CourtListener 4431480

Texto completo

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CP-00542-COA

VINCENT YOUNG A/K/A VINCENT EDWARD APPELLANT
YOUNG A/K/A VINCENT E. YOUNG

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/05/2016
TRIAL JUDGE: HON. JOHN KELLY LUTHER
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: VINCENT YOUNG (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOSEPH SCOTT HEMLEBEN
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED: 10/03/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

EN BANC.

FAIR, J., FOR THE COURT:

¶1. In 1990, Vincent Young pled guilty to armed robbery. In exchange for joining the

State’s recommendation that he receive a life sentence, the prosecution dropped an

aggravated assault count and agreed not to prosecute Young as a habitual offender on the

armed robbery charge. The circuit court followed the agreed recommendation and sentenced

Young to life imprisonment under Mississippi Code Annotated section 97-3-79.

¶2. Now, more than twenty-five years later, Young has filed a motion for post-conviction

relief, claiming that his sentence was illegal because under the prevailing interpretation of

the statute at the time of his offense, only a jury could sentence him to life imprisonment for
armed robbery. The Mississippi Supreme Court recently abandoned that interpretation of the

statute’s operative language, holding that statutes which permit the trial court to sentence a

defendant to “any term” of incarceration include life sentences. Bester v. State, 188 So. 3d

526, 529-30 (¶¶7-10) (Miss. 2016). The circuit court dismissed Young’s petition, finding it

both time-barred and without merit under Bester. On appeal, Young acknowledges that his

sentence is legal in light of Bester, but he contends that applying Bester’s holding to him

amounts to an ex post facto law. We find that Young waived his right to challenge his

sentence by joining the State’s recommendation. We also conclude that Young’s sentence

was legal under Bester and that Bester did not violate the Ex Post Facto Clauses of the

Mississippi and United States Constitutions. We affirm the circuit court’s dismissal of

Young’s PCR motion.

STANDARD OF REVIEW

¶3. The circuit court may summarily dismiss a PCR petition “[i]f it plainly appears from

the face of the motion, any annexed exhibits and the prior proceedings in the case that the

movant is not entitled to any relief[.]” Miss. Code Ann. § 99-39-11(2) (Rev. 2007). “On

appeal, this Court will affirm the summary dismissal of a PCR [petition] if the petitioner has

failed to demonstrate ‘a claim procedurally alive substantially showing the denial of a state

or federal right.’” Flowers v. State, 978 So. 2d 1281, 1283 (¶5) (Miss. Ct. App. 2008)

(quoting Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999)). We review questions of

law de novo. Johnson v. State, 962 So. 2d 87, 89 (¶8) (Miss. Ct. App. 2007).

2
DISCUSSION

¶4. Young argues that his claim is not subject to the time-bar because his fundamental

constitutional rights were violated by an illegal sentence. “[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, 506 (¶9) (Miss. 2010). But mere

assertions of constitutional-rights violations do not suffice to overcome the procedural bar.

Chandler v. State, 44 So. 3d 442, 444 (¶8) (Miss. Ct. App. 2010). Rather, “there must at

least appear to be some basis for the truth of the claim before the [procedural bar] will be

waived.” Id.

¶5. Young acknowledges that his sentence is legal today in light of Bester v. State, 188

So. 3d 526, 529-30 (¶¶7-10) (Miss. 2016), where the Mississippi Supreme Court held that

statutes that permit the trial court to sentence a defendant to “any term” include sentences of

life imprisonment. Young argues, however, that at the time he was sentenced, the controlling

precedent of the Mississippi Supreme Court held that only a jury could pronounce a life

sentence for armed robbery. See, e.g., Stewart v. State, 372 So. 2d 257, 258 (Miss. 1979).

¶6. First of all, it is apparent that Young has waived any right to challenge the sentence

he received. Young voluntarily agreed to his life sentence as part of his plea bargain. The

circuit court’s order accepting Young’s plea and imposing his sentence explained that the

State “agreed to reduce that portion of the indictment charging [Young] as a habitual

offender in return for the acceptance by [Young] of a sentence of life imprisonment, as a

3
non-habitual, for the offense of [armed] robbery.” The parties to the plea bargain even

agreed that if Young’s life sentence is ever set aside, the State’s “agreement to reduce the

habitual offender portion of the indictment will have been abrogated and the said habitual

offender portion of the indictment will be restored . . . upon the request of the State.” Young

voluntarily accepted a life sentence with the possibility of parole1 in order to avoid a life

sentence without the possibility of parole as a violent habitual offender. And the circuit

judge who accepted Young’s plea found that it was “freely, voluntarily, knowingly, and

intelligently made.”

¶7. In this Court’s opinion in Bester, on materially indistinguishable facts, we held that

the defendant waived any objection to the legality of his life sentence by voluntarily agreeing

to the sentence as part of his plea bargain. Bester v. State, 188 So. 3d 576 (Miss. Ct. App.

2014), aff’d on other grounds, 188 So. 3d 526 (Miss. 2016). We reasoned that “Bester’s

sentence [was] not an illegal sentence, as life imprisonment is a sentence permitted as a

lawful punishment for forcible rape, albeit when imposed by a jury.” Id. at 578 (¶9).

Therefore, there was “no public-policy concern that Bester received a sentence not authorized

by statute.” Id. We further reasoned that “[b]y pleading guilty and negotiating a ‘mutually

acceptable’ plea agreement, Bester . . . waived his right to a trial by a jury of his peers, and

also the right for the jury to impose his sentence.” Id. at 580 (¶14). We held that Bester

1
A prisoner convicted of armed robbery prior to October 1, 1994, is eligible for
parole after he has served ten years. Miss. Code Ann. § 47-7-3(c)(i) (Rev. 2015).

4
could not, years later, “trifle with the circuit court and effectively renege on his plea

agreement after he freely and voluntarily waived his right to have a jury impaneled for his

trial and sentencing.” Id. at (¶15).

¶8. The supreme court affirmed on other grounds in Bester, but it did not disapprove of

this Court’s opinion. This Court’s opinion remains good law, and its reasoning applies to the

facts of this case. The record is clear that Young voluntarily agreed to a life sentence in

order to avoid the risk of a sentence of life without the possibility of parole. By doing so, he

waived any right to jury sentencing or to claim that his sentence is “illegal.”

¶9. Moreover, as the supreme court held in Bester, Young’s sentence was legal.2 Young

himself concedes that Bester controls; he just disputes the constitutionality of its application

to him. We shall address that issue in turn, but since this Court does not unanimously agree

that Bester controls, we will explain our reasons for finding it to be controlling precedent in

this case. The Mississippi Supreme Court held in Bester that the language of the statute,

which provided that the court could sentence the defendant to “any term” in the state

penitentiary, meant what it appeared to say – the court could sentence the defendant to any

term, including life imprisonment, even if no jury had chosen that punishment. Bester v.

2
Although we address this point in the alternative, as this Court routinely does in
post-conviction cases, our alternative holding on this point is not dicta. “[W]here a decision
rests on two or more grounds, none can be relegated to the category of obiter dictum.”
Woods v. Interstate Realty Co., 337 U.S. 535, 537 (1949); see also In re Hearn, 376 F.3d
447, 453-54 n.5 (5th Cir. 2004) (“It is well-established that alternative holdings of this Court
are binding on future panels.”).

5
State, 188 So. 3d 526, 529-30 (¶¶7-10) (Miss. 2016). The problem, according to the separate

opinion, is that Bester concerned the rape statute, while today’s case concerns the armed

robbery statute. The separate opinion reasons that even though the operative language of the

armed robbery statute and the operative language of the rape statute are identical, this Court

lacks the authority to apply the holding in Bester because the supreme court did not expressly

overrule any of its prior decisions addressing the armed robbery statute.

¶10. We certainly agree with the separate opinion that this Court, as an intermediate

appellate court, lacks the authority to overrule decisions of the Mississippi Supreme Court.

Nor do we claim the authority to ignore precedent because this Court believes the supreme

court would rule differently if it were to decide the case anew. We find Bester controlling

because, although it only expressly overruled rape cases, the supreme court’s former

interpretation of the armed robbery statute was expressly derived from a rape case that was

directly overruled by Bester. The holding in Bester was not premised on anything unique to

the rape statute. Instead, the court spoke to the construction of specific statutory language

– language that has direct application to today’s case because it is also used in the armed

robbery statute. The supreme court in Bester noted the “any term” language of the rape

statute and held:

“Any term” includes life imprisonment. “Our law has long provided that the
imposition of sentence following a criminal conviction is a matter within the
discretion of the Circuit Court, subject only to statutory and constitutional
limitations.” Jackson v. State, 551 So. 2d 132, 149 (Miss. 1989) (emphasis
added). Bester’s sentence violates neither. And “[s]o long as these are not
offended, we rarely interfere.” Id. As such, Bester’s sentence is not illegal.

6
Bester, 188 So. 3d at 529 (¶6). The operative language of the rape statute and the armed

robbery statute is identical. The rape statute (Mississippi Code Annotated section 97-3-

65(2)) read at the relevant time:

[U]pon conviction, [the defendant] shall be imprisoned for life in the State
Penitentiary if the jury by its verdict so prescribes; and in cases where the jury
fails to fix the penalty at life imprisonment the court shall fix the penalty at
imprisonment in the State Penitentiary for any term as the court, in its
discretion, may determine.

The armed robbery statute at issue in today’s case, Mississippi Code Annotated section 97-3-

79 (Rev. 2014) (which has not been amended since Young’s offense) reads:

[U]pon conviction, [the defendant] shall be imprisoned for life in the state
penitentiary if the penalty is so fixed by the jury; and in cases where the jury
fails to fix the penalty at imprisonment for life in the state penitentiary the
court shall fix the penalty at imprisonment in the state penitentiary for any term
not less than three (3) years.

The supreme court held in Bester that “any term” includes life sentences. Bester, 188 So. 3d

at 529 (¶6). We cannot fairly distinguish that holding simply because Bester was a rape case

and today’s case in an armed robbery case.

¶11. Furthermore, this Court has already addressed this issue, last year, and we concluded

that Bester applies to armed robbery cases. In Hayes v. State, 203 So. 3d 1144, 1146 (¶¶6-7)

(Miss. Ct. App. 2016), a post-conviction petitioner argued on appeal that his sentence was

illegal because it exceeded his life expectancy. He based his argument on Stewart v. State,

372 So. 2d 257 (Miss. 1979), which was an armed robbery case applying the pre-Bester

rationale to find a sentence illegal for exceeding the defendant’s life expectancy. This Court

7
noted that Stewart was the “progeny” of Lee v. State, 322 So. 2d 751 (Miss. 1975), a rape

case, and thus had been overruled by Bester when it expressly overruled Lee. See Hayes, 203

So. 3d at 1146 (¶¶6-7). This Court referred to Stewart (the armed robbery case) as no longer

being “good law.” Hayes, 203 So. 3d at 1146 (¶¶6-7).

¶12. The supreme court itself has also repeatedly held or observed that the rape and armed

robbery statutes, because they employ identical operative language, are inexorably linked.

In Stewart, the first armed robbery case employing the old interpretation of “any term,” the

supreme court referred to Lee, a rape case, as a “conflicting decision” to its prior armed

robbery precedent. Stewart, 372 So. 2d at 258. The Stewart court then simply applied its

holding in Lee, noting that it was the “sounder rule.” Id. at 259.

¶13. In 2014, Bester was previewed in separate opinions in Hampton v. State, 148 So. 3d

992 (Miss. 2014), and Foster v. State, 148 So. 3d 1012 (Miss. 2014), both of which

concerned the armed robbery statute and were handed down the same day. Justice Coleman

authored concurring opinions in both cases, which were joined in part by three other justices.

He offered the same reasons for overruling the prior interpretation of the “any term”

language that the court later adopted in Bester. Justice Coleman also noted that the rape

statute had the same relevant language, but its code section had been amended by the

Legislature in the years since the decision in Lee in 1975, while the armed robbery statute had

not been amended since Stewart in 1979. Thus, the only conceivable reason to distinguish

between Stewart and Lee cuts toward upholding Lee based on ratification by the Legislature

8
– but it was Lee the supreme court expressly overruled in Bester.

¶14. The dissenters in Bester also recognized that the same standard was at issue in both

rape and armed robbery cases. Justice Kitchens quoted Justice Chandler’s dissent in

Hampton describing Stewart and Lee as establishing “the standard” that had “been

consistently applied . . . to both armed robbery and forcible rape statutes.” See Bester, 188

So. 3d at 531 (¶17) (Kitchens, J., dissenting) (quoting Hampton, 148 So. 3d at 1010-11 (¶53)

(Chandler, J., dissenting)). Justice Chandler’s dissent in Hampton had further observed that

“[t]he sentencing statute for forcible rape uses substantially identical language, and our case

law consistently has applied both statutes in an identical manner.” Hampton, 148 So. 3d at

1010-11 (¶52).

¶15. Thus, we reaffirm our prior holding in Hayes – Bester overruled Stewart when it

overruled Lee. Stewart was explicitly based on Lee, the relevant statutory language is

identical, and the statutes have always been treated the same way by the supreme court. See

Hayes, 203 So. 3d at 1146 (¶¶6-7).

¶16. Finally, we turn to Young’s claim that a change in the interpretation of the statute

amounts to the imposition of an ex post facto law when applied to him, since Bester was

handed down long after he committed the offense. Young contends that the relevant standard

is an absolute one, outlined in Collins v. Youngblood, 497 U.S. 37, 50 (1990) – that Bester

“[made] more burdensome the punishment for a crime, after its commission.” But what the

United States Supreme Court actually held is that the Ex Post Facto Clause prohibits “any

9
statute . . . which makes more burdensome the punishment for a crime, after its commission,

after its commission.” Id. (quoting Beazell v. Ohio, 269 U.S. 167, 169 (1925)) (emphasis

added). Bester was a judicial decision, not the enactment of a statute. The Supreme Court

has held that judicial decisions are not subject to ex post facto challenges. See Rogers v.

Tennessee, 532 U.S. 451, 459-60 (2001). Thus, Bester’s contention is without merit.

¶17. A challenge, if it were to be made at all, must be under the Due Process Clause. The

relevant test is different and much more lenient – the judicial decision can be applied

retroactively unless it is “unexpected and indefensible by reference to the law which had been

expressed prior to the conduct in issue.” Id. at 466. But this issue has not been briefed or

argued and is therefore barred on appeal. See Gilmer v. State, 955 So. 2d 829, 837 (¶29)

(Miss. 2007). We do not find it barred because Young cited the wrong constitutional clauses,

but because the due process question is one of first impression and it has not been briefed or

argued on appeal by either party. The fault lies with Young, who, as the appellant, was

required to raise the issue and meaningfully support his assignments of error with “the

reasons for those contentions, with citations to the authorities, statutes, and parts of the

record relied on.’” Hill v. State, 215 So. 3d 518, 524 (¶20) (Miss. Ct. App. 2017) (quoting

M.R.A.P. 28(a)(7)). “While pro se litigants are afforded some leniency, they must be held

to substantially the same standards of litigation conduct as members of the bar.” Id. (quoting

Sumrell v. State, 972 So. 2d 572, 574 (¶6) (Miss. 2008)).

¶18. Young’s challenge to Bester as an ex post facto law is without merit, and we will not

10
consider the potential due process issue because his total failure to address it bars it from

consideration on appeal.

¶19. AFFIRMED.

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

WILSON, J., CONCURRING IN PART AND DISSENTING IN PART:

¶20. The majority denies Young’s claim on three grounds: (A) by virtue of his voluntary,

negotiated plea agreement, Young waived his present challenge to the legality of his life

sentence, ante at (¶¶6-8); (B) the Ex Post Facto Clauses of the State and Federal

Constitutions apply to legislative acts, not judicial decisions, id. at (¶16); and (C) Young

waived any due process challenge to the retroactive application of Bester v. State, 188 So.

3d 526 (Miss. 2016), because he failed to brief that issue on appeal, id. at (¶¶17-18).

¶21. I concur in the result and in proposition (A)—that holding is dispositive, and the

opinion could end there. Proposition (B) is a correct statement of law. I have doubts about

proposition (C), but I would not write separately just to address that issue of waiver.

¶22. Rather, I write separately to address the majority’s extended digression on whether

Bester, a case interpreting the forcible rape statute, implicitly overruled Stewart v. State, 372

So. 2d 257 (Miss. 1979), a precedent interpreting the armed robbery statute. See ante at (¶¶9-

11
15). This digression is dicta,3 as it is not necessary to any of the “grounds” on which the

majority’s “decision rests.” Ante at n.2. After arguing at length that Bester overruled

Stewart, the majority renders the entire issue moot by declaring that Young has waived any

viable objection to the retroactive application of Bester. Ante at (¶¶16-18). If Young waived

that issue, then it simply does not matter whether Bester overruled Stewart.4

¶23. Ordinarily, I would not write separately just to respond to dicta. I do so here only

because the dicta is inconsistent with this Court’s obligation to continue to follow directly

controlling Supreme Court precedent.

¶24. I agree with the majority that if our Supreme Court extends Bester’s reasoning to the

armed robbery statute, then a circuit court will have the authority to sentence a defendant

convicted of armed robbery to life imprisonment without a jury recommendation. The armed

robbery statute provides that “in cases where the jury fails to fix the penalty at imprisonment

for life in the state penitentiary the court shall fix the penalty at imprisonment in the state

penitentiary for any term not less than three (3) years.” Miss. Code Ann. § 97-3-79 (Rev.

2014) (emphasis added). Interpreting the similarly worded forcible rape statute in Bester, the

Supreme Court held: “‘Any term’ includes life imprisonment.” Bester, 188 So. 3d at 529

3
“Dicta are statements ‘not necessary to the court’s ruling.’” Smith v. Normand
Children Diversified Class Tr., 122 So. 3d 1234, 1237 (¶5) (Miss. Ct. App. 2013) (quoting
McKibben v. City of Jackson, 193 So. 2d 741, 745 (Miss. 1967)).
4
The majority also states that it addresses the issue because “this Court does not
unanimously agree that Bester controls.” Ante at (¶9). This is circular. The disagreement
would not arise, and this opinion would not exist, if the majority opinion did not raise and
address the issue.

12
(¶6). Therefore, the Court held that the statute permitted a judge to impose a life sentence

without a jury recommendation. Id. I agree with the majority that there is no material

difference between the relevant language in the forcible rape statute and the armed robbery

statute; however, since its decision in Bester, the Supreme Court has not revisited the proper

interpretation of the armed robbery statute.

¶25. Our problem, as an intermediate appellate court, is that directly controlling Supreme

Court precedent holds that the armed robbery statute does not permit the sentencing judge

to impose a life sentence without a jury recommendation. See Stewart, 372 So. 2d at 259.

In Stewart, the Supreme Court held that unless a jury first determines that the defendant

should be sentenced to life imprisonment, the judge must sentence the defendant to “a

definite term” of years “reasonably expected to be less than life.” Id. The Supreme Court

has never overruled Stewart, and this Court lacks authority to do so.

¶26. Bester does not overrule Stewart. Indeed, the concise majority opinion in Bester

focused solely on the forcible rape statute and did not even mention Stewart or the armed

robbery statute. See Bester, 188 So. 3d at 527-30 (¶¶1-10). Only a dissent briefly referenced

Stewart. See id. at 531 (¶17) (Kitchens, J., dissenting).

¶27. Thus, while Bester’s reasoning signals that the Supreme Court may or is likely to

overrule Stewart in the future, that is no basis for this Court to declare that Stewart has

already been overruled. “This Court, sitting as an intermediate appellate court, is bound by

established precedent as set out by the Mississippi Supreme Court and we do not have the

13
authority to overrule the decisions of that [C]ourt.” Bevis v. Linkous Constr. Co., 856 So. 2d

535, 541 (¶18) (Miss. Ct. App. 2003). As the United States Supreme Court has instructed

the federal courts of appeals, “If a precedent of [the Supreme] Court has direct application

in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of

Appeals should follow the case which directly controls, leaving to [the Supreme] Court the

prerogative of overruling its own decisions.” Rodriguez de Quijas v. Shearson/Am. Exp. Inc.,

490 U.S. 477, 484 (1989). An intermediate appellate court may not, “on its own authority,

. . . take[] the step of renouncing” precedent of a higher court. Id.

¶28. The majority notes that this Court has “referred to Stewart . . . as no longer being

‘good law.’” Ante at (¶11) (quoting Hayes v. State, 203 So. 3d 1144, 1146 (¶7) (Miss. Ct.

App. 2016)). However, Hayes addressed a sentence for child exploitation that was imposed

under a materially dissimilar statute—a statute that specifies a maximum term of years. In

Hayes, we expressly recognized that Stewart’s holding “did not apply to sentencing statutes

that designate a specific maximum term of years.” Hayes, 203 So. 3d at 1146 (¶7). Given

that Stewart simply “did not apply” in Hayes, our commentary that Stewart was no longer

“good law” was dicta.

¶29. The majority also notes that Justice Coleman has argued in two specially concurring

opinions that Stewart should be overruled.5 However, those opinions were “joined in part”

5
Foster v. State, 148 So. 3d 1012, 1020 (¶26) (Miss. 2014) (Coleman, J., specially
concurring); Hampton v. State, 148 So. 3d 992, 1005 (¶36) (Miss. 2014) (Coleman, J.,
specially concurring).

14
by only three other justices, two of whom have since retired from the Court. Those special

concurrences are not precedent and, therefore, cannot overrule precedent.

¶30. Moreover, although Justice Dickinson joined Justice Coleman’s opinions in part, he

also wrote separately to state that “due-process considerations” would preclude retroactive

application of any decision overruling Stewart—i.e., that Stewart’s interpretation of the

statute would continue to govern in a case such as this one.6 Indeed, Justice Coleman himself

acknowledged that “the retroactive application of any holding overruling Stewart” would

raise due process “concerns.”7 He did not address that issue precisely because he recognized

“the fact that a majority of the Court disagree[d] with him and wishe[d] to uphold Stewart.”8

Thus, not even one justice in Foster or Hampton stated that Stewart should be overruled and

that its overruling should be applied retroactively in a case such as this. Only one thing is

clear from the various opinions in Foster and Hampton: a majority of the Court was

unwilling to overrule Stewart.

¶31. Overruling Stewart would also require the Supreme Court to consider the principle

of stare decisis, which is sometimes said to be “particularly applicable to cases involving the

6
Foster, 148 So. 3d at 1025-26 (¶39) (Dickinson, P.J., dissenting); accord Hampton,
148 So. 3d at 1006 (¶37) (Dickinson, P.J., dissenting).
7
Foster, 148 So. 3d at 1025 (¶37) (Coleman, J., specially concurring); Hampton, 148
So. 3d at 1005 (¶35) (Coleman, J., specially concurring).
8
Id. In Bester, the Court requested briefing from an amicus curiae on a similar issue
but then did not mention the issue in its opinion. See Bester, 188 So. 3d at 536 n.10 (King,
J., dissenting). Young raises the retroactivity issue in his brief in this appeal.

15
construction of statutes.” Land Comm’r v. Hutton, 307 So. 2d 415, 421 (Miss. 1974). That

remains a decision for the Supreme Court, not this Court.

¶32. On behalf of the State, the Attorney General “recognizes that . . . this Court . . . cannot

expressly overrule Stewart.” The State raises this issue—whether the armed robbery statute

permits a life sentence without a jury recommendation—only to preserve it “for certiorari

review, should such a review be necessary.” The State’s primary argument is that this Court

should affirm because Young waived any challenge to his life sentence when he accepted the

sentence as part of a voluntary, negotiated plea agreement. Thus, the State also recognizes

that only the Supreme Court can overrule Stewart.9

¶33. Following its discussion of Bester and Stewart, the majority finds that Young’s

retroactivity claim is “barred” for a second reason: He cites the wrong constitutional clauses.

Young mistakenly relies on the Ex Post Facto Clauses of the State and Federal Constitutions,

which govern the retroactive application of legislative acts, rather than the “limitations on

ex post facto judicial decision making . . . inherent in the notion of due process.” Rogers v.

Tennessee, 532 U.S. 451, 456 (2000) (emphasis added); ante at (¶¶16-18). In other words,

the substance of Young’s claim is clear, but he relies on the wrong authority, so the claim is

barred. This seems strict for a pro se prisoner who, on his first motion for post-conviction

9
While a concession by the Attorney General is not binding on this Court, see
McCollum v. State, 186 So. 3d 948, 950 n.7 (Miss. Ct. App. 2016), it is at least as
noteworthy as a concession of a pro se litigant. See ante at (¶9) (noting that “Young himself
concedes that Bester controls”).

16
relief, filed a concise, legible, and intelligible brief that presents only one claim.10 But if

Young’s claim really is barred for two different reasons, that just makes the majority’s

extended discussion of Bester and Stewart all the more unnecessary.

¶34. In summary, I concur in the holding in paragraph eight of the majority opinion. I

respectfully dissent from the dicta that follows because it is inconsistent with this Court’s

obligation to follow directly controlling Mississippi Supreme Court precedent.

GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.

10
See, e.g., Chapman v. State, 167 So. 3d 1170, 1172 (¶7) (Miss. 2015) (“[A] pro se
prisoner’s meritorious claims may not be ignored because of inartful drafting.”); cf. Slayton
v. Willingham, 726 F.2d 631, 634 n.7 (10th Cir. 1984) (“A pro se litigant’s mere citation of
the wrong constitutional amendment does not preclude his cause of action so long as the
facts he alleges state a claim under an obviously applicable constitutional provision.”).

FAIR, J., FOR THE COURT:

¶ 1. In 1990, Vincent Young pled guilty to armed robbery. In exchange for joining the State's recommendation that he receive a life sentence, the prosecution dropped an aggravated assault count and agreed not to prosecute Young as a habitual offender on the armed robbery charge. The circuit court followed the agreed recommendation
and sentenced Young to life imprisonment under Mississippi Code Annotated section 97-3-79.

¶ 2. Now, more than twenty-five years later, Young has filed a motion for post-conviction relief, claiming that his sentence was illegal because under the prevailing interpretation of the statute at the time of his offense, only a jury could sentence him to life imprisonment for armed robbery. The Mississippi Supreme Court recently abandoned that interpretation of the statute's operative language, holding that statutes which permit the trial court to sentence a defendant to "any term" of incarceration include life sentences.

Bester v. State

188 So.3d 526

, 529-30 (¶¶ 7-10) (Miss. 2016). The circuit court dismissed Young's petition, finding it both time-barred and without merit under

Bester

. On appeal, Young acknowledges that his sentence is legal in light of

Bester

, but he contends that applying

Bester

's holding to him amounts to an ex post facto law. We find that Young waived his right to challenge his sentence by joining the State's recommendation. We also conclude that Young's sentence was legal under

Bester

and that

Bester

did not violate the Ex Post Facto Clauses of the Mississippi and United States Constitutions. We affirm the circuit court's dismissal of Young's PCR motion.

STANDARD OF REVIEW

¶ 3. The circuit court may summarily dismiss a PCR petition "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief[.]"

Miss. Code Ann. § 99-39-11

(2) (Rev. 2007). "On appeal, this Court will affirm the summary dismissal of a PCR [petition] if the petitioner has failed to demonstrate 'a claim procedurally alive substantially showing the denial of a state or federal right.' "

Flowers v. State

978 So.2d 1281

, 1283 (¶ 5) (Miss. Ct. App. 2008) (quoting

Young v. State

731 So.2d 1120

, 1122 (¶ 9) (Miss. 1999) ). We review questions of law de novo.

Johnson v. State

962 So.2d 87

, 89 (¶ 8) (Miss. Ct. App. 2007).

DISCUSSION

¶ 4. Young argues that his claim is not subject to the time-bar because his fundamental constitutional rights were violated by an illegal sentence. "[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

, 506 (¶ 9) (Miss. 2010). But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.

Chandler v. State

44 So.3d 442

, 444 (¶ 8) (Miss. Ct. App. 2010). Rather, "there must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived."

Id.

¶ 5. Young acknowledges that his sentence is legal today in light of

Bester v. State

188 So.3d 526

, 529-30 (¶¶ 7-10) (Miss. 2016), where the Mississippi Supreme Court held that statutes that permit the trial court to sentence a defendant to "any term" include sentences of life imprisonment. Young argues, however, that at the time he was sentenced, the controlling precedent of the Mississippi Supreme Court held that only a jury could pronounce a life sentence for armed robbery.

See, e.g.,

Stewart v. State

372 So.2d 257

, 258 (Miss. 1979).

¶ 6. First of all, it is apparent that Young has waived any right to challenge the sentence he received. Young voluntarily agreed to his life sentence as part of his plea bargain. The circuit court's order accepting Young's plea and imposing his sentence explained that the State "agreed to reduce that portion of the indictment
charging [Young] as a habitual offender in return for the acceptance by [Young] of a sentence of life imprisonment, as a non-habitual, for the offense of [armed] robbery." The parties to the plea bargain even agreed that if Young's life sentence is ever set aside, the State's "agreement to reduce the habitual offender portion of the indictment will have been abrogated and the said habitual offender portion of the indictment will be restored ... upon the request of the State." Young voluntarily accepted a life sentence with the possibility of parole

in order to avoid a life sentence without the possibility of parole as a violent habitual offender. And the circuit judge who accepted Young's plea found that it was "freely, voluntarily, knowingly, and intelligently made."

¶ 7. In this Court's opinion in

Bester

, on materially indistinguishable facts, we held that the defendant waived any objection to the legality of his life sentence by voluntarily agreeing to the sentence as part of his plea bargain.

Bester v. State

188 So.3d 576

(Miss. Ct. App. 2014),

aff'd on other grounds

188 So.3d 526

(Miss. 2016). We reasoned that "Bester's sentence [was] not an illegal sentence, as life imprisonment is a sentence permitted as a lawful punishment for forcible rape, albeit when imposed by a jury."

Id.

at 578

(¶ 9). Therefore, there was "no public-policy concern that Bester received a sentence not authorized by statute."

Id.

We further reasoned that "[b]y pleading guilty and negotiating a 'mutually acceptable' plea agreement, Bester ... waived his right to a trial by a jury of his peers, and also the right for the jury to impose his sentence."

Id.

at 580

(¶ 14). We held that Bester could not, years later, "trifle with the circuit court and effectively renege on his plea agreement after he freely and voluntarily waived his right to have a jury impaneled for his trial and sentencing."

Id.

at (¶ 15).

¶ 8. The supreme court affirmed on other grounds in

Bester

, but it did not disapprove of this Court's opinion. This Court's opinion remains good law, and its reasoning applies to the facts of this case. The record is clear that Young voluntarily agreed to a life sentence in order to avoid the risk of a sentence of life without the possibility of parole. By doing so, he waived any right to jury sentencing or to claim that his sentence is "illegal."

¶ 9. Moreover, as the supreme court held in

Bester

, Young's sentence was legal.

Young himself concedes that

Bester

controls; he just disputes the constitutionality of its application to him. We shall address that issue in turn, but since this Court does not unanimously agree that

Bester

controls, we will explain our reasons for finding it to be controlling precedent in this case. The Mississippi Supreme Court held in

Bester

that the language of the statute, which provided that the court could sentence the defendant to "any term" in the state penitentiary, meant what it appeared to say-the court could sentence the defendant to any term, including life imprisonment, even if no jury had chosen that punishment.

Bester v. State

188 So.3d 526

, 529-30 (¶¶ 7-10) (Miss. 2016). The problem, according to the separate opinion, is that

Bester

concerned the rape statute, while today's case concerns the armed robbery statute. The separate opinion reasons that even though the operative language of the armed robbery statute and the operative language of the rape statute are identical, this Court lacks the authority to apply the holding in

Bester

because the supreme court did not expressly overrule any of its prior decisions addressing the armed robbery statute.

¶ 10. We certainly agree with the separate opinion that this Court, as an intermediate appellate court, lacks the authority to overrule decisions of the Mississippi Supreme Court. Nor do we claim the authority to ignore precedent because this Court believes the supreme court would rule differently if it were to decide the case anew. We find

Bester

controlling because, although it only expressly overruled rape cases, the supreme court's former interpretation of the armed robbery statute was expressly derived from a rape case that was directly overruled by

Bester

. The holding in

Bester

was not premised on anything unique to the rape statute. Instead, the court spoke to the construction of specific statutory language-language that has direct application to today's case because it is also used in the armed robbery statute. The supreme court in

Bester

noted the "any term" language of the rape statute and held:

"Any term" includes life imprisonment. "Our law has long provided that the imposition of sentence following a criminal conviction is a matter within the discretion of the Circuit Court, subject only to statutory and constitutional limitations."

Jackson v. State

551 So.2d 132

, 149 (Miss. 1989) (emphasis added). Bester's sentence violates neither. And "[s]o long as these are not offended, we rarely interfere."

Id.

As such, Bester's sentence is not illegal.

Bester

, 188 So.3d at 529 (¶ 6). The operative language of the rape statute and the armed robbery statute is identical. The rape statute ( Mississippi Code Annotated section 97-3-65(2) ) read at the relevant time:

[U]pon conviction, [the defendant] shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

The armed robbery statute at issue in today's case, Mississippi Code Annotated section 97-3-79 (Rev. 2014) (which has not been amended since Young's offense) reads:

[U]pon conviction, [the defendant] shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

The supreme court held in

Bester

that "any term" includes life sentences.

Bester

, 188 So.3d at 529 (¶ 6). We cannot fairly distinguish that holding simply because

Bester

was a rape case and today's case in an armed robbery case.

¶ 11. Furthermore, this Court has already addressed this issue, last year, and we concluded that

Bester

applies to armed robbery cases. In

Hayes v. State

203 So.3d 1144

, 1146 (¶¶ 6-7) (Miss. Ct. App. 2016), a post-conviction petitioner argued on appeal that his sentence was illegal because it exceeded his life expectancy. He
based his argument on

Stewart v. State

372 So.2d 257

(Miss. 1979), which was an armed robbery case applying the pre-

Bester

rationale to find a sentence illegal for exceeding the defendant's life expectancy. This Court noted that

Stewart

was the "progeny" of

Lee v. State

322 So.2d 751

(Miss. 1975), a rape case, and thus had been overruled by

Bester

when it expressly overruled

Lee

See

Hayes

203 So.3d at 1146

(¶¶ 6-7). This Court referred to

Stewart

(the armed robbery case) as no longer being "good law."

Hayes

203 So.3d at 1146

(¶¶ 6-7).

¶ 12. The supreme court itself has also repeatedly held or observed that the rape and armed robbery statutes, because they employ identical operative language, are inexorably linked. In

Stewart

, the first armed robbery case employing the old interpretation of "any term," the supreme court referred to

Lee

, a rape case, as a "conflicting decision" to its prior armed robbery precedent.

Stewart

372 So.2d at 258

. The

Stewart

court then simply applied its holding in

Lee

, noting that it was the "sounder rule."

Id.

at 259

¶ 13. In 2014,

Bester

was previewed in separate opinions in

Hampton v. State

148 So.3d 992

(Miss. 2014), and

Foster v. State

148 So.3d 1012

(Miss. 2014), both of which concerned the armed robbery statute and were handed down the same day. Justice Coleman authored concurring opinions in both cases, which were joined in part by three other justices. He offered the same reasons for overruling the prior interpretation of the "any term" language that the court later adopted in

Bester

. Justice Coleman also noted that the rape statute had the same relevant language, but its code section had been amended by the Legislature in the years since the decision in

Lee

in 1975, while the armed robbery statute had not been amended since

Stewart

in 1979. Thus, the only conceivable reason to distinguish between

Stewart

and

Lee

cuts toward upholding

Lee

based on ratification by the Legislature-but it was

Lee

the supreme court expressly overruled in

Bester

¶ 14. The dissenters in

Bester

also recognized that the same standard was at issue in both rape and armed robbery cases. Justice Kitchens quoted Justice Chandler's dissent in

Hampton

describing

Stewart

and

Lee

as establishing "the standard" that had "been consistently applied ... to both armed robbery and forcible rape statutes."

See

Bester

, 188 So.3d at 531 (¶ 17) (Kitchens, J., dissenting) (quoting

Hampton

, 148 So.3d at 1010-11 (¶ 53) (Chandler, J., dissenting)). Justice Chandler's dissent in

Hampton

had further observed that "[t]he sentencing statute for forcible rape uses substantially identical language, and our case law consistently has applied both statutes in an identical manner."

Hampton

, 148 So.3d at 1010-11 (¶ 52).

¶ 15. Thus, we reaffirm our prior holding in

Hayes

Bester

overruled

Stewart

when it overruled

Lee

Stewart

was explicitly based on

Lee

, the relevant statutory language is identical, and the statutes have always been treated the same way by the supreme court.

See

Hayes

203 So.3d at 1146

(¶¶ 6-7).

¶ 16. Finally, we turn to Young's claim that a change in the interpretation of the statute amounts to the imposition of an ex post facto law when applied to him, since

Bester

was handed down long after he committed the offense. Young contends that the relevant standard is an absolute one, outlined in

Collins v. Youngblood

497 U.S. 37

, 50,

110 S.Ct. 2715

111 L.Ed.2d 30

(1990) -that

Bester

"[made] more burdensome the punishment for a crime, after its commission." But what the United States Supreme Court actually held is that the Ex Post Facto Clause prohibits "

any

statute

... which makes more burdensome the
punishment for a crime, after its commission, after its commission."

Id.

(quoting

Beazell v. Ohio

269 U.S. 167

, 169,

46 S.Ct. 68

70 L.Ed. 216

(1925) ) (emphasis added).

Bester

was a judicial decision, not the enactment of a statute. The Supreme Court has held that judicial decisions are not subject to ex post facto challenges.

See

Rogers v. Tennessee

532 U.S. 451

, 459-60,

121 S.Ct. 1693

149 L.Ed.2d 697

(2001). Thus, Bester's contention is without merit.

¶ 17. A challenge, if it were to be made at all, must be under the Due Process Clause. The relevant test is different and much more lenient-the judicial decision can be applied retroactively unless it is "unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue."

Id.

at 466

121 S.Ct. 1693

. But this issue has not been briefed or argued and is therefore barred on appeal.

See

Gilmer v. State

955 So.2d 829

, 837 (¶ 29) (Miss. 2007). We do not find it barred because Young cited the wrong constitutional clauses, but because the due process question is one of first impression and it has not been briefed or argued on appeal by either party. The fault lies with Young, who, as the appellant, was required to raise the issue and meaningfully support his assignments of error with "the reasons for those contentions, with citations to the authorities, statutes, and parts of the record relied on.' "

Hill v. State

215 So.3d 518

, 524 (¶ 20) (Miss. Ct. App. 2017) (quoting M.R.A.P. 28(a)(7) ). "While pro se litigants are afforded some leniency, they must be held to substantially the same standards of litigation conduct as members of the bar."

Id.

(quoting

Sumrell v. State

972 So.2d 572

, 574 (¶ 6) (Miss. 2008) ).

¶ 18. Young's challenge to

Bester

as an ex post facto law is without merit, and we will not consider the potential due process issue because his total failure to address it bars it from consideration on appeal.

¶ 19.

AFFIRMED.

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

A prisoner convicted of armed robbery prior to October 1, 1994, is eligible for parole after he has served ten years.

Miss. Code Ann. § 47-7-3

(c)(i) (Rev. 2015).

Although we address this point in the alternative, as this Court routinely does in post-conviction cases, our alternative holding on this point is not dicta. "[W]here a decision rests on two or more grounds, none can be relegated to the category of obiter dictum."

Woods v. Interstate Realty Co.

337 U.S. 535

, 537,

69 S.Ct. 1235

93 L.Ed. 1524

(1949) ;

Vincent Young v. State of Mississippi

Texto completo

Continue sua pesquisa no ChatGPT ou Claude