483 (Miss. 1966). “[A statute] will not be construed as retroactive unless the words

admit of no other construction or meaning, and there is a plain declaration in the act that it

is.” Id. (emphasis added). “In short, [prior caselaw] illustrate[s] a well-settled attitude of

statutory interpretation: A preference that it be prospective only, and a requirement that there

should be a clearly expressed intent in the act to make it retrospective. Id. (emphasis added).

And in Hudson v. Moon, this Court said that it has “continuously followed the rule that

statutes will be construed to have a prospective operation only, unless a contrary intention

is manifested by the clearest and most positive expression.” Hudson v. Moon, 732 So. 2d

927, 930-31 (Miss. 1999) (emphasis added).

¶9. With this standard in mind, we see no “plain declaration” or “clearly expressed intent”

that Section 47-7-18 applies retroactively. On the contrary, we note at least four other

indicators that show the Legislature did not intend that section to apply retroactively. First,

as noted by the trial judge, Section 47-7-3.1(2) states that “[w]ithin ninety (90) days of

admission, the department shall complete a case plan on all inmates . . . .” Miss. Code Ann.

§ 47-7-3.1 (Rev. 2015) (emphasis added). Clearly, that statutory requirement cannot be

satisfied in Rochell’s case, as he was “admitted” to the MDOC’s custody in 1994.

¶10. Second, Section 47-7-2 defines “Parole case plan,” in pertinent part, as “an

individualized, written accountability and behavior change strategy developed by the

department in collaboration with the parole board to prepare offenders for release on parole

5
at the parole eligibility date.” Miss. Code Ann. § 47-7-2 (Rev. 2015).4 Again, a “case plan,”

as defined by the Legislature, has no application to Rochell, as his parole eligibility date

passed years ago.

¶11. Third, Section 47-7-13—which was left unchanged by the 2014 amendments—states

that “[a] decision to parole an offender convicted of murder or a sex-related crime shall

require the affirmative vote of three (3) members.” Miss. Code Ann. § 47-7-13 (Rev. 2015).

But importantly, the 2014 amendments specifically exclude those convicted of crimes of

violence or sex crimes on or after July 1, 2014, from parole eligibility altogether. So again,

the statutory scheme clearly contemplates different treatment for those convicted on or after

July 1, 2014, and those convicted before that time, such as Rochell.

¶12. Finally, the Legislature did not repeal Sections 47-7-55 and 47-7-17, which describe

the duties of the Parole Board and the procedures for parole hearings in non-“presumptive

parole” cases.6 In other words, the preservation of those two statutes belies Rochell’s

argument that the Legislature meant for Section 47-7-18—i.e., the “presumptive parole”

statute—to apply to all parole-eligible inmates.

4
Notably, the definition of “Parole case plan” was added to Section 47-7-2 as part of
the 2014 amendments (i.e., House Bill 585).
5
In fact, the 2014 amendments extended Section 47-7-5’s repealer provision from
July 1, 2014, until July 1, 2018.
6
For instance, Section 47-7-17 mandates that “[p]arole release shall, at the hearing,
be ordered only for the best interest of society, not as an award of clemency . . . .” Miss.
Code Ann. § 47-7-17 (Rev. 2015). Section 47-7-18 contains no such requirement. Section
47-7-17 also allows the Parole Board to require parolees to submit to “any type of breath,
saliva or urine chemical analysis test[.]” Section 47-7-18 mentions no such tests.

6
¶13. In short, we find nothing in Section 47-7-18 that indicates the Legislature’s intent that

it apply retroactively “by the clearest and most positive expression.” As such, we agree with

the trial judge that Rochell is entitled to no relief, and we therefore affirm his denial of

Rochell’s petition. And because we find that Section 47-7-18 does not apply to Rochell, we

decline to address his argument that that section creates a liberty interest protected by the Due

Process Clause.

CONCLUSION

¶14. For the foregoing reasons, we find that Section 47-7-18 does not apply retroactively.

As such, we affirm the judgment of the Calhoun County Circuit Court.

¶15. AFFIRMED.

WALLER, C.J., RANDOLPH, P.J., COLEMAN, MAXWELL AND BEAM, JJ.,
CONCUR. DICKINSON, P.J., CONCURS IN RESULT ONLY WITH SEPARATE
WRITTEN OPINION JOINED BY KITCHENS AND KING, JJ.

DICKINSON, PRESIDING JUSTICE, CONCURRING IN RESULT ONLY:

¶16. I agree Rochell was not entitled to parole under Mississippi Code Section 47-7-18(1).

But whether that statute applies prospectively or retroactively is not the issue. And the

majority, erroneously concluding that it is the issue, applies the incorrect legal standard. So

I concur in result only.

¶17. We review questions of statutory interpretation de novo, and “[o]ur primary goal in

interpreting statutes is ‘to adopt that interpretation which will meet the true meaning of the

Legislature.’”7 “To determine legislative intent, the Court first looks to the language of the

7
Legislature of State of Miss. v. Shipman, 170 So. 3d 1211, 1214–15 (Miss. 2015)
(citing 5K Farms, Inc. v. Miss. Dep’t of Revenue, 94 So. 3d 221, 225 (Miss. 2012); quoting

7
statute. If the words of a statute are clear and unambiguous, we apply the plain meaning of”

those words, and we have no need “to apply principles of statutory construction.”8 In other

words, in the absence of statutory ambiguity, ordinarily we give effect to a statute’s plain

language.

¶18. A different standard applies for the specific question of whether a newly enacted

statute should be given a prospective or retroactive application. “In a long line of cases,” we

have “followed the rule that” we will construct statutes “to have a prospective operation only,

unless a contrary intention is manifested by the clearest and most positive expression.”9 This

standard, of course, applies only where the question of retroactive application is at issue.

Here it is not.

Scaggs v. GPCH–GP, Inc., 931 So. 2d 1274, 1276 (Miss. 2006)).
8
Lawson v. Honeywell Int’l, Inc., 75 So. 3d 1024, 1027 (Miss. 2011) (citing
Pinkton v. State, 481 So. 2d 306, 309 (Miss. 1985); Clark v. State ex rel. Miss. State Med.
Ass’n, 381 So. 2d 1046, 1048 (Miss. 1980); Gilmer v. State, 955 So. 2d 829, 833 (Miss.
2007)).
9
Mladinich v. Kohn, 186 So. 2d 481, 483 (Miss. 1966) (citing Hooker v. Hooker,
18 Miss. (S. & M.) 599 (1848); Brown v. Wilcox, 22 Miss. (14 S. & M.) 127 (1850);
Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977 (1912); Power v. Calvert Mortg.
Co., 112 Miss. 319, 73 So. 51 (1916); State ex rel. Knox v. Union Tank Car Co., 151 Miss.
797, 119 So. 310 (1928); Bell v. Union & Planters Bank & Trust Co., 158 Miss. 486, 130
So. 486 (1930); Miss. Cent. R.R. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897
(1932); City of Lumberton v. Schrader, 176 Miss. 272, 168 So. 77 (1936); Jefferson
Standard Life v. Dorsey, 178 Miss. 852, 173 So. 669 (1937); U.S. Fid. & Guar. Co. v.
Maryland Cas. Co., 191 Miss. 103, 199 So. 278 (1941); McCullen v. State ex rel.
Alexander, 217 Miss. 256, 63 So. 2d 856 (1953); Klaas v. Cont’l S. Lines, 225 Miss. 94,
82 So. 2d 705 (1955); Horne v. State Bldg. Comm’n, 233 Miss. 810, 103 So. 2d 373
(1958)).

8
¶19. Black’s Law Dictionary defines “retroactive” as “extending in scope or effect to

matters that have occurred in the past.”10 It defines “retroactive law” as “[a] legislative act

that looks backward or contemplates the past, affecting acts or facts that existed before the

act came into effect.”11

¶20. Rochell does not ask this Court to apply a new statute to “matters that have occurred

in the past.” Rather, he argues that newly enacted parole statutes should apply to his

presently existing parole-eligible status, and his request to be paroled, a request he made after

the statutes were enacted. The very cases cited by the majority on the prospective/retroactive

standard confirm that this standard does not apply to Rochell’s claim.

¶21. For instance, in Mladinich v. Kohn, we considered whether Mississippi’s newly

enacted long-arm statute applied to a tort committed before its enactment.12 Similarly, in

Hudson v. Moon, we considered whether the repeal of a statute affecting certain property

interests affected an interest that vested in the property prior to the repeal.13 Here, by

contrast, we consider what statutes control a present parole request made by a presently

parole-eligible inmate.

10
Retroactive, Black’s Law Dictionary 1122 (abr. 9th ed.).
11
Retroactive Law, Black’s Law Dictionary 1122 (abr. 9th ed.).
12
Mladinich, 186 So. 2d at 481.
13
Hudson v. Moon, 732 So. 2d 927, 931 (Miss. 1999).

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¶22. Because this case does not concern the prospective/retroactive distinction, our analysis

should begin with the plain language of the statutes at issue. Rochell claims he is entitled to

the benefit of Mississippi Code Section 47-7-18(1), which provides:

(1) Each inmate eligible for parole pursuant to Section 47-7-3, shall be
released from incarceration to parole supervision on the inmate’s parole
eligibility date, without a hearing before the board, if:

(a) The inmate has met the requirements of the parole case
plan established pursuant to Section 47-7-3.1;

(b) A victim of the offense has not requested the board
conduct a hearing;
(c) The inmate has not received a serious or major violation
report within the past six (6) months;

(d) The inmate has agreed to the conditions of supervision;
and
(e) The inmate has a discharge plan approved by the board.14

Rochell argues that the language—“[e]ach inmate eligible for parole pursuant to Section 47-

7-3”—unambiguously provides that this statutes applies to every parole-eligible offender,

and that he is one such person. While this argument, in isolation, has some merit, we have

held that an apparent conflict between two statutes which concern the same subject matter

results in ambiguity necessitating resort to rules of statutory construction.15

¶23. Here, such an apparent conflict exists. Viewed in isolation, Section 47-7-18(1)

appears to say that all parole-eligible offenders will receive parole without a hearing if the

enumerated conditions exist. But Mississippi Code Section 47-7-13 states “[a] decision to

14
Miss. Code Ann. § 47-7-18(1) (Rev. 2015).
15
Tunica Cty. v. Hampton Co. Nat’l Sur., LLC, 27 So. 3d 1128, 1133 (Miss. 2009).

10
parole an offender convicted of murder or a sex-related crime shall require the affirmative

vote of three (3) members.”16 Obviously, under this statute, one convicted of murder—like

Rochell—cannot be entitled to automatic parole because his parole is contingent on an

affirmative vote of three members of the Parole Board. Thus, the two statutes governing a

common subject, parole, conflict.

¶24. “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.’”17 “Following the

rules of statutory construction, repeal of statutes by implication is not favored.”18 “‘[W]here

in a subsequent statute there is no express repeal of a former, the court will not hold the

former to be repealed by implication, unless there is a plain and unavoidable repugnancy

between them.’”19 “We have said that ‘statutes on the same subject, although in apparent

conflict, should if possible be construed in harmony with each other to give effect to each.’”20

16
Miss. Code Ann. § 47-7-13 (Rev. 2015).
17
Tunica Cty., 27 So. 3d at 1133 (quoting Lenoir v. Madison Cty., 641 So. 2d 1124,
1129 (Miss. 1994)).
18
Tunica Cty., 27 So. 3d at 1133 (citing Roberts v. Miss. Republican Party State
Exec. Comm., 465 So. 2d 1050, 1051 (Miss. 1985)).
19
Tunica Cty., 27 So. 3d at 1133–34 (quoting Roberts, 465 So. 2d at 1051).
20
Tunica Cty., 27 So. 3d at 1134 (quoting Miss. Gaming Comm’n v. Imperial
Palace of Miss., 751 So. 2d 1025, 1029 (Miss. 1999)).

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¶25. Further, “[t]his Court has also recognized that in resolving the conflict of specific

versus general statutory provisions: ‘To the extent that two constitutional or statutory

provisions overlap or conflict, specific provisions control over general provisions.’”21

¶26. With two statutory provisions concerning parole in conflict, the more specific statute

requiring an affirmative vote to parole those convicted of murder and sex offenses must

control over the more general statute granting presumptive parole. The only way to read

these two statutes in concert—which this Court must do if possible—and avoid finding that

Section 47-7-13 has been repealed implicitly, is to conclude that those convicted of murder,

like Rochell, are not entitled to the benefit of Section 47-7-18(1).

KITCHENS AND KING, JJ., JOIN THIS OPINION.

21
Harrison v. State, 800 So. 2d 1134, 1137 (Miss. 2001) (quoting Yarbrough v.
Camphor, 645 So. 2d 867, 872 (Miss. 1994)).

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