IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP-1013 STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Sep :56: CP COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY LEE CARR APPELLANT VS. NO CP-1013 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LADONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... i STATEMENT OF ISSUES...1 STATEMENT OF FACTS AND PROCEDURAL HISTORY SUMMARY OF ARGUMENT...2 ARGUMENT...3 I. THE RULE ANNOUNCED IN GOWDY V. STATE CONCERNING THE POST-CONVICTION AMENDMENT OF INDICTMENTS TO INCLUDE HABITUAL OFFENDER STATUS SHOULD NOT BE APPLIED RETROACTIVELY....3 II. THE TRIAL COURT PROPERLY FOUND THAT THE STATE PRESENTED SUFFICIENT PROOF OF CARR S STATUS AS A HABITUAL OFFENDER....6 CONCLUSION...9 CERTIFICATE OF SERVICE...10 i

3 TABLE OF AUTHORITIES Beard v. Banks, 542 U.S. 406 (2004)...5 Lambrix v. Singletary, 520 U.S. 518 (1997)...5 O Dell v. Netherland, 521 U.S. 151 (1997)...5 Sawyer v. Smith, 497 U.S. 227 (1990)...5 Schriro v. Summerlin, 542 U.S. 348, 352 (2004) , 5 Teague v. Lane, 489 U.S. 288, 295 (1989)...4 Whorton v. Bockting, 549 U.S. 406, 418 (2007) STATE CASES Acker v. State, 797 So.2d 966, 971 (Miss. 2001) Carr v. State, 966 So.2d 197 (Miss. Ct. App. 2007) Frazier v. State, 907 So.2d 985, 992 (Miss. Ct. App. 2005) Gowdy v. State, 56 So.3d 540 (Miss. 2010)...2, 3 Manning v. State, 929 So. 2d 885, (Miss. 2006) McCain v. State, 81 So.3d 1055, 1057 (Miss. 2012) Seely v. State, 451 So.2d 213, 215 (Miss. 1984) Sims v. State, 775 So.2d 1291, 1294 (Miss. Ct. App. 2000) , 8 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY LEE CARR APPELLANT VS. NO CP-1013 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF ISSUES I. THE RULE ANNOUNCED IN GOWDY V. STATE CONCERNING THE POST- CONVICTION AMENDMENT OF INDICTMENTS TO INCLUDE HABITUAL OFFENDER STATUS SHOULD NOT BE APPLIED RETROACTIVELY. II. THE TRIAL COURT PROPERLY FOUND THAT THE STATE PRESENTED SUFFICIENT PROOF OF CARR S STATUS AS A HABITUAL OFFENDER. STATEMENT OF FACTS AND PROCEDURAL HISTORY Timothy Carr s manslaughter conviction and sentence were affirmed by this Court in Carr v. State, 966 So.2d 197 (Miss. Ct. App. 2007). Carr subsequently filed three petitions for postconviction relief, all of which were either denied or dismissed. C.P. 58. Nevertheless, the Mississippi Supreme Court, by order dated March 28, 2013, granted Carr leave to proceed in the trial court. C.P. 58. The supreme court found that the application met an exception to the time bar. C.P

5 The claims raised in Carr s motion for post-conviction relief were that his indictment was unlawfully amended after conviction to include habitual offender status and that the trial court sentenced him as a habitual offender without the introduction of evidence of his prior convictions at sentencing. C.P The trial court denied post-conviction relief, finding that Carr s claims were without merit. C.P Carr now appeals the trial court s denial of post-conviction relief. SUMMARY OF ARGUMENT Carr claims that the habitual offender portion of his sentence should be reversed because the State amended the indictment to include habitual offender status post-conviction in violation of Gowdy v. State, 56 So.3d 540 (Miss. 2010). However, Gowdy was decided three years after Carr s case reached final disposition. Our reviewing courts have not yet determined that the rule announced in Gowdy applies retroactively. Because the rule announced in Gowdy is not a watershed rule of criminal procedure, it should not be applied retroactively to post-conviction relief cases. Carr is simply incorrect in his assertion that he did not receive a bifurcated trial. The bifurcated trial requirement for habitual offender sentencing means only that after being found guilty by a jury, the trial court judge must then determine whether the State has sufficient proof that the convict meets the requirements for enhanced sentencing as a habitual offender. That occurred in this case. After conviction the trial court judge found that the certified copies of Carr s prior convictions sufficiently proved that he was a habitual offender. Carr further claims that error resulted from the State s failure to offer the certified copies of conviction into evidence. The State has been unable to obtain the trial court record to determine if Carr s assertion is true. However, even if the State did not formally enter the certified copies of conviction into evidence, they were attached to the State s motion to amend the indictment, and were considered by the trial court judge at sentencing. 2

6 ARGUMENT I. THE RULE ANNOUNCED IN GOWDY V. STATE CONCERNING THE POST- CONVICTION AMENDMENT OF INDICTMENTS TO INCLUDE HABITUAL OFFENDER STATUS SHOULD NOT BE APPLIED RETROACTIVELY. Carr s first claim is that, pursuant to Gowdy v. State, 56 So.3d 540 (Miss. 2010), the habitual offender portion of his sentence should be reversed because he was unfairly surprised when his indictment was amended after conviction. However, Carr s conviction and sentence were affirmed and a mandate issued on October 16, The Gowdy decision was not rendered until three years later on December 16, Our reviewing courts have not yet decided whether the Gowdy holding applies retroactively. follows: The Mississippi Supreme Court has summarized its holding and concerns from Gowdy as [A] post-conviction amendment of an indictment to include habitual-offender status was prohibited, such that the enhanced portion of Gowdy s sentence was vacated and his case was remanded for resentencing. This Court determined that, while the Uniform Rules of Circuit and County Court Practice do not address the timing of a post-conviction amendment of an indictment to include habitual-offender status, they do require that the defendant be afforded a fair opportunity to present a defense and not be unfairly surprised. Under the unique facts presented in Gowdy, those requirements were not satisfied, as the State informed the defendant and circuit court of its intention to amend the indictment after the conviction and then filed its motion to amend the indictment on the scheduled date of the sentencing hearing. As a result of the amendment, Gowdy went from receiving a plea offer of one year in custody with two years post-release supervision and a $2,000 fine on the morning of his trial for felony driving under the influence of alcohol, to a post-conviction sentence of life imprisonment without the possibility of parole. McCain v. State, 81 So.3d 1055, 1057 (Miss. 2012) (internal citations, quotations omitted). In McCain, the Mississippi Supreme Court used the term retroactive, but McCain s case was not yet final at the time Gowdy was handed down, and necessarily received the benefit of the Gowdy holding. Id. at 1059 ( 8). In other words, the McCain court was not required to conduct a 3

7 Teague analysis to determine true retroactive application of Gowdy. Because Gowdy was decided more than three years after Carr s conviction and sentence were final, this Court must decide, as an issue of first impression, whether to apply Gowdy retroactively. In determining whether to apply a new rule of law retroactively in post-conviction relief cases, the Mississippi Supreme Court has adopted the United States Supreme Court s analysis from Teague v. Lane, 489 U.S. 288, 295 (1989). See Manning v. State, 929 So. 2d 885, ( (Miss. 2006). Pursuant to Teague, a new rule is applied retroactively in post-conviction relief cases if it (1) places certain kinds of primary, private individual conduct beyond the power of the criminal lawmaking authority to proscribe or (2) is a watershed rules of criminal procedure. Manning at 33. The Gowdy holding certainly does not meet the first Teague exception because Gowdy did not concern forbidding criminal punishment for certain types of activity. Id. at ( 36). Instead, Gowdy concerns a procedural rule: the post-conviction amendment of an indictment to include habitual offender status. following. Regarding the second Teague exception, this Mississippi Supreme Court has stated the New rules of procedure, on the other hand, generally do not apply retroactively. They do not produce a class of persons convicted of conduct the law does not make criminal, but merely raise the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Because of this more speculative connection to innocence, we give retroactive effect to only a small set of watershed rules of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding. That a new procedural rule is fundamental in some abstract sense is not enough; the rule must be one without which the likelihood of an accurate conviction is seriously diminished. This class of rules is extremely narrow, and it is unlikely that any has yet to emerge. Manning at 899 ( 35) (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004) (internal citations omitted). The Supreme Court has stated that in order for a new procedural rule to qualify under the 4

8 second Teague exception, the rule must be necessary to prevent an impermissibly large risk of an inaccurate conviction, and must alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding. Whorton v. Bockting, 549 U.S. 406, 418 (2007). Both requirements must be met in order to qualify as a watershed rule of criminal procedure. Id. It appears that the United States Supreme Court has yet to find a single new rule which meets the second Teague exception. See Whorton v. Bockting, 549 U.S. 406 (2007) (Crawford v. Washington did not announce a watershed rule of criminal procedure); Beard v. Banks, 542 U.S. 406 (2004) (Mills v. Maryland did not announce a watershed rule of criminal procedure); Schriro v. Summerlin, 542 U.S. 348 (2004) (Ring v. Arizona did not announce a watershed rule of criminal procedure); O Dell v. Netherland, 521 U.S. 151 (1997) (Simmons v. South Carolina did not announce a watershed rule of criminal procedure); Lambrix v. Singletary, 520 U.S. 518 (1997) (Espinosa v. Florida did not announce a watershed rule of criminal procedure); Gilmore v. Taylor, 508 U.S. 333 (1993) (Falconer v. Lane did not announce a watershed rule of criminal procedure); Sawyer v. Smith, 497 U.S. 227 (1990) (Caldwell v. Mississippi did not announce a watershed rule of criminal procedure). The second Teague exception clearly sets a high bar. The rule announced in Gowdy, does not meet this high bar. This is so because the rule in no way raise[s] the possibility that someone convicted with use of the invalidated procedure might have been acquitted otherwise. Manning at ( 35). The post-conviction amendment of an indictment to include habitual offender sentencing certainly creates no risk of inaccurate conviction, as the guilt phase has already been concluded. Therefore, under the authority of both the Mississippi Supreme Court and the United States Supreme Court, Gowdy does not meet the second Teague exception. Because the rule announced in Gowdy meets neither Teague exception, it should not be 5

9 applied retroactively. As such, Carr s first assignment of error necessarily fails. II. THE TRIAL COURT PROPERLY FOUND THAT THE STATE PRESENTED SUFFICIENT PROOF OF CARR S STATUS AS A HABITUAL OFFENDER. Carr argues that two reversible errors occurred during sentencing. Carr claims that he was denied a bifurcated trial required for habitual offender sentencing and that the certified copies of his prior convictions were presented only for the purpose of amending indictment but were not introduced into evidence at the sentencing hearing. 1 The Mississippi Supreme Court has stated that a bifurcated trial is necessary in order to sentence a defendant as a habitual offender. Seely v. State, 451 So.2d 213, 215 (Miss. 1984). This Court has explained that the bifurcated trial requirement merely means that a jury resolves the underlying charge and, should a judgment of guilt result, the circuit judge determines whether the convicted satisfies the requirements for enhanced sentencing as a habitual offender. Frazier v. State, 907 So.2d 985, 992 ( 20) (Miss. Ct. App. 2005). In the present case, a jury found Carr guilty of manslaughter, and the trial court then found that the State sufficiently proved Carr s habitual offender status beyond a reasonable doubt. Accordingly, Carr s claim that he was not afforded a bifurcated trial is without merit. Carr also claims that the habitual offender portion of his sentence must be reversed because, while the State attached certified copies of his prior convictions to the motion to amend the 1 In denying post-conviction relief, the trial court understood Carr to also be attacking one of the underlying felony convictions used for habitual offender sentencing because he served his time on probation. C.P. 65. However, Carr specifically stated in his Reply to State s Response to Application that he was not challenging the underlying convictions used for habitual offender sentencing, and that he specifically was not assigning as error that the sentence for one of the underlying felony convictions included a term of probation. C.P. 54. Nor has Carr made such an argument in his appellate brief. Therefore, although the trial court considered that issue, it is not an issue currently before the Court. 6

10 indictment, it did not formally introduce those exhibits into evidence at the habitual offender sentencing hearing. Carr s failure to object to the State s proof at the sentencing hearing should bar his attack of the State s proof on appeal. In at least three different cases this Court has found that a defendant s failure to object at the sentencing hearing bars the defendant from attacking his habitual offender sentence for the first time on appeal. Crutcher v. State, 68 So.3d 724, ( 22) (Miss. Ct. App. 2011); Heidelberg v. State, 45 So.3d 730, 732 ( 6) (Miss. Ct. App. 2010); Sims v. State, 775 So.2d 1291, 1294 ( 16) (Miss. Ct. App. 2000). Accordingly, the State suggests that Carr s failure to object at the sentencing hearing bars this Court s review Carr s second assignment of error. Further, the appellant has a duty to present a trial court record which is sufficient to support his assignments of error. Acker v. State, 797 So.2d 966, 971 ( 19) (Miss. 2001). Facts asserted to exist must and ought to be definitely proved and placed before us by a record, certified by law; otherwise, we cannot know them. Id. Carr claims that the State failed to formally admit the certified copies of the prior convictions into evidence, but he fails to present a certified copy of the 2 record to support that claim. This is yet another bar to Carr s assignment of error on appeal. Carr did, however, attach an uncertified copy of several pages from the transcript of his sentencing hearing to his motion for post-conviction relief filed in the trial court. C.P That copy clearly shows that the State did in fact present the trial court with the required certified copies of conviction. C.P. 40. The prosecutor expressly states, Your Honor, at this time I would like to introduce into evidence the prior convictions for Timothy Carr. C.P. 40. The prosecutor then goes on to describe 2 The State did attempt to obtain the trial court record from the Mississippi Supreme Court Clerk s Office. The clerk s office initially indicated that the record was in the clerk s office but had to be located. However, after several follow-up inquiries, the clerk s office indicated that it was unable to locate the record for Cause Number 2005-KA COA. 7

11 the exhibits being offered into evidence at the sentencing hearing. C.P As such, Carr s claim appears to be both procedurally barred an without merit. Should the Court find that Carr s claim is not procedurally barred, and should the Court find any merit to his assertion that the State failed to formally introduce into evidence the exhibits in question, the State offers the following substantive response. It is undisputed that the State must prove habitual offender status beyond a reasonable doubt before a convicted felon may be sentenced as a habitual offender. Naturally, the best of way of proving habitual offender status is by entering into evidence certified copies of judgements of conviction, sentencing orders, or commitment papers. However, in at least two cases, habitual offender sentences have been affirmed where neither certified copies of relevant orders nor any other exhibits were formally entered into evidence. Heidelberg, 45 So.3d at ( 7-17); Sims, 775 So.2d at 1294 ( 15). In Heidelberg, this Court found that it was not reversible error for the State to not introduce into evidence at the habitual offender sentencing hearing its proof of the defendant s priors where said proof was attached to the State s motion to amend the indictment. Id. at ( 8-18). In the case sub judice, because the State, at a minimum, presented certified copies of the sentencing orders for Carr s priors to the trial court via an attachment to the motion to amend the indictment, as acknowledged by Carr in his brief, this Court should reach the same result that it did in Heidelberg. Also similar to Heidelberg, Carr does not claim his prior convictions are in any way invalid or insufficient to trigger habitual-offender status. Id. at 16. The trial court had sufficient proof before it to find that Carr was in fact a habitual offender. Accordingly, his habitual offender sentence should be affirmed. 8

12 CONCLUSION For the foregoing reasons, the trial court s denial of post-conviction relief should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ La Donna C. Holland LA DONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS

13 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Billy Joe Landrum Circuit Court Judge Post Office Box 685 Laurel, Mississippi Honorable Anthony J. Buckley District Attorney Post Office Box 313 Laurel, Mississippi Timothy Lee Carr, #63940 South Mississippi Correctional Institution (S.M.C.I.) B-2, B-Zone, Bed #197 Post Office Box 1419 Leakesville, Mississippi This the 3rd day of September, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ LaDonna C. Holland LADONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL 10