Aranyos v. State

• Decision Date: 11 June 2013
• Docket Number: No. 2011–CP–00351–COA.,2011–CP–00351–COA.
• Citation: 115 So.3d 116
• Parties: Allan Arthur ARANYOS, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

115 So.3d 116

Allan Arthur ARANYOS, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–CP–00351–COA.

Court of Appeals of Mississippi.

Jan. 29, 2013.

Rehearing Denied June 11, 2013.

Allan Arthur Aranyos, appellant, prose.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before LEE, C.J., BARNES and MAXWELL, JJ.

BARNES, J., for the Court:

¶ 1. Allan Arthur Aranyos was indicted on one count of embezzlement. At his plea hearing on September 24, 2009, the State amended the indictment to reflect that Aranyos was a habitual offender under Mississippi Code Annotated section 99–19–81 (Rev.2007). Aranyos pleaded guilty and was sentenced to ten years, with five years to be served in the custody of the Mississippi Department of Corrections (MDOC) and five years of probation.

¶ 2. Aranyos filed a motion for post-conviction relief, claiming he was erroneously sentenced as a habitual offender. The circuit court denied the motion, and finding no error on appeal, we affirm.

STANDARD OF REVIEW

¶ 3. A circuit court's denial of a motion for post-conviction relief will not be disturbed on appeal unless its factual findings are “clearly erroneous.” Mann v. State, 73 So.3d 564, 565 (¶ 4) (Miss.Ct.App.2011) (citing Bradley v. State, 919 So.2d 1062, 1063 (¶ 6) (Miss.Ct.App.2005)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

DISCUSSION

I. Whether Aranyos's prior conviction and sentence of probation support his classification as a habitual offender.

¶ 4. Aranyos argues that one of the prior convictions used by the State to support his habitual-offender status does not meet the statutory requirements of section 99–19–81, 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). The amended indictment listed two prior convictions to support Aranyos's classification as a habitual offender. The first was an Ohio conviction for bank robbery, for which Aranyos received a sentence of thirty-seven months of imprisonment and two years of supervised release. The second conviction, from Pennsylvania, was for Count One, burglary, for which Aranyos received five years of probation, to run consecutively to the sentence for Count Two, theft by unlawful taking or disposition. For Count Two, Aranyos received “an indefinite term, the minimum of which shall be eleven and one [-] half (11 1/2) calendar months, and the maximum twenty[-]three (23) calendar months[.]” Count Two was not specifically listed in the amended indictment as a prior conviction, although the “Order of Parole” and plea agreement for Count Two were included in the circuit court's record. The basis of Aranyos's argument on appeal is that since his sentence for the Pennsylvania burglary conviction (Count One) was merely for five years of probation, he was never sentenced to a term in a penal institution for this particular conviction, and the prior conviction does not meet the requirements of section 99–19–81. After reviewing the relevant authority, we find there was sufficient evidence to support Aranyos's classification as a habitual offender.

¶ 5. In the appellee's brief, the State contends that Aranyos admitted to his prior convictions at the plea hearing and summarily states that Aranyos's allegations regarding his Pennsylvania burglary conviction “are unsupported[.]” The State is correct that a defendant's admission to prior convictions is sufficient to meet the necessary burden of proof.

Generally, to sentence a defendant as a habitual offender, the State must prove the prior offenses by competent evidence, and the defendant must be given a reasonable opportunity to challenge the prosecution's proof. However, where the defendant enters a plea of guilty and admits those facts which establish his habitual status, the State has met its burden of proof.

Wilkins v. State, 57 So.3d 19, 26 (¶ 23) (Miss.Ct.App.2010) (emphasis added and internal citations omitted). The following conversation took place at the hearing:

Q. Do you admit you've been convicted of these two underlying convictions which establish you as a habitual offender?

A. Yes, Your Honor.

....

Q. Do you also admit that you've been convicted of these underlying felonies which establish you as a habitual offender.

A. Yes, Your Honor.

Thus, Aranyos did admit that he had been convicted of the two underlying convictions listed in the indictment.

¶ 6. However, we cannot state with certainty that Aranyos's acknowledgment of his prior conviction and sentence of probation in the indictment constitutes an admission of “those facts which establish his habitual status.” See id. As the State did not substantively address Aranyos's argument in its brief, we requested supplemental briefing on this issue.¹

¶ 7. In its supplemental brief, the State argues that actual incarceration for a prior conviction is not required in order to be sentenced as a habitual offender. The State is correct that Mississippi precedent has consistently held:

Service of [a] sentence through actual incarceration is not mandatory when considering habitual[-]offender status under [section] 99–19–81. Where a defendant has been twice previously judged guilty of distinct felonies on which sentences of one year or more have been pronounced, irrespective of subsequent probation or suspension, statutory intent is satisfied regarding habitual [-]offender statutes.

Green v. State, 802 So.2d 181, 183–84 (¶ 14) (Miss.Ct.App.2001) (citing Jackson v. State, 381 So.2d 1040, 1042 (Miss.1980)). Considering a defendant's prior convictions originating in Alabama, the Mississippi Supreme Court, in Jackson, 381 So.2d at 1042, stated:

We are of the opinion [section 99–19–81] 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.

(Emphasis added). However, the supreme court noted that the Alabama circuit court, in the prior convictions, had sentenced the defendant to imprisonment for three years; the defendant was the one who applied for and was granted probation, with his sentences suspended.

¶ 8. In Anderson v. State, 766 So.2d 133, 135 (¶ 6) (Miss.Ct.App.2000), the defendant argued that his prior conviction from Kentucky “only carried a probated sentence instead of a sentence to a penal institution.” We found no error in the circuit court's sentencing of the defendant as a habitual offender under section 99–19–81, even though he had only received five years of probation on one of his prior convictions. Anderson, 766 So.2d at 136 (¶ 9). “[I]t was Anderson's good fortune that his sentence was probated for five years subject to his continuing to meet certain conditions, therefore relieving Anderson of the burden of incarceration.” Id.; see also Williams v. State, 24 So.3d 360, 364–65 (¶ 11) (Miss.Ct.App.2009) (“This statute merely requires that the defendant be sentenced to one year or more for each crime. It does not require that the individual be incarcerated under his imposed sentences to obtain habitual[-]offender status.” (citing Davis v. State, 5 So.3d 435, 441 (¶ 14) (Miss.Ct.App.2008))).

¶ 9. More recently, we addressed this issue again in Middleton v. State, 49 So.3d 161 (Miss.Ct.App.2010). Kurt Middleton claimed that classifying him as a habitual offender was error since “he was only sentenced to prison for one of the two crimes used to determine his habitual-offender status.” Id. at 164 (¶ 11). The sentence for his second conviction, which was from Wisconsin, was “withheld,” and Middleton was placed on probation for five years “in the custody and control of the Wisconsin Department of Health and Social Services.” Id. Since there was a third prior conviction that met the statutory requirements of section 99–19–81, we declined to address Middleton's argument as to “whether the second sentencing report was sufficient to convict [him] as a habitual offender,” finding it “unclear.” Id. at 165 (¶ 11). However, we will now clarify this issue, as it applies to the present case.

¶ 10. Aranyos's prior burglary conviction and sentence of five years of probation originated in Pennsylvania. Under 42 Pennsylvania Consolidated Statutes Annotated section 9721(a)(1), a court may impose an “order of probation” as an sentencing alternative. See Com. v. Childs, 445 Pa.Super. 32, 664 A.2d 994, 996 (1995) (Under section 9721, “the trial court may select from the alternatives of probation, determination of guilty without a penalty, partial or total confinement, fines or intermediate punishment.”). “Probation is a separate sentence permitted by the Sentencing Code under certain circumstances.” Com. v. Deshong, 850 A.2d 712, 716 (¶ 15) (Pa.Super.Ct.2004). “Probation is a suspended sentence of incarceration served upon such terms and conditions as imposed by the sentencing court.” Fleegle v. Pa. Bd. of Prob. & Parole, 110 Pa.Cmwlth. 227, 532 A.2d 898, 899 (1987) (citation omitted).

¶ 11. Moreover, “[n]o section of the Sentencing Code contemplates imprisonment as an element of a probationary...