Johnson v. State
| Decision Date | 23 March 2006 |
| Docket Number | No. 2003-CT-00487-SCT.,2003-CT-00487-SCT. |
| Citation | 925 So.2d 86 |
| Parties | Johnny Lee JOHNSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Johnny Lee Johnson, pro se.
Office of the Attorney General by Scott Stuart, attorney for appellee.
EN BANC.
ON WRIT OF CERTIORARI
¶ 1. We granted certiorari in this case because we are again confronted with certain issues which have for some time caused both this Court and the Court of Appeals to devote considerable time and energy in an effort to clarify certain sentencing laws. We attempt through this opinion to once and for all lay to rest the perplexing issues concerning suspended sentences, supervised probation, and post-release supervision. While we find the Court of Appeals correctly found Johnson's sentence (1) was not vindictive or harsh, (2) was not a denial of due process, and (3) was not disproportionate, on the other hand, in considering the specific issue before us, we find the Court of Appeals erred in its modification of the circuit court's sentence imposed on Johnny Lee Johnson. We thus affirm in part, and reverse in part, the judgment of the Court of Appeals, and reinstate and affirm the final judgment of the Circuit Court of Jefferson Davis County.
¶ 2. We glean from the opinion of the Court of Appeals the facts which are relevant for today's discussion:
In 1999, Johnny Johnson was arrested for the sale of 0.1 gram of cocaine. He was indicted in July 2000. Prior to that indictment, Johnson had been convicted in March 2000, for a different sale of controlled substances. He had been sentenced to fifteen years, four to serve and eleven years suspended, with the suspension subject to the rules for post-release supervision.
In February 2003, Johnson was tried for the 1999 drug sale.1 He was convicted and sentenced to fifteen years imprisonment, with eight years suspended and post-release supervision for five years. This sentence was consecutive to the one that Johnson was already serving. Johnson appeals.
Johnson v. State, 924 So.2d 527, 528-29 (Miss.Ct.App.2004). It is thus clear from the record that after his arrest for the drug sale which is the subject of today's appeal, but prior to his indictment on this charge, Johnson was convicted in March, 2000, on an unrelated drug sale. Therefore, by the time he stood before the sentencing judge on February 21, 2003, Johnson was indeed a prior convicted felon based on his March, 2000 conviction.
¶ 3. We set out verbatim portions of Johnson's sentence as imposed by Circuit Judge R.I. Prichard, III:
[T]hereupon entering a plea of guilty ... [Johnson] be and he is hereby sentenced to serve a term of fifteen (15) years in the custody of the Mississippi State Department of Corrections, with said sentence to run consecutive to the sentence [he] is now serving.
* * *
[U]pon successful completion of the service of said seven (7) years, the remaining eight (8) years of the fifteen (15) year sentence be and the same are hereby suspended pursuant and in conformity with the Post-Release Supervision set out and authorized in Section 47-7-34 of the Mississippi Code of 1972, Amended and Annotated.
* * *
If [Johnson] meets all of the above conditions, then the remaining eight (8) years of the fifteen (15) year sentence be and the same are hereby suspended and [Johnson] shall be placed on Post-Release Supervision upon the following terms and conditions for a period of five (5) years.
* * *
The violation of any one of the above enumerated conditions shall violate the terms and conditions of [Johnson's] Post-Release Supervision and the Court shall have the authority to revoke the defendant from Post-Release Supervision and remand him back into the custody of the [MDOC] to serve all of the remaining years left on his fifteen (15) year sentence.
The practical effect of the sentence which Judge Prichard imposed upon Johnson was that (1) upon completion of the sentence Johnson was serving at the time of the imposition of the sentence under review, Johnson would serve seven years of incarceration; (2) upon release from MDOC custody, Johnson would serve the remaining eight years of his fifteen-year sentence on post-release supervision pursuant to the provisions of Miss.Code Ann. Section 47-7-34; (3) five years of Johnson's eight-year post-release supervision sentence would be served under MDOC supervision pursuant to the terms and conditions provided by Miss.Code Ann. Section 47-7-35; (4) the remaining three years of Johnson's eight-year post-release supervision sentence would be served as "non-reporting," meaning that while Johnson would not be under MDOC supervision by reporting to a MDOC probation officer, Johnson would still be required to remain on "good behavior," such as not committing another crime, not owning, carrying, or concealing a firearm, and not using or possessing illegal drugs; and, (5) if Johnson violated any of the terms of his post-release supervision during this eight-year period, the court would have authority to terminate any part of, or all of, his eight-year post-release supervision, and sentence Johnson to serve a term of up to eight years in the custody of the Mississippi Department of Corrections, pursuant to the provisions of Miss.Code Ann. Section 47-7-34(2).
¶ 4. Before the Court of Appeals, Johnson attacked only his sentence, arguing that (1) the sentence was vindictive and harsh;2 (2) the imposition of a sentence which ran consecutive to his previously imposed sentence was a denial of due process; and, (3) the sentence was disproportionate and thus in violation of the Eighth Amendment to the United States Constitution, and the sentence was also illegal since, as a prior convicted felon, Johnson could not receive a suspended sentence. The Court of Appeals found Johnson's assignments of error to be without merit, with one exception. The Court of Appeals found the circuit judge erred in suspending a portion of Johnson's sentence since, at the time of sentencing, Johnson was a convicted felon.
¶ 5. In relying on two of its prior cases, Hunt v. State, 874 So.2d 448 (Miss.Ct.App. 2004) and Gaston v. State, 817 So.2d 613 (Miss.Ct.App.2002), the Court of Appeals stated:
A section 47-7-34 sentence requires a "specific term of incarceration, no suspended sentence or `probation,' and a specific term of post-release supervision of up to five years after incarceration, provided that the total of the two terms does not exceed the maximum sentence for the crime." [Hunt, 874 So.2d] at 456. Post-release supervision might be seen as a merger of the purposes of suspension and probation, since the term of supervision must come out of the unserved portion of the maximum prison term for the offense.
Johnson, 924 So.2d at 530. The Court of Appeals, after analyzing the provisions of Miss.Code Ann. Sections 47-7-33, -34, con
Johnson had eight years of a fifteen year sentence suspended. As noted above, since the statute that permits post-release supervision does not contain language authorizing suspending sentences, and another statute bars suspension of sentences to prior felons, no suspension should be given. However, there is no practical difference between what the trial judge did and what he should have done, which would have been to sentence Johnson to a seven year term of incarceration and a five year term of post-release supervision. We modify the sentence only to the extent that we remove as surplusage the giving of a fifteen year sentence with eight years suspended. In all other respects the sentence is affirmed, such that Johnson is to serve a term of incarceration of seven years in the custody of the Mississippi Department of Corrections, and then has a five year term of post-release supervision under the provisions of section 47-7-34.
The Supreme Court has recently even suggested that there may be two different modes in which post-release supervision can be served. One is under the supervision of the Mississippi Department of Corrections, limited to five years. The statute may also permit unsupervised post-release supervision for additional periods so long as the total of the term to serve, the term of supervised supervision, and the term of unsupervised supervision does not exceed the maximum sentence for the offense. Miller v. State, 875 So.2d 194, 199 (Miss. 2004), Miss.Code Ann. § 47-7-34(3) (Supp.2003). In Miller that conclusion was dicta. Later decisions are needed to make the interpretation of post-release supervision more certain.
¶ 6. In the end, the Court of Appeals modified the circuit court sentence to remove the eight-year suspended sentence, replacing that portion of the sentence with five years of post-release supervision.3 Thus, while the net result of the Court of Appeals' modified sentence was that Johnson was still required to serve seven years in the custody of the MDOC, Johnson's term of post-release supervision was reduced from eight years to five years. The Court of Appeals likewise opined that our holding in Miller v. State, 875 So.2d 194 (Miss.2004), would "ultimately require adjustments" in what the Court of Appeals had "announced in its precedents," concluding that "[t]he certiorari process in this case is available." Id. at 530. Having granted the State's petition for writ of certiorari, we now accept the invitation extended by the Court of Appeals to once again address the statutory creatures known as suspended sentences, supervised probation, and post-release supervision.
¶ 7. In considering the State's cert petition, we deem it necessary to address today only one issue.
WHETHER THE CIRCUIT COURT IMPOSED AN ILLEGAL SENTENCE, OR A SENTENCE WHICH REQUIRED APPELLATE COURT MODIFICATION.
¶ 8. As already aptly noted, we are again confronted with the ever-present sentencing problem that occurs when a prior convicted felon is given...
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