author: BEAM, JUSTICE, FOR THE COURT: KING, JUSTICE, DISSENTING:

text:
    Craig D. SALLIE a/k/a Craig D. Sallie, Sr. a/k/a Craig Sallie v. STATE of Mississippi
    NO. 2015-CT-00819-SCT
    Supreme Court of Mississippi.
    March 8, 2018
    CYNTHIA ANN STEWART, ATTORNEY FOR APPELLANT.
    OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, ATTORNEY FOR APPELLEE.
    EN BANC.
    ON WRIT OF CERTIORARI
   BEAM, JUSTICE, FOR THE COURT:

¶ 1. Craig Sallie was charged with one count of aggravated assault for shooting Gregory Johnson in the back and one count of possession of a weapon by a convicted felon. A Madison County jury found Sallie guilty of both counts, and the circuit court sentenced him to twenty years and ten years, respectively, with sentences to run concurrently in the custody of the Mississippi Department of Corrections (MDOC). The circuit court also sentenced Sallie to an additional ten years pursuant to the firearm-enhancement statute under Mississippi Code Section 97-37-37 (Rev. 2014), with that sentence to run consecutively to the other sentences, for a total sentence of thirty years in the MDOC. The Court of Appeals affirmed.

Sallie v. State , 155 So.3d 872 (Miss. Ct. App. 2013) ( Sallie I ).

¶ 2. On writ of certiorari, a majority of this Court found "Sallie was not given adequate pretrial notice that an enhanced punishment would be sought until after his conviction," which violated his right to due process. Sallie v. State , 155 So.3d 760 (Miss. 2015) ( Sallie II ). The majority affirmed Sallie's convictions for aggravated assault and felon in possession of a firearm but vacated Sallie's sentence and remanded the case to the circuit court for resentencing.

¶ 3. On remand, the circuit court restructured Sallie's remaining sentences to run consecutively instead of concurrently, resulting in a thirty-year sentence without the enhanced penalty portion prescribed by Section 97-37-37. Finding no error, the Court of Appeals affirmed. Sallie v. State , 237 So.3d 758, 2016 WL 7636895, 2015-KA-00819-COA (Miss. Ct. App. Dec. 6, 2016) ( Sallie III ).

¶ 4. Sallie petitions this Court for certiorari review, raising one issue:

Whether the trial court's decision to change the sentences to run [consecutively] on Count I and Count II was error because the Court of Appeals affirmed those convictions and sentences and the Mississippi Supreme Court remanded only the sentence pursuant to [ Section 97-37-37 ].

FACTS AND PROCEDURAL HISTORY

¶ 5. On November 28, 2011, Johnson walked past Sallie's house en route to his own home. Sallie, who previously had accused Johnson of stealing a bottle of whisky from him, yelled at Johnson, demanding that Johnson come into his (Sallie's) yard. Johnson refused and told Sallie to come into the street so they could settle the dispute "like men." Johnson called Sallie an expletive and then turned to walk away. Sallie pulled out a gun and started shooting. Sallie shot Johnson five times, with one bullet hitting Johnson in the spine, paralyzing him from the waist down.

¶ 6. Sallie was charged with aggravated assault and possession of a firearm by a convicted felon. The jury found Sallie guilty of both counts. Afterward, the trial court scheduled a sentencing hearing and stated, "I also wish to consider the firearm enhancement as provided by 97-37-37(2)." See Miss. Code Ann. § 97-37-37(2) ("any convicted felon who uses or displays a firearm during the commission of any felony shall ... be sentenced to an additional term of imprisonment ... of ten (10) years").

¶ 7. At the sentencing hearing, Sallie objected to application of Section 97-37-37 based on lack of notice from the State and based on the trial court raising the enhancement sua sponte. The trial court sentenced Sallie to twenty years for aggravated assault, ten years for felon in possession of a firearm; the court then enhanced the sentence by ten years under Section 97-37-37(2).

¶ 8. Sallie appealed, claiming the trial court erred by limiting Sallie's cross-examination of Johnson at trial, and that the firearm enhancement to his sentence post-trial was illegal given that Sallie did not receive pretrial notice that he might be sentenced under that statute. The Court of Appeals found no merit in either assignment of error raised by Sallie.

¶ 9. Addressing the latter issue, the Court of Appeals found the enhanced portion of Sallie's sentence did not run afoul of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and therefore was legal. Sallie (I) , 155 So.3d at 875. In analyzing Apprendi , the court found that all the elements of the firearm enhancement had been submitted properly to the jury and had been found by the jury beyond a reasonable doubt. Id. The court concluded that the indictment did not need to reference the enhancement statute; therefore, there was no unfair surprise regarding the firearm enhancement. Id.

¶ 10. This Court granted certiorari, stating:

We agree that the trial court did not abuse its discretion by limiting Sallie's cross-examination of Johnson. Therefore, we limit our review to the question of whether Sallie received fair notice of the firearm enhancement. See Guice v. State , 952 So.2d 129, 133 (Miss. 2007) (Supreme Court "unquestionably" has the authority to limit the issues on review).

Sallie (II ), 155 So.3d at 762.

¶ 11. In analyzing the issue, this Court agreed with the Court of Appeals as to Apprendi , that the jury had found the elements of the firearm enhancement beyond a reasonable doubt. Id. at 762-63. But the majority also found that Sallie did not receive fair notice that an enhanced punishment would be sought until after his conviction, which violated Sallie's right to due process. Id. at 764.

¶ 12. The majority concluded as follows:

We decline to find error that would reverse Sallie's convictions. Therefore, we affirm in part the judgments of the Court of Appeals and the trial court. However, we find that Sallie did not receive timely or sufficient notice that the State intended to enhance his sentence using the firearm enhancement. Using the firearm enhancement to increase Sallie's sentence resulted in unfair surprise. Accordingly, we reverse in part the judgments of the Court of Appeals and the trial court, vacate Sallie's sentence, and remand the case to the Madison County Circuit Court for resentencing.

Id .

¶ 13. On remand, the trial court held a sentencing hearing, after which the trial court stated for the record as follows:

All right. I'm going to impose the same sentence as to Count I: 20 years in the custody of the [MDOC.]
The same sentence in Count II: 10 years in the custody of the of the [MDOC], but I'm going to order that those sentences run consecutively to each other.
When I imposed the original sentence and ordered that they run concurrently, I believe[d] that he was going to have another 10-year sentence that would be running consecutively to those sentences, and the [Supreme] Court has now found that that particular enhancement was improper, so that'll be the sentence of the [c]ourt.

¶ 14. Sallie appealed, claiming the trial court was without authority to alter the sentences from running concurrently to running consecutively. The case was assigned to the Court of Appeals.

¶ 15. On appeal, Sallie relied primarily on two cases for his claim that the change to his original sentence was illegal: Leonard v. State , 271 So.2d 445 (Miss. 1973) ; and Eastman v. State , 909 So.2d 171 (Miss. Ct. App. 2005). Sallie (III ), 237 So.3d at 760-62, 2016 WL 7636895, at **2-3. In Leonard , this Court held that "once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence." Leonard , 271 So.2d at 447. Eastman reiterated the same.

¶ 16. The Court of Appeals affirmed the trial court's sentencing order. Sallie (III ), 237 So.3d at 761-62, 2016 WL 7636895, at *3. Finding both Leonard and Eastman inapplicable, the Court of Appeals reasoned that this Court had vacated Sallie's entire sentence in Sallie (II ) ; therefore, the trial court had the authority to impose upon Sallie a new sentence within the same thirty-year parameter structured by the trial court in its original sentencing order. Sallie (III ), 237 So.3d at 761-62, 2016 WL 7636895, at *3. We agree with the Court of Appeals.

DISCUSSION

¶ 17. Sentencing lies within the complete discretion of a sentencing judge and is not subject to appellate review if it is within the limits prescribed by statute. Hoops v. State , 681 So.2d 521 (Miss. 1996). Generally, as was the case in both Leonard and Eastman , once a criminal case "has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment." Creel v. State , 944 So.2d 891, 893-94 (Miss. 2006) (quoting Harrigill v. State , 403 So.2d 867, 868-69 (Miss. 1981), partially superseded by statute , Miss. Code Ann. § 99-39-3(1) (Rev. 2015) ). As well, the circuit court in most instances loses jurisdiction to amend or modify its sentence once a case has been appealed from the circuit court to this Court. Harrigill , 403 So.2d at 868 (citing Denton v. Maples , 394 So.2d 895 (Miss. 1981) ). On appeal, both this Court and the Court of Appeals "ha[ve] appellate jurisdiction to either affirm, reverse and remand, or reverse and render the judgment the lower court should have rendered." Id. Neither court has the authority to review a case "and make an arbitrary decision to amend the original sentence in any way." Ethridge v. State , 800 So.2d 1221, 1225 (Miss. Ct. App. 2001) (citing Harrigill , 403 So.2d at 869 ).

¶ 18. If a case is affirmed on appeal, "the lower court is issued a mandate to perform purely ministerial acts in carrying out the original sentence." Harrigill , 403 So.2d at 868. But if the case is remanded for a new trial, the circuit court again is invested with jurisdiction and discretionary sentencing authority with regard to that particular case. Id. at 869. In such instances, the same or even a greater sentence than the one previously ordered may be imposed upon the defendant following a new trial and conviction for the same charge(s). See Ross v. State , 480 So.2d 1157, 1160 (Miss. 1985) (explaining that as long as there is no vindictive motivation against the defendant for having successfully challenged his first conviction, "[t]he imposition of a harsher sentence by a judge following a new trial and conviction is not violative of the federal, or Mississippi's, Constitution"); see also Tiller v. State , 440 So.2d 1001, 1006 (Miss. 1983) ; Sanders v. State , 440 So.2d 278, 288 (Miss. 1983), superseded by statute on other grounds .

¶ 19. The question here, though, is whether the circuit court had discretionary sentencing authority to modify its original sentence after this Court affirmed Sallie's convictions but vacated Sallie's sentence on the finding that using the firearm enhancement to increase his sentence violated Sallie's right to due process.

¶ 20. We find the answer to this question is yes.

¶ 21. While we know of no prior decision either from this Court or the Court of Appeals that has addressed the precise question presented in this case, a number of cases illustrate the general understanding that when an original sentence has been vacated for illegality, a subsequent sentencing court has discretionary authority over the new sentence.

¶ 22. Grubb v. State , 584 So.2d 786 (Miss. 1991), is one example. There, the circuit court attempted to correct an illegal sentence it previously had imposed upon a defendant who had pleaded guilty to kidnapping. Id. at 790. The trial judge originally had sentenced the defendant to life in prison following the guilty plea, with eligibility for parole. Id. at 787. But under the kidnapping statute, only a jury could impose a life sentence, whereas the trial judge could fix the penalty at no more than thirty years and no less than one year. Id. at 789 (citing Miss. Code Ann. § 97-3-53 ). Following a number of post-conviction relief (PCR) requests filed by Grubb, the trial judge resentenced him to twenty years through a nunc pro tunc order relating back to the defendant's guilty plea for kidnapping. Id. at 787-790. However, when the trial judge resentenced Grubb, an appeal already had been perfected to this Court from the trial court's previous denial of Grubb's PCR petition on the basis it constituted a successive writ. Id. at 789-90. Reviewing the matter on appeal, this Court agreed the life sentence was illegal and vacated it. Id. But the Grubb Court could not affirm the trial court's new, twenty-year sentence because the trial court had lost jurisdiction over the case once an appeal was perfected to this Court. Id. at 790. In remanding the matter to the trial court, the Grubb Court stated as follows:

This remand is expressly without prejudice to Grubb's right to seek imposition of the same twenty (20) year sentence imposed by the trial court at his resentencing hearing and without prejudice to the circuit court's right to favorably consider that request, if it so desires .

Id. (emphasis added).

¶ 23. Perryman v. State , 120 So.3d 1048 (Miss. Ct. App. 2013), also illustrates the discretionary authority a subsequent sentencing judge has with a new sentence upon vacation of a defendant's original sentence. There, the defendant pleaded guilty to four counts of aggravated assault and one count of felon in possession of a firearm. Id. at 1050. He was sentenced as a habitual offender (under Mississippi Code Section 99-19-81 ) to twenty years on each aggravated-assault count and to three years on the firearms count, with all sentences running concurrently. Id. at 1051. Years later, Perryman filed a motion to correct or modify his sentence, claiming his habitual-offender status was illegal. Id. A new circuit judge presiding over the matter treated it as a PCR motion and agreed with Perryman that the statutory requirements for his habitual-offender status were not met. Id. The judge vacated the original sentence and ordered resentencing. Id. After conducting a resentencing hearing, the judge sentenced Perryman to twenty years on each of the four aggravated-assault counts and three years on the firearm charge. Id. The judge then ordered two of the twenty-year sentences to run consecutively, not concurrently, as the previous judge had ordered, which effectively gave Perryman forty years, without habitual-offender status. Id.

¶ 24. On appeal, the Court of Appeals vacated the new sentence and remanded for resentencing on the basis that Perryman's purported waiver of his right to counsel at the new sentencing hearing was involuntary. Id. at 1057. But in reaching its decision, the Court of Appeals expressly found no merit in Perryman's claim that the new, harsher sentence gave rise to a presumption of judicial vindictiveness in violation of Ross and Pearce . Id. at 1052-54. Justice Maxwell, then serving on the Court of Appeals and writing for the court, first explained that the vindictiveness-presumption standard emanating from Pearce has since "been substantially watered down" by the United State Supreme Court, "and even rendered inapplicable in some instances, depending on the particular resentencing." Id. at 1052 (citing Colten v. Kentucky , 407 U.S. 104, 92 S.Ct. 1953, 32 L.Ed.2d 584 (1972), and Chaffin v. Stynchcombe , 412 U.S. 17, 93 S.Ct. 1977, 36 L.Ed.2d 714 (1973) ). Pointing to this Court's decision in Bush v. State , 667 So.2d 26 (Miss. 1996), the Perryman Court noted that, like the United States Supreme Court, this Court has rejected the Pearce presumption in cases in which successor judges had imposed new sentences. Id. at 1053.

¶ 25. Next, in finding that Perryman had presented no proof of actual vindictiveness, the Court of Appeals noted that "[n]ot only was the second sentence well below the statutory maximum terms, ... it was also crafted to address the violent nature of Perryman's admitted criminal acts." Id. at 1054. The second judge was concerned with Perryman's criminal history, which indicated Perryman had "some violent tendencies." Id . (quoting the trial judge). But the judge also ordered that Perryman receive credit for time served, and ordered MDOC " 'to treat the sentence is if it had been imposed as the original sentence' and to afford Perryman consideration of 'any and all parole, good time, earned time, etc.,' to which he would have been entitled if he had not been improperly sentenced as a habitual offender by the first judge." Id. (quoting the trial judge).

¶ 26. Indeed, this fundamental view with regard to sentencing discretion has been espoused in numerous federal cases addressing the type of circumstance we have before us here. In United States v. Pimienta-Redondo , 874 F.2d 9 (1st Cir. 1989), a defendant was convicted of two drug-related offenses and sentenced by the federal district court to five years on each count, with each sentence running consecutively. Id. at 11. On appeal, the First Circuit affirmed one of the counts but reversed the other count and remanded the case for resentencing. Id. at 12. On remand, the federal district court resentenced the defendant to ten years on the affirmed count. Id. The defendant again appealed to the First Circuit, claiming he was denied due process of law by the district court's enhancement of his sentence and that the enhanced sentence violated the Double-Jeopardy Clause. Id. The First Circuit found no merit to these claims and affirmed the district court's "retrofitted" sentence. Id.

¶ 27. The First Circuit reiterated that "[c]riminal sentences do not possess the constitutional finality and conclusiveness that attach to a jury's verdict of acquittal," and "[c]onsequently, neither appellate review of sentences, ... nor increases after appeal ... will ordinarily implicate double jeopardy considerations." Id. at 16 (citing United States v. DiFrancesco , 449 U.S. 117, 132-39, 101 S.Ct. 426, 434-39, 66 L.Ed.2d 328 (1980) ). "A defendant 'has no legitimate expectation of finality in the original sentences when he has placed those sentences in issue by direct appeal and has not completed serving a valid sentence.' " Id. (quoting United States v. Anderson , 813 F.2d 1450, 1461 (9th Cir. 1987) ).

¶ 28. The First Circuit explained that numerous factors underlie a sentencing judge's ultimate sentencing plan, such as an "accused's actual conduct during the criminal enterprise, as well as his life, health, habits and background." Id. at 14. And in a multicount case, these factors "are not necessarily altered when a defendant successfully appeals his conviction on one count." Id. The First Circuit reasoned that "[a]fter an appellate court unwraps" the original sentencing package by removing "one or more charges from its confines, ... common sense dictates that the judge should be free to review the efficacy of what remains in light of the original plan," and be allowed "to reconstruct the sentencing architecture upon remand, within applicable constitutional and statutory limits, if that appears necessary in order to ensure that the punishment still fits both crime and criminal." Id. (citing United States v. Bentley , 850 F.2d 327, 328-29 (7th Cir. 1988), cert. denied , 488 U.S. 970, 109 S.Ct. 501, 102 L.Ed.2d 537 (1988) ("whenever a reversal on appeal undoes a sentencing plan, or even calls the plan into question, the district court should be invited to resentence the defendant on all counts in order to achieve a rational, coherent structure in light of the remaining convictions"); United States v. Diaz , 834 F.2d 287, 290 (2d Cir.1987) (trial judge could change sentence on remand to carry out original intention), cert. denied , 488 U.S. 818, 109 S.Ct. 57, 102 L.Ed.2d 35 (1988) ; United States v. Busic , 639 F.2d 940, 947 (3d Cir. 1981), cert. denied , 452 U.S. 918, 101 S.Ct. 3055, 69 L.Ed.2d 422 (1981) (same) ).

¶ 29. In United States v. Shue , 825 F.2d 1111 (7th Cir. 1987), the Seventh Circuit held that the district court had authority to resentence the defendant to effectuate its original sentencing intent after partial reversal of the defendant's convictions under a multicount indictment. The Seventh Circuit said, "we are mindful of the Supreme Court's admonition in DiFrancesco that 'the Constitution does not require that sentencing should be a game in which a wrong move by the judge means immunity for the prisoner.' " Id. at 1114 (quoting DiFrancesco , 449 U.S. at 135, 101 S.Ct. 426 ). The Seventh Circuit explained that "[w]hen a defendant is convicted of more than one count of a multicount indictment, the district court is likely to fashion a sentencing package in which sentences on individual counts are interdependent." Id. And "[b]ecause the sentences are interdependent, reversal of convictions underlying some, but not all, of the sentences renders the sentencing package ineffective in carrying out the district court's sentencing intent as to any one of the sentences on the affirmed convictions." Id.

¶ 30. That is what occurred here. Following this Court's order of remand for resentencing, the circuit judge stated for the record that when he imposed Sallie's original sentence, he thought Sallie "was going to have another 10-year sentence that would [run] consecutively" to the two sentences running concurrently, effectively giving Sallie a thirty-year sentence in the custody of the MDOC. The circuit judge then restructured Sallie's sentence to implement his original intention. As the Court of Appeals held, the circuit court had authority to do so, and we affirm.

CONCLUSION

¶ 31. The judgments of the Madison County Circuit Court and the Court of Appeals are affirmed.

¶ 32. AFFIRMED .

RANDOLPH, P.J., COLEMAN, MAXWELL AND CHAMBERLIN, JJ., CONCUR. KING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY WALLER, C.J., AND KITCHENS, P.J. ISHEE, J., NOT PARTICIPATING.

KING, JUSTICE, DISSENTING:

¶ 33. Because I disagree that the trial court had the authority to restructure Sallie's sentences for aggravated assault and possession of a weapon by a convicted felon, I respectfully dissent.

¶ 34. In Sallie's first appeal, the Court of Appeals affirmed his conviction, and this Court granted certiorari for the limited purpose of "address[ing] the issue of whether Sallie was entitled to notice of the firearm enhancement to his sentence." Sallie v. State , 155 So.3d 760, 761 (Miss. 2015). Indeed, "we limit[ed] our review to the question of whether Sallie received fair notice of the firearm enhancement[ ]" because we otherwise agreed with the Court of Appeals opinion affirming Sallie's conviction and sentence. Id. at 761, 762. In our opinion, we only addressed the issue of the firearm enhancement to Sallie's sentence; we did not address his sentences for the underlying crimes. See id. That is why we specifically reversed only the firearm enhancement to Sallie's sentence, and not the underlying sentences, explicitly stating "we must reverse the portion of Sallie's sentence that constitutes the firearm enhancement." Id. at 764 (emphasis added). The only authority granted the circuit court by this Court was to remove the firearm enhancement from Sallie's sentence. Indeed, neither Sallie nor the State appealed or even raised the legality or appropriateness of Sallie's sentences for the underlying crime, thus it was not within either appellate court's purview to reverse them, as they were not raised by the parties as being in error. See, e.g. , Davis v. State , 660 So.2d 1228, 1246 (Miss. 1995) (This Court is "precluded" from considering issues on appeal that were not raised at trial or in post-trial motions.). It would have been error for this Court to reverse the underlying sentences. Winston v. State , 754 So.2d 1154, 1156-57 (Miss. 1999) (Court of Appeals erred by sua sponte vacating sentence when neither party assigned the sentence as error on appeal). The sentencing order was vacated only to allow the trial court to complete the ministerial duty of removing the enhancement and issuing an order without the illegal portion of the sentence.

¶ 35. "[W]here a convicted defendant receives an illegal sentence, the sentence must be vacated and the case remanded to the trial court for resentencing because the defendant suffered prejudice." Sweat v. State , 912 So.2d 458, 461 (Miss. 2005). Sentencing is generally the province of trial courts, and appellate courts do not have the authority to issue sentencing orders, which is why this Court remands cases for resentencing by the trial court even when the required contents of the new sentencing order are obvious. The cases cited by the majority address resentencing defendants to a different sentence after a new trial or after the particular sentence at issue was reversed. They are therefore inapposite, as this Court did not address or reverse the underlying sentences.

¶ 36. Circuit courts do not generally have jurisdiction to resentence defendants. Creel v. State , 944 So.2d 891, 893-94 (Miss. 2006). The mandate of this Court commanded the trial court to conduct further proceedings "consistent with this judgment," which specifically addressed and reversed only the enhancement portion of the sentence. Because this Court did not reverse, or even address, Sallie's sentences for aggravated assault and possession of a weapon by a convicted felon, the circuit court lacked jurisdiction to modify that portion of Sallie's sentence. Therefore, I respectfully dissent.

WALLER, C.J., AND KITCHENS, P.J., JOIN THIS OPINION.

      King, J., for the Court. Waller, C.J., Kitchens, Chandler and Coleman, JJ., concurring. Dickinson, P.J., concurring with separate, written opinion joined by Kitchens, Chandler, and Coleman, JJ. Randolph, P.J., concurring in part and dissenting in part with separate, written opinion joined by Lamar and Pierce, JJ.

      Ishee, J., writing. Griffis, P.J., Barnes, Carlton, Fair, Wilson and Greenlee, JJ., concurring. Lee, C.J., dissenting with separate, written opinion, joined by James, J.; Irving, P.J., joining in part.

      "[U]nless the circuit court has deferred sentence, or placed the defendant upon a suspended sentence and retained jurisdiction for this specific purpose as authorized by statute, the power of the circuit court to alter or mend its sentence is terminated." Harrigill , 403 So.2d at 869. Also, the Uniform Mississippi Post-Conviction Collateral Relief Act provides jurisdiction to the circuit court to consider resentencing a criminal when certain criteria as set forth in Mississippi Code Section 99-39-5 are present. Creel , 944 So.2d at 894.

      But see also Gardner v. State , 547 So.2d 806, 807 (Miss. 1989), explaining:
      It is certainly true that the Circuit Court had no authority to resentence Gardner until Jurisdiction of the case was revested there, although the view once that the jurisdiction of this Court wholly deprived the trial court of authority to take any action at all has been considerably ameliorated. See, e.g. , Rule 60, Miss. R. Civ. P.; Rules 3, 6, 8, 9, 10, 11, Miss. Sup. Ct. Rules; Ward v. Foster , 517 So.2d 513, 516-517 (Miss. 1987) ; Wilson v. State , 461 So.2d 728, 729 (Miss. 1984).
      See also Creel , 944 So.2d at 893, explaining that trial courts retain jurisdiction under the provisions of Mississippi Code Section 47-7-47, which does not pertain to resentencing but "pertains only to a suspension of the further execution of a sentence and to the placement of the convicted felon on earned probation."

      Ross adopted the Supreme Court's pronouncement in North Carolina v. Pearce , 395 U.S. 711, 726, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969), which held that a presumption of vindictiveness attaches when a defendant receives a harsher sentence on resentencing by the same judge who imposed the previous sentence.

      While this language specifying that the Court reversed only the enhancement portion of the sentence could have been repeated several more times for clarity's sake (and perhaps, given the misinterpretations of the Court's opinion, such repetition would have been wise), given that the underlying sentences were not raised or addressed and this Court specified once that it was only reversing the enhancement portion of the sentence, such repetition was unnecessary. It appears that, even absent repetition, this was clear even to the Court of Appeals majority, which stated "the supreme court affirmed the convictions and sentences but reversed the sentence enhancement." Sallie v. State , 237 So.3d 758, 760, 2016 WL 7636895, at *2 (Miss. Ct. App. Dec. 6, 2016) (emphasis added).

      Would the majority's analysis in this case be the same if, for example, on resentencing, the trial court had sentenced Sallie to time served for the aggravated assault and felon in possession convictions? This unfettered discretion the Court gives to trial courts to amend any sentence when only a portion of the sentence is reversed works both ways-a trial court may, upon remand, reduce sentences that this Court affirmed.

      It necessarily follows, as explained by the dissent to the Court of Appeals majority, that the circuit court could not resentence Sallie to a sentence greater than its original sentence. Sallie v. State , 237 So.3d 758, 2016 WL 7636895 (Miss. Ct. App. Dec. 6, 2016) (Lee, J., dissenting); Leonard v. State , 271 So.2d 445 (Miss. 1973) ; Ethridge v. State , 800 So.2d 1221 (Miss. Ct. App. 2001) (even when the defendant files a motion for reconsideration of sentence, the trial court could not impose a sentence higher than the original sentence imposed).


source: Caselaw Access Project

author: ISHEE, J., FOR THE COURT: LEE, C.J., DISSENTING:

license: Public Domain

text:
    Craig D. SALLIE a/k/a Craig D. Sallie, Sr. a/k/a Craigh Sallie Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00819-COA
    Court of Appeals of Mississippi.
    December 6, 2016 Rehearing Denied August 1, 2017
    CYNTHIA ANN STEWART, ATTORNEY FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, ATTORNEY FOR APPELLEE
    EN BANC.
   ISHEE, J., FOR THE COURT:

¶ 1. In 2012, Craig D. Sallie was convicted by a jury of aggravated assault after Sallie was found to have shot Gregory Johnson in the back, resulting in Johnson's paralysis. The jury also found Sallie guilty of being a felon in illegal possession of a firearm. The Madison County Circuit Court sentenced Sallie to thirty years in the custody of the Mississippi Department of Corrections (MDOC) for the two convictions-twenty years for the aggravated-assault conviction and ten years for being a felon in possession of a firearm, with the sentences to run concurrently. The circuit court went on to enhance Sallie's sentence by ten years for his use of a deadly weapon in the commission of the aggravated assault. The ten-year enhancement was ordered to run consecutively to the other sentences, with all sentences in the custody of the MDOC. Sallie appealed the convictions and sentences. Ultimately, the Mississippi Supreme Court affirmed Sallie's initial two convictions but reversed the ten-year enhancement. The supreme court then remanded the case to the circuit court for resentencing based on the removal of the enhancement. The circuit court subsequently resentenced Sallie to twenty years for the aggravated-assault conviction and ten years for being a felon in possession of a firearm, which mirrored the previous sentence. However, the circuit court ordered the sentences to run consecutively to one another instead of concurrently. Sallie appeals, claiming the circuit court was without authority to alter the sentences from running concurrently to running consecutively. Finding no error, we affirm.

STATEMENT OF FACTS

¶ 2. Sallie has previously appealed his conviction and sentence to this Court. As such, we will glean from our original recitation of the facts for an overview of Sallie's underlying circumstances:

On November 28, 2011, an unarmed Johnson walked past Sallie's house en route to his own home. According to Johnson, as he walked past Sallie's house, Sallie yelled to him, demanding that Johnson come into his yard. Johnson refused and told Sallie to come into the street so that they could settle [their] dispute like men. Johnson admitted that he called Sallie a coward and a b****. He testified that Sallie then pulled out a gun and stated, "Naw, you come in my yard." When Johnson turned to walk away, Sallie started shooting at him. Sallie shot Johnson five times, with one bullet hitting Johnson in the spine, paralyzing him from the waist down. In his statement to the police, Sallie claimed that Johnson came into his yard acting like he was drunk and "maybe high." He also stated that Johnson initiated the dialogue and that he was "mumbling" words to Sallie. Sallie added that he "reacted without conscious" and shot Johnson, but that he did not initially intend to get violent with him.

Sallie v. State , 155 So.3d 872, 873 (¶ 3) (Miss. Ct. App. 2013) (vacated in part).

¶ 3. We upheld the circuit court's judgment in its entirety on appeal. Id. at 875 (¶ 13). However, on certiorari, the supreme court affirmed the convictions and sentences but reversed the sentence enhancement. Sallie v. State , 155 So.3d 760, 764 (¶ 14) (Miss. 2015). Specifically, the supreme court stated:

We decline to find error that would reverse Sallie's conviction. ... However, we find that Sallie did not receive timely or sufficient notice that the State intended to enhance his sentence using the firearm enhancement[,] ... [which] resulted in unfair surprise. Accordingly, we reverse in part the judgments of the Court of Appeals and the trial court, vacate Sallie's sentence, and remand the case to the Madison County Circuit Court for resentencing.

Id.

¶ 4. After the case was remanded for resentencing, the circuit court conducted a sentencing hearing on May 12, 2015. At that time, the circuit court sentenced Sallie to twenty years for the aggravated-assault conviction and ten years for being a felon in possession of a firearm-the same length of time contained in the original sentence imposed by the circuit court. However, the circuit court ordered that the sentences run consecutively to one another instead of concurrently. On appeal, Sallie asserts that this change was illegal.

DISCUSSION

¶ 5. On appeal, Sallie asserts that the circuit court illegally issued a greater sentence to him on remand than was previously ordered following the trial. Sallie relies on a line of cases originating with Leonard v. State , 271 So.2d 445 (Miss. 1973), for the notion that "once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence." Id. at 447. This legal tenet was reiterated by this Court more recently in Eastman v. State , 909 So.2d 171 (Miss. Ct. App. 2005).

¶ 6. However, Leonard and Eastman are both easily distinguishable from the case at hand. In Leonard , Walter Leonard pleaded guilty in the Washington County Circuit Court to two offenses, and was sentenced to two years on each offense, with the sentences to run consecutively. However, his sentences were suspended, and he was put on probation for the entirety of the sentence. Leonard soon violated his probation. The circuit court resentenced him to ten years for each offense, with the sentences to run consecutively for a total of twenty years. The supreme court reversed the circuit court's sentence since the final sentence was much greater, and varied distinctly, from the original sentence. Leonard , 271 So.2d at 447.

¶ 7. In Eastman , James Thomas Eastman pleaded guilty to two counts and was sentenced to ten years on Count I, and fifteen years on Count II. Eastman was recommended to an MDOC program that, if completed, would negate the ten-year sentence for the first offense. The second sentence was also suspended, and it appears Eastman never actually served any jail time. Instead, Eastman was placed on five years of supervised probation after successful completion of the MDOC program. His probation was soon revoked for just cause. After completing another probationary program offered through MDOC, Eastman was again released on supervised probation for five years. However, his probation was revoked for a second time shortly after his release.

¶ 8. At his revocation hearing, the State requested that the circuit court impose the fifteen-year sentence originally issued for Count II, which was concurrent to Count I. Instead, the circuit court imposed a consecutive ten-year sentence for Count II. Eastman appealed the circuit court's judgment because it imposed a greater overall sentence than the original sentence (twenty years to serve as opposed to fifteen). Using Leonard as a basis, this Court determined that the circuit court was not allowed to restructure the overall sentence into consecutive ten-year sentences as opposed to the original concurrent ten- and fifteen-year sentences because it made the total sentence greater than originally imposed. Eastman , 909 So.2d at 174 (¶¶ 12-13).

¶ 9. Here, the circuit court did not alter the number of years to which Sallie was originally sentenced. Likewise, the circuit court did not restructure Sallie's sentence to increase the number of years he would serve. The original sentence entailed twenty years for the aggravated-assault conviction and ten years for the felon-in-possession-of-a-firearm conviction, with ten years added for the enhancement. The first two sentences were to run concurrently and the enhancement was to run consecutively-this gave Sallie an original sentence of thirty years. The supreme court vacated Sallie's entire sentence on remand and, hence, the circuit court was with authority to impose upon Sallie a new sentence within the original thirty-year parameter. The circuit court sentenced Sallie to twenty years and ten years on each offense, respectively, as had been the original sentence. By changing the sentences from concurrent to consecutive, the circuit court kept the new sentence within the original thirty-year window. Therefore, the restructuring of the sentence does not fall within the confines of Leonard or Eastman . We fail to find error in the circuit court's judgment. This issue is without merit, and the circuit court's judgment is affirmed.

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

GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. LEE, C.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY JAMES, J.; IRVING P.J., JOINS IN PART.

LEE, C.J., DISSENTING:

¶ 11. The majority affirms the trial court's resentencing of Sallie on remand following the supreme court's decision to vacate a portion of Sallie's sentence based upon the firearm enhancement. Because the supreme court had affirmed Sallie's original sentences, notwithstanding the vacation of the firearm enhancement, I find that the trial court lacked jurisdiction to restructure Sallie's sentences to run consecutively where the original sentences were ordered to run concurrently. Furthermore, the restructuring of the sentences resulted in a greater sentence than the original sentence, which violates well-settled caselaw on the matter. Thus, I respectfully dissent.

¶ 12. In 2012 Sallie was convicted and sentenced to serve twenty years for aggravated assault and ten years for felon in possession of a firearm, ordered to run concurrently, with an additional ten years under the firearm-enhancement statute, for a total of thirty years. On appeal this Court affirmed both the convictions and the sentences of Sallie. Sallie v. State , 155 So.3d 872, 875-76 (¶ 13) (Miss. Ct. App. 2013) (vacated in part).

¶ 13. On writ of certiorari, the supreme court affirmed in part and reversed in part the judgments of the trial court and this Court. Sallie v. State , 155 So.3d 760, 764 (¶ 14) (Miss. 2015). The supreme court clearly indicated that its review of Sallie's appeal was limited only "to address the issue of whether Sallie was entitled to notice of the firearm enhancement to his sentence." Id. at 761 (¶ 1). The supreme court affirmed the convictions and sentences of Sallie but "reverse[d] the portion of Sallie's sentence that constitute[d] the firearm enhancement," due to the "lack of notice ... [and] unfair surprise by the post-conviction notice that the firearm enhancement would be considered." Id. at 764 (¶ 13) (emphasis added). Accordingly, the case was remanded to the trial court for resentencing. Id. at (¶ 14).

¶ 14. On remand the trial court sentenced Sallie again to serve twenty years for aggravated assault and ten years for felon in possession of a firearm, to run consecutively for a total of thirty years, as opposed to the original sentence ordered to run concurrently . The resentencing resulted in the same amount of time imposed by the original sentence, which included the ten-year firearm enhancement that was vacated by the supreme court as unconstitutional. With the vacation of the firearm enhancement, the new sentence now exceeds the original sentence of twenty years.

¶ 15. The trial court lacked jurisdiction to alter Sallie's sentences from concurrent to consecutive because the supreme court had affirmed these portions of Sallie's sentences as noted in the court's mandate: "[t]he judgements of the Court of Appeals and the Madison County Circuit Court are affirmed in part and vacated in part ...." Id. at 765 (¶ 15). The "vacated in part" refers only to the firearm enhancement as indicated by the court's grant of a limited review only "to address the issue of whether Sallie was entitled to notice of the firearm enhancement to his sentence." Id. at 761 (¶ 1). The court's review dealt only with the addition of the firearm enhancement "to his sentence" and not the sentence itself. Again, the court accordingly stated, "[W]e must reverse the portion of Sallie's sentence that constitutes the firearm enhancement." Id. at 764 (¶ 13) (emphasis added). Because the court reversed only a portion of Sallie's sentence-namely the firearm enhancement-the remaining portions of the sentence were included in the "affirmed in part" order of the court and thus were not within the jurisdiction of the trial court to alter upon remand.

¶ 16. In addition to the trial court's lack of jurisdiction to alter the sentence on remand, its resentencing was illegal. The supreme court has also held that "once a circuit or county court exercises its option to impose a definite sentence, it cannot subsequently set such a sentence aside and impose a greater sentence." Leonard v. State , 271 So.2d 445, 447 (Miss. 1973). That principle was further reiterated by this Court in Eastman, where we held that a court may "enforce the terms of the original sentence ... [but] act[s] improperly by amending the initial sentence [to a greater sentence], as our caselaw has long held such alterations are improper." Eastman v. State , 909 So.2d 171, 173 (¶ 10) (Miss. Ct. App. 2005). The trial court's resentencing of Sallie on the convictions of aggravated assault and felon in possession of a firearm improperly amended Sallie's original sentence of twenty years on those two convictions to a greater sentence of thirty years.

¶ 17. The majority acknowledges that a trial court cannot issue a greater sentence on remand than that which was previously ordered following trial, nor can it restructure concurrent sentences into consecutive sentences to result in a greater overall sentence. However, the majority believes that this principle is not violated here because Sallie's original overall sentence (including the firearm enhancement) was thirty years, and he was resentenced (without the firearm enhancement) to thirty years, resulting in no greater sentence but rather the same length of time. The configuration is misguided. The supreme court's vacation of the firearm enhancement left in effect the original sentence of twenty years for aggravated assault and ten years for felon in possession of a firearm, to run concurrently for a total of twenty years. The trial court's resentencing exceeds by ten years the original sentence as it remains after the supreme court's mandate to vacate the firearm enhancement.

¶ 18. The trial court lacked jurisdiction to amend the portions of Sallie's sentence that were affirmed by the supreme court. Further, I do not find that the supreme court's vacation of the firearm enhancement was simply to allow the trial court to reconfigure Sallie's sentence again to achieve the same amount of time as the original and vacated sentence by disrupting well-settled law that a trial court cannot impose a greater sentence than that which it has already ordered. I believe the trial court erred in restructuring Sallie's original concurrent sentences to run consecutively, both violating the supreme court's mandate and resulting in a greater sentence than that which was originally imposed for the two convictions; thus, the sentence is illegal. Therefore, I respectfully dissent.

JAMES, J., JOINS THIS OPINION; IRVING, P.J., JOINS THIS OPINION IN PART.

      Sallie had previously accused Johnson of stealing a bottle of whiskey from him. Sallie v. State , 155 So.3d 872, 873 (¶ 3) (Miss. Ct. App. 2013) (vacated in part).


author: GRIFFIS, P.J., FOR THE COURT:

text:
    Aaron LYONS a/k/a Aaron Ladaniel Lyons a/k/a Arron L. Lyons a/k/a Aaron Daniel Lyons, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-01004-COA
    Court of Appeals of Mississippi.
    April 18, 2017 Rehearing Denied October 24, 2017 Certiorari Denied February 8, 2018
    ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: GEORGE T. HOLMES
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON
    EN BANC.
   GRIFFIS, P.J., FOR THE COURT:

¶ 1. Aaron Lyons was convicted of one count of manslaughter in violation of Mississippi Code Annotated section 97-3-25 (Rev. 2014) and one count of armed robbery in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2014). Lyons appeals his conviction. This Court finds no error and affirms.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around 4:45 a.m. on January 16, 2004, a customer discovered the lifeless body of John Deere outside of the Pik & Pak convenience store, which Deere owned, in Brookhaven, Mississippi. Deere was robbed at gunpoint and shot three times. Shortly after Deere's body was discovered, a volunteer firefighter from the Summit Fire Department responded to a small roadside grassfire. The fireman discovered various items alongside the road, including a small metal cash box where the fire originated.

¶ 3. Lincoln County investigators soon arrived on the scene to inspect the area and seize evidence. Deere's widow later identified the cash box as belonging to her deceased husband. Investigators also collected DNA samples from the items found near the fire, but the DNA did not match any known person.

¶ 4. In 2013, the Lincoln County Sheriff's Department received a DNA sample belonging to Lyons. Lyons's DNA profile matched a sample recovered from a pair of black FUBU jeans discovered at the scene of the fire. Investigators then determined that Lyons lived in Brookhaven at the time of the crime with his then girlfriend, Lavatrus Harris. On September 3, 2014, Lyons was indicted in the Circuit Court of Lincoln County on charges of murder, armed robbery, and conspiracy to commit armed robbery.

¶ 5. At trial, Sonya Ewell testified that at some point early in their relationship, Lyons told her of the robbery and murder that he and Harris committed together in Brookhaven in 2004. Ewell testified that on a trip in December 2011 from Humble, Texas, to Brookhaven to visit family, Lyons drove her and his cousin past the scene of the crime and gestured at the gas station and stated, "that's where it happened."

¶ 6. Lyons sought to exclude Ewell's testimony by claiming Ewell was his common-law wife, and the spousal privilege precluded her testimony. Lyons also argued that Ewell was not a competent witness and was allowed to testify in violation of Mississippi Rule of Evidence 601. The trial court ruled that Lyons's admission to Ewell occurred before they allegedly entered into a common-law marriage, which meant the privilege did not apply, and the presence of Lyons's cousin in the vehicle removed the conversation from privilege even if Lyons could invoke the spousal privilege.

¶ 7. After a jury trial from June 2 through June 4, 2015, a jury convicted Lyons of manslaughter and armed robbery. On June 11, 2015, Lyons filed a motion for a judgment notwithstanding the verdict (JNOV) or, in the alternative, a new trial. On June 18, 2015, the trial court denied the motion. Lyons now appeals.

ANALYSIS

¶ 8. Lyons argues on appeal, through his appellant's brief and supplemental brief, that: (1) the trial court erred in allowing Lyons's alleged former common-law wife to testify in violation of Mississippi Rules of Evidence 504 and 601(a) ; (2) the verdicts were contrary to the weight of the evidence; (3) the State violated Lyons's right to due process by not disclosing a copy of the official paperwork from the DNA test results on the purple cloth; (4) the State created a materially false impression of the evidence; (5) his right to a fair trial was violated when a State's witness used a cell phone while on the stand; (6) his right to a fair trial was violated when the trial court allowed a picture of the victim to remain displayed to the jury during closing arguments; (7) the trial court erred in failing to grant a mistrial; (8) he received ineffective assistance of counsel; (9) the trial court erred in denying jury instruction D-10; and (10) cumulative error.

I. The trial court did not err in allowing Lyons's alleged former common-law wife to testify.

¶ 9. Lyons first argues that Ewell's testimony was inadmissible. Specifically, Lyons claims the court erred when it found the spousal privilege in Mississippi Rule of Evidence 504 did not preclude Ewell's testimony and that Ewell was a competent witness under Mississippi Rule of Evidence 601.

¶ 10. "The standard of review for either the admission or exclusion of evidence is abuse of discretion." Vaughn v. State , 189 So.3d 650, 652 (¶ 9) (Miss. Ct. App. 2015) (citation omitted). "In any proceeding, civil or criminal, a person has a privilege to prevent that person's spouse, or former spouse, from testifying as to any confidential communication between that person and that person's spouse." M.R.E. 504(b). Lyons has the burden of demonstrating reversible error on the part of the trial court in allowing Ewell's testimony. See Nicolaou v. State , 612 So.2d 1080, 1084 (Miss. 1992) (disagreed with on other grounds).

¶ 11. Mississippi law does not recognize a common-law marriage. George v. George , 389 So.2d 1389, 1390 (Miss. 1980). Texas does. Farrell v. Farrell , 459 S.W.3d 114, 117 (Tex. App. 2015). Therefore, Mississippi will still recognize common-law marriages that are valid in other states. George , 389 So.2d at 1390. Thus, we must consider whether Lyons and Harris had a valid common-law marriage in Texas.

¶ 12. Texas law dictates that "an informal or common-law marriage exists in Texas if the parties (1) agreed to be married, (2) lived together in Texas as husband and wife after the agreement, and (3) there presented to others that they were married." Small v. McMaster , 352 S.W.3d 280, 282 (Tex. App. 2011). Prior to the alleged crime, Lyons lived in Humble, Texas. There, he started and maintained a relationship with Ewell from November 2011 until February 2014. They did not marry. However, Ewell testified that sometimes she and Lyons referred to themselves as husband and wife. Ewell also testified that she and Lyons learned they could be considered common-law husband and wife around 2013.

¶ 13. Based on this testimony, the court could have found that Lyons and Ewell had met the first two requirements for a Texas common-law marriage. As to the third requirement, Ewell testified that she introduced Lyons to friends and family as her "husband," her "ex-boyfriend," and her "ex-husband," independently and with great frequency. She testified that the nature of their relationship and the way it was labeled shifted constantly with changing circumstances in their lives.

¶ 14. In a similar case in Texas where a common-law marriage was in dispute, the Texas Court of Appeals held that "[w]hether the evidence is sufficient to establish that a couple held themselves out as husband and wife turns on whether the couple had a reputation in the community for being married." Small , 352 S.W.3d at 285 (citing Eris v. Phares , 39 S.W.3d 708, 715 (Tex. App. 2001) ). Proving a reputation for being married requires evidence that the couple "consistently conducted themselves as husband and wife in the public eye or that the community viewed them as married." Id. (citation omitted). Further, the "occasional introductions as husband and wife do not establish the element of" common-law marriage of the man and woman holding themselves out as husband and wife. Winfield v. Renfro , 821 S.W.2d 640, 651 (Tex. App. 1991) (citations omitted).

¶ 15. We find that there was evidence that Lyons and Ewell failed to consistently hold themselves out as husband and wife. Therefore, no common-law marriage existed under Texas law, and Ewell's testimony was outside the scope of Mississippi's spousal privilege. We find no error in the admission of Ewell's testimony.

¶ 16. Further, Even if Lyons and Ewell proved a valid Texas common-law marriage, Lyons's statement to Ewell about the robbery and murder would not be protected by the Rule 504 privilege because the statement was made before the alleged "marriage" began. Ewell also testified that she and Lyon did not enter into a relationship until November 2011. Although she could not remember the exact date of Lyons's confession, she knew it was "early on in the relationship" and before their trip to Brookhaven in December of 2011. Ewell also testified that it was "quite possible that [the confession] occurred even before [Lyons] moved in with [her]." In fact, the trial court asked whether it was possible that the confession was made to her while they were not common-law husband and wife, Ewell replied, "Correct, it's very possible." Therefore, Rule 504 did not protect the statement that occurred before the formation of the alleged common-law marriage.

¶ 17. Moreover, there was also evidence that Lyons's cousin was in the car while Lyons drove Ewell around Brookhaven. Rule 504 protects statements made by one spouse to another that are intended to remain confidential. Martin v. State , 773 So.2d 415, 417 (¶ 5) (Miss. 2000). The presence of a third party negates the intent for the statement to remain confidential between husband and wife. Id. Thus, the statement made by Lyons to Ewell in front of a third party was not confidential. See Carpenter v. State , 102 So.3d 290, 294 (¶ 8) (Miss. Ct. App. 2012) (spousal immunity does not apply to communications between spouses made in the presence of a third party).

¶ 18. For these reasons, we find no reversible error in Ewell's testimony.

II. Whether the verdicts were contrary to the weight of the evidence.

¶ 19. Lyons next challenges the trial court's denial of his motion for a new trial. "This Court reviews a trial court's denial of a motion for a new trial based on an abuse-of-discretion standard." Mitchum v. State , 164 So.3d 477, 482 (¶ 19) (Miss. Ct. App. 2014) (citing Butler v. State , 102 So.3d 260, 268 (¶ 23) (Miss. 2012) ). When we review "a denial of a motion for a new trial based on an objection to the weight of the evidence, we will only disturb a verdict when it is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an unconscionable injustice." Bush v. State , 895 So.2d 836, 844 (¶ 18) (Miss. 2005) (citation omitted). With this standard in mind, we must weigh the evidence in the light most favorable to the verdict. Id.

¶ 20. Lyons claims that the jury's verdicts were contrary to the fact that Harris and Ewell both had motives and colluded to frame him, another person admitted to committing the crimes, and the State never proved that he wore or owned the black FUBU jeans that were found at the scene of the roadside fire with the burning cash box belonging to Deere.

¶ 21. Lyons argues that Harris and Ewell attempted to frame him for the crimes because of their mutual disdain for him. He contends they used information about the crimes that could have come from news reports.

¶ 22. In addition to Ewell's testimony discussed above, Harris testified that she was with Lyons on the day of the crime. After signing an immunity agreement, Harris testified that she helped Lyons scout out the location of the crime. She also helped obtain a stolen car and placed the car in position for Lyons to flee after executing the robbery. Harris also stated that on the day of the crime, shortly after Lyons left the stolen car and headed toward the Pik & Pak, she heard three gunshots and saw Lyons running back to the car carrying a small box. Harris testified that after Lyons got back into the car, he was crying and demanded that Harris drive back to Lyons's truck so as not to "get [him] caught."

¶ 23. Harris testified that she returned the stolen car after Lyons wiped it down with a grey or purple fabric-similar to one of the items recovered at the scene of the fire-and got back into Lyons's eighteen-wheeler work truck. Allegedly, Lyons ordered Harris into the sleeping compartment of the truck and closed the curtain. Though Harris could not tell where Lyons drove, she testified that she thought it was the interstate, judging by the number of cars she heard passing the truck. Harris then testified that the truck stopped and Lyons got out of the truck and was gone for some time. Harris never saw the small cash box again. Lyons returned with threats to Harris while pointing a revolver at her head: "[Y]ou ever tell on me, you know, I'll kill your mama, your daddy and your brother." Harris asked Lyons what he had done, to which he responded, "I told the [expletive] to stop looking at me .... [H]e wouldn't stop looking at me .... I told him, 'don't turn around.' " Lyons, however, disputes the accuracy of Harris's testimony.

¶ 24. Jurors have the duty to resolve any conflicts in witness testimony. Boone v. State , 973 So.2d 237, 243 (¶ 22) (Miss. 2008) (citations omitted). Also, jurors are permitted to "believe or disbelieve, accept or reject, the utterances of any witness." Id. "A reviewing court cannot and need not determine with exactitude which witness or what testimony the jury believed or disbelieved in arriving at its verdict. It is enough that the conflicting evidence presented a factual dispute for jury resolution." Id. The fair-minded jury's decision to believe Harris and Ewell's testimonies, which they had an equal right not to believe, was a reasonable decision.

¶ 25. Lyons also argues that Lincoln County investigators initially arrested and indicted Kenneth Baggett for the crimes when a witness, Will Hutson, stated that he was with Baggett when he murdered Deere. However, Dewitt Bates, the district attorney at the time of the murder, testified that the case against Baggett was ultimately dismissed for a serious lack of physical evidence connecting him to the crime. Thus, there is insufficient evidence that Baggett, and not Lyons, committed the crimes.

¶ 26. In addition, there was physical evidence that connected Lyons to the crime. Although the State never technically proved that the FUBU jeans belonged to Lyons or that he ever wore them, Lyons's DNA was found on the jeans that were found next to the stolen cash box that belonged to Deere. There was the cloth that Harris testified that Lyons used to wipe down the stolen car used for the crimes.

¶ 27. Because we find that the verdict is not so contrary to the weight of the evidence as to create an unconscionable injustice, this Court must affirm and uphold the jury's verdict. We find no merit to this issue.

III. Whether Lyons's right to due process was violated by not disclosing a copy of the official paperwork from testing the purple cloth from the DNA lab.

¶ 28. In his supplemental brief, Lyons argues the trial court committed error when it allowed the State to present DNA evidence from an untimely disclosed DNA report. Again, "[t]he standard of review of a trial court's admission of evidence is abuse of discretion." Moore v. State , 911 So.2d 1037, 1038 (¶ 3) (Miss. Ct. App. 2005) (citation omitted). "The trial judge is empowered with the discretion to consider and to decide what evidence is admissible, and unless this judicial discretion is so abused as to be prejudicial to the accused, then the ruling of the lower court must be affirmed." Id. (quoting Francis v. State , 791 So.2d 904, 907 (¶ 7) (Miss. Ct. App. 2001) ).

¶ 29. Kathryn Rodgers, a forensic analyst at Scales Biological Laboratory, testified about DNA on a cloth found near the burning money box. Lyons did not to object to the admission of evidence about the cloth or the test results. "In order to preserve an issue for appeal, counsel must object. The failure to object acts as a waiver." Carr v. State , 873 So.2d 991, 1004 (¶ 35) (Miss. 2004). When Lyons's counsel was specifically asked if there were any objections to the report containing the cloth's DNA test results being admitted as evidence, counsel replied, "No." Therefore, Lyons failed to preserve this issue for appeal.

IV. Whether the prosecution presented evidence in a way to create a materially false impression of the evidence.

¶ 30. Lyons contends that Rodgers's testimony and the State's argument about the cloth created a false impression of the evidence. Lyons argues that Rodgers testified that the cloth did not contain any DNA evidence from Lyons, but did from Harris. The State asserted the presence of Harris's DNA corroborates her version of events. Lyons, however, contends that Harris testified she did not aid in the crime, so the presence of her DNA on the cloth discredits rather than substantiates her testimony.

¶ 31. Again, when the cloth and its DNA test results were presented in court and offered into evidence, there were no objections made on behalf of Lyons. Therefore, the failure to object acts as a waiver. Carr , 873 So.2d at 1004 (¶ 35). In addition, this Court has repeatedly held that "[t]he jury is the final arbiter of a witness's credibility." Williams v. State , 794 So.2d 1019, 1028 (¶ 59) (Miss. 2001) (citing Morgan v. State , 681 So.2d 82, 93 (Miss. 1996) ). Thus, Harris's and Rodgers's credibility as witnesses rested with the jury. This issue is without merit.

V. Whether Lyons's right to a fair trial was violated by a State's witness using a cell phone while on the stand.

¶ 32. Lyons's claims that Ewell recorded her testimony on her phone and then shared it with Harris. Lyons only raises this claim in his supplemental brief, and it is not corroborated by the record or through any affidavits. There is nothing in the record to support his claim. Further, Lyons did not raise this issue before the trial court. Therefore, this issue has no merit.

VI. Whether Lyons's right to a fair trial was violated by a picture of the victim being left on the screen during closing arguments.

¶ 33. Lyons claims the State's strategy of displaying a photograph of the victim during closing arguments was prejudicial. The admissibility of photographs rests within the sound discretion of the trial court. Jackson v. State , 672 So.2d 468, 485 (Miss. 1996). The "[d]iscretion of trial judge to admit photographs in criminal cases runs toward almost unlimited admissibility regardless of gruesomeness, repetitiveness, and extenuation of probative value." Brown v. State, 690 So.2d 276, 289 (Miss. 1996). In addition, use of photographs during closing arguments is within the discretion of the trial judge and is allowed as long as "the use of [the photograph] during closing arguments [is not] for the sole purpose of inflaming the jury." Woodward v. State , 726 So.2d 524, 537 (¶ 46) (Miss. 1997).

¶ 34. The trial judge and the opposing counsel were present when the photograph of Deere was left in front of the jury during closing arguments. The record does not indicate that the judge abused his discretion by allowing the photograph to remain, nor does the record indicate the State intended to inflame the jury through its use. Thus, Lyons's argument lacks merit.

VII. Whether the trial court erred by not granting a mistrial.

¶ 35. Lyons asserts that after the State's witness testified that Lyons had committed several robberies in the past of which there was no evidence and for which he was not currently on trial, his rights to a fair trial and due process were violated. "[E]vidence of past crimes not resulting in convictions is generally inadmissible." Shoemaker v. State , 502 So.2d 1193, 1195 (Miss. 1987) (citations omitted). Further, "[a] mistrial in such a case is proper 'unless it can be said with confidence that the inflammatory material had no harmful effect on the jury.' " Id. (citations omitted).

¶ 36. However, "[t]o find error from a trial judge's failure to declare a mistrial, there must have been an abuse of discretion." Brent v. State , 632 So.2d 936, 941 (Miss. 1994). There is a strong presumption that a jury will follow instructions given to them by the court.

McFee v. State , 511 So.2d 130, 136 (Miss. 1987) (citing Arteigapiloto v. State , 496 So.2d 681, 685 (Miss. 1986) ). "The trial judge is in the best position to determine if an alleged objectionable remark has a prejudicial effect." Bougon v. State , 883 So.2d 98, 105-06 (¶ 14) (Miss. Ct. App. 2004) (citing Weeks v. State , 804 So.2d 980, 992 (¶ 37) (Miss. 2001) ). The trial judge is provided considerable discretion in determining whether a remark is so prejudicial that a mistrial should be declared. Id. But if serious and irreparable damage has not occurred, then the trial judge should direct the jury to disregard the remark. Id.

¶ 37. This Court finds that the trial court did not abuse its discretion by denying Lyons's request for a mistrial. The trial court admonished and polled the jury to make assurances that they knew there was no evidence of these other crimes and that they should ignore the statement and not consider it whatsoever. Based on these actions, the trial court took appropriate measures to cure any potential prejudicial effect of the remark. As such, this Court cannot say the trial court's refusal to declare a mistrial was in error.

VIII. Whether Lyons received ineffective assistance of counsel.

¶ 38. Lyons also asserts that he received ineffective assistance of counsel when his trial counsel failed to: (1) call four specific witnesses; (2) adequately use impeachment and exculpatory evidence; (3) thoroughly investigate reports in the discovery material and credentials of the expert witness; (4) object to a number of occurrences at trial that were unfairly prejudicial to Lyons's defense; and (5) suggest to the trial court a lesser included offense to armed robbery.

¶ 39. "When considering a claim of ineffective assistance of counsel, this Court must find that trial counsel's performance was deficient and that [it is reasonably probable that] there would have been a different result in the verdict if it were not for trial counsel's deficiency." Payton v. State , 41 So.3d 713, 719 (¶ 23) (Miss. Ct. App. 2009) ; see also Kirksey v. State , 728 So.2d 565, 567 (¶ 10) (Miss. 1999). "The defense counsel is presumed to have acted competently and the effectiveness of his or her efforts [is] determined on the basis of the totality of the circumstances." Kirksey , 728 So.2d at 567 (¶ 10) (citation omitted).

¶ 40. Additionally, "[this] Court rarely determines issues of ineffective assistance of counsel on direct appeal unless: '(1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial court.' " Payton , 41 So.3d at 719 (¶ 23) (quoting Graves v. State , 914 So.2d 788, 798 (¶ 35) (Miss. Ct. App. 2005) ).

¶ 41. Lyons maintains that his attorney rendered ineffective assistance when he failed to call four specific witnesses to testify during trial. Lyons contests three of those witnesses should have been called to testify on his behalf about Baggett's false confession. As stated previously, however, the charges were dropped for lack of physical evidence. Further, " 'counsel's choice[s] of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy' and will not stand as support for an ineffective assistance of counsel claim." Jackson v. State , 73 So.3d 1176, 1181-82 (¶ 22) (Miss. Ct. App. 2011) (citations omitted). As such, Lyons failed to prove his counsel acted in a constitutionally deficient manner.

¶ 42. Further, "[t]his Court will only under exceptional circumstances second guess counsel on matters of trial strategy." Hill v. State , 850 So.2d 223, 226 (¶ 14) (Miss. Ct. App. 2003) (citing Marshall v. State , 759 So.2d 511, 513 (¶ 11) (Miss. Ct. App. 2000) ). This Court cannot find that the alleged errors by Lyons's counsel "were so egregious as to constitute a deficiency in performance or prejudicial to [Lyons]'s defense as to affect the outcome of trial." Cole v. State , 666 So.2d 767, 777 (Miss. 1995).

¶ 43. Also, this Court finds the record does not affirmatively show any indication of ineffective assistance of counsel. "The Mississippi Supreme Court has stated that, where the record cannot support an ineffective assistance of counsel claim on direct appeal, the appropriate conclusion is to deny relief, preserving the defendant's right to argue the same issue through a petition for post-conviction relief." Wilcher v. State , 863 So.2d 719, 761 (¶ 162) (Miss. 2003) (quoting Aguilar v. State , 847 So.2d 871, 878 (¶ 17) (Miss. Ct. App. 2002) ). The parties here did not stipulate to the adequacy of the record for this Court to find ineffective assistance. Therefore, this Court declines to find ineffective assistance of counsel at this juncture, but preserves this issue for post-conviction relief.

IX. Whether the trial court erred in refusing jury instruction D-10.

¶ 44. Lyons contends that a quantum-of-proof instruction is required in cases based on circumstantial evidence. A quantum-of-proof instruction states that "[t]he court instructs the jury that a reasonable doubt may arise from the whole of the evidence, the conflict of the evidence, the lack of evidence, [or] the insufficiency of the evidence, but however it arises, if it arises, it is your sworn duty to find the Defendant 'not guilty.' " Berry v. State , 859 So.2d 399, 405 (¶ 18) (Miss. Ct. App. 2003). Lyons contends that the trial court erred by failing to give jury instruction D-10, which was a quantum-of-proof instruction. However, a quantum-of-proof instruction was given in instruction D-3.

¶ 45. The trial court is "under no obligation to grant redundant instructions." Montana v. State , 822 So.2d 954, 961 (¶ 26) (Miss. 2002). "The refusal to grant an instruction which is similar to one already given does not constitute reversible error." Id. "With jury instruction D-10 being cumulative and repetitious, it was properly refused by the trial court." Id. Therefore, this issue is without merit.

X. Whether the cumulative errors in this case require reversal.

¶ 46. As a final contention, Lyons argues that cumulative error requires this Court to reverse and remand this case. "The cumulative error doctrine stems from the doctrine of harmless error[,] which holds that individual errors, which are not reversible in themselves, may combine with other errors to make up reversible error, where the cumulative effect of all errors deprives the defendant of a fundamentally fair trial." Thompson v. State , 990 So.2d 265, 270 (¶ 12) (Miss. Ct. App. 2008) (quoting Harris v. State , 970 So.2d 151, 157 (¶ 24) (Miss. 2007) ). "However, reversal based upon cumulative error requires a finding or findings of error." Id. Because this Court finds no error in any of Lyons's contentions on appeal, the cumulative-error doctrine does not apply. This issue is without merit.

¶ 47. THE JUDGMENT OF THE LINCOLN COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, MANSLAUGHTER, AND SENTENCE OF TWENTY YEARS; AND COUNT II, ARMED ROBBERY, AND SENTENCE OF THIRTY-FIVE YEARS, WITH FIVE YEARS SUSPENDED, FOL

LOWED BY FIVE YEARS OF POST-RELEASE SUPERVISION, WITH THE SENTENCES TO RUN CONSECUTIVELY, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AND TO PAY A $5,000 FINE, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.

LEE, C.J., IRVING, P.J., ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WESTBROOKS, J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.


author: CARLTON, J., FOR THE COURT:

text:
    Johnny Lewis WASHINGTON a/k/a Johnny L. Washington a/k/a Johnny Washington a/k/a John Lewis Washington, Appellant v. STATE of Mississippi, Appellee
    NO. 2016-CA-00124-COA
    Court of Appeals of Mississippi.
    May 30, 2017 Rehearing Denied November 14, 2017 Certiorari Denied February 15, 2018
    ATTORNEY FOR APPELLANT: DAVID S. VAN EVERY SR.
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD
    BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
   CARLTON, J., FOR THE COURT:

¶ 1. On May 25, 1977, Johnny Washington was convicted of capital murder and sentenced to death. Washington then filed an unsuccessful direct appeal of his conviction and sentence to the Mississippi Supreme Court. He next filed a successful petition in federal court for habeas review. In accordance with the federal court's ruling, the Lowndes County Circuit Court resentenced Washington on February 25, 1983, to life in the custody of the Mississippi Department of Corrections (MDOC). On July 21, 2015, Washington filed a motion for postconviction relief (PCR). On December 21, 2015, the circuit court entered an order denying Washington's PCR motion after finding that Washington's claims lacked merit.

¶ 2. Washington now appeals the circuit court's denial of his PCR motion, and he asserts the following assignments of error: (1) the sentencing court lacked authority pursuant to Mississippi Code Annotated section 99-19-101 (Rev. 2015) to resentence him; (2) the sentencing court exceeded its authority and went outside the district court's order; (3) he did not knowingly, intelligently, and voluntarily waive his constitutional right to a trial by jury for sentencing purposes; and (4) these errors constitute cumulative and plain error.

¶ 3. Upon review, we find the record reflects that Washington failed to obtain permission from the supreme court to file the instant PCR motion. We therefore affirm the circuit court's denial of Washington's PCR motion, although we do so due to Washington's failure to obtain leave from the supreme court to proceed with his PCR motion.

FACTS

¶ 4. On May 25, 1977, a Lowndes County jury convicted Washington of capital murder for the shooting death of a man during the armed robbery of a convenience store. The jury subsequently sentenced Washington to death. On July 12, 1978, the supreme court affirmed Washington's conviction and sentence. Washington v. State , 361 So.2d 61, 68 (Miss. 1978). Washington eventually petitioned the United States District Court for the Northern District of Mississippi for a writ of habeas corpus. After conducting an evidentiary hearing on the matter, the district court denied habeas relief. Washington then appealed to the United States Court of Appeals for the Fifth Circuit, requesting habeas relief.

¶ 5. Upon review, the Fifth Circuit found:

Washington was not denied effective assistance of counsel in the guilt phase of his trial.... [H]owever, we conclude that the process by which the State secured a death sentence for Washington's crime was constitutionally flawed because the jury was precluded from considering nonstatutory mitigating factors in violation of the [United States] Supreme Court's Lockett [v. Ohio , 438 U.S. 586, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978),] decision.

Washington v. Watkins , 655 F.2d 1346, 1377-78 (5th Cir. 1981). As a result, the Fifth Circuit reversed the district court's judgment denying Washington habeas relief, and the Fifth Circuit remanded the case "with instructions that the district court shall enter judgment granting appropriate habeas relief in accordance with this opinion[;] we leave it to the district court to determine, after briefing and argument by the parties, the precise form of such relief." Id. at 1378.

¶ 6. In response to the Fifth Circuit's mandate regarding Washington's capital-murder conviction and sentence, the district court entered an order on May 18, 1982, and directed the circuit court to resentence Washington. The district court stated:

After briefing and argument by the parties, we determine that the precise form of habeas relief required under these circumstances is to vacate [Washington's] death sentence, which will result in the imposition of a life sentence under Mississippi law[,] unless the State chooses to resentence [Washington] in accordance with state law. [ Mississippi Code Annotated section] 99-19-101 (Supp. 1981) provides that[,] in the usual case of conviction of a capital offense, the separate sentencing proceeding is to be determined by the same trial jury which determined guilt, but that in cases, as here, where it is impossible or the trial court is unable to reconvene the original trial jury for a hearing on the issue of penalty, the trial judge may summon another jury to determine the issue of the imposition of the penalty[.]

¶ 7. On February 25, 1983, Washington's defense counsel filed a motion in the circuit court to permit Washington to waive his jury trial and to impose a life sentence. The motion stated that Washington "respectfully requests that the court permit [him to] knowingly and intelligently and with the consultation and advice of counsel ... waive trial by jury." The motion further requested that the circuit court impose a sentence of life imprisonment pursuant to Mississippi Code Annotated section 97-3-21 (Supp. 1977) as "the appropriate punishment."

¶ 8. The circuit court entered an order on February 25, 1983, and accepted Washington's waiver of trial by jury. The circuit court sentenced Washington to life imprisonment in MDOC's custody. This Court's opinion in Washington v. State , 154 So.3d 34, 37 (¶ 4) (Miss. Ct. App. 2012), reflects that, "[o]n that same day, February 25, 1983, a Lowndes County grand jury indicted Washington for the armed robbery of Roy Thompson in Lowndes County cause number 7925.... Washington was also indicted for the aggravated assault of Elouise Clark in Lowndes County cause number 7926." As a result, the sentencing circuit court further ordered Washington's life sentence for capital murder to run consecutively to his sentences for the two offenses he was indicted for that same day: armed robbery and aggravated assault.

¶ 9. On July 21, 2015, Washington filed a motion to vacate and set aside his sentence. The circuit court treated Washington's filing as a PCR motion. On December 21, 2015, the circuit court entered an order denying Washington's PCR motion after finding that Washington's claims lacked merit. As the record reflects, Washington did not plead guilty and was only resentenced. The record also reflects that Washington failed to obtain permission from the supreme court to file his instant PCR motion.

STANDARD OF REVIEW

¶ 10. When reviewing a circuit court's denial or dismissal of a PCR 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. Hughes v. State , 106 So.3d 836, 838 (¶ 4) (Miss. Ct. App. 2012).

¶ 11. We also review de novo the issue of jurisdiction since it constitutes a question of law. Tyson Breeders Inc. v. Harrison , 940 So.2d 230, 232 (¶ 5) (Miss. 2006). In addressing Washington's appeal, we acknowledge that section 99-39-7 provides:

The motion under this article shall be filed as an original civil action in the trial court, except in cases in which the petitioner's conviction and sentence have been appealed to the Supreme Court of Mississippi and there affirmed or the appeal dismissed. Where the conviction and sentence have been affirmed on appeal or the appeal has been dismissed, the motion under this article shall not be filed in the trial court until the motion shall have first been presented to a quorum of the Justices of the Supreme Court of Mississippi, convened for said purpose either in termtime or in vacation, and an order granted allowing the filing of such motion in the trial court.

DISCUSSION

¶ 12. As the procedural history of this case reflects, a jury convicted Washington of capital murder and sentenced him to death. The supreme court then affirmed Washington's conviction and sentence on direct appeal. Washington , 361 So.2d at 68. Upon his request in federal court for habeas relief, the federal court set aside Washington's sentence. Afterwards, in 1983, the state circuit court resentenced Washington.

¶ 13. We acknowledge that, pursuant to section 99-39-7, a prisoner must seek leave from the supreme court to proceed in the trial court where his "conviction and sentence have been appealed to the [supreme court] and there affirmed or the appeal dismissed." Miss. Code Ann. § 99-39-7. Since Washington filed a direct appeal of his original sentence and conviction, and since he failed to obtain permission to file the instant PCR motion, then the circuit court below lacked jurisdiction over Washington's motion for PCR. See Rice v. State , 189 So.3d 722, 725 (¶ 12) (Miss. Ct. App. 2016). While the circuit court incorrectly denied rather than dismissed Washington's PCR motion, we find the distinction immaterial. We therefore affirm.

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

LEE, C.J., IRVING AND GRIFFIS, P., JJ., BARNES, ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

      See Jackson v. State , 67 So.3d 725, 730 (¶ 17) (Miss. 2011) ; Willie v. State , 69 So.3d 42, 44 (¶¶ 5-6) (Miss. Ct. App. 2011) ; Miss. Code Ann. § 99-39-7 (Rev. 2015).

      See Jackson v. State , 2015-CT-00521-SCT, 225 So.3d 1207, 1208, 2017 WL 1026531, at *2 (¶ 6) (Miss. Mar. 16, 2017).

      Washington later entered guilty pleas to the charges of armed robbery and aggravated assault. Washington , 154 So.3d at 37 (¶ 4). The circuit court sentenced Washington to consecutive sentences of forty years for the armed-robbery conviction and twenty years for the aggravated-assault conviction, with both sentences to be served in MDOC's custody. Id.

      See Jackson , 67 So.3d at 730 (¶ 17) ; Willie , 69 So.3d at 44 (¶¶ 5-6) ; Miss. Code Ann. § 99-39-7.