IN THE SUPREME COURT OF MISSISSIPPI & IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI 2016-CA-188-COA STATE OF MISSISSIPPI

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1 E-Filed Document Nov :34: CA COA Pages: 9 IN THE SUPREME COURT OF MISSISSIPPI & IN THE COURT OF APPEALS FOR THE STATE OF MISSISSIPPI 2016-CA-188-COA LAVERN JEFFREY MORAN APPELLANT VERSUS NO. STATE OF MISSISSIPPI APPELLEE ON APPEAL FROM THE CIRCUIT COURT OF HARRISON COUNTY, MISSISSIPPI FIRST JUDICIAL DISTRICT REPLY BRIEF OF APPELLANT MICHAEL W. CROSBY (MS BAR NO. 7888) th Avenue Gulfport, MS TEL: FAX: michaelwcrosby@bellsouth.net Attorney of record for, Appellant, Lavern Moran Jeffrey 1

2 TABLE OF CONTENTS TABLE OF CONTENTS 1 TABLE OF AUTHORITIES 2 REPLY 3-7 CONCLUSION 7 CERTIFICATE OF SERVICE 8 1

3 TABLE OF AUTHORITIES CASE LAW: Davis v. State, 2007-CP COA, (Miss. Ct. App. 2008) 3,5,6 Jackson v. State, 518 So. 2d 1219, 1219 (Miss. 1988) 3 Kolb v. State, 568 So2d 288, 299 (Miss 1990) 3 Rushing v. State, 461 So.2d 710 (Miss. 1984) 3 Williams v. State, 24 So3d 360, (Miss. Ct. App. 2009) 3,7 STATUTORY LAW: Miss. Code. Ann

4 REPLY OF PLAINTIFF APPELLANT In the Appellant s/moran s Brief, Moran respectfully submitted that the case law interpretation of the habitual statute is wrong. The Appellant s Brief explained that the lower court relied upon the following cases, to deny Moran s request to declare the court s application of the habitual statute, section MCA, as it pertains to the interpretation of the words in said statute separately brought, as follows: As the lower judge opined, and the prosecutor argued, the current states of the law in Mississippi is against the Petitioner. This Petitioner respectfully submits that the law is wrong, and it should be overturned. The lower court relied upon the rulings in: Kolb v. State, 568 So2d 288, 299 (Miss 1990); Rushing v. State, 461 So.2d 710 (Miss. 1984); Williams v. State, 24 So3d 360, (Miss. Ct. App. 2009). The Appellee in its Brief, did not cite Rushing and Williams, but it did cite Kolb and some additional cases in support of the same proposition, as follows: [t]hat separately brought in the habitual statute, section MCA, includes cases arising out of separate incidents at different times if the sentences are imposed on the same date. Further, the Appellee cited two additional cases in its Brief, as follows, Jackson v. State, 518 So. 2d 1219, 1219 (Miss. 1988) Davis v. State, 2007-CP COA, (Miss. Ct. App. 2008) which Moran submits are not analogous to the issue at bar. The distinction in these two additional cases will be set for the below. Kolb (26 years), Jackson (28 years) and Rushing (32 years), are very old, and are negative authority, however, it is respectfully submitted that they are wrong. Williams, Jackson and Davis, are argued by Appellee in support of the same position, however, as will be discussed below, they actually do not support the separately brought interpretation that the Appellee sponsors. 3

5 Moran s argument is based upon a common sense reading of section MCA, which states: Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation Miss. Code. Ann (West) Moran submits that separately brought must mean what is states cases brought on separate occasions in court; which if interpreted with a non-vague, plain, ordinary, and common sense, approach, the correct meaning of the phrase would clearly not allow different cases, arising out of separate incidents at different times, to be considered separately brought. This would defeat logic and in fact, would be a cruel and unusual interpretation. Additionally, the Appellee did not dispute or reference the statutory construction rules or the rules of leniency, which requires that vague statutory terms be constructed in favor of the defendant and with lesser egregiousness. The only contention the Appellee expressed with respect to these rules, is that Justice Rehnquist opined that a recidivist statute s goal, is to deter repeat offenders Moran does not dispute the Appellee s position on the recidivist statute s goal, but Moran does submit that the Appellee did not actually dispute the statutory construction and Leniency rules regarding how the statute s words, separately brought. Justice Rehnquist s opinion is fully applicable to the recidivist goal, and especially so when the defendant is brought before the court three separate times as the proper interpretation of the statute requires. The Appellee also discussed the fairness of the mandatory day-or-day sentence in the case at bar. Moran is not trying to debate whether the crimes would justify the mandatory 4

6 application of the habitual law, but does contest that he qualifies for the separately brought correct interpretation. He submits that the cruel and unusual aspect of his argument, is not that his same crimes if separately brought, could be eligible for the terrible application of the habitual law, but instead, that it is cruel and unusual to apply the habitual statute to his case, since he did not appear before the court three separate times, as the words separately brought should be interpreted. The Appellee further submitted, in opposition to Moran s position, that to overrule precedent, that the Court would have to find that the prior decisions of the Court are wrongly decided, pernicious, impractical or mischievous in its effect and results in a detriment to the public. Moran absolutely submits that allowing the phrase separately brought to be given the wrongful interpretation, in the harshest fashion, of the phrase separately brought, which causes separately arising offenses, (a phrase also used in the statute) that are brought on the same day, (not separately), to be nevertheless considered separately brought,... without question, qualifies as the exact definition of the adjectives in the string of harsh words referenced hereinabove, by the Appellee (i.e. are wrongly decided, pernicious, impractical or mischievous in its effect and results in a detriment to the public, etc.) Now, with respect to the three cases, cited by the Appellee, which the Appellee contends is more recent support in favor of the harsh and the current application and interpretation of separately brought, Moran hereby distinguishes those cases as follows: In Davis v. State, 2007-CP COA, (Miss. Ct. App. 2008), the Appellate Court did not address the same issues argued in the case at bar. The issue in the case at bar is about whether, separately arising offenses, sentenced on the same day, are correctly considered separately brought, as statutorily interpreted. In Davis, the Court decided the issue regarding 5

7 whether an individual is required to actually serve prison time in order to be sentenced as a habitual offender under section The Court stated as follows: 14. The Mississippi Supreme Court and this Court have repeatedly held that an individual is not required to have actually served any prison time in order to be sentenced as a habitual offender. In Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980), the supreme court, in response to the argument that section requires not only that an individual be sentenced to terms of one year or more, but also that such sentences be served through actual incarceration, stated: We reject this argument, because we think the statutory intention is satisfied where, as here, the accused has been twice previously adjudged guilty of distinct felonies upon which sentences of one year or more have been pronounced, irrespective of subsequent probation or suspension of the sentences. We are of the opinion the statute is intended to cure the evil of recidivism. Enhanced punishment relates to the conduct underlying the previous convictions. Adjudication of guilt and consequent pronouncements of sentences merely accord those convictions finality. Subsequent suspension of the sentences or probation is a matter of grace only, arising from the hope that the prospects of rehabilitation of the guilty warrant leniency. Clearly that hope is defeated when the beneficiary of the indulgence perpetrates further felonies. The statute is suited precisely to this problem. (Citations omitted); see also Hewlett v. State, 607 So.2d 1097, 1105 (Miss.1992) ( The fact that there was no actual incarceration does not affect the sufficiency of the sentences as evidence of habitual offender status. ); Green v. State, 802 So.2d 181, 183( 14) (Miss.Ct.App.2001) ( Service of sentence through actual incarceration is not mandatory when considering habitual offender status under ) (citing Jackson, 381 So.2d at 1042); Anderson v. State, 766 So.2d 133, 136( 9) (Miss.Ct.App.2000). Therefore, for the purposes of habitual offender status pursuant to section , whether the individual actually served time in prison is irrelevant Davis also argues that his indictment was defective because multi-count indictments are not permitted in Mississippi. Mississippi Code Annotated section (1), however, states as follows: Two (2) or more offenses which are triable in the same court may be charged in the same indictment with a separate count for each offense if: (a) the offenses are based on the same act or transaction; or (b) the offenses are based on two (2) or more acts or transactions connected together or constituting parts of a common scheme or plan. Miss.Code. Ann (1) (Rev.2007). Here, the indictment stated that the offenses *442 giving rise to the four counts with which Davis was charged were all part of a common scheme or plan; therefore, it was permissible for the State to charge Davis in a multi-count indictment. Accordingly, this issue is without merit. Davis v. State, 2007-CP COA, (Miss. Ct. App. 2008) 6

8 Thus, Davis, is not authority against Moran s position. Similarly, in Williams, the Court discussed whether the defendant should have been charged as a habitual offender since her sentences for the underlying offenses were served simultaneously. The Court stated as follows: 11. Williams claims that she should not have been charged as a habitual offender as the sentences for her two previous convictions were served concurrently. Therefore, she was only in custody for one year. The amendment to Williams's indictment charged her under Mississippi Code Annotated section (Rev.2000), which states: Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation. (Emphasis added). This statute merely requires that the defendant be sentenced to one year or more for each crime. It *365 does not require that the individual be incarcerated under his imposed sentences to obtain habitual offender status. Davis v. State, 5 So.3d 435, 441( 14) (Miss.Ct.App.2008); see also Green v. State, 802 So.2d 181, 183( 14) (Miss.Ct.App.2001) ( Service of sentence through actual incarceration is not mandatory when considering habitual offender status under [section] ) (citation omitted). Williams was convicted and sentenced for two separate crimes prior to her February 3, 2005, conviction: felony shoplifting in 1995 and possession of marijuana in Thus, the felonies were separate incidents, which occurred at different times, and each carried a sentence of at least one year. Thus, the fact that Williams was only incarcerated for one year while serving her concurrent sentences does not afford her relief from habitual offender status under section Williams v. State, 2008-KP COA, (Miss. Ct. App. 2009) Thus, the above, somewhat more recent cases, cited by the Appellee, are easily distinguished from the issues in the case at bar. For every just reason, the current cases supporting the interpretation favored by Appellee, should be overturned. CONCLUSION Moran respectfully submits that the interpretation favored by Appellee, in which is the current, albeit very old case law, should be overturned in the interests of justice. Offenses which 7

9 arose separately, but brought before the court on the same day, should not be considered to have been separately brought, pursuant to the habitual sentencing laws. Respectfully submitted on this the 16 th day of November, LAVERN JEFFREY MORAN BY: /s/ Michael W. Crosby CERTIFICATE OF SERVICE I hereby certify that on this day, I electronically filed the foregoing document by using the ECF system, which served the document upon those required in the ECF rules to be served. /s/ Michael W. Crosby MICHAEL W. CROSBY BY: /s/ Michael W. Crosby MICHAEL W. CROSBY 8