E-Filed Document May 3 2017 12:58:02 2015-CA-01650-COA Pages: 8 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI 2015-CA-01650 DERRICK DORTCH APPELLANT vs. STATE OF MISSISSIPPI APPELLEE MOTION FOR REHEARING Derrick Dortch, by and through counsel, files this Motion for Rehearing from an opinion issued by the Mississippi Court of Appeals on April 18, 2017. In support of this Motion, Dortch states as follows: Derrick Dortch was indicted for Shooting into an occupied dwelling on or about June 18, 2013 and Aggravated Assault on or about December 13, 2013. Mr. Dortch has no previous felony history. On or about December 8, 2014, Defendant pled guilty to the crime of Shooting into an Occupied Dwelling in Count I in Cause No. 2013-466 and Aggravated Assault in Count 1 in Cause No. 2014-011. The Defendant and the State agreed and the Judgment of Conviction and Sentence Instanter orders the following: Defendant was to serve a term of ten years in the custody of the Mississippi Department of Corrections in cause no. 2013-0466. The last five years of the sentence suspended and place on supervised probation under the Mississippi Department of Corrections. Also, to serve an additional term of five years in the custody of the Mississippi Department of Corrections in cause no. 2013-0466 and to run concurrently with the sentence above. Defendant was to serve a term of ten years in the custody of the Mississippi Department of Corrections in cause no. 2014-0011. The last five years of the sentence was suspended and he was place on supervised probation under the Mississippi Department of Corrections. Also, he was to serve an additional term of five years in the custody of the Mississippi Department of Corrections in
Cause No. 2014-0011 to run concurrently with the ten year sentence above in Cause No. 2014-0011. The Mississippi Department of Corrections has the sentences running consecutively. Defendant filed his Motion for Post Conviction Relief in the trial court. The Motion was Denied. The Defendant was represented by Michael Ward in Cause No.(s) 2013-466 and 2014-011 in the Circuit Court of Madison County, Mississippi. An affidavit from Mr. Ward was presented to the Court. The Court has created local rules that include settlement conference, a date by which a plea petition must be filed, and a guilty plea date. Failure to file a guilty plea petition by the set date precludes the Court s consideration of any plea recommendation from the District Attorney and any plea made thereafter must be open. The Defendant s plea deadline was continued until November 11, 2014 due to the length of time it took to get results of the psychiatric evaluation by Chris Lott. Michael Ward received a plea offer from the State and discussed the case with the assigned Assistant District Attorney (Dow Yoder). The Court has created local rules that include settlement conference, a date by which a plea petition must be filed, and a guilty plea date. Failure to file a guilty plea petition by the set date precludes the Court s consideration of any plea recommendation from the District Attorney and any plea made thereafter must be open. Mr. Ward represented Derrick Dortch in Cause Nos 2013-466 and 2014-011 in the Circuit Court of Madison County, Mississippi His plea deadline was continued until November 11, 2014 due to the length of time it took to get results of the psychiatric evaluation by Chris Lott. Mr. Ward received a plea offer from the State and discussed the case with the assigned 2
Assistant District Attorney (Dow Yoder). There was never any conversation or mention of the fact that the District Attorney s office was seeking to enhance Dortch s sentence under Section 97-37-37, Miss. Code Ann.(1972). This is further reflected in the written Plea Bargain Offer from the State which is attached to the affidavit. Neither Mr. Ward nor Mr. Dortch received any notice of the enchancement until the original plea date of November 11, 2014, and only then, by the trial judge. SUMMARY OF THE ARGUMENT The trial court enhancing the sentence of Mr. Dortch was in error. Under the dictates of Sallie v. State, 155 So. 3d 760, 2015 Miss. LEXIS 38 (Miss. 2015) the sentences under 97-37- 37 should be vacated due to inadequate notice under U. S. and Mississippi Constitutions. ARGUMENT THE TRIAL COURT ERRED IN ENHANCING THE SENTENCE, PURSUANT TO SECTION 97-37-37, MISS. CODE ANN.(1972) WHEN THE DEFENDANT WAS NOT GIVEN NOTICE THAT THE COURT WAS SEEKING THE ENHANCEMENT To be sufficient, an indictment must (1) contain the elements of the charged offense, (2) give the defendant adequate notice of the charges, and (3) protect the defendant against double jeopardy. The validity of an indictment is tested by practical considerations. Coleman v. State, 786 So. 2d 397, 399 (Miss. 2001), citing United States v. Goodman, 605 F.2d 870, 885 (5th Cir. 1979). It is not enough to say that the elements of the substantive crime charged contained the elements necessary to charge the enhancement. Statutory enhancements must be charged in the indictment. Cunningham v. California, 549 U.S. 270, 280 (U.S. 2007). This is because notice of the enhancement means something that would put the defendant on actual notice that the enhancement is being sought. Garrett v. State, 611 So. 2d 493, 494 (Ala. Crim. 3
App. 1992); State v. Jackson, 480 So.2d 263 (La. 1985). See also State v. Crawford, 147 P.3d 1288 (Wash. 2006) (stating that prosecutors must set forth their intent to seek enhanced penalties for the underlying crime in the information). Such language in the indictment serves a valid and useful purpose in that it gives notice to the defendant from the start that the government intends to seek the enhanced sentence if the defendant is convicted. United States v. Washington, 992 F.2d 785, 787 (8th Cir.) (quotation omitted), cert. denied, 126 L. Ed. 2d 320, 114 S. Ct. 356 (1993). Our courts have repeatedly held that the right to notice of criminal charges is guarded by both the federal and state constitutions. Thomas v. State, 126 So.3d 877, 878 ft 7 (Miss 2013) In order to constitutionally be sufficient as indictment must change not only the essential legal elements of the offense, but must describe with sufficient, particularly the essential facts constitutionally, the offense charged. Miss. Fulton v. State 146 So.3d 975, 978 (2014). Furthermore, Article 3, Section 27 of the Mississippi Constitution requires indictment by grand jury in felony cases. See, also, U.S. Const., Amend. V; Rhymes v. State, 638 So.2d 1270 (Miss. 1994). Moreover, the Fifth Amendment and Art. 3, Section 22 protect a defendant from being twice put in jeopardy for the same offense by requiring that all essential legal and factual elements of the offense be set forth in the indictment. Russell v. United States, 369 U.S. 749 (1962); Rutherford v. State, 196 Miss. 321, 17 So.2d 803, 804 (1944). In addition to the Sixth Amendment notice requirement, due process notions of fundamental fairness require basic notice of the facts for which a defendant must answer in court. U.S.Const., Amend. V and XIV. Miss.Const., Art 3, Section 14. As the United States Supreme Court has put it, "[n]o principle of procedural due process 4
is more clearly established than that notice of the specific charge, and a chance to be heard in a trial of the issues raised by that charge... are among the constitutional rights of every accused." Cole v. Arkansas, 333 U.S. 196, 201 (1948). While the statutory language may be used "in the general description of an offence, but it must be accompanied with such a statement of the facts and circumstances as will inform the accused of the specific offence, coming under the general description with which he is charged [emphasis added]." United States v. Hess, 124 U.S. 483, 487 (1974); Russell v. United States, 369 U.S. 749, 764 (1962) ["Where guilt depends so crucially upon such a specific identification of fact, our cases have uniformly held that an indictment must do more than simply repeat the language of the criminal statute"]. For example, in Spears v. State, 175 So.2d 158, 162 (Miss. 1965), the Court affirmed that the indictment must contain not just the legal elements of the crime, but it must also describe the facts claimed to violate those elements: "[w]hile the language of the statute is general in its terms, when you come to the offense, specific acts should be alleged, which acts on their face show a violation of the law." See, Rule 7.06, UCCCR [must charge essential facts]. Put another way, It is an elementary principle of criminal pleading, that where the definition of an offense, whether it be at common law or by statute, "includes generic terms, it is not sufficient that the indictment shall charge the offense in the same generic terms as in the definition; but it must state the species--it must descend to particulars." United States v. Cruikshank, 92 U.S. 542, 558 (1875). Consequently, facts are to be stated, not just conclusions of law alone because a crime is made up of acts and intent that must be charged with reasonable particularity of time, place and circumstances. Id. Once an indictment has charged those facts, and in this case the specific ways in which the statute was violated, any constructive amendment is impermissible where the proof and jury instructions allow a jury to convict the defendant of uncharged means. Lester v. State, 692 So.2d 5
755, 775 (Miss. 1997), overruled on other grounds in Weatherspoon v. State, 132 So.2d 158 (Miss. 1999). In other words, it is axiomatic that once an indictment issues charging essential facts as to how a statute has been violated, the state is required to prove those facts as specified in the indictment in order to sustain a conviction and cannot add another way the statute was violated. Griffin v. State, 584 So.2d 1274, 1276 (Miss. 1991) [could not be convicted of assault with a pistol where indictment charged assault by shooting the victim in the head]; Stirone v. United States, 361 U.S. 212, 80 S.Ct. 270, 4 L.Ed.2d 252 (1960) [could not be convicted of interfering with interstate shipments of steel when indictment charged interference with shipments of sand]; United States v. Adams, 778 F.2d 1117 5 th Cir. 1987) [could not be convicted of misrepresenting his residence where the indictment charge he represented his name]; United States v. Stoddard, 875 F.2d 1233 (6 th Cir. 1989) [defendant could not be convicted of misapplication of bank funds from a member bank when he was indicted for misapplication of funds from an insured bank]; United States v. Leichtman, 948 F.3d 370 (7 th Cir. 1991) [defendant could not be convicted of carrying one of any of the three guns he possessed where the indictment charged that he carried only one particular gun]. Because Dortch was not given notice that the prosecution would be seeking the enhancements if he were to be found guilty, the enhancements violated Dortch s right to due process under both the State and Federal constitutions. CONCLUSION For the above and foregoing reasons, this Court should withdraw its opinion of April 18, 2017, and reverse Derrick Dortch s convictions and remand for a new trial. This the 3 rd day of May, 2017. 6
DERRICK CORTCH By: s/ Cynthia A. Stewart CYNTHIA A. STEWART SUBMITTED BY: CYNTHIA A. STEWART P.A. (MSB #7894) 118 Homestead Drive, Suite C Telephone: (601) 856-0515 Facsimile: (601) 856-0514 7
CERTIFICATE OF SERVICE I, the undersigned, CYNTHIA A. STEWART, attorney for Defendant, do hereby certify that I have this day mailed, by United States mail, postage prepaid, a true and correct copy of the above and foregoing to: Michael Guest, Esq. Office of the District Attorney P. O. Box 121 Canton, Mississippi 39046 Mr. Jim Hood, Esq. Mr. Jason L. Davis Attorney General s Office P. O. Box 220 Jackson, MS 39205 Honorable John Emfinger Circuit Court Judge P. O. Box 1885 Brandon, Mississippi 39043 DATED, this the 3 rd day of May, 2017. : s/ Cynthia A. Stewart CYNTHIA A. STEWART 8