Otis Braboy v. State of Mississippi;

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-00201-COA

OTIS BRABOY APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/13/2018
TRIAL JUDGE: HON. ALBERT B. SMITH III
COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: OTIS BRABOY (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 12/17/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Otis Braboy pleaded guilty to manslaughter and armed robbery. Appearing pro se,

he now appeals the denial of his motion for post-conviction collateral relief (PCR). Finding

no error, we affirm.

STATEMENT OF FACTS

¶2. In January 2006, Braboy and Emerson Osborne devised a plan to rob eighty-six-year-

old Lucy Jackson, who lived alone in Shelby, Mississippi. Using Jackson’s acquaintance

from church to get her to unlock and open her door, Braboy and Osborne invaded her house

and robbed her of around forty dollars. Jackson died from blunt-force trauma to her head.
¶3. All three individuals involved in the crime were initially indicted on one count of

capital murder with the underlying felony of robbery.1 Braboy’s capital-murder charge was

ultimately reduced to manslaughter and armed robbery. Braboy waived indictment and

arraignment, consenting to proceed on criminal information for these charges. The trial

court created separate cause numbers for each charge. The criminal information documents

stated Braboy, either acting individually, in concert, or aiding and abetting Osborne, killed

Jackson in the heat of passion using a bludgeon, or stick, while robbing her of thirty-five to

forty dollars.

¶4. In April 2009, Braboy pleaded guilty to the two separate charges of manslaughter and

armed robbery. The trial court sentenced Braboy to twenty years for the manslaughter

charge and fifteen years for the robbery charge, to be served consecutively in the custody of

the Mississippi Department of Corrections.

¶5. In November 2018, Braboy filed a PCR motion, claiming it was improper for the trial

court to impose consecutive sentences when the sentences arise from convictions involving

the same set of operative facts. Braboy requested either the sentences be served concurrently

or that one conviction and sentence be vacated.

¶6. The trial court, however, denied relief, noting that the cases Braboy relied upon were

decided before 1986, when the Mississippi Legislature enacted Mississippi Code Annotated

section 99-7-2, which allows for multi-count indictments. The statute, which has not been

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See Osborne v. State, 54 So. 3d 841, 843 (¶3) (Miss. 2011). Osborne went to trial,
was found guilty of capital murder, and was sentenced to life imprisonment without
eligibility for parole. Id. The third individual pleaded guilty to a lesser charge.

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amended since 1986, also states the trial court may impose sentences to run either

concurrently or consecutively to one another. Miss. Code Ann. § 99-7-2(5) (Rev. 2015).

Lastly, the trial court found Braboy’s PCR motion was time barred. Braboy appealed.

STANDARD OF REVIEW

¶7. “When reviewing a trial court’s decision to deny a petition for post-conviction relief,

[the appellate court] will not disturb the trial court’s factual findings unless they are found

to be clearly erroneous.” Bester v. State, 188 So. 3d 526, 528 (¶4) (Miss. 2016) (quoting

Twillie v. State, 892 So. 2d 187, 189 (¶6) (Miss. 2004)). Questions of law are reviewed de

novo. Id.

DISCUSSION

1. Time Bar

¶8. Mississippi Code Annotated section 99-39-5 (Rev. 2015) of the Uniform Post-

Conviction Collateral Relief Act provides that after a guilty plea, a PCR motion shall be

made within three years of the judgment of conviction. The trial court sentenced Braboy in

May 2009, and he filed his PCR motion in November 2018, over nine years after the entry

of judgment. As such, the trial court found Braboy’s motion time barred.

¶9. Braboy argues his motion is excepted from the procedural time-bar under Rowland

v. State, 98 So. 3d 1032 (Miss. 2012) (Rowland II), overruled on other grounds by Carson

v. State, 212 So. 3d 22, 34 (¶40) (Miss. 2017). Rowland II held that “a claim of illegal

sentence or denial of due process in sentencing . . . must be considered regardless of when

it is raised, because the State is without authority or right to impose a sentence illegally or

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without due process.” Id. at 1036 (¶6). Because Braboy raised these claims in his PCR

motion, we shall discuss their merits.

2. Sentence

¶10. Braboy claims his sentence was illegal because the trial court may not impose

consecutive sentences for convictions from two separate crimes that involve the same set of

operative facts. He raises four issues related to this claim: (1) the trial court erred in

“pyramiding” multiple punishments arising out of the same set of operative facts; (2) the trial

court improperly imposed a consecutive sentence; (3) counsel was ineffective for failing to

object to these errors; and (4) due process was violated because the trial court allowed

Braboy to plead guilty.

¶11. Braboy’s arguments are based on the fact he was “indicted in a single multi-count

indictment with a charge of murder and the underlying offense of armed robbery.” The State

responds that since Braboy failed to support his claim by making the indictment part of the

record, it must fail. However, this Court, on its own motion, ordered the record

supplemented with several documents, including the indictment. The original indictment

of January 18, 2006, though, was not included in the record supplement; however, Braboy

was ultimately not convicted under it. Three years after this initial indictment, Braboy

waived indictment and arraignment, and the State proceeded “on criminal information”

against him for the lesser charges of manslaughter and armed robbery.2 The trial court

2
At the plea hearing, the trial judge stated that Braboy was originally charged with
capital murder, which was reduced to manslaughter. See also Osborne, 54 So. 3d at 843
(¶3).

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created separate cause numbers for each crime. The “Criminal Information” documents for

each charge, included in the supplement to the record, were read into the record by the

prosecution at Braboy’s April 30, 2009 plea hearing. Accordingly, Braboy was not indicted

on a “single, multi-count indictment.”

¶12. However, even if Braboy had been charged by a multi-count indictment, it would not

have been improper. Braboy claims “multiple punishments growing out of the same set of

operative facts cannot be ‘pyramided,’” citing Thomas v. State, 474 So. 2d 604, 605 (Miss.

1985). However, Thomas and the other cases Braboy cites in support were decided before

the enactment of the Mississippi Code Annotated section 99-7-2 that became effective July

1, 1986, and allows for multi-count indictments. While Braboy insists that Thomas had not

been overruled by statute, he is incorrect.

¶13. Section 99-7-2 provides that “two or more offenses properly charged in separate

counts of a single indictment may be tried in a single proceeding where ‘the offenses are

based on the same act or transaction’ or ‘the offenses are based on two (2) or more acts or

transactions connected together or constituting parts of a common scheme or plan.’” Brown

v. State, 232 So. 3d 804, 808 (¶11) (Miss. Ct. App. 2017) (quoting Miss. Code Ann. § 99-7-

2(1); Rushing v. State, 911 So. 2d 526, 532 (¶13) (Miss. 2005)). In 1988, the Mississippi

Supreme Court explained that while historically the court had “disapproved of a single

multiple count indictment,” the Legislature made multi-count indictments unobjectionable

“as a matter of state policy” with the enactment of section 99-7-2. Woodward v. State, 533

So. 2d 418, 422 (Miss. 1988). Section 99-7-2(5) further provides that the trial court may

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“impose . . . sentences to run either concurrently with or consecutively to each other . . . .”

Therefore, Braboy’s claim of an illegal sentence fails.

¶14. Braboy’s other arguments related to ineffective assistance of counsel and due process

based upon the sentencing and plea issues fail as well. The trial court did not err in

sentencing Braboy to serve consecutive sentences, and his counsel was not ineffective for

failure to object to consecutive sentencing. Finally, there was no due-process violation

during Braboy’s plea proceedings. His charges, guilty pleas, and sentences were all proper.

¶15. AFFIRMED.

CARLTON AND J.WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL,
McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.

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