IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA MICHAEL ISHEE APPELLANT STATE OF MISSISSIPPI APPELLEE

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1 E-Filed Document Dec :45: CA COA Pages: 16 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA MICHAEL ISHEE APPELLANT VERSUS STATE OF MISSISSIPPI APPELLEE MOTION FOR RECONSIDERATION NOW BEFORE THE COURT comes MICHAEL ISHEE, hereinafter referred to as Ishee and/or Defendant, and files this Motion for Reconsideration pursuant to and under the provisions of Rule 27(h) of the Mississippi Rules of Appellate Procedure, moving this Court to reconsider its November 28, 2017 Order denying the relief sought in his appeal, and in support thereof would respectfully show the following, to-wit: CONCISE STATEMENT OF FACTS Defendant Ishee was indicted on December 5, 2011, for exploitation of a minor, specifically the possession of images of children engaged in sexually explicit conduct (hereafter child pornography ) on his computer. On April 22, 2014, Defendant pleaded guilty to one count of possession of child pornography and was later sentenced to serve twenty (20) years of incarceration, with eight (8) years suspended, leaving twelve (12) years to serve, followed by four (4) years of post release supervision, and registration as a sex offender. On October 23, 2015, Defendant filed a motion for post conviction relief (hereafter PCR ), maintaining that his conviction and plea were unlawful and improper due to the unconstitutionality of the statute under which he was adjudicated guilty and sentenced. The Circuit Court (hereafter lower court ) required the State to respond to the PCR motion, which it did and to which Ishee filed his Page 1 of 16

2 rebuttal. The lower court denied Ishee any relief by its order of May 23, An appeal was timely made to this Court which on November 28, 2017, rendered its unanimous decision affirming the lower court s overruling of his PCR motion. FACTS RELEVANT TO MOTION FOR RECONSIDERATION I. This appeal arises from the enactment of a statute by the Mississippi Legislature, specifically (5) of the Mississippi Code of 1972, Annotated (hereafter (5) ), effectively designed to prohibit the possession of any type of visual recording or depiction of children engaging in sexually explicit conduct (the statute was entitled exploitation of a minor ). On December 5, 2011, Ishee was indicted on nineteen (19) counts of exploitation of a child, the indictment charging that on July 12, 2010, Ishee possessed visual depictions of actual children under the age of eighteen (18) years engaging in sexually explicit conduct. At his plea hearing, the State of Mississippi passed eighteen (18) counts to the files. Ishee pleaded guilty only to Count I. II. The subject indictment was returned over four (4) years after the effective date of (5). The indictment did not track the exact language of the statute, but inserted certain verbiage at issue here, namely that Ishee did wilfully [sic], unlawfully, and feloniously possess visual depictions of actual children, under the age of eighteen years, engaging in sexually explicit conduct:... The underlined words of the foregoing were completely absent in the preamendment version of (5), and the insertion into the indictment of wilfully, unlawfully, and feloniously was the first time scienter had become an element of the offense Page 2 of 16

3 in Defendant s case. It is undisputed that any reference or inclusion of scienter in said statute occurred after the purported crime, indictment, and plea of Defendant. III. That this appeal, while touching several constitutional factors, centers around one (1) major issue: Is (5) of the Mississippi Code of 1972, Annotated, facially constitutional? At the time of the crime allegedly committed by Defendant, the statute read, as it had read for over four (4) years, that No person shall, by any means including computer, possess any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct. During its 2013 term, the State Legislature amended (5), effective July 1, 2013, to state, No person shall, by any means including computer, knowingly possess or knowingly access with intent to view any photograph, drawing, sketch, film, video tape or other visual depiction of an actual child engaging in sexually explicit conduct. IV. That the pre-amendment statute, sans scienter/mens rea, was the only statute in effect throughout all of the lower court proceedings. Despite the statute failing to include the required element of scienter or mens rea in defining the crime of possession of child pornography, the Attorney General of Mississippi in presenting same to the grand jury (or in simply preparing the indictment, who knows?) some seventeen (17) months after the alleged offense was committed added the language that Defendant... did wilfully, unlawfully, and feloniously possess [child pornography]... Page 3 of 16

4 BASIS OF REQUEST FOR RELIEF V. The United States Supreme Court has repeatedly held that the fundamental rights guaranteed under the First Amendment to the United States Constitution should be jealously guarded and any abridgement of same viewed with careful and vigilant scrutiny. Ferber v. New York, 458 U.S. 747, 102 S.Ct. 3348, (1982). While it has been held that child pornography does not constitute protected speech, any legislation in the regulation of same must be carefully drafted so as not to abridge protected speech or due process. Smith v. California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed. 2d 205 (1959). With this fundamental principle of constitutional law clearly pronounced, the Supreme Court mandates that some element of scienter be placed in statutes governing the regulation of child pornography. Ferber, supra, Osborne v. Ohio, 495 U.S. 103, 110 S.Ct (1990). These decisions were the catalyst for all states, in enacting statutes regulating various aspects of child pornography, to include an element or elements of scienter. 1 VI. Defendant maintains that his plea/conviction/sentence should be set aside and voided for the following reasons: 1) that (5) is facially unconstitutional as overly restrictive of the fundamental right of free speech and press guaranteed by the First Amendment to the United States Constitution made applicable to the States by virtue of the 1 Nebraska did not have a statute regulating possession of child pornography at the time of Ishee s alleged offense. Of course, Mississippi s possession statute contained no scienter. Page 4 of 16

5 Fourteenth Amendment since it contained no element of scienter or mens rea; 2) that at the time of Ishee s indictment, (5) was not ambiguous it clearly did not require proof of scienter or mens rea for a determination of guilt. All the pre-amendment statute required to prove the crime of exploitation of a minor by possessing child pornography was having possession not the willful possession, not the intentional possession, and not even the grossly negligent possession (or even simple negligent possession), just possession, and this statutory language cannot withstand constitutional scrutiny; and 3) that in the State of Mississippi, when a statute is unconstitutional, a conviction thereunder, though on a plea of guilty, cannot stand. Norwood v. State, 136 Miss. 272, 101 So. 366 (1924); 4) just as the enactment of the amended version of (5) was ex post facto in application to Ishee, so was the indictment returned against him ex post facto, as it added language to the statute which added the constitutionally required scienter/mens rea elements that were not there when Ishee s purported illegal act occurred. ARGUMENT THAT (5) IS UNCONSTITUTIONAL VII. There is no question the pre-amendment version of (5) is facially unconstitutional. Throughout the entire PCR proceedings, the State has only contended that the indictment added scienter and, since it then had to prove scienter, it cured any omission. In denying Ishee post-conviction relief, the lower court stated that (1) Ishee admitted he Page 5 of 16

6 downloaded the pornography and that he knew what it was; (2) that Ferber provides the State greater leeway in the regulation of pornographic depictions of children; and (3) the case of Renfrow v. State, 34 So. 3d 617 (Miss. Ct. App. 2009) was decided after Ferber and Osborne, and thus, it cannot be presumed these decisions were ignored while deciding Renfrow. All of these arguments tacitly admit the necessity or requirement of scienter in the statute and that it is/was not present. Otherwise, the argument would have been that scienter was unnecessary or already included in the statute. In its reply brief, the State maintained the same: that Ishee admitted scienter at his plea hearing and the Renfrow case was controlling. In its decision, this Court basically echoed those sentiments. While nimbly maneuvering through the issue, neither the State nor this Court directly addressed the main issue: whether a statute governing possession of child pornography was required to contain an element of scienter, and if so, whether the pre-amendment statute contained scienter to satisfy such a requirement. All that was held was that inserting required elements into the indictment cured any defect, thereby formulating the basis of Ishee s appeal. VIII. As to the argument that scienter is not required in criminal statutes as maintained by the Renfrow court, suffice it to say that the U. S. Supreme Court disagrees, stating in Ferber, There are, of course, limits on the category of child pornography which, like obscenity, is unprotected by the First Amendment. As with all legislation in this sensitive area, the conduct to be prohibited must be adequately defined by the applicable state law, as written or authoritatively construed... We note that the distribution of descriptions or other depictions of sexual conduct, not otherwise obscene, which do not involve live performances or photographic or other visual reproduction of live Page 6 of 16

7 and in Osborne, performances, retains First Amendment protection. As with obscenity laws, criminal responsibility may not be imposed without some element of scienter on the part of the defendant... Ferber, 458 U.S. at (Emphasis added) [M]oreover, the statute s (Ohio s child pornography statute) failure, on its face, to provide a mens rea requirement is cured by the court s conclusion that the State must establish scienter under the Ohio default statute specifying that recklessness applies absent a statutory intent provision. Osborne, 495 U.S. at (Emphasis added) In U. S. v. Burian, 19 F3d 188, (1994), the conservative Fifth Circuit, citing the U. S. Supreme Court in Ferber, held that, [C]hild pornography statutes must include some element of defendant s scienter (citing Ferber, 458 U.S. at 765), and further stated, citing Osborne, that, A statute that outlaws the reckless possession or receipt of child pornography plainly satisfies the requirement laid down in Ferber that prohibitions on child pornography include some element of scienter. (Osborne, 495 U.S. at 115) (emphasis added) From these Supreme Court decisions and the Fifth Circuit s clear interpretation of same, there can be no doubt that scienter is a requirement in the statutory regulation of child pornography if it is to pass constitutional muster. As it pertains to this case, any leeway allowed in regulating child pornography cannot apply as it concerns the requirement of scienter. Despite the position of the lower court in finding leeway in allowing the omission of scienter, as well as this Court s ruling in Renfrow and the instant case to the same effect, the pre-amendment version of (5) does not satisfy the constitutional requirement of Ferber and its progeny. Without question, due process and First Amendment protections require that scienter be in a regulatory Page 7 of 16

8 statute involving freedom of speech and press issues, even when it relates to child pornography. IX. As elucidated above, pre-amendment (5) clearly has no element of scienter. This omission was obviously intentional, as five of the seven subsections of (5) contained scienter at the time of Ishee s alleged offense. In its form at the time of Ishee s purported crime, (5) was abundantly clear the State of Mississippi could indict and convict one of the crime of possession of child pornography without being required to prove any scienter or mens rea. Simple possession was enough. While being presumed to know the law, one might run the risk of his actions, but violating an unconstitutional statute should result in no sanction. Violation of an unconstitutional law should confer no punishment, particularly one violating the substantive rights of the First Amendment. X. The ruling that the State is not required to define possession of child pornography with an element of scienter in its statute, but permitting that crucial and vital element to be added at the time of indictment (after the accused has done the act), is fallacious for another substantive reason. In Osborne, the Supreme Court stated the statute s (Ohio s child pornography statute) failure, on its face, to provide a mens rea requirement is cured by the court s conclusion that the State must establish scienter under the Ohio default statute specifying that recklessness applies absent a statutory intent provision. 495 U.S. at In Osborne, the State of Ohio had a default statute in effect at the time of the offense which provided for what mens rea to apply if omitted from a statute. Id. Here, Mississippi has no such default statute. The mens rea is not applied until the indictment is returned by the grand jury which is controlled by the State via the Page 8 of 16

9 district attorney or attorney general. This allows the executive branch to decide what mens rea it wants to prove or believes it can prove, a regular smorgasbord of choices of scienter, i.e. intentionally or knowingly or recklessness, or perhaps just start using carelessness or oversight as the necessary scienter. Such power to provide the necessary scienter is vested only in the legislature and such power is not within the framework of the First Amendment protections as described in Ferber and Osborne. Quite frankly, such State discretion is proscribed by these decisions. Such unbridled discretion is not available to the prosecution, for as stated in Ferber, Osborne, and Burian, the child pornography statutes (not indictments as an indictment only comes after the fact) must include some element of defendant s scienter. U..S. v. Burian, 19 F3d 188, 190 (1994) ARGUMENT WHETHER DEFENDANT ADMITTED NECESSARY SCIENTER X. The State throughout the plea, PCR, and appeal proceedings has maintained that Ishee admitted scienter at his plea hearing. The lower court found and ruled the same in its Order and Judgment on the PCR motion as also did this Court in its decision. As discussed in detail in the following paragraph, a closer look at the plea hearing transcript does not support such a conclusion. Defendant maintains that scienter (intention, knowledge, recklessness) must be defined and admitted in the actual downloading of child pornography. This Defendant contends he never admitted intentionally downloading child pornography nor intentionally possessing same. The lower court, on page 4 of its Order and Judgment, indicated that [M]ore concerning, of course, is Ishee s argument that someone could be charged who possessed such depictions [child pornography] without knowing that he or she possessed them. Ishee has provided nothing Page 9 of 16

10 to indicate how often, if at all, this might ever occur or even possibly occur. In Smith v. People of the State of California, 361 U.S. 147, 80 S.Ct. 215, 4 L.Ed. 2d 205, 14 O.O. 2d 459 (1959) the U. S. Supreme Court made the very example given by Ishee, holding... this Court has intimated that stricter standards of permissible statutory vagueness may be applied to a statute having a potentially inhibiting effect on speech; a man may the less be required to act at his own peril here, because the free dissemination of ideas may be the loser... The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding in Roth does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance s strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold... [B]y dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public s access to constitutionally protected matter. For, if the bookseller is criminally liable without knowledge of its contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter that: [E]very bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience. (Citing The King v. Ewart, 25 N.Z.L.R. 709 (C.A.)). And the bookseller s burden would become the public s burden, for by restricting him the public s access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. Smith v. People of the State of California, p This bookseller example used by the Supreme Court clearly highlights how someone downloading material on a computer may often be unaware of the exact content of such Page 10 of 16

11 downloads. The material being downloaded could be labeled innocently as Baby Happenings or Fun With Children, and thus, downloaded by one not aware it contains child pornography. Moreover, it could be mixed or combined with protected sexual material, causing the person downloading same to be oblivious to its illegality until viewing the material. To illustrate, let us compare the plea colloquy of Ishee as quoted in the opinion of this case with the bookseller example of Smith as follows: By the Court: By Ishee: Note: By the Court: By Ishee: Note: Mr. Ishee, according to the cause number count one, it says that this exploitation occurred on or about July 12, Tell me about what happened in your case[.] I was found to be in possession of something that goes against the statute. The defendant has only admitted he possessed something that went against the statute, and simple possession (not intentional or knowing possession) went against the pre-amendment statute. So his answer is correct and not an admission of a crime. So tell me. Where were you in possession of it? At my home. The question does not ask in willful, knowing, or intentional possession, just simple possession. He doesn t deny he had possession and it was in his computer, but he has not admitted any willful possession. * * * * By the Court: By Ishee: Note: So you downloaded it on the computer? Yes ma am. The defendant does not admit knowingly or intentionally downloading any child pornography, just that he downloaded it. It could have been hidden by innocent titling or contained in protected, permissible obscene material. Page 11 of 16

12 By the Court: By Ishee: Note: So you downloaded pictures or videos of children under the age of 18 engaging in sexual explicit conduct, is that correct? Yes ma am. Again, the question contains no scienter as to the downloading. The questions at the plea hearing tracked the pre-amendment statute, they questioned Ishee only as to his mere possession of child pornography, not the possession of such with scienter. The lower court s questions could be posed to the hypothetical bookseller in Smith, with the same answers truthfully given as to books that were purchased by the bookseller, unaware of all the books contents. With these identical questions and answers by the bookseller (i.e., did you have possession of books depicting child pornography? Where did you have possession of these books?), the restrictions on free speech and public access to reading materials noted by the Supreme Court would be realized. ARGUMENT THAT (5) IS VOID AB INITIO XI. Mississippi follows the doctrine that a statute which is in violation of the constitution is (or should be declared) unconstitutional and is void ab initio. A conviction under such an unconstitutional statute requires reversal and the release of the defendant. State v. Sansome, 133 Miss. 428, 97 So. 753 (1923); Norwood v. State,136 Miss. 272, 101 So. 366 (1924). Sister states of Mississippi have followed the same doctrine. Brewer v. State, 39 So. 927 (Ala. 1905); Candy v. State, 162 Ala. 678, 49 So. 801 (1909); State v. Greer, 102 So. 739 (Fla. 1924); McFarlin v. State, 123 S. W. 133 (Tex. 1909). This doctrine is applied even though the defendant pleaded guilty. Norwood v. State, supra. The doctrine has also been held applicable to judgments of courts in civil cases, but not as rigidly. Yellow Pine Lumber Co., v. Randall, 145 Ala. 653, 39 Page 12 of 16

13 So. 899 (1905); Pearl River County v. Lacey Lumber Co., 86 So. 755 (Miss. 1921). XII. The void ab initio doctrine has been the position of most constitutional authorities on the subject, and where the unconstitutionality arises from an abridgment of fundamental rights contained in the First Amendment to the United States Constitution, the rule is steadfast. One eminent constitutional author has stated, When a statute is adjudged to be unconstitutional, it is as if it had never been. Rights cannot be built up under it; contracts which depend upon it for their consideration are void; it constitutes a protection to no one who has acted under it, and no one can be punished for having refused obedience to it before the decision was made. Conley, Treatise on Constitutional Limitations (7 th ed.), p XIII. The landmark case of Ex parte Siebold, 100 U.S. 371, 25 L. Ed. 717 (1880) was an appeal involving convictions for violations of election/voting laws of the City of Baltimore, Maryland which Appellants contended were unconstitutional. In its decision, the Supreme Court stated, Without attempting to decide how far this case may be regarded as law for the guidance of this court, we are clearly of opinion that the question raised in the cases before us is proper for consideration on habeas corpus. The validity of the judgments is assailed on the ground that the acts of Congress under which the indictments were found are unconstitutional. If this position is well taken, it affects the foundation of the whole proceedings. An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but it is illegal and void... If the laws are unconstitutional and void, the Circuit Court acquired no jurisdiction of the causes. Its authority to indict and try the petitioners arose solely upon these laws. Ex parte Siebold, Ibid., pp (Emphasis added). Page 13 of 16

14 In another case, the Court held that [I]f the law which defines the offence and prescribes its punishment is void, the court is without jurisdiction and the prisoners must be discharged. Ex parte Yarbrough, 110 U.S. 651, 654, 4 S.Ct. 152, 28 L.Ed. 274 (1884). Post-Seibold, the federal courts and some state courts have somewhat retreated from this strict, firm rule. See Glasgow v. Moyer, 225 U.S. 420, 32 S.Ct. 753, 56 L.Ed (1912); Chicot County Drainage Dist. v. Baxter State Bank, 308 U.S. 371, 60 S.Ct. 317, 84 L.Ed. 329 (1940); Karenev v. State, 281 S.W. 3d 428 (Tex.Crim.App. 2009). Nevertheless, an unconstitutional statute should never be the basis for the loss of one s freedom. XIV. Notably, the grounds for post conviction relief pursuant to (a)(b)(c)(j) of the Mississippi Code of 1972, Annotated, specifically permit or encourage challenges for: (1) the conviction or sentence being in violation of the Constitution of the United States or the Constitution or laws of the State of Mississippi, (2) the trial court did not have jurisdiction to impose sentence, (3) the statute under which the conviction and/or sentence was obtained is unconstitutional, (4) and the conviction or sentence is otherwise subject to collateral attack upon any grounds of alleged error heretofore unavailable under any common law, statutory or other writ, motion, petition, proceeding, or remedy. Therefore, there is no question the pre-amendment version of (5) is subject to attack by PCR, and Ishee s conviction and sentence must be set aside and/or voided. Page 14 of 16

15 THE ADJUDICATION OF GUILT AND SENTENCING OF ISHEE WAS BASED UPON EX POST FACTO ACTIONS OF THE STATE XV. Defendant will not reurge much on this issue, as it has been covered in the briefs heretofore filed. However, this Court s decision clearly reveals that it relies on the insertion of scienter in the indictment to solve the dilemma of the lack of scienter. The problem with this position is the insertion of scienter into the indictment occurred after the alleged acts for which Ishee was prosecuted. Ferber required statutory language to include scienter in such laws, not the willingness of the State to prove it. Since the statute was not amended to include scienter, no scienter element existed as to possession of child pornography prior to the downloading of any objectionable material by Ishee. To allow inclusion after the fact is no more than allowing ex post facto prosecution. Ishee reiterates such ex post facto action is unconstitutional and cannot be the basis for his prosecution. WHEREFORE, the Defendant, Michael Ishee, moves this honorable Court to reconsider and withdraw its decision in this cause of November 28, 2017, and grant his the relief sought in his PCR motion. RESPECTFULLY SUBMITTED, this the 27 th day of December, A. D., MICHAEL ISHEE, Appellant BY: /s/ W.F. Holder II W. F. HOLDER II, of counsel Page 15 of 16

16 C E R T I F I C A TE OF S E R V I C E I, W. F. Holder II, of counsel for Appellant in the above-styled and numbered cause, do hereby certify that I have this day electronically filed the foregoing Motion for Reconsideration with the Clerk of Court using the appellate e-filing system, which sent notification of such filing to the following: Honorable Abbie Eason Koonce, Special Assistant Attorney General Office of the Attorney General Post Office Box 220 Jackson, Mississippi akoon@ago.state.ms.us Honorable Lisa P. Dodson Circuit Court Judge of Second Circuit Court District Post Office Box 1461 Gulfport, Mississippi So certified, this the 27 th day of December, A. D., /s/ W.F. Holder II W. F. HOLDER II Page 16 of 16