Foster v. State

CourtUnited States State Supreme Court of Mississippi
Citation148 So.3d 1012
Decision Date16 October 2014
Docket NumberNo. 2011–CT–01796–SCT.,2011–CT–01796–SCT.
PartiesEric James FOSTER a/k/a Eric Foster a/k/a Eric J. Foster v. STATE of Mississippi.

148 So.3d 1012

Eric James FOSTER a/k/a Eric Foster a/k/a Eric J. Foster
STATE of Mississippi.

No. 2011–CT–01796–SCT.

Supreme Court of Mississippi.

Oct. 16, 2014.

148 So.3d 1014

Office of State Public Defender by George T. Holmes, attorney for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.



RANDOLPH, Presiding Justice, for the Court:

¶ 1. Eric Foster was sentenced to forty years after his conviction of armed robbery. Foster appeals his sentence. Finding no error, we affirm.


¶ 2. Foster was indicted for “... wilfully, unlawfully and feloniously tak [ing] ... the personal property of the Bank of Franklin, against [the victims'] will by violence to [the victims] or by putting [the victims] in fear of immediate injury ... by the exhibition of a deadly weapon....” The jury found the defendant guilty of armed robbery and was not instructed to recommend a sentence.

¶ 3. At sentencing, the trial judge heard and considered testimony of one victim's harrowing experience and the traumatic effect the crime had on her life.1 She testified that “[n]ever in a million years would I think that anybody in as evil of a world that we live in could be so callous as to do what you did with no concern.” The victim asked the court to sentence Foster to the same forty years received by his accomplice, D.J. Wilson, after his conviction on September 14, 2010.

¶ 4. In open court, petitioner's response declaring his innocence (for the crime for which he had just been convicted) exhibited no remorse. After the victim finished her impact statement, Foster verbally and profanely told the victim, “you f* * *ed your own life up.”

¶ 5. The trial judge sentenced Foster to forty years, absent objection, taking into account “the seriousness of the crime, the impact on the victims, and the defendant's prior conviction for aggravated assault and his age of thirty-five.” No actuarial, mortality, or life-expectancy tables were offered by Foster.

¶ 6. Foster filed a motion for judgment notwithstanding the verdict (JNOV) and a motion for a new trial, neither of which challenged his sentence. Once again, Foster

148 So.3d 1015

presented no actuarial, mortality, or life-expectancy tables to the trial judge and offered no argument that the failure of the trial court to consider same was error. The motions were denied.

¶ 7. On appeal to the Court of Appeals,2 Foster raised, for the first time, that his sentence was illegal. The Court of Appeals held that Foster's claim was procedurally barred, based on his failure to raise the issue before the trial court. Notwithstanding the bar, the Court of Appeals found that his sentence did not amount to an illegal sentence. We granted Foster's petition for certiorari and limit our review to the issue presented on appeal, verbatim et literatim, “Is Foster's sentence illegal?”


¶ 8. Despite making no objection before the trial court and presenting no tables of estimates, publications, or argument related to life expectancy, Foster belatedly argues that his sentence should be vacated because his sentence equates to a life sentence. Foster asks this Court to consider life-expectancy estimates and argument never presented at the trial level. Foster urges this Court to consider matters outside the record.

¶ 9. This Court declines to consider matters which were never presented or argued in the trial court and are not part of the record before us today.

This Court will not consider matters that do not appear in the record, and it must confine its review to what appears in the record. Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995) (citing Dillon v. State, 641 So.2d 1223, 1225 (Miss.1994) ). Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record. Robinson, 662 So.2d at 1104 (citing Ross v. State, 603 So.2d 857, 861 (Miss.1992) ).

Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001). “This Court has long held that it cannot consider that which is not in the record.” Stone v. State, 94 So.3d 1078, 1082 (Miss.2012) (citing State v. Cummings, 203 Miss. 583, 591, 35 So.2d 636, 639 (Miss.1948) (citations omitted)) (“[b]eing an appellate court, we take the record as it comes to us, and receive no new evidence here.”), reh'g denied (Aug. 23, 2012); Pratt v. Sessums, 989 So.2d 308, 309–10 (Miss.2008) (citation omitted) (“[w]e cannot consider evidence that is not in the record.”). As recently as September 18, 2014, Justice King, writing for a unanimous Court, refused to consider an order which was not part of the record, stating that the Court would not consider as part of its analysis any information outside the record, even though it appeared that the Court of Appeals had considered the order. Shumake v. Shumake, 147 So.3d 352, 355 ( ¶ 8) n. 1 (Miss.2014) (citing Hardy v. Brock, 826 So.2d 71, 76 (Miss.2002) (“Mississippi appellate courts may not consider information that is outside the record.”)). In arguing that his sentence exceeds his estimated life expectancy, Foster unequivocally has gone outside the record. Considering “evidence ” not presented to the trial court, the dissent by Justice King relies on matters outside the record. Neither the websites referred to by Foster in his brief nor the arguments first presented on appeal will be considered, as neither was presented to the trial court below, and any analysis of these new issues comes solely from matters not in the record before us.

¶ 10. “A contemporaneous objection must be made at trial in order to preserve an issue for appeal.” Cox v.

148 So.3d 1016

State, 793 So.2d 591, 599 (Miss.2001) (citing Smith v. State, 530 So.2d 155, 162 (Miss.1988) ). “Errors related to improper sentencing are procedurally barred if no objection is made at trial.” Hughes v. State, 983 So.2d 270, 282 (Miss.2008) (citations omitted); Hobgood v. State, 926 So.2d 847, 857 (Miss.2006) ; Cox, 793 So.2d at 599. In Cox,3 this Court held that when the defendant failed to object before the trial court that his thirty-year sentence for armed robbery “amount[ed] to” a life sentence, he was barred from doing so on appeal. Cox, 793 So.2d at 598–599. Additionally, “[a] trial judge will not be found in error on a matter not presented to him for decision.” Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995) ; see also Jones v. State, 606 So.2d 1051, 1058 (Miss.1992) ; Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988) ; Ponder v. State, 335 So.2d 885, 886 (Miss.1976). Then–Judge King, writing for the Court of Appeals, recognized the bar in Long v. State, 982 So.2d 1042, 1045 (Miss.Ct.App.2008), holding that a sixty-four-year-old defendant who had failed to object before the trial court that his sentence “amounted to” a life sentence was procedurally barred from raising the issue at the appellate level.

¶ 11. The trial judge was never afforded the opportunity to consider the merits vel non of that issue. Faithful application of our precedent mandates that Foster's claim of error be denied, not having been preserved for appeal.

¶ 12. This Court does recognize that there are exceptions to a procedural bar for errors affecting certain constitutional rights. Rowland v. State, 98 So.3d 1032, 1036 (Miss.2012) (“[W]e recognized that the State has neither the authority nor the right to subject a person to double jeopardy. We also have recognized exceptions to procedural bars for claims asserting illegal sentence and denial of due process at sentencing.”). This Court will waive a procedural bar related to sentencing only when the error results in an illegal sentence. “[A] sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.” Grayer v. State, 120 So.3d 964, 969 (Miss.2013) (emphasis added). An illegal sentence is one that “does not ‘conform to the applicable penalty statute.’ ” Id. (citation omitted). “In other words, a sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.” Id. (emphasis added). This sentence did not exceed the maximum statutory penalty. Section 97–3–79 of the Mississippi Code requires a court to sentence a defendant convicted of armed robbery to a term less than life but not less than three years, if the jury does not return a life sentence. Miss.Code Ann. § 97–3–79 (Rev. 2014).

¶ 13. This Court consistently has held that “[s]entencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Cox, 793 So.2d at 599 (quoting Hoops v. State, 681 So.2d 521, 533 (Miss.1996) ). See also Ellis v. State, 326 So.2d 466, 468 (Miss.1976) ; Ainsworth v. State, 304 So.2d 656 (Miss.1974), and Boone v. State, 291 So.2d 182 (Miss.1974). Furthermore, we have held that a “sentence

148 So.3d 1017

within the limits of the statute is not cruel or unusual.” ...

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