IN THE COURT OF APPEAL FOR THE STATE OF MISSISSI~ii,ii~iJ~it~~RI\ COURT OF APPEALS PETITION FOR REHEARING

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1 i ' No. 206-CP COA _ FLED SEP N THE COURT OF APPEAL FOR THE STATE OF MSSSS~ii,ii~iJ~it~~R\ COURT OF APPEALS LATRA SPRAGGNGS VERSUS STATE OF MSSSSPP PETTON FOR REHEARNG APPELLANT ORGNAL APPELLEE COMES NOW, the Appeant and makes this his Petition For Rehearing, pursuant to Mississippi Rues of Appeate Procedure, Rue 40, and for cause woud show unto this Honorabe Court the pertinent facts and aw that this Court has either overooked or mi~pprehended:. The Court correcty recognized that the Appeant argues h~re that he was denied the constitutiona right to appea his sentence in accord with the rue of aw set forth in Lett v. State, 965 So.2d 066 (Miss. 2007)., despite the fact that he pied guty to the offense. See attached Opinion at P7.. Next, the Court appies the new anguage of an amended Mississippi Code Annotated, Section , to concude that under this amended version the right to appea sentence no onger exist. See attached Opinion at P8, citing Cook v. State, 06 So.3d 823; Wrenn v. State, 2 So.3d 93; Sea v. State, 38 So.3d 635. MOTON# 207. n reaching its decision the Court of Appeas engaged in statutory interpretation

2 and/or construction. See attached Opinion, at P8 ("The pain anguage of Section shows that Spraggins is not entited to appea his sentence foowing his pea of guity."). ' i V. Here, the Court of Appeas is in error as a matter of fact and aw. The Appeant contends that the Court of Appeas' decision is in irreconciabe confict with the appicabe decisions of the United States Supreme Court and the Mississippi Supreme Court, and the Appeant contends that under the Court of Appeas' construction of Miss Code renders unconstitutiona, as appied to sentencing and the constitutiona right to counse during that sentencing. n short, the Court of Appeas' construction of usurps the the fundamenta constitutiona right to t i j j ' i! i counse during sentencing and to that same counse on appea of that sentence. The Legisature, nor the Court of Appeas, cannot take away, or render of no effect, the constitutiona right to counse during sentencing, by taking away the constitutiona right to counse to appea that sentence. V. Appeant argues that the Court of Appeas decision overooks the pertinent fact and aw that the decisions of the United States Supreme Court estabish that a crimina defendant has a constitutiona right to counse at sentencing after the guity pea. See Mempa v. Rhay, 389 U.S. 28 (967). Where there is a constitutiona right to counse during the subject matter of sentencing after the guity pea, it foows that there is a constitutiona right to be heard on appea with this counse on same sentencing subject matter. Certainy, it cannot be reasonaby argued that the defendant has a constitutiona right to counse during sentencing, but not have that 2

3 same right to counse to appea that sentence. And, in interpreting the statute the Court of Appeas overooks the constitutiona question that is created in saying that there a constitutiona right to counse during sentencing, but no constitutiona right to counse to appea that sentence. The doctrine of constitutiona doubt requires the Court of Appeas to construe , "if fairy possibe, so as to avoid not ony the concusion that it is unconstitutiona but j J aso grave doubts upon that score." United States v. Jin Fuey Moy, 24 U.S. 394, 40 (96). "Where an otherwise acceptabe construction of a statute woud raise serious constitutiona probems, the Court must construe the statute to avoid such probems uness such construction is painy contrary to intent of Legisature...'The eementary rue is that every reasonabe construction must be resorted to, in order to save a statute from unconstitutionaity." This approach not ony refects the prudentia concern that constitutiona issues not be needessy confronted, but aso recognizes that Legisature, ike this Court, is bound by and swears on oath to uphod the Constitution." DeBartoo Corp. v. Forida GuH Coast Trade Counci, 485 U.S. 568, 578 (988). Accordingy, this Court shoud interpret the statute in a way that avoid thorny constitutiona questions, and must concude that where the defendant has the constitutiona right to counse during sentencing, it foows that the defendant has the constitutiona right to have that counse appea his sentence. There is absoutey no reason to beieve that the Legisature intended otherwise. The United States Supreme Court has said that "n expounding a statute, we must not be guided by a singe sentence or member of a sentence, but ook to the provisions 3

4 of the whoe aw, and to its object and poicy." United States v. Boisdore's Hiers, 49 U.S. (8 How.) 3, 22 (850.). Thus, the meaning of a specific statutory directive may be shaped, for exampe, by that statute's definitions and terms, by the statute's statement of findings and purposes, by the directive's reationship to other specific directives, by purposes inferred from those directives or from the statue as a whoe, and by the statute's overa structure. Beyond this, the Courts aso may ook to the broader body of aw into which the enactment fits. Green v. Bock Laundry Machine Co., 490 U.S. 504,528 (990). The Appeant beieves that the foowing facts and aw were either overooked or misapprehended in the Court of Appeas' construction of , and that the foowing broader body of facts and aw shoud have been consuted and ooked into:. That sentencing is separate from, and comes after, the guity pea, see UCCCR.0 and.03; 2. That there is a constitutiona right to counse during sentencing, Mempa v. Rhay, supra; 3. That the federa aw shows and recognizes the difference and that there is a constitutiona right to direct appea sentence after the pea of guity, see F.R.Cr.P. 32(j)( )(B); 4.That the guity pea is a contract between the State and the defendant, which takes away any right to appea the guity pea, see Lanier v. State, 635 So.2d 83, (Miss. 994); and 5. That there was no contract between the State and the defendant regarding the sentence, which woud forfeit the sentence and right to counse during sentencing, and the right to this same counse on the appea of the sentence. Certainy, these concepts and/or rues of aw were some of what the Mississippi Supreme Court had in mind in deciding in the case of Trotter v. State, 554 So.2d 33, 35 (Miss. 989) that the defendant had constitutiona right to appea sentence despite 4

5 . the guity pea. t must be remembered that there is a fundamenta constitutiona right to due process of aw where the State seeks to deprive a person of their iberty, that process due after sentencing, and after the right to counse during that sentencing, is the right to direct appea of sentence with that counse ( of constitutiona right). U.S.C.A 4. Logic dictates that the Legisature did not intend to take away the fundamenta constitutiona right to counse during sentencing, in making a statute the precudes an appea of a guity pea. CONCLUSON Appeant contends that the Court of Appeas' decision shoud be set aside and the above overooked pertinent considerations shoud be discussed and a new decision shoud issue. RESPECTFULLY SUBMTTED, this thj.[!!aay of August, 207. Notaby, the Court of Appeas reied upon the cases of Cook v. State, 06 So.3d 823, and Wrenn v. State, 2 So.3d 93. However, these cases were misappied because in those cases the defendant was appeaing guity peas, not sentences. The guity pea contract forecose the right to appea the convictions, not the sentences. This case is about appeaing sentences with the constitutiona right to the same counse had during sentencing. 5

6 CERTFCATE OF SERVCE Let this certify that the undersigned has on this day caused a true copy of the foregoing to be maied to the Office of the Attorney Genera of Mississippi, P.O. Box 220, Jackson, MS., 39205, this the zt:-day of~~, 207. ~~ Lattai spra/g(fts#6 W.C.R.C.F. P.O. BOX 437 LOUSVLLE, MS