E-Filed Document Apr 22 2014 15:58:43 2013-CP-00239-COA Pages: 14 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI SHELBY RAY PARHAM APPELLANT VS. NO. 2013-CP-0239-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: MELANIE THOMAS SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 101016 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF FACTS AND THE CASE...1 SUMMARY OF THE ARGUMENT...4 LEGAL ANALYSIS...4 I. THE TRIAL COURT DID NOT IMPOSE PARHAM S SENTENCE PRIOR TO SUSTAINING THE STATE S MOTION TO AMEND THE INDICTMENT TO CHARGE PARHAM AS AN HABITUAL OFFENDER..... 4 CONCLUSION...10 CERTIFICATE OF SERVICE...11 i
TABLE OF AUTHORITIES FEDERAL CASES Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000)........... 2 Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004)............ 2 Bullcoming v. New Mexico, 131 S.Ct. 2705, U.S. (No. 09-10867) (June 23, 2011).... 3 STATE CASES Akins v. State, 493 So. 2d 1321, 1322 (Miss. 1986)].................................. 5 Crouch v. State, 826 So.2d 772, 775 (Miss. Ct. App. 2002).......................... 2, 3 Gowdy v. State, 56 So. 3d 540 (Miss. 2010)............................... 4, 5, 6, 9, 10 Keyes v. State, 549 So.2d 949, 951 (Miss.1989)..................................... 2 Parham v. State, 54 So.3d 867 (Miss. App. 2010)................................. 2, 3, 5 Rowland v. State, 42 So.3d 503, 506 (Miss.2010).................................... 6 Torrey v. State, 891 So.2d 188, 195 (Miss. 2004)................................... 2, 5 STATE STATUTES Miss. Code Ann. 97-21-59...1 Miss. Code Ann. 99-19-81...1, 5, 7, 8, 10 Miss. Code Ann. 99-19-83...1, 5, 6, 7 Miss. Code Ann. 99 39 5(2) (Supp.2009)...2 Miss.Code Ann. 99 39 5(2) (Supp. 2012)...4 Miss.Code Ann. 99 39 5(2)(a) -(b)... 4 Miss. Code Ann. 99-39-23 (6)...5 ii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI SHELBY RAY PARHAM APPELLANT VS. NO. 2013-CP-0239-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF FACTS AND THE CASE On April 9, 2004, Petitioner, Shelby Ray Parham, was indicted for false pretense, multiple counts of uttering a forgery and identity fraud. Supp. C.P. 1-11. On July 14, 2004, the State moved to amend Petitioner s indictment to charge him as an habitual offender pursuant to Mississippi Code Annotated Section 99-19-83. Supp. C.P. 21. No order was entered on the State s motion. On October 5, 2004, the State moved to amend Petitioner s indictment to reflect his habitual status pursuant to Mississippi Code Annotated Section 99-19-81; Petitioner joined in the State s Motion to Amend Indictment. Supp. C.P. 83-84. On October 5, 2004, Petitioner plead guilty as an habitual offender to one count of uttering a forgery, in violation of Mississippi Code Annotated Section 97-21-59; in return, the State dismissed the remaining charges against Petitioner. During Petitioner s plea colloquy, defense counsel stated Petitioner had no objection to the State s Motion to Amend; counsel also confessed the authenticity of the prior convictions used to elevate Petitioner to habitual status. On October 6, 2004, the trial judge entered two Orders in this case: an Order granting the State s Motion to Amend, 1
and an Order of judgment and sentence against the Petitioner. Supp. C.P. 73, 76. On April 29, 2009, almost five years after sentencing, Parham filed an Application for Post- Conviction Relief with this Court. Petitioner argued, that the State illegally amended the indictment to charge him as a habitual offender, deprived him of due process of law, created plain error not subject to the three-year period of limitations, and imposed the sentence as a habitual offender without the approval of a jury. Parham v. State, 54 So. 3d 867 (Miss. App. 2010). On August 17, 2010, this Court affirmed Petitioner s conviction and sentence, holding as follows: Mississippi Code Annotated section 99 39 5(2) (Supp.2009) provides for a three-year statute of limitation after the entry of judgment or conviction. One of the exceptions to this statute of limitations is those cases in which the prisoner can demonstrate... [t]hat there has been an intervening decision of the Supreme Court or either the State of Mississippi or the United States which would have actually affected the outcome of his conviction or sentence... Parham was sentenced in 2004, and the motion for post-conviction relief was filed in 2009, at least five years after his sentencing occurred. Parham asserts that Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000) and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) are intervening cases. His claims are without merit. Both cases were decided prior to his guilty plea and sentencing; the holdings in these cases are not applicable to Parham's case. Thus, the statute of limitations should be applied, and Parham's motion should have been found to be time-barred. Turning to the merits of the appeal, we again find no merit to Parham's claims. Parham argues that the amendment to his indictment was illegal. Both he and his counsel agreed to the amendment and stated that the prior criminal convictions were valid. See Torrey v. State, 891 So.2d 188, 195 ( 38 39) (Miss.2004) (no error found where defendant's indictment was amended to show he was a habitual offender defendant did not dispute prior felony sentences introduced by State and failed to show his defense was adversely affected by amendment to indictment). As to Parham's claim that the jury should have been consulted on his habitual-offender status, the Mississippi Supreme Court has held that the constitution confers on the accused no right of trial by jury on the question of whether he is [a] habitual offender. Keyes v. State, 549 So.2d 949, 951 (Miss.1989); see also Crouch v. State, 826 So.2d 772, 775 ( 3) (Miss.Ct.App.2002). 2
Parham's motion for post-conviction relief is both barred by the statute of limitations and has no merit. We affirm. Parham, id. at 868-69. On October 30, 2012, Petitioner filed, in the Circuit Court of Clay County, Mississippi, a Motion for Post Conviction Collateral Relief Pursuant to Intervening Decision by United States Supreme Court. According to Petitioner, C.P. 8. 1. Under the requirements of the intervening decision of the United States Supreme Court in Bullcoming v. New Mexico, 131 S.Ct. 2705, U.S. (No. 09-10867 th (June 23, 2011). Petitioner was denied due process of law, in violation of the 5 and th 14 Amendment to the United States Constitution where the prosecution fiailed to introduce testimony from the witness which certified the documents used to prove prior convictions which thereby deprived the petitioner of his right to confrontation and thereby invalidated the habitual portion of the indictment and sentence imposed. 2. That Parham was denied due process of law where trial court imposed habitual sentence prior to date and time indictment was amended to charge habitual status and at a time when defendant had not been charged by amendment of indictment with being habitual offender. On January 24, 2013, the trial court dismissed Parham s Petition. In so doing, the court found that Parham s Petition was time barred pursuant to Mississippi Code Annotated Section 99-39-5 (1972), and that the Petition met none of the exceptions of Section 99-39-5 (1972), since no new evidence appeared which was not available when the case could have gone to trial, no intervening higher court decision has passed, nor is the Petitioner being detained on an expired sentence. The circuit court also specifically rejected Petitioner s Bullcoming claim. C.P. 24-25. On February 6, 2014, Petitioner filed the instant Brief of the Appellant with this Court, asserting only a single allegation of error: 3
I. THAT PARHAM WAS DENIED DUE PROCESS OF LAW WHERE TRIAL COURT IMPOSED HABITUAL SENTENCE PRIOR TO DATE AND TIME THE COURT SUSTAINED THE AMENDMENT OF INDICTMENT TO CHARGE HABITUAL STATUS. As the following analysis demonstrates, this issue is devoid of legal merit. Thus, Petitioner's conviction and sentence should be affirmed. SUMMARY OF THE ARGUMENT Petitioner s claim is procedurally barred. Without waiving any applicable bars(s) or waiver(s), as set forth herein the issue raised by Parham is without merit. Accordingly, Petitioner's conviction and sentence should be affirmed. Because Respondent's brief provides a full explanation of each of the arguments presented, Respondent requests leave to dispense with a more detailed Summary of the Argument. LEGAL ANALYSIS I. THE TRIAL COURT DID NOT IMPOSE PARHAM S SENTENCE PRIOR TO SUSTAINING THE STATE S MOTION TO AMEND THE INDICTMENT TO CHARGE PARHAM AS AN HABITUAL OFFENDER. In his application for post-conviction relief and here on his appeal of the trial court s denial of that request Petitioner claims Gowdy v. State, 56 So. 3d 540 (Miss. 2010), which prohibits the State from amending an indictment after the defendant has been convicted, is an intervening decision that renders Petitioner s own conviction and habitual sentence invalid. Petitioner s claim is time barred, as he filed his application almost ten years after his conviction and sentence were imposed. An application for collateral relief must be made "within three (3) years after entry of the judgment of conviction." Miss.Code Ann. 99 39 5(2) (Supp. 2012). Accordingly, the trial court did not err in rejecting Petitioner s Gowdy claim outright. There are three exemptions to the time bar: (1) an intervening decision of the United States 4
Supreme Court or the Mississippi Supreme Court adversely affecting the outcome of his conviction or sentence; (2) new evidence, not reasonably discoverable at trial, which would have caused a different result in the conviction or sentence; or (3) that either his sentence has expired or his parole, probation, or conditional release has been unlawfully revoked. Miss.Code Ann. 99 39 5(2)(a) (b) & 99 39 23(6). Petitioner failed to establish Gowdy as an intervening decision, as the case which it overruled Torrey v. State, 891 So. 2d 188 (Miss. Nov. 18, 2004) was not handed down until after Petitioner was convicted and sentenced. Torrey was not the governing rule at the time of Petitioner s 1 plea (so that its overruling, via Gowdy, has any ostensible relevance in the case sub judice). Gowdy did not overrule any precedent under which Petitioner s plea was governed; moreover, Gowdy, in issuing its ruling pursuant to Akins [v. State, 493 So. 2d 1321, 1322 (Miss. 1986)], and our uniform rules, relied on the same precedent which was controlling law at the time Petitioner plead guilty to the instant crime. Gowdy, id. at 546. That Gowdy reaffirmed the Akins decision does not make it intervening law. Therefore, the trial court s ruling was not in error. Moreover, although "errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post Conviction Collateral Relief Act (UPCCRA) ]" Petitioner has failed to make anything other than base assertions that his habitual sentence was invalid. Petitioner never logically asserts how he was prejudiced. Indeed, Petitioner s only contention is that, in allegedly being deprived of notice that the State intended to sentence him pursuant to Section 99-19- 81 (as opposed to Section 99-19-83, for which Petitioner concedes notice), Petitioner was prevented 1 The State recognizes this Court s reference to Torrey in its initial ruling denying Petitioner s application for PCR. Parham v. State, 54 So. 3d 867 (Miss. App. 2010). However, Torrey was not the basis under which the trial court accepted Petitioner s plea and granted the Motion to Amend. 5
from claiming the new sentence options were excessive or too harsh. Brief of Appellee, p. 8. Petitioner concedes being put on notice of the State s intent to seek a life sentence, yet claims the State s failure to put him on notice of its intent to seek only a ten year sentence prevented him from 2 objecting to the lighter sentence on the basis that it was excessive. This is a spurious argument, insufficient to warrant further review. Rowland v. State, 42 So.3d 503, 506 (Miss.2010). Notwithstanding any applicable procedural bar, the State submits Gowdy is factually inapplicable to the case sub judice. In Gowdy, the defendant rejected a plea deal with the State and proceeded to a jury trial wherein he was convicted. The State did not disclose its intent to seek an amended indictment (on defendant s habitual status) until after the jury rendered its guilty verdict. Gowdy had no prior knowledge or notice of this possible sentence enhancement. On the day of Gowdy s sentencing hearing two months after his judgment of conviction the State formally filed its motion to amend indictment. One month later, the trial court granted the State s motion, over Gowdy s objection, and sentenced Gowdy as an habitual offender under Mississippi Code Annotated Section 99-19-83. In reversing Gowdy s sentence, the Mississippi Supreme Court held that an amendment to the indictment to allege habitual offender status after conviction is an unfair surprise. Gowdy, 56 So. 3d at 545. In so finding, the Court held that such ruling is in line with URCCC 7.09, which requires that the defendant be afforded a fair opportunity to present a defense and not [be] unfairly surprised by an amendment to his indictment. Id. As noted by the Court, the State s failure to timely move to amend Gowdy s indictment placed Gowdy in a weaker position for making an 2 Petitioner also suggests the trial court would have sentenced Petitioner to the death penalty if the State had made such a request. The State finds no basis in the record or the law for this allegation. To date, the State has no knowledge of any criminal defendant serving a capital sentence for uttering a forgery. 6
informed and rational decision when presented with a proposed plea bargain. Id. at 546. The State s actions also deprived Gowdy of notice of the applicable minimum and maximum penalties for which he could receive upon a jury conviction or plea. Id. Gowdy is inapplicable to the case sub judice for two reasons. First, Parham was not only put on notice, prior to his plea, of the State s intent to seek habitual sentencing; he also joined in the State s Motion to Amend. Second, and more simply, the trial court granted the joint Motion to Amend the Indictment before Parham was convicted. Accordingly, Parham s appeal to this Court is without merit. On July 14, 2004, the State filed a Motion to Amend Indictment to charge Parham as an habitual offender under Mississippi Code Annotated Section 99-19-83. C.P. 20. On October 5, 2004, Petitioner filed a Petition to Enter a Guilty Plea in the trial court. In paragraph 8 of the Petition, Parham agreed to being sentenced as an habitual offender, stating that he recognized the District Attorney s sentence recommendation as follows: 10 years, 17 DOC Habitual time! Retire Counts 1, 3, 4, 5, 6. C.P. 68. In paragraph 9 of the Petition, Parham listed his other felony convictions as including fondling, sexual battery and a second conviction for uttering a forgery. In paragraph 17 of the 3 Petition, Parham penned his signature in acceptance of the habitual enhancement. C.P. 70. In the Certificate of Counsel that accompanied Parham s Petition to Enter a Guilty Plea, Parham s defense attorney averred that he had explained the maximum and minimum penalties for each count to the Defendant. C.P. 72. On October 5, 2004, the parties conducted the plea colloquy in the case sub judice. At the 3 The habitual enhancement, as denoted in the Petition, was listed as Miss. Code Ann. Section 99-19-81; this was the statutory provision under which Petitioner was ultimately sentenced. 7
commencement of the hearing both the State and the defense moved for the trial court to amend Parham s indictment: By [the State]: By the Court: By [the State]: By the Court: By [the defense]: By the Court: Your Honor, at this time the State has a motion it would like to make. The State has previously filed a motion Mr. Allgood has filed a motion to amend the indictment to charge this defendant as an habitual offender under 99-19-83. Your Honor, the State is not going to proceed on that motion, but we would like to amend the indictment, and I believe the defendant has no objection, to charge this defendant as a habitual offender in this court under 99-19-81. So may I make an oral motion at this time and then I will provide a written motion for the court file? You may [...] The State is seeking the mandatory sentence of ten years without parole rather than life without parole? That s correct, your Honor. I believe the defense is going to join in with the State on that motion. Any objection to the motion to amend? No, sir. You may proceed on the 99-19-81 which we commonly call the little habitual. C.P. 83-84. Subsequent to the ore tenus order, Petitioner engaged in a plea colloquy with the court. C.P. 85-92. As part of that plea colloquy the trial court explained to Petitioner the consequences of pleading guilty as an habitual offender. C.P. 86-87, 90. Petitioner acknowledged his understanding of the habitual sentence and entered a plea of guilty. The trial court then found beyond a reasonable doubt Mr. Parham is a habitual offender as contemplated by 99-19-81, sentencing Parham to ten years and a $10,000.00 fine. C.P. 91. On October 6, 2004, the day after the plea hearing, the trial court entered two orders in the case sub judice: these orders served as written records of the ore tenus rulings during the plea 8
hearing. The first Order, located at C.P. 73, granted the State s Motion to Amend Indictment. In the second Order, located at C.P. 76, the trial court issued a ruling based on the plea itself, finding as follows: The Court finds that the plea of guilty of the Defendant was intelligently and understandingly made The Court further finds that the plea of guilty was freely and voluntarily made. A pre-sentence investigation has been conducted, a copy of which has been furnished to the Defendant and his counsel, and there was a hearing held in accordance with Rules 11.01 and 11.03 of the Uniform Circuit Court Rules. Whereupon, a hearing was held in accordance with Rule 6.04 of the Uniform Criminal Rules of Circuit Court Practice of the State of Mississippi, to determine the status of the Defendant as an habitual offender, and the Court having considered same finds beyond a reasonable doubt that the Defendant is an habitual offender within the meaning of Section 99-19-81, MCA 1972. It is therefore the Order of this Court that the Defendant is sentenced by the Court to serve a term of Ten (10) years in the Mississippi Department of Corrections, and fined in the amount of $10,000.00. Said sentence shall not be reduced or suspended, nor shall said Defendant be eligible for parole or probation. This sentence is to run concurrently with any other sentence the Defendant is currently serving. The Defendant is remanded to the custody of the Sheriff to await transportation. It is further Ordered that the interrogation to the Defendant by the Court as above described be transcribed by the Court Reporter and placed in the Court file of this proceeding. To the extent Gowdy is designed to prevent unfair surprise or deprivation of notice (in violation of a defendant s Due Process rights), the State respectfully submits there is no such evidence of that in Parham s case. The State moved to amend the indictment prior to Parham s conviction, and Parham s Petition to Plead Guilty reflects both an understanding and acknowledgment of a plea contingent on habitual status. Further, Parham also agreed to amend the indictment prior to pleading guilty. Parham has not shown, therefore, how the State or the trial court s actions were unconstitutional. 9
To the extent Gowdy imposes a more technical requirement, the State submits the facts of this case do not constitute error of any kind. The State disagrees with Petitioner s implied contention that, pursuant to Gowdy, multiple orders entered on the same day must be time-stamped to confirm that entry of an Order Amending Indictment occurred prior to entry of the Sentencing Order. Nevertheless, even if Petitioner s contention is correct, the record in this case clearly shows that, on the day before the entry of the written orders the trial judge granted the joint Motion to Amend Indictment and then accepted Petitioner s guilty plea and entering a sentence pursuant to Section 99-19-81. Accordingly, this issue is without merit. CONCLUSION For the above and foregoing reasons, the State submits that Petitioner s conviction and sentence should be affirmed. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Melanie Thomas MELANIE THOMAS SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 7005 10
CERTIFICATE OF SERVICE I, MELANIE THOMAS, 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 James T. Kitchens, Jr. Circuit Court Judge Post Office Box 1387 Columbus, MS 39703 Honorable Forrest Allgood District Attorney Post Office Box 1044 Columbus, MS 39703 Shelby Ray Parham, #72268 Mississippi State Penitentiary Unit 28 Post Office Box 1057 Parchman, MS 38738 This the 22nd day of April, 2014. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 Email: mt@ago.state.ms.us /s/ Melanie Thomas MELANIE THOMAS SPECIAL ASSISTANT ATTORNEY GENERAL 11