IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Jan :04: KA COA Pages: 10 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ROBERT W. TRIPLETT a/k/a ROBERT WARREN TRIPLETT, JR. a/k/a ROBERT TRIPLETT, JR. a/k/a ROBERT TRIPLETT APPELLANT VS. NO KA COA STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BILLY L. GORE 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 ii STATEMENT OF THE CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT TRIPLETT S APPEAL IS DEVOID OF ARGUABLE ISSUES. ACCORDINGLY, HIS CONVICTION AND SENTENCE SHOULD BE FORTHWITH AFFIRMED CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES FEDERAL CASES North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969)... 1 Smith v. Robbins, 528 U.S. 259, 120 S.Ct. 746, 145 L.Ed.2d 756 (2000)... 5 Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983)... 1 STATE CASES Killingsworth v. State, 490 So.2d 849 (Miss. 1986)... 5 Lindsey v. State, 939 So.2d 743 (Miss. 2006)... 4, 5 Triplett v. State, 145 So.3d 1256 (Ct. App. Miss. August 19, 2014)... 2 STATE STATUTES Miss. Code Ann ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ROBERT W. TRIPLETT a/k/a ROBERT WARREN TRIPLETT, JR. a/k/a ROBERT TRIPLETT, JR. a/k/a ROBERT TRIPLETT APPELLANT VERSUS NO KA COA STATE OF MISSISSIPPI APPELLEE SUPPLEMENTAL BRIEF FOR THE APPELLEE STATEMENT OF THE CASE In the wake of a Lindsey brief filed by Triplett s counsel, Triplett has filed a pro se supplemental brief. Appellee adheres to its original position and the position taken by Ms. McMillin, Triplett s appellate counsel, there are no arguable issues in Triplett s appeal. None of Triplett s present claims are supported by the record of his bench trial by judge alone. On November 19th, 2015, the Court of Appeals denied Triplett s motion to supplement the record. Triplett s sentence to forty (40) years was not a sentence disproportionate to his offense of child exploitation nor does a sentence imposed consecutive to a federal sentence violate double jeopardy. Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983); North Carolina v. Pearce, 395 U.S. 711, 717, 89 S. Ct. 2072, 23 L.Ed.2d 656 (1969), respectively. Triplett has failed to demonstrate he was denied his right to represent himself at trial, and the trial court did not abuse its judicial discretion in declining to reconsider Triplett s motion for judgment notwithstanding the verdict. In all other respects appellee stands by the position taken in its original brief, infra, that 1

5 Triplett has identified no arguable issues. Following a bench trial conducted on September 5, 2012, in the Circuit Court of Lowndes County, Lee S. Coleman, circuit judge, presiding, Robert W. Triplett was convicted of a single count of exploitation of a child after images of a child engaged in sexually explicit conduct were found on his home computer. Triplett was sentenced as a habitual offender to forty (40) years in the custody of the MDOC. After Triplett filed a direct appeal, the Court of Appeals, on August 19, 2014, affirmed Triplett s conviction but reversed his sentence as a habitual offender and remanded the case for resentencing. See Triplett v. State, 145 So.3d 1256 (Ct. App. Miss. August 19, 2014). Triplett was not pleased with the decision of the trial judge who found Triplett guilty. On November 12, 2014, Triplett filed a post-conviction pleading styled Motion to Reconsider Motion for Directed Verdict of Acquittal where he basically assailed the sufficiency of the State s evidence used to convict him during a bench trial before judge alone. (C.P. at 3-13) In its opinion upholding on direct appeal the integrity of Triplett s conviction the Court of Appeals opined: On appeal, Triplett does not challenge his conviction, but argues, rather, that the circuit court erred in sentencing him as a habitual offender pursuant to Mississippi Code Annotated section (Rev. 2007). 145 So.3d at On March 25, 2015, the trial court, treating Triplett s post-conviction papers as a motion for post-conviction relief, entered an order that reads, in its entirety, as follows: This cause came on for hearing on the Defendant s Motion to Reconsider Motion for Directed Verdict of Acquittal and the Court having considered same finds that said motion should be treated as a Post Conviction Relief motion and should be denied. (C.P. at 24) 2

6 During a motion and indigency hearing conducted a month earlier on February 20, 2015, the following colloquy took place: THE COURT: All right. * * * The issue of whether or not you desire to employ counsel has been answered by your filing the pro se motion, and we ll - - Court finds that you do desire to employ counsel. Now, whether you are indigent or not, I want you to tell the Court what assets you have at this time. BY THE DEFENDANT: Sir, I have nine cents in my inmate account, and as far as I know that s all my assets in this world. BY THE COURT: All right. You had considerable assets at one time in your life, did you not. BY THE DEFENDANT: I ve had considerable assets at several times, but lawyer s fees and this, that, and the other have eaten them up. And according to my now ex-wife, she cleaned out my IRA to pay legal bills and taxes on the money that she had removed from it. [A]t the time I was arrested, I believe my checking account balance was 17 or $18, and I think she took that out. BY THE COURT: All right. You had considerable assets at one time prior to your first trial in this case, though, and that concerned the Court. And you re saying that your wife took all - - and she s now your ex-wife? BY THE DEFENDANT: Yes, sir. (C.P. at 27-28) * * * * * * BY THE COURT: All right. The Court s - - State of Indigent Appeals will be appointed to represent you. And I believe that s all we have pending before the Court at this time. BY THE DEFENDANT: I believe so. I think it s too late to hear that other motion I filed. BY THE COURT: What was the other motion that you filed? BY THE DEFENDANT: I had filed one prior to the resentencing, asking 3

7 you to reconsider that decision about whether the State had proved their case. BY THE COURT: All right. The Court s going to treat that as a postconviction relief motion, and that motion will be denied. (C.P. at 31) [emphasis ours] The appellate brief filed by Ms McMillin, counsel for the appellant, states, inter alia, that she... has diligently searched the procedural and factual history of this criminal action and scoured the record searching for any arguable issues which could be presented to the Court on Mr. Triplett s behalf in good faith for appellate review, and upon conclusion, has found none. (Brief of the Appellant at 2) Appellate counsel has followed with great skill and expertise the procedure articulated in Lindsey v. State, 939 So.2d 743 (Miss. 2006), and finds no arguable issues in the record. (Brief of the Appellant at 2) We wholeheartedly concur. STATEMENT OF FACTS Appellee respectfully defers to Ms McMillin s statement of the facts as well as the facts and procedural history gleaned from the opinion of the Court of Appeals which found no error. At the close of the State s case-in-chief, the defendant, apparently via trial defense counsel, moved for a directed verdict on the ground the State had failed to meet its burden of proof. (C.P. at 7-8, 19-20) The trial judge obviously denied the motion. SUMMARY OF THE ARGUMENT We concur with the observations of appellate counsel that the present appeal is devoid of arguable issues supporting Triplett s appeal. Lindsey v. State, supra, 939 So.2d 743, (Miss. 2005). 4

8 Triplett was hopelessly guilty of the crime charged. ARGUMENT TRIPLETT S APPEAL IS DEVOID OF ARGUABLE ISSUES. ACCORDINGLY, HIS CONVICTION AND SENTENCE SHOULD BE FORTHWITH AFFIRMED. In Lindsey v. State, supra, 939 So.2d 749 (Miss. 2006), this Court, citing Smith v. Robbins, 528 U.S. 259, , 120 S.Ct. 746, 145 L.Ed.2d 756 (2000), refined, if not reformed, the procedures for indigent criminal appeals first appearing in Killingsworth v. State, 490 So.2d 849 (Miss. 1986). The Killingsworth procedures were subsequently overruled in Turner v. State, 818 So.2d 1186 (Miss. 2001), which itself was overruled, at least in part, by Lindsey v. State, supra, 939 So.2d at We have examined the record filed in this cause and fully concur with the observations of appellate counsel. Triplett s appeal is devoid of arguable issues. Rather, Triplett is hopelessly guilty. Ms McMillen has certified that she has mailed to Triplett at his Leakesville, Mississippi, address, postage prepaid, a true and correct copy of her brief and correspondence informing Triplett that counsel finds no arguable issues in the record and [t]here are no issues that counsel can in good faith present to the Court in this appeal. (Brief of the Appellant at 3) Triplett has not, as of November 8, 2015, filed a supplemental brief within the time frame allotted by the recent order issued by the Court of Appeals. In the event Triplett files, pro se, a supplemental brief or other pleading in this cause, appellee, by order of the Court of Appeals, has been granted thirty (30) days to respond. 5

9 CONCLUSION Appellee concurs with the trained legal eye of Triplett s appellate counsel there are no arguable issues in the record. We respectfully submit that no plain error or otherwise reversible error took place during the trial of this cause and that Triplett s appeal, for want of arguable issues, has no appeal on appeal. Accordingly, the judgment of conviction of exploitation of a child and the sentence reimposed by the trial judge in its wake should be forthwith affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

10 CERTIFICATE OF SERVICE I, BILLY L. GORE, 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: Mollie M. McMillin, Esq. Indigent Appeals Division Office of State Public Defender P. O. Box 3510 Jackson, MS Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 8th day of January, Honorable Lee S. Coleman Circuit Court Judge P.O. Drawer 1033 West Point, MS Honorable Forrest Allgood District Attorney P.O. Box 1044 Columbus, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL 7