Hampton v. State
| Decision Date | 16 October 2014 |
| Docket Number | No. 2011–CT–01641–SCT.,2011–CT–01641–SCT. |
| Citation | 148 So.3d 992 |
| Court | Mississippi Supreme Court |
| Parties | Tommy HAMPTON a/k/a Thomas Hampton v. STATE of Mississippi. |
Office of State Public Defender by Justin Taylor Cook, attorney for appellant.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
EN BANC.
ON WRIT OF CERTIORARI
¶ 1. Tommy Hampton was sentenced to twenty years after his conviction of armed robbery as a habitual offender. Hampton appeals his sentence. Finding no error, we affirm.
¶ 2. Hampton was indicted for the “... tak[ing] of ... $2,190.00 ... by violence to [the victim's] person by the exhibition of a deadly weapon ...” and “having been previously convicted of at least two (2) felony offenses ..., and having been sentenced to serve at least one (1) year with a state or federal penal institution....”1 The jury found the defendant guilty of robbery by use of a deadly weapon and was not instructed to recommend a sentence.
¶ 3. At his sentencing hearing, the State presented evidence that Hampton previously had been convicted of possession of cocaine and of burglary of a dwelling (twice) and the State had sought an enhanced sentence.2 The defendant offered evidence that he was sixty-three years old and an alcoholic. No actuarial, mortality, or life-expectancy tables were offered by Hampton.
¶ 4. The trial judge sentenced Hampton to twenty years as a habitual offender per Section 99–19–81 of the Mississippi Code, absent objection, and credited him with 199 days for time served.3 Hampton filed a motion for a new trial and/or judgment notwithstanding the verdict (JNOV) arguing, inter alia, that “the sentence ... is unreasonable, harsh and not in conformity with the applicable facts and law, and is inequitable and unjust to this Defendant.” Once again, Hampton 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 motion was denied.
¶ 5. On appeal to the Court of Appeals,4 Hampton raised, for the first time, that his sentence exceeded his life expectancy. The Court of Appeals held that Hampton'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 a life sentence. We granted Hampton's petition for certiorari and limit our review to the issue presented on appeal, verbatim et literatim:
Whether the trial court erred in sentencing Hampton to a sentence of twenty (20) years when such a length equates to a life sentence, which could have only been imposed by the jury.
¶ 6. Despite making no objection before the trial court and presenting no tables of estimates, publications, or argument related to life expectancy, Hampton belatedly argues that his sentence should be vacated because his sentence equates to a life sentence. Hampton asks this Court to consider life-expectancy estimates, studies, and argument never presented at the trial level. Hampton urges this Court to consider matters outside the record. The State responds that Hampton's claim is barred, as no objection was presented to the trial court.
¶ 7. 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) (). As recently as September 18, 2014, a unanimous Court refused to consider an order which was not part of the record, stating that it would not consider as part of its analysis any information outside the record, even though it appeared that the Court of Appeals considered the order. Shumake v. Shumake , 147 So.3d 352, 355 ¶ 8, n. 1 (Miss.2014) (). In arguing that his sentence exceeds his estimated life expectancy, Hampton has unequivocally gone outside the record. Considering “evidence ” not presented to the trial court, the dissent relies on matters outside the record. Neither of the reports or studies referred to by Hampton 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.
¶ 8. “A contemporaneous objection must be made at trial in order to preserve an issue for appeal.” Cox v. 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, 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). 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.
¶ 9. The trial judge was never afforded the opportunity to consider the merits vel non of that issue. Faithful application of our precedent mandates that Hampton's claim of error be denied, not having been preserved for appeal.
¶ 10. 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) ( ). But Hampton offers no argument or authority that his sentence was illegal based on a constitutional violation. Hampton is trying to convert a nonpreserved claim of improper sentence into a claim of illegal sentence. Hampton's vague complaint is that his sentence is unreasonable, inequitable, and unjust, not unconstitutional. He offers no basis for a constitutional exception to the procedural bar.
¶ 11. 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 within the limits of the statute is not cruel or unusual.” Clanton v. State, 279 So.2d 599, 602 (Miss.1973) ; Green v. State, 270 So.2d 695 (Miss.1972).
¶ 12. “[A] sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.” Grayer, 120 So.3d at 969 (emphasis added). Hampton's sentence does 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. Hampton cites Stewart v. State (Stewart I), 372 So.2d 257 (Miss.1979), for the proposition that he received a life sentence. As is stated in Justice Coleman's special concurrence, no “statutory maximum” is provided in Section 97–3–79. In Stewart I, the Court added the language that a sentence must be “reasonably expected to be less than life.” This language is not found in the statute. Additionally, Stewart I must be read with Stewart v. State (Stewart II ), 394 So.2d 1337, 1339 (Miss.1981), to appreciate the Court's holdings and clear distinctions from today's case. In Stewart I, the Court found that a seventy-five-year sentence was excessive and remanded the case for resentencing. Stewart I, 372 So.2d at 259. In Stewart II, the Court found that a seventy-five-year sentence “amounted to” a sentence twenty-five years longer than Stewart's cohorts' estimated life expectancy. Stewart II, 394 So.2d at 1338–39. In Stewart II, the trial court, unlike the trial court in today's case, was presented with evidence of Stewart's life expectancy through testimony and a mortality table based on the general population.5 Stewart...
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