Cozart v. State, 052517 MSSC, 2014-CT-01741-SCT

Docket Nº:2014-CT-01741-SCT
Opinion Judge:BEAM, JUSTICE
Party Name:ZACHARY COZART a/k/a ZACHERY COZART a/k/a ZACK COZAR v. STATE OF MISSISSIPPI
Attorney:ATTORNEY FOR APPELLANT: RALPH STEWART GUERNSEY ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER JEFFREY A. KLINGFUSS
Judge Panel:WALLER, C. J, DICKINSON AND RANDOLPH, PJJ, KITCHENS, KING, COLEMAN AND MAXWELL, PJJ, CONCUR CHAMBERLIN, J., NOT PARTICIPATING.
Case Date:May 25, 2017
Court:Supreme Court of Mississippi

ZACHARY COZART a/k/a ZACHERY COZART a/k/a ZACK COZAR

v.

STATE OF MISSISSIPPI

No. 2014-CT-01741-SCT

Supreme Court of Mississippi, En Banc

May 25, 2017

DATE OF JUDGMENT: 11/25/2014

DESOTO COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM, SR.

ATTORNEY FOR APPELLANT: RALPH STEWART GUERNSEY

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER JEFFREY A. KLINGFUSS

BEAM, JUSTICE

¶1. Following a three-day jury trial in DeSoto County, Mississippi, defendant Zachary Cozart was found guilty of manslaughter and sentenced to thirty years in the custody of in the Mississippi Department of Corrections, pursuant to Mississippi Code Section 97-3-25(b) (Rev. 2014). Cozart appealed, arguing error in violation of the state's Ex Post Facto Clause. The Court of Appeals found that, although Section 97-3-25(b) was not enacted until after the defendant's crime, Cozart waived any objection to the harsher sentence when he agreed to a jury instruction that echoed the revised manslaughter penalty statute. Cozart v. State, No. 2014-KA-01741, 2016 WL 1745244 (Miss. Ct. App. May 3, 2016), cert. granted, 205 So.3d 1085 (Miss. 2016).

¶2. We granted certiorari to determine whether Cozart's thirty-year sentence under amended Mississippi Code Section 97-3-25(b) amounted to an ex post facto violation and whether this application rises to the level of plain error. We find that it does and reverse Cozart's sentence, remanding the issue to the circuit court for further proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶3. On July 1, 2010, twenty-one-month-old Ethan Connor was pronounced dead at Le Bonheur Children's Hospital in Memphis, Tennessee. Shortly after his passing, Zachary Cozart-Ethan's mother's paramour-was indicted in DeSoto County on charges of capital murder and felonious child abuse.1

¶4. Prior to trial, Cozart entered an Alford plea2 of guilty to the reduced charge of manslaughter. On July 10, 2013, the court entered an agreed order reducing Cozart's charges from capital murder to manslaughter under Mississippi Code Section 97-3-35.3 The matter was set for sentencing on September 12, 2013, though it was continued multiple times at Cozart's request. On March 25, 2014, Cozart filed a motion to withdraw his guilty plea and the circuit court executed an agreed order setting it aside. Cozart's trial commenced on October 27, 2014.

¶5. During the jury-instruction conference, Cozart's trial attorney offered an instruction for manslaughter as a lesser-included offense of capital murder. The State took issue with the instruction's language and requested time to review it within the context of the manslaughter statute. After comparing the two, the State agreed to the instruction with one minor revision, as suggested by the court.

¶6. Following the close of the trial, the jury acquitted Cozart of capital murder but found him guilty of manslaughter. The court sentenced him to thirty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended and ten years of post-release supervision. Cozart appealed, asserting that both his due process rights and the Ex Post Facto Clause were violated when the court issued this sentence.4 This Court assigned the case to the Court of Appeals.

¶7. Cozart argued that when he was indicted in 2010, the punishment for manslaughter was imprisonment in the penitentiary for "not less than two years, nor more than twenty years." Miss. Code Ann. § 97-3-25 (2006).5 However, when sentenced, the trial judge applied the law's 2013 update, which expanded on the original law by including a provision for child homicide and an increased sentence "not to exceed thirty (30) years." Miss. Code Ann. § 97-3-25(2)(b) (Rev. 2014).

¶8. The Court of Appeals determined that, while Cozart was sentenced under a statute not in effect at the time of his offense, his failure to object to the potential sentence prior to the jury's instruction effectively waived his right to assert an ex post facto violation. Cozart v. State, No. 2014-KA-01741, 2016 WL 1745244, at *3 (Miss. Ct. App. May 3, 2016), cert. granted, 205 So.3d 1085 (Miss. 2016). The court held this issue to be without merit and affirmed the circuit court's judgment. We granted certiorari on this individual issue to review whether the sentence rendered by the circuit court was proper.

STANDARD OF REVIEW

¶9. It is well-established that "[t]he imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute." Jackson v. State, 965 So.2d 686, 688 (Miss. 2007) (citing Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)). However, the issue of whether the application of a statute constitutes an ex post facto violation is a question of law. "Where questions of law are raised the applicable standard of review is de novo." Brown v. State, 731 So.2d 595, 598 (Miss. 1999) (citation omitted). Accordingly, we review the question of whether the circuit court's prescribed sentence constituted an ex post facto violation under the de novo standard and "will only reverse for an erroneous interpretation or application of law." Rice v. Merkich, 34 So.3d 555, 557 (Miss. 2010).

ANALYSIS

¶10. Here, we find that while Cozart presented a jury instruction that resulted in the court's sentence, this does not preclude an appeal of his sentence. Having reviewed the ex post facto claim and analyzed the issue for plain error, we find that the trial court's application of the revised statute resulted in an illegal sentence and plain error, which merits remand.

¶11. The January 2011 indictment properly documented the capital-murder and felonious-child-abuse charges against Cozart as follows: Zachary Cozart . . . did wilfully, unlawfully and feloniously, and without authority of law, kill and murder Ethan Conner, a human being under the age of eighteen (18) years, while the said . . . Cozart [was] engaged in the commission of the crime of felonious abuse and/or battery of said child, with or without any design to effect the death of Ethan Conner, as defined in Section 97-5-39(2), Mississippi Code 1972 Annotated, as amended, in direct violation of Section 97-3-19(2)(f), Mississippi Code 1972 Annotated, as amended, contrary to the form of the statute in such cases provided, and against the peace and dignity of the State of Mississippi.

Therein, Cozart faced the possibility of a guilty verdict and a sentence of death, life in prison, or life in prison without the possibility of parole. Miss. Code Ann. § 97-3-21 (2006). Understanding the potential consequences of the indictment, Cozart entered an Alford plea, confessing guilt to the lesser charge of manslaughter under Mississippi Code Section 97-3-35 (Rev).[6] Both parties consented to this plea and the court entered an agreed order on July 10, 2013, acknowledging that This cause came on hearing on joint motion of defendant, by and through his Attorney of record, and the District Attorney to reduce the charge in this case from the offense of CAPITAL MURDER in violation of Miss. Code 97-5-39(2) and 97-3-19(e) and (f) to that of MANSLAUGHTER in violation of Miss. Code 97-3-35 . . . the referenced charge is hereby reduced . . . and the Defendant now stands charged with MANSLAUGHTER in violation of Miss. Code 97-3-35.

Several months later, but prior to sentencing, Cozart withdrew his guilty plea and reasserted his right to a jury trial. Following the presentation of evidence, the parties adjourned to the jury-instruction conference, where the court was presented with instructions on the charged crime of capital murder, child abuse, and the lesser-included crime of manslaughter.7 The instruction on manslaughter, presented by counsel for the defense, made reference to the amended version of Section 97-3-25(b).

¶12. The manslaughter instruction was reviewed by both the State and the circuit court and found to be in line with the existing manslaughter punishment statute. The instructions were provided to the jury and, following a brief deliberation, Cozart was found guilty of manslaughter. He subsequently was sentenced under the revised version of Mississippi Code Section 97-3-25, which provides: (1) Except as otherwise provided in this section, any person convicted of manslaughter shall be fined in a sum not less than Five Hundred Dollars ($500.00), or imprisoned in the county jail not more than one (1) year, or both, or in the custody of the Department of Corrections not less than two (2) years, nor more than twenty (20) years.

(2) (a) A person is guilty of child homicide if:

(i) The person is found guilty of manslaughter in circumstances where the killing, although without malice, was intentional and not accidental; and (ii) The perpetrator was over the age of twenty-one (21) years and the victim was a child under the age of eighteen (18) years.

(b) A person found guilty of child homicide shall be imprisoned in the custody of the Department of Corrections for a term not to exceed thirty (30) years.

Miss. Code Ann. § 97-3-25(2) (Rev. 2014) (emphasis added). Whereas the former manslaughter penalty statue, effective in 2010 when Cozart's crime occurred, mandated: Any person convicted of manslaughter shall be fined in a sum not less than five hundred dollars ($500.00), or imprisoned in the county jail not more than one year, or both, or in penitentiary not less than two years, nor more than twenty years.

Miss. Code Ann. § 97-3-25(1) (2006) (emphasis added).

¶13. At the time of Cozart's crime, manslaughter was punishable by no more than twenty years in prison. However, by the time Cozart was sentenced, the Legislature had amended Mississippi Code...

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