Acker v. State, 1999-KA-01858-SCT.

• Decision Date: 21 June 2001
• Docket Number: No. 1999-KA-01858-SCT.,1999-KA-01858-SCT.
• Citation: 797 So.2d 966
• Court: Mississippi Supreme Court
• Parties: Crystal ACKER a/k/a Crystal Hayden Acker a/k/a "Shorty" v. STATE of Mississippi.

797 So.2d 966

Crystal ACKER a/k/a Crystal Hayden Acker a/k/a "Shorty" v. STATE of Mississippi.

No. 1999-KA-01858-SCT.

Supreme Court of Mississippi.

June 21, 2001.

Amy Stokes Harris, Dallas, TX, Attorney for Appellant.

Office of the Attorney General by Charles W. Maris, Jr., Jackson, Attorney for Appellee.

Before PITTMAN, C.J., MILLS and WALLER, JJ.

PITTMAN, Chief Justice, for the Court:

¶ 1. This is an appeal from an order entered by the Circuit Court of Itawamba County denying Crystal Acker's motion for resentencing or reduction of sentence. The State filed a motion to dismiss the appeal, alleging that Miss.Code Ann. § 99-35-101 does not authorize an appeal where the defendant has pled guilty. We deny the State's motion to dismiss,¹ but we affirm the order denying Acker's motion.

FACTS AND PROCEEDINGS BELOW

¶ 2. Crystal Acker was indicted by the Itawamba County Grand Jury on a charge of uttering a forgery. Four months later, with court-appointed counsel, she made her appearance in the Circuit Court of Itawamba County. After thorough questioning by the trial judge to ensure that Acker understood the ramifications of a guilty plea, Acker entered her plea of guilty. Regarding her sentence, the State recommended that Acker take part in the Regimented Inmate Discipline (RID) Program, and upon finishing the program, be sent to a restitution center.

¶ 3. The trial judge asked Acker's counsel whether they had discussed the charge and consequences of pleading guilty, whether she felt that Acker understood the advice she had been given, and whether she believed that Acker was entering her plea of guilty "knowingly, freely, understandingly and voluntarily." Her counsel answered each question affirmatively. Acker received a sentence of ten years in the custody of the State Department of Corrections and was placed in the RID program. The trial judge clearly stated that when Acker completed the RID program she would be sent to a restitution center where she would remain until restitution, fines, and court costs were paid. The trial judge also explained to Acker that if she failed to finish the RID program she would have to serve a sentence of ten years in the Mississippi Department of Corrections.

¶ 4. The sentencing order was filed the same day showing Acker's sentence and containing the following relevant provisions:

If the defendant should fail to successfully complete the Regimented Inmate Discipline Program, the Commissioner of the Mississippi Department of Corrections may without further orders of this Court place the defendant in the general population to complete said sentence.

If the defendant successfully completes the Regimented Inmate Discipline Program, the Commissioner of the Mississippi Department of Corrections without further orders of this Court shall release the defendant. The defendant shall report to the probation officer of said County on the next business day following his/her release and shall be on supervised probation for the remainder of the original sentence or until the Court shall alter, extend, terminate or direct the execution of the above sentence.

¶ 5. After almost three months of participation in RID, Acker requested that she be removed from the program. Acker's signed and witnessed document stated the following:

I, Crystal Acker MDOC# T-5234 do not want to participate in the Regimented Inmate Discipline Program. This is my decision alone. I have not been coerced or forced to make this decision. I feel this will be in my best interest to flatten my sentence in general population at the Central Mississippi Correctional Facility.

¶ 6. This document, and a letter from Diane Robbins, the director of "Rankin Satellite/Restitution/RID", were sent to the trial judge. Director Robbins's letter stated the following:

This is to inform you that Ms. Christie Acker T5234 has been removed from the RID Program at her request. Ms Acker made the request because of her inability to participate in the structured activity of the program. She feels the program will not benefit her and request that she be returned to do the ten (10) years given to her. Did indicate that her time will be wasted as well as the staff because she would refuse to participate. Therefore, it would be her best interest to be returned to Central Mississippi Correctional Facility. She also feels that she is not in good physical condition to participate in the strenuous physical exercises that is required.

Ms Ackers (sic) has made this decision of her own freewill and has not been forced or coherced (sic) into making this decision. Ms Acker has been transferred back to Central Mississippi Correctional Facility and placed in general population. I have attached a statement made and signed by Ms Acker.

¶ 7. Acker's signed statement and the accompanying letter by Director Robbins provide the first direct mention of any possible physical problems that Acker had. The only previous hint of physical problems can be seen in the transcript of the proceedings when Acker entered her plea of guilty. Acker at that time asked that she be allowed to remain out of jail to recover from a medical procedure that she had recently undergone. The trial judge, after explaining to Acker the terms of her sentence, denied her request and explained, "when you are out of jail, you get in trouble, young lady." "That's just the fact of it." The record does not indicate the seriousness of this medical procedure or whether it could have hindered her ability to participate in RID.

¶ 8. Acker's request to be removed from RID was accepted, and she was transferred to Central Mississippi Correctional Facility and placed in the general population to serve her sentence. After six (6) months in general population, Acker filed a motion styled Defendant's Motion for Resentencing or Reduction of Sentence. In this motion Acker alleged that she was unable to successfully complete the RID program and withdrew; that there were extenuating circumstances including claims that she suffers from a diabetic or near diabetic condition which made her unable to perform the physical activities required by the program; and that she suffers from mild mental retardation which prevented her from fully understanding the expectations of the program and the consequences of her inability to complete it. She asserted generally that she "suffers from various mental disorders" which also affected her judgment.

¶ 9. The motion concluded with a request that the court reduce the length of her sentence or grant her some consideration. A few weeks later a hearing on the motion was held, from which there is no record. One month after this hearing, the circuit court entered an order stating that Acker's "motion is not well taken and is, therefore, denied." This appeal is based on the denial of this motion.

DISCUSSION

I. WAS IT ERRONEOUS FOR THE LOWER COURT TO DENY ACKER'S MOTION FOR RE-SENTENCING IN VIEW OF HER PHYSICAL AND MENTAL HEALTH?

¶ 10. We review the grant or denial of motions for resentencing under an abuse of discretion standard. Wallace v. State, 607 So.2d 1184, 1191 (Miss.1992). Due to the absence of a transcript of Acker's hearing, which apparently occurred on September 1, 1999, it is impossible to determine whether there was any abuse of discretion on the part of the trial judge when he later denied the motion. The trial court properly considered Acker's motion on its face, and without a hearing transcript we cannot say that the trial court reached an improper result.

¶ 11. Acker bases her appeal on the assertions that she did not have adequate mental capacity at the time of her plea of guilty to fully understand the ramifications of her sentence and that she has a physical condition which prevents her from participating in the RID program. Counsel for Acker proposes that Acker may have slight mental retardation which affected her judgment at sentencing and when she decided to remove herself from the RID program. No suggestion is made that her guilty plea was defective due to any lack of mental capacity.

¶ 12. Acker relies on Presley v. State, 474 So.2d 612, 620 (Miss.1985), in the hope of showing that this Court should remand to the circuit court so that Acker's medical and mental health history can be considered to insure that a just and proper sentence is imposed. This Court has stated that "the trial court must consider all the facets, background and record in a sentencing hearing in order that a just and proper sentence may be imposed." Id. at 620. In Presley, this Court remanded to the trial court for resentencing to allow Presley's counsel to present mitigating circumstances even though the trial judge had given the Presley and his counsel opportunity to present mitigating evidence. Id. However, Presley must be distinguished from the present case. There, the appellant, who had stolen a few steaks from a super market was, due to his prior convictions, sentenced to forty years incarceration without the possibility of parole or probation as a habitual offender. The Court, while reaffirming the principle that sentencing within statutory limits lies within the sound discretion of the trial court, was confronted with the question of whether, under the circumstances, the sentence was so cruel and unusual as to be violative of the Eighth Amendment to the United States Constitution. Finding that the sentencing hearing was not adequate for the purposes of a proportionality review and a determination of the basic constitutional question, the Court remanded Presley for a new sentencing hearing.

¶ 13. Here, Acker was sentenced to ten years, with the benefit of the RID program. Likewise, there has been no challenge to the validity of the sentence itself, and there is no indication that Acker, represented by counsel was prevented from offering evidence, either at sentencing or on the hearing of her Motion for Resentencing or Reduction of Sentence as to her medical condition or...