Clubb v. State, 93-CT-00176-SCT

• Decision Date: 11 April 1996
• Docket Number: No. 93-CT-00176-SCT,93-CT-00176-SCT
• Parties: John W. CLUBB v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1201

672 So.2d 1201

John W. CLUBB v. STATE of Mississippi.

No. 93-CT-00176-SCT.

Supreme Court of Mississippi.

April 11, 1996.

Appeal No. 22638 from Judgment dated Jan. 11, 1993, Eugene M. Bogen, Ruling Judge, Washington County Circuit Court.

Rabun Jones, Dyer, Dyer, Jones & Daniels, Greenville, for Appellant.

Michael C. Moore, Attorney General, Charles W. Maris, Jr., Sp. Ass't Attorney General, Jackson, for Appellee.

En Banc.

ON PETITION FOR WRIT OF CERTIORARI

SULLIVAN, Presiding Justice, for the Court:

This Court granted a petition for writ of certiorari filed by John W. Clubb after the Court of Appeals affirmed the decision of the Circuit Court of Washington County. The lower court sentenced Clubb to serve a term of ten years on count I of the conviction, conspiracy to to sell a quantity of marijuana in violation of Miss.Code Ann. § 97-1-1(1972). We now reverse and remand the case for resentencing on count I.

John W. Clubb was indicted on three charges by a grand jury in the Circuit Court of Washington County in the April 1992 term. Count I of the indictment charged Clubb with conspiracy to sell "a quantity of marijuana" in violation of Miss.Code Ann. § 97-1-1 (1972); count II with sale of more than one ounce but less than a kilogram of marijuana in violation of Miss.Code Ann. § 41-29-139 (1972); and count III with possession with intent to sell more than a kilogram of marijuana in violation of Miss.Code Ann. § 41-29-139 (1972).

Clubb was tried on January 11, 1993, and the jury found Clubb guilty as charged on all three counts. The trial court thereafter sentenced Clubb to serve a term of ten years on count I; a term of twenty years on count II, to run consecutively to count I; and a term of twenty years on count III, to run concurrently with counts I and II, for a total of thirty years. Clubb was also fined $10,000 dollars on each of the two latter convictions, and his truck was forfeited.

The Court of Appeals affirmed the decision of the lower court on September 5, 1995. Clubb's petition for rehearing was denied on November 28, the order entered December 12, 1995, and his petition for writ of certiorari was filed with this Court on December 19, 1995. The petition for writ of certiorari was granted on January 25, 1996.

FACTS

John Clubb testified that he picked up Greg Hargrove, a hitchhiker, at a rest stop between Tuscalousa and Union, Alabama. Clubb possessed marijuana at the time and Hargrove suggested that his brother Carl, in Greenville, could help them sell the marijuana. Either Clubb or Hargrove called Carl and told him that they had seven pounds of marijuana to sell for $6,000, or $1,000 to $1,200 per pound. Carl agreed that he would obtain a purchaser for the marijuana.

Unknown to Clubb or Hargrove, Carl was working with the Special Operations Unit of the Greenville police. Under police surveillance, Carl and an undercover police officer met with Clubb and Hargrove at a motel to conduct the sale. Clubb showed the marijuana to the officer and indicated that he wanted to sell it. The officer purchased one pound, leaving about five pounds of marijuana in the motel room. On the police officer's signal, the room was raided and Clubb and Hargrove were arrested.

Clubb was indicted on three counts: conspiracy to sell "a quantity" of marijuana, sale of more than one ounce but less than one kilogram of marijuana, and possession with the intent to sell more than one kilogram of marijuana. Clubb was convicted of all three counts and sentenced to serve ten years on the conspiracy charge, twenty years on the sale charge, to run consecutively to the conspiracy sentence, and twenty years on the The Court of Appeals affirmed the lower court's decision and denied Clubb's petition for rehearing. Clubb filed a petition for writ of certiorari which this Court granted. The sole issue raised for review on petition for writ of certiorari is:

possession with intent to sell charge, to run concurrently with the other sentences. In practical effect, he was sentenced to a total of thirty years. He was also fined and his truck and cash were forfeited.

I. THE TRIAL COURT EXCEEDED ITS STATUTORY AUTHORITY IN SENTENCING JOHN W. CLUBB TO TEN YEARS ON THE CONSPIRACY COUNT; AND, ACCORDINGLY, THIS CAUSE SHOULD BE REMANDED FOR RESENTENCING ON COUNT I.

Clubb argues that the lower court erred in sentencing him to ten years on his conspiracy conviction, and that the Court of Appeals's affirmance of that sentence is in conflict with prior decisions of this Court. Specifically, Clubb argues that the proper sentence on the conspiracy count is controlled by the quantity of marijuana stated in the indictment for the conspiracy count. The indictment reads as to count I:

That John W. Clubb and Gregory W. Hargrove ... did unlawfully, wilfully and feloniously conspire ... to sell and deliver a quantity [unspecified] of marijuana to Chuck Cullum for money, in violation of section 41-29-139, of the Mississippi Code of 1972, as amended....

(emphasis added).

Two different statutes could be used in determining a sentence for Clubb, and Clubb argues that because the indictment for conspiracy was silent as to the amount of marijuana, the statute resulting in the lesser sentence should be applied in pronouncing sentence on the conspiracy count, pursuant to Mississippi case law. Instead, the lower court imposed a sentence pursuant to the statute mandating the greater sentence, and the Court of Appeals affirmed that sentence in contradiction to published cases of this Court.

The lower court would have found it necessary to review several statutes in computing Clubb's sentence. Miss.Code Ann. § 97-1-1, the conspiracy statute penalty provision, reads in pertinent part:

Conspiracy. If two (2) or more persons conspire either:

(h) To accomplish any unlawful purpose, or a lawful purpose by any unlawful means; such persons, and each of them, shall be guilty of a felony and upon conviction may be punished by a fine of not more than five thousand dollars ($5,000) or by imprisonment for not more than five (5) years, or by both.

Provided, that where the crime conspired to be committed is capital murder or murder as defined by law or is a violation of section 41-29-139(b)(1) or section 41-29-139(c)(2)(D), Mississippi Code of 1972, being provisions of the Uniform Controlled Substance Law, the offence shall be punishable by a fine of not more than five hundred thousand dollars ($500,000) or by imprisonment for not more than twenty (20) years, or by both.

(emphasis added).

In imposing a ten year sentence, the trial court necessarily found that Clubb's conviction fell within the parameters of the emphasized portions of the second paragraph of the above statute.

Section 41-29-139(c)(2)(D) applies to simple possession of more than one kilogram of marijuana. Therefore, section 41-29-139(b)(1) would be the section applied by the lower court, since Clubb was charged in Count I with conspiracy and agreeing to sell an unspecified quantity of marijuana to Chuck Cullum. Clubb was not charged with conspiracy to possess. Miss.Code Ann. § 41-29-139(b)(1) provides in pertinent part:

(b) Except as otherwise provided in subsection (f) of this section or in section 41-29-142, any person who violates subsection (a) of this section shall be sentenced as follows:

(1) In the case of controlled substances classified in Schedule I or II, as set out in sections 41-29-113 and 41-29-115, except one (1) ounce or less of marijuana and except a first offender as defined in section 41-29-149(e) who violates subsection (a) of (emphasis added).

this section with respect to less than one kilogram but more than one ounce of marijuana, such person may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than One Thousand Dollars ($1,000) nor more than One Million Dollars ($1,000,000) or both....

The emphasized language excludes from the coverage of section (b)(1) a first offender who sells less than a kilogram but more than one ounce of marijuana. In imposing the ten-year sentence, the court failed to consider, in arriving at the sentence, that Clubb was a first-time offender, and that the quantity of marijuana sold to Officer Cullum was less than one kilogram of marijuana.

Scrutiny of count I of the indictment discloses that the charged conspiracy stated "planning and agreeing to sell and deliver a quantity of marijuana [the amount being unspecified] to Chuck Cullum." The amount of marijuana Clubb and Hargrove agreed to sell to Cullum was more than one ounce, but less than a kilogram. Nobody disagrees that Clubb and Hargrove had more than one kilogram in their possession. But the amount actually sold, and the conviction was for, the "sale of more than an ounce but less than one kilogram of marijuana."

There is no dispute that Clubb is a first offender. Accordingly, the maximum sentence Clubb could receive for his conspiracy conviction would depend upon the amount of marijuana he conspired to sell. If he conspired to sell less than one kilogram of marijuana, he would not fall within the parameters of § 41-29-139(b)(1), and his sentence would be governed by the first paragraph of § 97-1-1(h), which would limit his maximum sentence to five years. On the other hand, if his conspiracy involved more than one kilogram, he would fall within the confines of the second paragraph of § 97-1-1(h), and his maximum sentence could have been up to twenty years.

Under our case law, the issue of the proper sentence in this case turns not upon the proof which was presented at trial as to the amount of marijuana in Clubb's possession, but is instead controlled by the fact that Clubb's indictment fails to specify what quantity of marijuana he conspired to sell.

As held by this Court in Beckham v. State, 556 So.2d 342, 343 (Miss.1990), where two or more statutes could apply to the same conduct, the State is not required to prosecute an individual...