text:
    STATE of Louisiana, Appellee v. Jonathan Daniel JACKSON, Appellant
    No. 52,057-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT By: Douglas Lee Harville, Counsel for Appellant
    JOHN FITZGERALD BELTON, District Attorney, Counsel for Appellee
    LEWIS ALLEN JONES MONIQUE BABIN, CLEMENT TRACY WAYNE HOUCK, Assistant District Attorneys
    Before BROWN, STONE, and COX, JJ.
   COX, J.

This criminal appeal arises from the Third Judicial District Court, Lincoln Parish, Louisiana. The defendant, Jonathan Jackson ("Jackson"), was charged by bill of information with possession of a Schedule II controlled dangerous substance (cocaine), in violation of La. R.S. 40:967(C). Following a jury trial, Jackson was found guilty as charged. He was adjudicated a fourth-felony habitual offender and sentenced to 30 years at hard labor. Jackson now appeals, arguing that the trial court imposed an unconstitutionally harsh and excessive sentence. For the following reasons, we affirm.

FACTS

On September 28, 2015, Jackson was charged by bill of information with possession of cocaine, a Schedule II controlled dangerous substance, committed on or about March 4, 2015. At his arraignment, Jackson rejected a plea bargain from the State and pled not guilty; he elected to have a trial by jury. Jackson's trial commenced on February 23, 2016. After deliberation, the jury returned a unanimous verdict of guilty as charged.

On March 17, 2016, the State filed an amended bill of information charging Jackson as a fourth-felony habitual offender. On April 19, 2016, prior to his habitual offender hearing, Jackson was sentenced to five years at hard labor and fined $5,000.

On June 28, 2016, Jackson was adjudicated a fourth-felony habitual offender based upon the following predicate offenses: (1) possession of cocaine, committed on January 13, 2002; (2) unauthorized entry of an inhabited dwelling, committed on March 11, 2004; (3) middle grade theft, committed on May 11, 2007; and, (4) four counts of distribution of a Schedule I controlled dangerous substance, committed on February 9, 2011. Certified copies of the bills of information for the prior offenses were admitted into evidence. Jackson pled guilty to the aforementioned predicate offenses, and the transcripts of each respective guilty plea colloquy were also admitted into evidence.

On July 19, 2017, the trial court vacated Jackson's previous sentence and ordered him to serve 30 years at hard labor. No motion to reconsider sentence was filed. The instant appeal followed.

DISCUSSION

On appeal, Jackson argues that the trial court abused its discretion by imposing a constitutionally harsh and excessive sentence. Specifically, Jackson contends that his 30-year sentence for a nonviolent crime shocks the sense of justice and is grossly disproportionate to the severity of the offense when considering the harm done to society. He further asserts that the State erred in charging him as a habitual offender, claiming that the State frequently exploits its authority to charge defendants under La. R.S. 15:529.1.

Louisiana C. Cr. P. art. 881.1(E) precludes a defendant from presenting sentencing arguments to the court of appeal which were not presented to the trial court. Accordingly, when a defendant fails to file a motion to reconsider sentence, the appellate court's review of a sentencing claim is limited to the bare claim that the sentence is constitutionally excessive. State v. Smith , 50,342 (La. App. 2 Cir. 1/13/16), 184 So.3d 241. Constitutional review turns upon whether the sentence is illegal, grossly disproportionate to the severity of the offense, or shocking to the sense of justice. Id.

A sentence violates La. Const. art. I, § 20, if it is grossly out of proportion to the seriousness of the offense or nothing more than the purposeless infliction of pain and suffering. State v. Johnson , 51,430 (La. App. 2 Cir. 7/5/17), 224 So.3d 505. A sentence is grossly disproportionate if, when the crime and punishment are viewed in a light of the harm to society, it shocks the sense of justice. State v. Mosley , 51,168 (La. App. 2 Cir. 6/21/17), 223 So.3d 158.

The trial court is given wide discretion in the imposition of sentences within the statutory limits. Such a sentence will not be set aside as excessive absent a manifest abuse of discretion. State v. Thomas , 51,364 (La. App. 2 Cir. 5/17/17), 223 So.3d 125, writ denied , 2017-1049 (La. 3/9/18), 238 So.3d 450.

The offense of possession of a Schedule II controlled dangerous substance is punishable by not more than five years at hard labor and a fine of not more than $5,000. La. R.S. 40:967(C)(2).

Louisiana R.S. 15:529.1(A)(4) provides, in pertinent part:

...
(4) If the fourth or subsequent felony is such that, upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life then:
(a) The person shall be sentenced to imprisonment for the fourth or subsequent felony for a determinate term not less than the longest prescribed for a first conviction but in no event less than twenty years and not more than his natural life[.]

After reviewing the record, we do not find that the trial court abused its discretion by imposing a 30-year sentence at hard labor. Because Jackson failed to file a motion to reconsider sentence, review of his sentence is limited to a bare claim of constitutional excessiveness.

At Jackson's July 2017 sentencing hearing, the trial court vacated his prior sentence of five years at hard labor and noted its review of a presentence investigation report. The trial court observed that Jackson had an extensive criminal history beginning in 2002, which included multiple convictions for drug offenses and crimes against persons. The trial court also noted that Jackson had his parole or probation revoked on several occasions, as well as four pending felony drug distribution charges. Lastly, the trial court stated that the minimum sentence allowed under La. R.S. 15:529.1(A)(4)(a) -20 years-would deprecate the serious nature of Jackson's crimes and was insufficient given his criminal history.

The record establishes an adequate factual basis for the sentence imposed and demonstrates the trial court's compliance with the La. C. Cr. P. art. 894.1 factors. Considering Jackson faced a maximum sentence of life imprisonment as a fourth-felony habitual offender, his midrange sentence is not constitutionally excessive. Accordingly, the trial court did not abuse its discretion by sentencing Jackson to serve 30 years at hard labor.

A review of the sentencing transcript reveals that the trial court failed to order that Jackson's 30-year sentence be served without the benefit of probation or suspension of sentence pursuant to La. R.S. 15:529.1(G). Neither Jackson nor the State raised the issue of the illegally lenient sentence on appeal, and the trial court minutes do not reflect any restriction of benefits. Nevertheless, failure to include the required statutory restrictions of a sentence is self-correcting on review, eliminating the need to remand for a ministerial correction of the illegally lenient sentence. La. R.S. 15:301.1 ; State v. Bass , 51,411 (La. App. 2 Cir. 6/21/17), 223 So.3d 1242.

CONCLUSION

For the foregoing reasons, we affirm Jackson's conviction and sentence.

AFFIRMED.


source: Caselaw Access Project

author: COX, J.

license: Public Domain

text:
    STATE of Louisiana, Appellee v. James Kevin SULLIVAN, Appellant
    No. 52,204-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    LOUISIANA APPELLATE PROJECT, By: Chad M. Ikerd, Counsel for Appellant
    JAMES E. STEWART, SR., District Attorney, WILLIAM J. EDWARDS, RACHEL KING, Assistant District Attorneys, Counsel for Appellee
    Before WILLIAMS, COX, and STEPHENS, JJ.
   COX, J.

This appeal arises from the First Judicial District Court, Caddo Parish, Louisiana. James Sullivan ("Sullivan") appeals the sentence imposed at his Miller/Montgomery resentencing proceedings. A timely motion to reconsider sentence was denied. For the following reasons, we affirm.

FACTS

On September 25, 1992, Sullivan was charged with the first degree murder of Richard Jewel, committed when Sullivan was 17 years old. On April 14, 1993, Sullivan pled guilty to second degree murder and received the mandatory life sentence without the benefit of parole, probation, or suspension of sentence.

On April 25, 2017, Sullivan filed a pro se motion to correct illegal sentence, requesting a new sentencing hearing pursuant to Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), and Montgomery v. Louisiana , --- U.S. ----, 136 S.Ct. 718, 193 L.Ed.2d 599 (2016). On June 5, 2017, the trial court granted Sullivan's request for a resentencing hearing and appointed counsel to represent him.

On August 2, 2017, Sullivan appeared for resentencing. The State indicated that it was not seeking to have Sullivan resentenced to life without parole. Sullivan's counsel requested a continuance, however, seeking additional time to become familiar with the case and with Sullivan, who had a death in the family and had not made contact with counsel. Further, his counsel argued that due to the lack of evidence he had at the time, he was not prepared to present mitigating evidence or make a case for why his client deserved less than the statutory minimum sentence. The State argued that the trial court's only option was to sentence Sullivan to life with the benefit of parole because the State was not seeking to limit his parole eligibility, and Sullivan had not provided any evidence to establish that a downward departure from the minimum second degree murder sentence was justified.

The trial court denied defense counsel's request for a continuance, noting that it had no discretion to bypass the remedy fashioned by Miller / Montgomery and the Louisiana Legislature for this case, which was the imposition of a life sentence with the benefit of parole. The trial court resentenced Sullivan to life with the possibility of parole, without the benefit of probation or suspension of sentence.

On October 13, 2017, Sullivan submitted a written motion to reconsider sentence asserting that his life sentence, now imposed with parole eligibility, was nevertheless constitutionally excessive. He argued that parole eligibility did not effect a substantive change in Louisiana sentencing for juvenile offenders and was "pure fiction" because the parole board did not "often, if ever, release people convicted of homicide on pardon or parole." Further, Sullivan asserted that the Louisiana Legislature's enactment of La. R.S. 15:574.4 and La. C. Cr. P. art. 878.1, in response to Miller , was a "cosmetic response" which "past[ed] a label of 'eligible' atop the same old life sentence." He contended that the "mere possibility" announced in the "Louisiana revision" was of no substance and did not satisfy Miller .

Sullivan also maintained that he should receive a determinate sentence in years for his murder conviction, citing Garnett v. Wetzel , No. CV 13-3439, 2016 WL 4379244 (E.D. Pa.), involving a juvenile convicted of murder and sentenced to life imprisonment without parole, who filed a habeas petition in 2016 requesting that her sentence be vacated as a result of Miller . In that case, the federal court granted the petition, holding that Miller and Montgomery mandated that Garnett be resentenced, taking into consideration the factors peculiar to her youthful status at the time of the offense and original sentencing. In light of the parole board's authority to refuse to grant parole, the federal court ordered the sentencing court to impose a maximum sentence less than life, if the sentencing court found that the defendant was "not corruptible and not incorrigible."

Ultimately, Sullivan requested that he be granted a "meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation."

On October 13, 2017, the trial court issued a written ruling denying Sullivan's motion to reconsider sentence. Specifically, the trial court held that Sullivan's life sentence with parole eligibility gave him a meaningful opportunity to obtain release and complied with the Miller mandate. The trial court rejected Sullivan's claims that the State "rarely releases homicide offenders on parole," as being unsupported by facts, references, or citations and reliance on Garnett v. Wetzel, supra , which it found to be "neither controlling nor persuasive." The instant appeal followed.

DISCUSSION

On appeal, Sullivan contends that the trial court erred in denying a continuance of the resentencing hearing and a hearing on his motion to reconsider sentence on grounds that were "illogical and legally wrong." He believes a continuance of the resentencing hearing should have been granted because his counsel had "only been appointed for two months" and needed time to look over the record to determine if a life sentence with the possibility of parole was constitutionally excessive. Additionally, Sullivan argues that he should have been afforded a hearing on the motion to reconsider sentence after the introduction of significant facts and mitigating evidence to support a downward departure from the mandatory life sentence.

The decision whether to grant or refuse a motion for a continuance rests within the sound discretion of the trial judge, and a reviewing court will not disturb such a determination absent a clear abuse of discretion. La. C. Cr. P. art. 712 ; State v. Jordan , 50,002 (La. App. 2 Cir. 8/12/15), 174 So.3d 1259, writ denied , 2015-1703 (La. 10/10/16), 207 So.3d 408.

Under La. R.S. 14:30.1, the penalty for a conviction of second degree murder is a mandatory sentence of life imprisonment at hard labor without the benefit of parole, probation, or suspension of sentence. However, in Miller, supra , the United States Supreme Court held that "the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders." The Miller Court did not establish a categorical prohibition against life imprisonment without parole for juvenile homicide offenders; instead, the decision requires the sentencing court to consider an offender's youth and attendant characteristics as mitigating circumstances before deciding whether to impose the harshest penalty for juveniles convicted of a homicide offense. State v. Williams , 2012-1766 (La. 3/8/13), 108 So.3d 1169.

The Supreme Court also determined in Montgomery v. Louisiana, supra , that Miller announced a substantive rule of constitutional law that applies retroactively. The Court addressed the issue of retroactivity as follows:

Giving Miller retroactive effect, moreover, does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them. See, e.g. , Wyo. Stat. Ann. § 6-10-301(c) (2013) (juvenile homicide offenders eligible for parole after 25 years). Allowing those offenders to be considered for parole ensures that juveniles whose crimes reflected only transient immaturity-and who have since matured-will not be forced to serve a disproportionate sentence in violation of the Eight Amendment. (Emphasis added.)

Montgomery v. Louisiana, supra at 736.

In response to Miller , our legislature enacted La. C. Cr. P. art. 878.1, amended effective August 1, 2017, to provide in relevant part:

...
B. (1) If an offender was indicted prior to August 1, 2017, for the crime of first degree murder ( R.S. 14:30 ) or second degree murder ( R.S. 14:30.1 ) where the offender was under the age of eighteen years at the time of the commission of the offense and a hearing was not held pursuant to this Article prior to August 1, 2017, to determine whether the offender's sentence should be imposed with or without parole eligibility, the district attorney may file a notice of intent to seek a sentence of life imprisonment without the possibility of parole within ninety days of August 1, 2017. If the district attorney timely files the notice of intent, a hearing shall be conducted to determine whether the sentence shall be imposed with or without parole eligibility. If the court determines that the sentence shall be imposed with parole eligibility, the offender shall be eligible for parole pursuant to R.S. 15:574.4(G). If the district attorney fails to timely file the notice of intent, the offender shall be eligible for parole pursuant to R.S. 15:574.4(E) without the need of a judicial determination pursuant to the provisions of this Article. If the court determines that the sentence shall be imposed without parole eligibility, the offender shall not be eligible for parole. (Emphasis added.)

Further, the Legislature enacted La. R.S. 15:574.4 which provides the conditions required to be met in order for the offender to be considered for parole.

In State v. Montgomery , 2013-1163 (La. 6/28/16), 194 So.3d 606, courts were instructed to utilize La. C. Cr. P. art. 878.1 and La. R.S. 15:574.4 when reviewing sentences for juvenile homicide defendants convicted and sentenced before Miller .

The sole question to be answered in a Miller hearing is whether the defendant should be eligible for parole. State v. Keith , 51,389 (La. App. 2 Cir. 6/21/17), 223 So.3d 767 ; State v. Sumler , 51,324 (La. App. 2 Cir. 5/2/17), 219 So.3d 503. Accordingly, there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor. Rather, the trial court considers only whether the mandatory sentence should include parole eligibility. State v. Jackson , 51,527 (La. App. 2 Cir. 8/9/17), 243 So. 3d 1093, writ denied , 2017-1540 (La. 5/25/18), 243 So.3d 565 ; State v. Keith, supra . Access to the parole board for consideration of parole meets the requirements of Miller . State v. Jackson, supra . Giving Miller retroactive effect does not require states to relitigate sentences in every case where a juvenile offender received mandatory life without parole. State v. Keith, supra .

The underlying basis for both of Sullivan's arguments on appeal is that he should be entitled to a hearing to present mitigating evidence to establish that his life sentence with the possibility of parole was excessive. However, this Court has consistently held that the sole question to be answered in a Miller hearing is whether the defendant should be eligible for parole, and that at the hearing, there is no consideration of whether there should be a downward departure from the mandatory sentence of life imprisonment at hard labor.

Moreover, under La. C. Cr. P. art. 878.1, Sullivan was not entitled to a hearing because the State did not seek to impose his life sentence without parole eligibility. He was granted all to which he was entitled. After reviewing the record, we find that there was no abuse of discretion in the trial court's denial of Sullivan's request for a continuance of the resentencing hearing. Likewise, the trial court did not abuse its discretion in denying Sullivan's motion and request for a hearing to reconsider his sentence.

CONCLUSION

For the foregoing reasons, Sullivan's sentence of life imprisonment at hard labor with the possibility of parole is affirmed.

AFFIRMED.


author: STONE, J.

text:
    STATE of Louisiana, Appellee v. Mario T. WILLIS, Appellant
    No. 52,126-KA
    Court of Appeal of Louisiana, Second Circuit.
    Judgment rendered August 15, 2018
    STROUD, CARMOUCHE & BUCKLE, PLLC By: Paul Carmouche Counsel for Appellant
    JAMES E. STEWART, SR. District Attorney Counsel for Appellee
    REBECCA ARMAND EDWARDS RON CHRISTOPHER STAMPS Assistant District Attorneys
    Before WILLIAMS, MOORE, and STONE, JJ.
   STONE, J.

The defendant, Mario T. Willis, pled guilty to molestation of a juvenile recurring during a period of more than one year in violation of La. R.S. 14:81.2(A)(1) and (C)(1). Willis was sentenced to 20 years at hard labor with the first 5 years to be served without benefit of probation, parole, or suspension of sentence. He now appeals his conviction and sentence. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

On September 11, 2014, Shreveport Police Detective Monique Robinson ("Detective Robinson") was dispatched to University Health Shreveport in reference to a sexual assault complaint by a 16-year-old male identified as D.B. Upon arriving at University Health Shreveport, Detective Robinson learned D.B. had been hospitalized for several days for what his mother believed was a cold and stomach virus. After D.B.'s condition worsened and he was placed in ICU, physicians advised D.B. and his mother that his condition was a result of being positive for syphilis and HIV. D.B. disclosed to physicians that the only sexual partner he had was Mario T. Willis ("Willis"), a 26-year-old volunteer at D.B.'s school who acted as a mentor to him.

D.B. told Detective Robinson that his sexual encounters with Willis began when he was 14 years old and occurred approximately five times over the course of two years. In a statement to police, Willis admitted to three sexual encounters with D.B. over a period of six months. He also admitted to being positive for syphilis and that he was awaiting his test results for HIV. Willis was subsequently charged by bill of information with molestation of a juvenile recurring during a period of more than one year in violation of La. R.S. 14:81.2(A)(1) and (C)(1). The state alleged Willis molested D.B. from January 2013 until August 2014 by use of, among other things, a position of control and supervision over D.B.

On April 28, 2017, pursuant to an agreement with the state, Willis pled guilty to the charged offense; both parties agreed the trial court would impose the sentence with a cap of 20 years at hard labor. Prior to accepting his guilty plea, the trial court informed Willis of his constitutional rights pursuant to Boykin v. Alabama , 395 U.S. 238, 242, 89 S.Ct. 1709, 1711, 23 L.Ed. 2d 274 (1969), including his right against self-incrimination, his right to confront and cross-examine his accusers, and his right to a jury trial. Willis stated he understood his rights and wished to waive them by pleading guilty. Thereafter, the trial court accepted Willis' guilty plea and ordered the preparation of a presentence investigation ("PSI") report.

On August 1, 2017, a sentencing hearing was held and testimony was gathered from multiple witnesses. The state presented the testimony of D.B.'s mother and uncle; Willis testified on his behalf and presented the testimony of his mother and pastor. After considering the evidence presented, including the PSI report, the trial court sentenced Willis to 20 years at hard labor with the first 5 years to be served without benefit of probation, parole, or suspension of sentence. Willis was also instructed to register as a sex offender upon his release. On August 24, 2017, Willis filed a motion to reconsider sentence arguing his sentence is excessive; it was denied by the trial court.

Willis now appeals asserting three assignments of error: 1) the trial court erred in denying his motion to recuse the Caddo Parish District Attorney's Office because of a direct conflict between the office and D.B.; 2) the trial court erred in denying his motion to quash the bill of information for containing incorrect information; and 3) the trial court imposed an excessive sentence because the state filed an improper charge.

DISCUSSION

Motions to Recuse the District Attorney's Office and Quash the Bill of Information

On October 1, 2014, D.B.'s mother filed a civil lawsuit on D.B.'s behalf against Willis and Caddo Parish School Board ("CPSB") for damages arising from the same conduct charged in this criminal prosecution. CPSB retained Dale Cox ("Cox"), a prosecutor for the Caddo Parish District Attorney's Office ("District Attorney's Office"), to represent them in the lawsuit. During the pendency of both the criminal and civil cases, District Attorney Charles Scott died suddenly and Cox, who was the First Assistant District Attorney, became the acting District Attorney. Thereafter, on May 27, 2015, Willis filed a motion to recuse the District Attorney's Office from his case because Cox, as District Attorney, had a personal interest in the outcome of Willis' criminal case which was in conflict with fair and impartial administration of his prosecution. Notably, it does not appear from the record that the trial court ruled on this motion.

On March 9, 2017, Willis filed a motion to quash the bill of information arguing the state charged him with the wrong offense. Willis supported the motion by citing D.B.'s deposition testimony from the civil lawsuit in which D.B. stated the sexual encounters between him and Willis did not occur over a period of more than one year.

On April 27, 2017, Willis filed a second motion to recuse the District Attorney's Office reiterating the argument he made in the first motion to recuse. Additionally, Willis noted that, during depositions taken in the civil lawsuit, Cox elicited testimony from D.B that the sexual encounters between him and Willis did not occur over a period of more than one year. Willis stated the elicited testimony was in direct contradiction to the facts alleged by the state in the bill of information. Although Cox was no longer associated with the District Attorney's Office when the second motion to recuse was filed, Willis asserted Cox's prior employment with the District Attorney's Office placed the state in a position of having to dispute the evidence gathered by one of its employees during the time of his employment.

A hearing on the motion to quash and second motion to recuse was held on April 28, 2017. After considering the arguments of the parties, the trial court denied both motions. As it pertains to the motion to recuse, the trial court found that, if Cox had a personal interest that conflicted with the fair and impartial prosecution of Willis, the issue was removed when Cox ceased employment with the District Attorney's Office. As for the motion to quash, the trial court concluded the state had the right to bring any charges against Willis it deemed appropriate because the state still bears the burden of proof to convict him.

On appeal, Willis argues the trial court erred in denying his motions to recuse the District Attorney's Office and quash the bill of information. In general, a plea of guilty waives nonjurisdictional defects in the proceedings prior to the plea, including insufficiency of the evidence. State v. Mack , 45,552 (La. App. 2 Cir. 8/11/10), 46 So.3d 801 ; State v. Whittington , 46,723 (La. App. 2 Cir. 12/14/11), 80 So.3d 723. A valid guilty plea relieves the state of the burden of proving guilt and waives a defendant's right to question the merits of the state's case and the factual basis underlying the conviction, as well as appellate review of the state's case against the defendant. State v. Mack , supra ; State v. Hardy , 39,233 (La. App. 2 Cir. 1/26/05), 892 So.2d 710. Nonetheless, Willis asserts he entered a guilty plea pursuant to State v. Crosby , 338 So.2d 584 (La. 1976), and thus, reserved his right to seek appellate review of the trial court's denial of the motion to recuse and the motion to quash. To the contrary, the state asserts Willis entered a guilty plea pursuant to North Carolina v. Alford , 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970), thereby precluding his right to seek review of the trial court's pre-plea rulings.

A review of Willis' guilty plea hearing reveals the state offered Willis a plea agreement in which he would plead guilty as charged with a 20-year sentencing cap. Willis was given until the adjournment of court that day to accept or reject the offer. Willis accepted the plea agreement, but defense counsel requested that the guilty plea be made "a nolo contendere plea." The state objected and the trial court denied the defense's request. After the state recited the facts for the record, Willis denied the facts were true, asserting the molestation recurred for a period of less than one year. Thereafter, the following exchange took place regarding modification of the plea agreement:

MR. CARMOUCHE: Enter an Alford plea then we would do that.
THE COURT: All right. So we'll show the plea modified to a plea pursuant to Alford . Is that correct, Mr. Carmouche?
MR. CARMOUCHE: That's correct, Judge.
THE COURT: All right. All right. So and you'll respond to the allegations, Mr. Carmouche?
MR. CARMOUCHE: I'm sorry?
THE COURT: You'll respond pursuant to Alford as to the allegations that the State has alleged?
MR. CARMOUCHE: Yes, Your Honor, and, you know, that also kind of encompasses the nolo plea and those things.
MR. STAMPS: Objection, Your Honor. It does not. Those are two different standards. What Alford indicates is that the defendant is pleading under circumstances where he believes the facts are different, but if he went to trial it's likely that he would be convicted. That's what the Alford standard is. When we talk about a nolo contender what we are talking about is there could be no civil remedies that result from this plea. Two different things and I don't want counsel to confuse the record on what the law is as to what we're doing here today.
THE COURT: All right. So, Mr. Carmouche, do you wish to respond on behalf of your client pursuant to Alford ?
MR. CARMOUCHE: Your Honor, that's fine. We'll do the Alford plea and get this done today.
THE COURT: All right, pursuant to Alford .
MR. CARMOUCHE: Pursuant to Alford .

After finding a factual basis for the guilty plea, the trial court accepted Willis' Alford plea and found it was made freely and voluntarily.

Although Willis objected to the trial court's denial of his motions, the record clearly shows his guilty plea was entered pursuant to Alford , supra , not Crosby , supra. Willis did not expressly reserve the right to appeal the trial court's rulings on the motions and there is no indication that he pled guilty with the expectation that those rulings would be reviewed on appeal. As such, Willis is precluded from appellate review of the trial court's rulings on his motion to recuse the District Attorney's Office and motion to quash the bill of information.

Excessive Sentencing

Willis argues his 20-year sentence is excessive because the state filed the improper charge by alleging the offense recurred during a period of more than one year. Willis contends that, had the state alleged the offense recurred for a period of less than one year, the maximum sentence imposed would have only been 10 years.

Whoever commits the crime of molestation of a juvenile by violating the provisions of Paragraph (A)(1) of this Section, when the incidents of molestation recur during a period of more than one year, shall, on first conviction, be fined not more than $10,000.00 or imprisoned, with or without hard labor, for not less than 5, nor more than 40 years, or both. At least 5 years of the sentence imposed shall be without benefit of parole, probation, or suspension of sentence. La. R.S. 14:81.2(C)(1).

La. C. Cr. P. art. 881.2(A)(2) provides that a defendant "cannot appeal or seek review of a sentence imposed in conformity with a plea agreement which was set forth in the record at the time of the plea." Thus, a defendant is precluded from seeking review of his sentence if it was imposed under a sentencing cap in conformity with a plea agreement set forth in the record at the time of the plea. State v. Young , 96-0195 (La. 10/15/96), 680 So.2d 1171 ; State v. Jackson , 51,011 (La. App. 2 Cir. 1/11/17), 211 So.3d 639.

As a part of his plea agreement with the state, Willis agreed the trial court would determine his sentence subject to a cap of 20 years at hard labor. Willis argues his sentencing range should be 5-10 years because the state charged him with the wrong offense. However, whether or not the molestation occurred for more than one year was a question of fact to be determined by a jury, and Willis forfeited his right to have a jury determine that fact by pleading guilty. After considering the PSI report, letters, and testimony, the trial court imposed a sentence within the agreed-upon cap of 20 years at hard labor. Thus, Willis is precluded from seeking review of his sentence. Young, supra ; Jackson, supra .

Notwithstanding, despite Willis' expressions of remorse, his sentence is not a purposeless and needless infliction of pain and suffering, nor is it disproportionate to the offense. State v. Dorthey , 623 So.2d 1276 (La. 1993) ; State v. Bonanno , 384 So.2d 355 (La. 1980). The trial court placed significance on the devastating health issues, both physically and mentally, D.B. now suffers and will continue to suffer as a result of Willis' actions. The trial court also found Willis would likely reoffend due to his testimony that minors "14 and above" could consent to sex with adults. As such, the trial court did not abuse its discretion in sentencing Willis to 20 years at hard labor. State v. Williams , 2003-3514 (La. 12/13/04), 893 So.2d 7.

CONCLUSION

For the foregoing reasons, Willis' conviction and sentence are affirmed.

AFFIRMED.

      In order to maintain confidentiality of the proceedings, as required by La. Ch. C. art. 412 and U.R.C.A. Rule 5-2, minors are referred to by initials.

      Subject to the trial court's discretion, a defendant may enter a plea of guilty pursuant to State v. Crosby, supra , which permits a defendant the right to reserve identified pre-plea errors for appellate review. The function of a Crosby plea is to permit a fair and efficient review of a central issue when the pre-plea ruling on that issue, if erroneous, would mandate reversal of any resulting conviction. State v. Cooper , 43,809 (La. App. 2 Cir. 1/14/09), 2 So.3d 1172.

      Under Alford, supra , a defendant may plead guilty, without forgoing his protestations of innocence, if "the plea represents a voluntary and intelligent choice among the alternative courses of action open to defendant [,] ... especially where the defendant was represented by competent counsel whose advice was that the plea would be to the defendant's advantage." State v. Stevenson , 45,371 (La. App. 2 Cir. 6/23/10), 41 So.3d 1273 ; State v. McMillion , 42,124 (La. App. 2 Cir. 6/20/07), 961 So.2d 546. In a case involving an Alford plea, because the defendant protests his innocence, constitutional due process requires that the record contain "strong evidence of actual guilt." State v. Stevenson , supra ; State v. McMillion , supra.


author: WILSON, J., FOR THE COURT:

text:
    Beverly IRWIN-GILES, Individually and as Executrix of the Estates of William Irwin, Deceased, and Lynda Irwin, Deceased, and for and on behalf of the Wrongful Death Beneficiaries of William Irwin, Deceased, and Lynda Irwin, Deceased, Appellant v. PANOLA COUNTY, Mississippi, Appellee
    NO. 2016-CA-01637-COA
    Court of Appeals of Mississippi.
    February 27, 2018 Rehearing Denied June 26, 2018
    ATTORNEYS FOR APPELLANT: RALPH EDWIN CHAPMAN, SARA BAILEY RUSSO, Clarksdale, LARRY O. LEWIS, Marks, DANA J. SWAN, Clarksdale
    ATTORNEYS FOR APPELLEE: DAVID D. O'DONNELL, Oxford, SIDNEY RAY HILL III
    BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
   WILSON, J., FOR THE COURT:

¶ 1. Deputy Terry Smith of the Panola County Sheriff's Department was involved in a two-vehicle accident on Highway 6 in Panola County with Lynda and William Irwin. The Irwins died as a result of injuries sustained in the crash, and their daughter Beverly Irwin-Giles filed suit against Panola County under the Mississippi Tort Claims Act (MTCA). The county subsequently moved for summary judgment, relying on the "police protection" exemption from the MTCA's waiver of sovereign immunity. Miss. Code Ann. § 11-46-9(1)(c) (Rev. 2012). The circuit court granted the county's motion, finding that there was no evidence that Smith "acted in reckless disregard of the [Irwins'] safety and well-being." Id. For the reasons explained below, we conclude that Irwin-Giles presented sufficient evidence to survive summary judgment. Therefore, we reverse and remand for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2. Around 1 p.m. on July 21, 2015, Lynda and William Irwin were traveling west on Highway 6 in Panola County in their Buick Rainier SUV. Lynda was driving, and William was in the front passenger seat. In Panola County, Highway 6 is a four-lane divided highway that runs concurrent with U.S. Route 278.

¶ 3. As the Irwins were traveling west on Highway 6, Deputy Terry Smith of the Panola County Sheriff's Department was driving north on Lawrence Brothers Road, which crosses Highway 6 and becomes Terza Road to the north of Highway 6. There is a stop sign on Lawrence Brothers Road at its intersection with Highway 6. Deputy Smith was driving a Chevrolet Silverado owned by the Panola County Sheriff's Department. He was returning to his office after unsuccessfully attempting to locate a suspect in a case; he had not turned on his lights or sirens, and he was in no particular hurry.

¶ 4. Smith safely crossed the eastbound lanes of Highway 6 into the median of the highway. Then, as Smith attempted to cross the westbound lanes of Highway 6 onto Terza Road, he entered the path of the Irwins' Buick. The Buick hit the front passenger side of Smith's truck.

¶ 5. Data recovered from the Buick's "black box" indicated that the Buick was traveling seventy-five miles per hour just prior to the collision, which was ten miles per hour faster than the posted speed limit. Smith testified in his deposition that he never saw the Buick before the collision. He said he remembered "stopping and waiting for traffic to be clear," but he could not recall how long he waited or how many vehicles he may have waited on. There were no obstructions blocking his view of oncoming traffic. The Mississippi Highway Patrol (MHP) investigated the collision, and MHP's Uniform Crash Report indicated that Smith failed to yield the right of way.

¶ 6. Both Smith's truck and the Irwins' Buick eventually came to rest off the road to the north of Highway 6. Smith suffered a fractured ankle and contusions in the crash but was able to get out of his truck. The Irwins both sustained severe and ultimately fatal injuries.

¶ 7. Irwin-Giles retained an accident reconstruction specialist, Tim Corbitt, who examined MHP's report, photographs taken by MHP, and data downloaded from both vehicles' black boxes. In his report, Corbitt states that data from the Silverado's black box indicates that its speed increased from 25 mph to 30 mph in the 2.5 seconds before the crash. Based on this data, Corbitt opines that Smith did not stop either at the stop sign at the intersection of Lawrence Brothers Road and Highway 6 or in the median prior to continuing into the westbound lanes of Highway 6.

¶ 8. Irwin-Giles gave pre-suit notice under the MTCA and then filed suit against Panola County. In its answer, the county asserted, among other defenses, immunity pursuant to Mississippi Code Annotated section 11-46-9(1)(c). After limited discovery, the county filed a motion for summary judgment, arguing that it was immune from liability under section 11-46-9(1)(c) because Smith had not "acted in reckless disregard of the [Irwins'] safety and well-being" and because Lynda was "engaged in criminal activity at the time of the injury" (speeding).

¶ 9. The circuit court found that the evidence did not establish any causal nexus between Lynda's speeding and her injuries and also ruled that Lynda's "speeding would not be imputed to William." However, the circuit court granted the county's motion for summary judgment after finding that Irwin-Giles failed to create a genuine issue of material fact as to whether Smith had "acted in reckless disregard." The court reasoned that "Smith was not driving 100 mph" and "was not pursuing anyone." The court also noted that Smith did not proceed blindly or enter a dangerous intersection. The court concluded that if Smith ran the stop sign and failed to yield, he might have been negligent, but his actions still did not rise to the level of "reckless disregard." Irwin-Giles filed a timely notice of appeal from the circuit court's order granting summary judgment.

ANALYSIS

¶ 10. "This Court applies a de novo standard of review to a grant of summary judgment and to issues involving the interpretation and application of the MTCA." Lane v. Miss. Dep't of Transp. , 220 So.3d 254, 256 (¶ 4) (Miss. Ct. App. 2017). Summary judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." M.R.C.P. 56(c). The evidence must be considered "in the light most favorable to the nonmoving party." Vo v. Hancock Cty. , 989 So.2d 414, 416 (¶ 6) (Miss. Ct. App. 2008). "We consider as well that the non-moving party is entitled to the benefit of all reasonable favorable inferences that may be drawn from the record." Burkhalter & Co. v. Wissner , 602 So.2d 835, 838 (Miss. 1992).

¶ 11. The MTCA provides that a governmental entity "shall not be liable for any claim" that arises

out of any act or omission of an employee of a governmental entity engaged in the performance or execution of duties or activities relating to police or fire protection unless the employee acted in reckless disregard of the safety and well-being of any person not engaged in criminal activity at the time of injury.

Miss. Code Ann. § 11-46-9(1)(c).

¶ 12. This statutory provision affords a governmental entity "two avenues of immunity: (1) if the decedent was engaged in criminal activity, then the [governmental entity] is immune, and (2) if the decedent was not engaged in criminal activity, and if the [governmental entity's] employees did not act with reckless disregard, then the [governmental entity] is immune." Estate of Williams ex rel. Williams v. City of Jackson , 844 So.2d 1161, 1164 (¶ 11) (Miss. 2003). On appeal, the county argues that both "avenues" lead to immunity and summary judgment in this case. We first address the circuit court's ruling that the county is entitled to summary judgment because there is no genuine issue of material fact and Deputy Smith did not act in reckless disregard of the Irwins' safety. Second, we address the county's alternative argument that Irwin-Giles's claims are barred because Lynda was engaged in "criminal activity" (speeding) at the time of her injury.

I. Reckless Disregard

¶ 13. Our Supreme Court has held that "[r]eckless disregard is a higher standard than simple or gross negligence, but less than an intentional act." Vo , 989 So.2d at 416 (¶ 8) (citing City of Jackson v. Brister , 838 So.2d 274, 280 (¶ 23) (Miss. 2003) ). "This standard 'embraces willful or wanton conduct' and usually is accompanied by a 'conscious indifference to consequences' and a deliberate disregard 'that risk and the high probability of harm are involved.' " Id. (quoting Willing v. Estate of Benz , 958 So.2d 1240, 1247 (¶ 17) (Miss. Ct. App. 2007) ) (brackets omitted). Our Supreme Court has also held that reckless disregard "is a failure or refusal to exercise any care, while negligence is a failure to exercise due care." Maye v. Pearl River Cty. , 758 So.2d 391, 395 (¶ 21) (Miss. 1999). Our Supreme Court and this Court have addressed the issue of "reckless disregard" in several prior cases involving car crashes.

¶ 14. For example, in Maye , the Supreme Court held that a Pearl River County deputy sheriff acted with "reckless disregard" when he backed his car out of a parking spot and up an incline toward the entrance to the parking lot, where he collided with a car entering the lot. Id. at 394-95 (¶¶ 18, 22, 24). Although the deputy checked his rearview mirrors before he backed up, he admitted that his mirrors did not enable him to see traffic entering the lot, and there was evidence that he ignored the other car's honking horn. Id. The Supreme Court reasoned that "he backed out knowing he could not see what was behind him," and this amounted to reckless disregard ("a failure or refusal to exercise any care"), rather than just simple negligence. Id. at 395 (¶ 21).

¶ 15. This Court subsequently distinguished Maye in Vo , supra . In Vo , a Hancock County deputy sheriff failed to check behind him before backing out his spot in a parking lot "at a very low rate of speed," which resulted in a low-impact collision with another car. Vo , 989 So.2d at 417-18 (¶¶ 12-13). We affirmed the circuit court's order granting summary judgment in favor of Hancock County, reasoning that the deputy's actions amounted to, at most, "simple negligence." Id. Indeed, we stated that "[a]n individual's failure to look is perhaps the most common cause of traffic accidents." Id. at 418 (¶ 12). We distinguished Maye , emphasizing that the deputy in that case had backed up the incline despite knowing that he would not be able to see traffic entering the lot behind him. Id. at (¶ 13).

¶ 16. In Maldonado v. Kelly , 768 So.2d 906 (Miss. 2000), the Supreme Court reversed a circuit court's judgment in favor of a plaintiff who was injured in a collision with a Hinds County deputy sheriff. In Maldonado , the deputy came to a complete stop at a stop sign at a four-way intersection. The deputy knew that the intersection was only a two-way stop and that cross traffic did not have a stop sign, his view of oncoming traffic was partially blocked by a water tower, and he considered the intersection to be "a very dangerous intersection." Id. at 908 (¶¶ 2-3). Nonetheless, the Supreme Court rendered judgment in favor of the county, finding that the deputy "did what any ordinary person in his situation would have done. He stopped, looked, and then proceeded." Id. at 911 (¶ 12). The Court reasoned that the deputy might "have been negligent," but he did not act with reckless disregard. Id.

¶ 17. In reviewing the circuit court's ruling granting summary judgment in favor of the county, we must consider the evidence in the light most favorable to Irwin-Giles, and she is "entitled to the benefit of all reasonable favorable inferences that may be drawn from the record." Burkhalter & Co. , 602 So.2d at 838. Applying this standard, we conclude that there is a genuine issue of material fact as to whether Smith "acted in reckless disregard" of the Irwins' safety. Smith testified that he came to a stop at the stop sign and again in the median, where he says that he stopped to wait for westbound traffic to clear. However, based on Corbitt's analysis of the "black box" data, Irwin-Giles presented evidence that Smith did not stop or even slow down at the stop sign or in the median before proceeding into the westbound lanes of Highway 6 and directly into the path of the Irwins' Buick. Moreover, although Smith testified that he looked both ways for oncoming traffic when he stopped, he acknowledged that there were no obstructions to his vision. The fact that Smith's view was not obstructed permits a reasonable inference that Smith did not look for traffic before he crossed Highway 6. Thus, the fact-finder could conclude from the evidence in the record that Smith drove across a four-lane divided highway without stopping at a stop sign, or even slowing down, and without checking for oncoming traffic. This would be sufficient for the fact-finder to conclude that Smith "fail[ed] or refus[ed] to exercise any care," which our Supreme Court has characterized as reckless disregard. Maye , 758 So.2d at 395 (¶ 21) (emphasis added).

¶ 18. Our prior decision in Vo is distinguishable from the present case. In Vo , there was evidence that the deputy failed to check his mirrors before he backed up, but he also backed up slowly in a parking lot, resulting in a low-impact collision. Thus, the deputy in Vo exercised at least some degree of care, even if he was negligent. Moreover, as this case tragically illustrates, driving across a major four-lane divided highway-allegedly without stopping, yielding, or looking for oncoming traffic-obviously involves far greater risks to the "safety and well-being" of others, see Miss. Code Ann. § 11-46-9(1)(c), than backing up slowly in a parking lot.

¶ 19. Maldonado , supra , is also distinguishable. There, the Supreme Court found that the deputy looked both ways before proceeding into the intersection, and his failure to see the plaintiff's car could be explained by an obstruction to his vision and the "dangerous" nature of the particular intersection. Here, in contrast, there were no obstructions to Smith's vision. And based on the "black box" data and Corbitt's affidavit and report, a fact-finder could reasonably infer that Smith must not have looked for oncoming traffic, or else he would have seen the Irwins' Buick. For these reasons, we conclude that Irwin-Giles presented sufficient evidence to create a genuine issue of material fact and survive summary judgment on the issue of reckless disregard.

II. Criminal Activity

¶ 20. As noted above, a governmental entity is also immune from liability for the acts or omissions of an employee engaged in police protection activities if the injured party was "engaged in criminal activity at the time of injury." Miss. Code Ann. § 11-46-9(1)(c) ; see Williams , 844 So.2d at 1164 (¶ 11). In this case, the circuit court found that there was no proof that Lynda could have avoided the wreck had she not been speeding. The court also concluded that Lynda's speeding could not be imputed to William. Therefore, the court did not grant the county's motion for summary judgment on this ground. However, the county urges us to affirm on this alternative ground. See Brocato v. Miss. Publishers Corp. , 503 So.2d 241, 244 (Miss. 1987) (holding that an appellee is "entitled to raise any alternative ground" for summary judgment that was raised in the court below).

¶ 21. We agree with the circuit court that Lynda's speeding cannot be imputed to William. William was "not engaged in criminal activity at the time of [his] injury," Miss. Code Ann. § 11-46-9(1)(c), and Irwin-Giles's claim for William's injuries and death is not derivative of her claim for Lynda's injuries and death. See Giles v. Brown , 962 So.2d 612, 615-16 (¶¶ 13-14) (Miss. Ct. App. 2006) (holding that father's claims arising out of an ATV accident were barred by his "criminal activity" because he was illegally driving the ATV on a highway, driving with a suspended license, and guilty of reckless driving; however, the claims of his sons, who were mere passengers on the ATV, were not barred). Accordingly, Irwin-Giles's claim for William's injuries and death is not barred by Lynda's speeding.

¶ 22. Irwin-Giles's claim based on Lynda's injuries and death requires further analysis. To begin with, our Supreme Court has held that "[m]isdemeanor traffic offenses are criminal activities within the statute." Miss. Dep't of Pub. Safety v. Durn , 861 So.2d 990, 997 (¶ 20) (Miss. 2003) (holding that an illegal left turn is "criminal activity" within the meaning of the statute). Therefore, Lynda's speeding was "criminal activity" within the meaning of the statute. See Miss. Code Ann. §§ 63-3-201 & 63-3-501 (Rev. 2013).

¶ 23. Although a literal reading of section 11-46-9(1)(c) might bar any claim by a person "engaged in criminal activity at the time of injury," our Supreme Court has interpreted the statute's language more narrowly. The Court has held that the statute "is not designed to protect grossly negligent or intentional tortfeasors from liability where the fact that the victim is engaged in a criminal activity is merely fortuitous and has no relation to the transaction out of which the liability would otherwise arise." City of Jackson v. Perry , 764 So.2d 373, 379 (¶ 25) (Miss. 2000). The Court reasoned that "[i]t would be anomalous to suggest, for example, that a recklessly negligent officer who runs down a pedestrian on the sidewalk, escapes liability on a showing that the pedestrian was then and there in possession of untaxed whisky." Id. Thus, an injured party's "criminal activity" will not bar her claim unless there is some "causal nexus" between the criminal activity and her injuries. See Williams , 844 So.2d at 1165 (¶¶ 15-17).

¶ 24. The parties disagree as to the precise nature of the "causal nexus" required by our precedents. The county argues that the claim is barred if there is a nexus between the injured party's criminal activity and her injuries, while Irwin-Giles contends that the relevant question is whether there is a nexus between the injured party's criminal activity and the tortfeasor's police protection activities . That is, Irwin-Giles argues that a claim is not barred unless "the activities of the officer in carrying out his duties in protecting the public are directed toward the criminal activities of the [injured party]." This point of disagreement is significant in this case because there is no nexus between what Deputy Smith was doing-returning to his office after an unsuccessful search for a suspect in an unrelated crime-and Lynda's speeding. Indeed, Smith testified that he never even saw the Irwins' Buick until after the collision.

¶ 25. While some statements in prior opinions support Irwin-Giles's position, we conclude that the county's position is more consistent with our precedent. In Williams , supra , an intoxicated driver was killed when he drove into an intersection and into the path of a fire truck responding to a fire. Id. at 1162-63 (¶¶ 3-7). The Supreme Court held that the decedent's criminal activity (driving with a .20% blood-alcohol content) barred a wrongful death claim against the city because "there [was] a clear nexus between the criminal activity of Williams and the injury suffered by him ." Id. at 1165 (¶ 17) (emphasis added); accord Durn , 861 So.2d at 997 (¶ 22) (discussing Williams ). Without significant discussion, the Supreme Court's opinion also stated "that there was a causal nexus between Williams's criminal activity and the actions of the [firefighters]," Williams , 844 So.2d at 1162-63 (¶¶ 3-7) ; however, Williams's driving under the influence logically had nothing to do with the firefighters' fire protection activities. The fire truck was responding to an unrelated fire, and Williams simply drove into its path from a cross street. The only relevant "nexus" in the case was between Williams's criminal activity and his death.

¶ 26. Similarly, in McElroy v. City of Brandon , 198 So.3d 373 (Miss. Ct. App. 2015), this Court held that an intoxicated driver's criminal activity barred a wrongful death claim arising out of a crash with a police car. The crash resulted from the decedent's attempt to turn left in front of a police car on Highway 80 in Brandon. The police car was in the process of responding to an emergency call about a burglary at a nearby apartment complex. Id. at 375-76 (¶¶ 3-9). The circuit court granted summary judgment in favor of the city, and we affirmed on appeal. This Court specifically held that "[b]ased on the [S]upreme [C]ourt's holding in [ Williams ], ... a causal nexus existed." Id. at 380 (¶ 26) ; see also id. at 375 (¶ 2) ("[T]his matter is controlled by the Mississippi Supreme Court's holding in [ Williams ]."). As in Williams , there was no nexus between the decedent's criminal activity (driving while intoxicated) and the police protection activity. The police officer was responding to a wholly unrelated burglary, and the decedent simply drove into his path from an exit ramp. Again, the only relevant nexus was between the decedent's criminal activity and his death. Based on the Supreme Court's decision in Williams and this Court's decision in McElroy , we hold that a claim is barred under section 11-46-9(1)(c) if there is a causal "nexus between the criminal activity of [the injured party] and the injury suffered by him ." Williams , 844 So.2d at 1165 (¶ 17) (emphasis added).

¶ 27. Even so, we conclude that the county was not entitled to summary judgment in this case. Rather, we conclude that the Supreme Court's decision in Durn , supra , controls the outcome. In Durn , the plaintiff was traveling south on Highway 49 when he passed a MHP state trooper traveling north. Soon after the two passed, the trooper observed a different vehicle speeding southbound, and the trooper made a U-turn to pursue the speeding vehicle. As the trooper approached the plaintiff's truck from behind, he attempted to pass the plaintiff in the northbound lane. But just as he did, the plaintiff made a left turn, and the trooper's car crashed into the plaintiff's truck. See Durn , 861 So.2d at 993-94 (¶¶ 2-6).

¶ 28. On appeal in Durn , the Supreme Court concluded that the plaintiff "committed a misdemeanor traffic offense by making a left turn when it was not reasonably safe to do so" and thereby committed "a criminal offense." Id. at 996-97 (¶¶ 19, 23). Nonetheless, the Court distinguished Williams , stating that it could not "equate making a left turn with operating a vehicle with a .20% blood alcohol content." Id. at 997 (¶ 23). The Court reasoned that the trooper was pursuing a different vehicle, that the plaintiff's improper left turn "was merely fortuitous," and that the claim was not barred. Id. at 998 (¶ 23). The Court held that "[i]t would defy common sense and natural justice for us to hold that [the] alleged improper left turn constituted criminal activity which entitled the Department [of Public Safety] to immunity." Id. at (¶ 24). In so holding, the Court emphasized that the trooper "was traveling at a high rate of speed" and failed to use his siren when he attempted to pass the plaintiff. Id.

¶ 29. We question whether an immunity that the Legislature has defined by statute should be granted or denied based on the judiciary's views of "natural justice." However, our role as an intermediate appellate court makes it unnecessary for us to make such a value judgment in this appeal. We simply hold that the county was not entitled to summary judgment because the evidence in the record-viewed in the light most favorable to Irwin-Giles and granting her all favorable inferences-so closely parallels the facts of Durn that our Supreme Court's decision in Durn is controlling. As the circuit judge concluded, there is no evidence in the record that Lynda could have avoided the crash had she not been speeding. Based on the evidence presented, all we can say is that the Irwins' Buick and Deputy Smith's truck tragically collided on Highway 6 because of the precise speed at which each vehicle was traveling. Like the improper left turn in Durn , we conclude that this is the sort of "merely fortuitous" happenstance that does not bar recovery under section 11-46-9(1)(c). Therefore, the county is not entitled to summary judgment based on Lynda's speeding.

CONCLUSION

¶ 30. We hold that there is a genuine issue of material fact as to whether Deputy Smith's conduct constituted reckless disregard for the safety and well-being of others. In addition, we conclude Irwin-Giles's claims are not barred by Lynda's speeding because Lynda's speeding cannot be imputed to William and because Lynda's speeding was a "merely fortuitous" circumstance under Durn . Accordingly, we reverse the order granting summary judgment in favor of the county, and we remand the case for further proceedings consistent with this opinion.

¶ 31. REVERSED AND REMANDED.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITHOUT SEPARATE WRITTEN OPINION.

      The "black box" is the vehicle's airbag control module (ACM), which records data in the event of an airbag deployment and some non-deployment events. When an event occurs, the system "wakes up" in anticipation of the deployment of the airbags, and information is recorded from a few seconds prior to wake up.

      Irwin-Giles does not dispute that Deputy Smith was "engaged in the performance or execution of duties or activities relating to police ... protection." See Reynolds v. Wilkinson Cty. , 936 So.2d 395, 397 (¶¶ 6-7) (Miss. Ct. App. 2006) (holding that an officer driving a county vehicle on a work-related errand was engaged in police protection activities because the statute "does not require that a law enforcement officer be then engaged in direct action to apprehend a criminal"); Jim Fraiser, Recent Developments in Mississippi Tort Claims Act Law Pertaining to Notice of Claim and Exemptions to Immunity Issues: Substantial/Strict Compliance, Discretionary Acts, Police Protection and Dangerous Conditions , 76 Miss. L.J. 973, 994 (2007) ("Suffice it to say, this prong of the reckless disregard test is not difficult to meet, and, ironically, is often met by the plaintiff's act of pleading that the defendant acted in the course and scope of his duty as a police officer.").

      See, e.g. , Perry , 764 So.2d at 378-79 (¶ 25) ("[I]n order for the fact a victim is then engaged in criminal activity to bar recovery it must be shown that the criminal activity has some causal nexus to the wrongdoing of the tortfeasor. The statute is designed to protect law enforcement personnel from lawsuits arising out of the performance of their duties in law enforcement, with respect to the alleged victim.").

      The driver's blood-alcohol content was .073%. The legal limit for minors is .02%. Miss. Code Ann. § 63-11-30(3) (Rev. 2014). The driver also had marijuana in his system at the time of the crash.

      On appeal, Irwin-Giles concedes that it is possible that fault may be apportioned to Lynda even if the county is not completely immune from liability under section 11-46-9(1)(c). See Durn , 861 So.2d at 999 (¶¶ 30-33) (reversing and remanding for a determination of whether "comparative fault should be assigned to [the plaintiff], and, whether the award of damages should be reduced accordingly").


author: FAIR, J., FOR THE COURT:

text:
    Jimmy CULBERT, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00602-COA
    Court of Appeals of Mississippi.
    February 27, 2018 Rehearing Denied June 19, 2018
    ATTORNEY FOR APPELLANT: JIMMY CULBERT (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE
    BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ.
   FAIR, J., FOR THE COURT:

¶ 1. On September 10, 1997, Jimmy Culbert pled guilty to kidnaping and sexual battery. He was sentenced to six years for the kidnaping charge and thirty years for the sexual battery charge, to run consecutively. The record contains a copy of the transcript of the plea-qualification hearing. During the hearing, Culbert testified that his pleas were freely and voluntarily entered with a full awareness and understanding of his rights.

¶ 2. In 1999, he began filing petitions for relief from the conviction and sentence. His fifth petition for post-conviction relief (PCR) is now before the Court. We affirm its summary dismissal.

STANDARD OF REVIEW

¶ 3. "When reviewing a trial court's denial or dismissal of a motion for PCR, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review ... legal conclusions under a de novo standard of review." Chapman v. State , 167 So.3d 1170, 1172 (¶ 3) (Miss. 2015) (citation and quotation omitted). We will affirm a summary dismissal of a PCR motion if the movant fails to demonstrate "a claim procedurally alive substantially showing the denial of a state or federal right." Wilkerson v. State , 89 So.3d 610, 614 (¶ 7) (Miss. Ct. App. 2011).

DISCUSSION

¶ 4. Culbert claims that his sentence was illegal since he did not benefit from the amended statute that followed his crime but preceded his sentencing. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a motion for relief following a guilty plea is untimely unless filed within three years after entry of the judgment of conviction. Watts v. State , 97 So.3d 722, 725 (¶ 7) (Miss. Ct. App. 2012) ; see Miss. Code Ann. § 99-39-5(2) (Rev. 2015). The UPCCRA also bars PCR motions from our review if the movant has filed a previous PCR motion. Miss. Code Ann. § 99-39-23(6) (Rev 2015). Culbert filed his latest PCR motion nearly twenty years beyond the applicable three-year limitations period. This is also his fifth attempt for post-conviction relief. So his motion is obviously both time-barred and successive-writ barred unless he can show an exception to these procedural bars. See Bell v. State , 95 So.3d 760, 763 (¶ 10) (Miss. Ct. App. 2012) (citation omitted).

¶ 5. "[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Rowland v. State , 42 So.3d 503, 506 (¶ 9) (Miss. 2010). However, "the mere assertion of a constitutional right violation" does not trigger the exception. Wicker v. State , 16 So.3d 706, 708 (¶ 5) (Miss. Ct. App. 2009). "There must at least appear to be some basis for the truth of the claim before the limitation period will be waived." Ross v. State , 87 So.3d 1080, 1082 (¶ 8) (Miss. Ct. App. 2012) (quoting Chandler v. State , 44 So.3d 442, 444 (¶ 8) (Miss. Ct. App. 2010) ).

¶ 6. Culbert has failed to provide any legitimate reason that the successive-writ bar or time-bar should not apply, nor do we find any. Procedural bars notwithstanding, the trial judge correctly held that Daniels v. State , 742 So.2d 1140 (Miss. 1999), relied on by Culbert, was overruled by Wilson v. State , 194 So.3d 855 (Miss. 2016).

¶ 7. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      Daniels held that, when a statute is amended before sentencing and provides for a lesser penalty, the lesser penalty must be imposed. 742 So.2d at 1145 (¶ 17).


author: BARNES, J., FOR THE COURT:

text:
    Dean C. BOYD a/k/a Dean Boyd, Appellant v. STATE of Mississippi, Appellee
    NO. 2017-CP-00058-COA
    Court of Appeals of Mississippi.
    March 13, 2018 Rehearing Denied June 26, 2018
    ATTORNEY FOR APPELLANT: DEAN C. BOYD (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   BARNES, J., FOR THE COURT:

¶ 1. Dean C. Boyd was charged with statutory rape of a child under the age of fourteen in violation of Mississippi Code Annotated section 97-3-65(1)(b) (Rev. 2006). On April 26, 2011, Boyd pleaded guilty to the charge and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections. On March 27, 2012, Boyd filed a motion for post-conviction relief (PCR). The Leake County Circuit Court denied the motion, finding that Boyd's guilty plea was knowing and voluntary and that he had failed to demonstrate ineffectiveness of counsel.

¶ 2. A second PCR motion was filed on May 10, 2013, which was dismissed by the circuit court as a successive writ. Boyd appealed the dismissal of the motion to this Court. See Boyd v. State , 175 So.3d 59 (Miss. Ct. App. 2015). Finding Boyd had failed to provide "any new evidence, or cite[ ] an intervening decision, that would except his motion from the procedural bar," we affirmed the circuit court's decision. Id. at 62 (¶¶ 10, 13 ).

¶ 3. Boyd filed a third PCR motion on April 18, 2016. An amended motion was filed on December 22, 2016, which asserted: (1) there was no factual basis for his guilty plea; (2) the trial court failed to advise him of his right to confront witnesses and his right against self-incrimination; and (3) his counsel was ineffective. The circuit court dismissed Boyd's motion on December 29, 2016, finding it barred as a successive writ. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015).

¶ 4. Boyd now appeals, alleging several issues. While Boyd acknowledges that his third PCR motion is a successive writ and time-barred, he contends that his claims are excepted from the procedural bars. "[E]rrors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act]." Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010). "But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." White v. State , 59 So.3d 633, 636 (¶ 11) (Miss. Ct. App. 2011).

¶ 5. Upon review, we find Boyd has failed to raise any claim that would overcome the procedural bars, and we affirm the circuit court's dismissal of his PCR motion.

STANDARD OF REVIEW

¶ 6. A circuit court's dismissal of a PCR motion is reviewed for abuse of discretion. Birmingham v. State , 159 So.3d 597, 598 (¶ 4) (Miss. Ct. App. 2014) (citing Williams v. State, 110 So.3d 840, 842 (¶ 11) (Miss. Ct. App. 2013) ). "We will only reverse if the circuit court's decision was clearly erroneous." Id. "Questions of law are reviewed de novo." Id.

DISCUSSION

I. Whether Boyd's indictment was defective.

¶ 7. Boyd claims his constitutional rights were violated because his indictment failed to specify the date of the alleged conduct and, as a result, he had inadequate notice of the charge against him. This issue was directly addressed in our prior opinion. See Boyd , 175 So.3d at 61-62 (¶¶ 9-10) (finding "evidence to support the date in the indictment ... [and] this was evidence reasonably discoverable at the time of Boyd's plea hearing"). "Res judicata bars 'all issues that might have been (or could have been) raised and decided in the initial suit, plus all issues that were actually decided in the first cause of action.' " Mohead v. State, 158 So.3d 358, 360 (¶ 8) (Miss. Ct. App. 2014) (quoting Bosarge v. State , 141 So.3d 24, 26 (¶ 6) (Miss. Ct. App. 2014) ). "A person who requests post-conviction relief is obligated to place before the court all claims known to him and/or of which he should have had knowledge.... The failure to do so results in a loss of his claims for a second or successive petition." Salter v. State , 184 So.3d 944, 951 (¶ 24) (Miss. Ct. App. 2015) (citing Rochell v. State , 913 So.2d 993, 994 (¶ 6) (Miss. Ct. App. 2005) ).

¶ 8. Thus, Boyd's claim that his indictment was defective is procedurally barred from review. Procedural bar notwithstanding, "a guilty plea waives any claim to a defective indictment." Phillips v. State , 25 So.3d 404, 407 (¶ 6) (Miss. Ct. App. 2010) (quoting Harris v. State , 757 So.2d 195, 197 (¶ 9) (Miss. 2000) ).

II. Whether there was a factual basis for Boyd's guilty plea.

¶ 9. Boyd also contends there was no factual basis for his guilty plea. Admittedly, at Boyd's guilty-plea hearing, the State did not provide a recitation of the evidence that it was prepared to present. But as we concluded in our prior Boyd opinion:

When the circuit judge asked Boyd if he had intercourse with a child under the age of fourteen, Boyd answered affirmatively. Boyd admitted to all relevant facts, was apprised by the trial court of the consequences of his guilty plea, and pleaded guilty to the charge of statutory rape "of a child under the age of fourteen (14) years." Nothing in the record, nor in Boyd's PCR motion, suggests that his plea was not knowingly and voluntarily entered, or that the plea was otherwise invalid.

Boyd , 175 So.3d at 62 (¶ 11). Therefore, we find this claim without merit and subject to the procedural bars.

III. Whether the circuit court erred by failing to advise Boyd of his right to confront witnesses and his right against self-incrimination.

¶ 10. Boyd argues that the circuit court's failure to advise him of his right to confront witnesses and his right against self-incrimination was a violation of a fundamental constitutional right. "A knowing and voluntary guilty plea waives certain constitutional rights, among them, the privilege against self-incrimination, the right to confront and cross-examine the State's witnesses, the right to a jury trial, and the right to have the State prove each element of the offense beyond a reasonable doubt." Scurlock v. State , 147 So.3d 894, 896 (¶ 9) (Miss. Ct. App. 2014) (quoting Joiner v. State , 61 So.3d 156, 158 (¶ 7) (Miss. 2011) ). Although the circuit judge did not list every constitutional right Boyd was waiving by pleading guilty, he twice asked Boyd if he understood that he was entitled to a trial. Boyd indicated that he understood he would be giving up his right to a trial by jury and that he was not threatened or intimidated into entering his guilty plea.

¶ 11. Moreover, Boyd's notarized "Petition to Plead Guilty" contained a "Waiver of Constitutional Rights," which enumerated the various rights Boyd would be waiving by entering his guilty plea, including the right to be confronted by witnesses and to cross-examine those witnesses and the right not to testify. Boyd acknowledged that he was waiving those rights. See Hughes v. State , 106 So.3d 836, 840 (¶ 9) (Miss. Ct. App. 2012) (rejecting defendant's claim of an involuntary plea as his "sworn plea petition show[ed] that he was advised ... that he was waiving his right against self-incrimination"). Therefore, this issue is without merit and does not constitute an exception to the procedural bars.

IV. Whether Boyd was subject to ineffective assistance of counsel .

¶ 12. Referencing the alleged errors raised above, Boyd claims his defense counsel should have objected to the entry of his guilty plea. An ineffective-assistance-of-counsel claim requires a showing that: (1) counsel's performance was deficient and (2) the deficient performance resulted in prejudice to the defendant. Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). "In the context of his guilty plea, [the defendant] 'must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.' " Brown v. State , 187 So.3d 667, 671 (¶ 8) (Miss. Ct. App. 2016) (quoting Hannah v. State , 943 So.2d 20, 24 (¶ 7) (Miss. 2006) ). The supreme court has not held under Rowland that claims of ineffective assistance of counsel are exempt from procedural bars, but it has determined that:

under "extraordinary circumstances" (i.e., "lack of a direct appeal, lack of a court record, his attorney's alleged failure to obtain a transcript, lack of appellate review of the merits of his claims"), trial counsel's failure "to ensure the defendant could adequately appeal his conviction" excepted his PCR motion from the statutory time-bar.

Id. at 671 (¶ 7) (quoting Chapman v. State , 167 So.3d 1170, 1173-74 (¶¶ 10-13) (Miss. 2015) ).

¶ 13. We find nothing in the record to support Boyd's claim of ineffective assistance of counsel. As stated, there was a sufficient factual basis for Boyd's guilty plea. Furthermore, in entering his guilty plea, Boyd expressed to the circuit judge that he was satisfied with his counsel's performance. Finally, as mentioned in our prior opinion, Boyd brought a claim of ineffective assistance of counsel in his first PCR motion filed in 2012; therefore, the claim is barred by res judicata. See Boyd , 175 So.3d at 60 (¶ 2).

¶ 14. We find Boyd has failed to demonstrate any violation of a fundamental constitutional right, and his claims are procedurally barred. Accordingly, we affirm the circuit court's dismissal of Boyd's PCR motion.

¶ 15. AFFIRMED.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

      See Boyd v. State , 175 So.3d 59, 60 (¶ 2) (Miss. Ct. App. 2015) (discussing the factual and procedural history related to Boyd's appeal of his second PCR motion).

      This motion is not included in the appellate record, but the motion is listed in the docket entries. The trial court noted in its order that Boyd alleged his guilty plea was involuntary, his sentence was illegal, his indictment was defective, the evidence was insufficient to support the verdict, he was denied his Sixth Amendment right to effective assistance of counsel, and various other constitutional rights were violated.

      Mississippi Code Annotated section 99-39-5(2) (Rev. 2015) bars a PCR motion filed more than three years after the entry of a guilty plea.