Vernon Brown, Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2014-CP-01338-COA

VERNON BROWN, JR. A/K/A VERNON BROWN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/03/2014
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: VERNON BROWN JR. (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POSTCONVICTION RELIEF
DISMISSED
DISPOSITION: AFFIRMED - 04/12/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.

JAMES, J., FOR THE COURT:

¶1. Vernon Brown Jr. (pro se) appeals from the judgment of the Lowndes County Circuit

Court dismissing his motion for postconviction (PCR) relief. Finding no error, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2. On October 27, 2011, Brown was indicted in cause number 2011-0406 for two counts

of possession of a controlled substance, specifically hydrocodone and alprazolam, with the

intent to distribute or transfer, in violation of Mississippi Code Annotated section 41-29-139

(Supp. 2015). On January 25, 2012, Brown was indicted in cause number 2012-0030 for
seven counts of the sale or transfer of narcotics, specifically hydrocodone, alprazolam,

oxycodone, and cocaine, in violation of section 41-29-139. That same day, Brown was

indicted in cause number 2012-0031 for two counts of possession of a controlled substance,

specifically oxycodone and cocaine, in violation of section 41-29-139.

¶3. As part of the plea agreement reached with Brown, the prosecution agreed to not seek

sentence enhancements as a habitual offender. Brown filed petitions to enter guilty pleas on

all eleven counts in each cause number, and the trial court held a plea hearing on May 29,

2012. Brown pled guilty to all eleven counts. The trial court found that Brown was

competent to understand the nature of the charges against him; the nature and consequences

of his pleas of guilty; and the maximum and minimum sentences in each case. The trial court

also found that Brown’s guilty plea was freely, voluntarily, knowingly, and intelligently

entered. The prosecutor provided a sufficient factual basis for each of the eleven total

counts.

¶4. In cause number 2011-0406, Brown was sentenced to five years under count one, and

five years under count two, with the sentences to be served concurrently. In cause number

2012-0030, Brown was sentenced to eight years under each of the seven counts, with the

sentences to be served consecutively, and five years of postrelease supervision. In cause

number 2012-0031, Brown was sentenced to eight years under count one, and two years

under count two, with the sentences to be served consecutively. The total sentences in the

separate cause numbers were ordered to be served consecutively, for a total of seventy-one

years in the custody of the Mississippi Department of Corrections (MDOC). The trial court

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also fined Brown $1,000 for each of the eleven counts.

¶5. On August 4, 2014, Brown filed a PCR motion. Brown, who was fifty-seven years

old at the time of his sentencing, argued that the combined total sentence of seventy-one

years was excessive because it exceeded his life expectancy, and the trial court erred because

it did not consider his actuarial life expectancy. The trial court dismissed the PCR motion

on September 3, 2014, finding “that it properly consulted the applicable minimum and

maximum sentences allowed when sentencing [Brown] during his agreed guilty plea.” The

trial court also found that “[c]onsultation of the actuarial tables was not needed for the drug

charges.” Finding no error, we affirm.

STANDARD OF REVIEW

¶6. In reviewing a trial court’s decision to dismiss a PCR motion, an appellate court will

not disturb the trial court’s factual findings unless they are clearly erroneous. Rowland v.

State, 42 So. 3d 503, 506 (¶8) (Miss. 2010). We review questions of law de novo. Id.

DISCUSSION

¶7. The sole issue on appeal is whether the trial court erred by sentencing Brown to a

combined number of years that exceeded his life expectancy and not consulting the actuarial

life expectancy.

¶8. “[S]entencing lies within the sole discretion of the trial court and, generally, will not

be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.”

Mosley v. State, 104 So. 3d 839, 841 (¶10) (Miss. 2012) (quoting Hoops v. State, 681 So. 2d

521, 538 (Miss. 1996)). Moreover, the Mississippi Supreme Court “has held that the total

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of the sentences may exceed the actuarial life expectancy of the defendant.” Cannon v. State,

919 So. 2d 913, 916-17 (¶10) (Miss. 2005) (citing Erwin v. State, 557 So. 2d 799, 803 (Miss.

1990)). The court has also stated that “drug offenses are very serious, and the public has

expressed grave concern with the drug problem, to which the legislature has responded in

kind with stiff penalties for drug offenders.” Mosley, 104 So. 3d at 843 (¶15) (citing Stromas

v. State, 618 So. 2d 116, 123 (Miss. 1993)).

¶9. In Mosely, the court held that the trial court did not abuse its discretion in sentencing

the defendant to 126 years in the custody of the MDOC, without the benefit of probation or

early release. Id. The court found that “although the term [the defendant] received [was]

extremely lengthy, it [did] not exceed the maximum sentence allowed by statute.” Id. Here,

each sentence imposed on Brown under each count did not exceed the maximum term

allowed by section 41-29-139.

¶10. In Hogan v. State, 832 So. 2d 1246, 1247 (¶¶1, 4) (Miss. Ct. App. 2002), the

defendant was convicted of the sale and delivery of a controlled substance in violation of

section 41-29-139. The defendant was sentenced to thirty years, with fifteen years

suspended, to run consecutively to time being served in another cause. Id. at 1246 (¶3). The

defendant argued that her sentence was illegal because it was tantamount to a life sentence.

Id. at 1246-47 (¶3). Although her combined sentences equaled sixty years, which exceeded

her life expectancy by thirty years at the time of her sentencing, this Court affirmed the

sentence. Id. at 1247 (¶¶6-7).

¶11. Similarly, in Cannon, the court found that the trial court did not have to consider the

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defendant’s life expectancy for the conviction of unlawful delivery of methamphetamine and

unlawful possession of more than thirty grams of methamphetamine with intent to distribute.

Cannon, 919 So. 2d at 917 (¶11). The court explained: “The drug crimes for which [the

defendant] was charged and convicted contain no limiting sentencing language similar to the

armed robbery statute.” Id. at (¶12).

¶12. The trial court was correct in that it did not have to consider Brown’s life expectancy

for his conviction of the eleven counts under section 41-29-139. Because the total of the

sentences may exceed the actuarial life expectancy of the defendant, the trial court did not

err when sentencing Brown. See Cannon, 919 So. 2d at 916-17 (¶10); Hogan, 832 So. 2d

at 1247 (¶6). Accordingly, we affirm the trial court’s dismissal of Brown’s PCR motion.

¶13. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR
AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.

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