McGlasten v. State
| Decision Date | 04 November 2021 |
| Docket Number | NO. 2020-KA-00279-SCT,2020-KA-00279-SCT |
| Citation | 328 So.3d 101 |
| Parties | Stanley MCGLASTEN a/k/a Stanley McGlaston a/k/a Catman v. STATE of Mississippi |
| Court | Mississippi Supreme Court |
¶1. This appeal raises a question of first impression concerning the unit of prosecution in felon-in-possession cases. Stanley McGlasten, a convicted felon, was caught with four guns in a small residence. He was charged with and convicted of four separate violations of Mississippi Code Section 97-37-5(1) (Rev. 2020). And he was sentenced to separate terms of ten years’ imprisonment on each of the four counts, to be served consecutively.
¶2. Section 97-37-5(1) makes it unlawful for "any person who has been convicted of a felony ... to possess any firearm ...." And today we are called on to decide, for the first time, what the phrase "any firearm " means. Does the phrase "any firearm" mean one firearm—thus permitting the State to stretch the four firearms McGlasten simultaneously possessed into four separate counts, exposing him to four times the punishment? Or does the phrase "any firearm" also encompass the possession of multiple guns, thereby exposing McGlasten to just one count of unlawfully possessing the four firearms found that day in the house?
¶3. After review, we have no choice but to hold that the answer to both of these questions is yes. The statutory charging concern is that the word "any" can mean "one, some, or all."1 Therefore, the statute's use of the phrase "any firearm" to define the unit of prosecution is susceptible to both the singular and plural meaning of "any." So it is without question ambiguous. We point out that our decision today is by no means a novel one. We take the same approach and reach the same conclusion as the federal and state courts that have addressed the unit of prosecution for simultaneously possessed firearms under similar statutes prohibiting felons from possessing "any firearm."
¶4. When a criminal statute is ambiguous, the rule of lenity mandates we interpret the statute in favor of the accused. That means we must adopt the interpretation that "any firearm" includes multiple firearms possessed at the same time and in the same place. Therefore, McGlasten's multiple convictions cannot stand. Because the State presented evidence that McGlasten possessed the four weapons at the same time in the same small house, his four convictions merge into one count of conviction. Thus, only one of McGlasten's convictions can be affirmed.
¶5. We therefore remand the case to the circuit court to vacate McGlasten's sentences, merge the four counts of conviction into one count, and resentence him based on the one remaining count.
Facts
¶6. McGlasten was living in his father's house in Jasper County. In the early morning of August 31, 2018, officers with the Jasper County Sheriff's Department executed a search warrant at the residence. McGlasten was home and grabbed a nearby 9mm pistol. When the officers attempted to enter, McGlasten began shooting. The officers returned fire, wounding McGlasten, who was taken to the hospital for treatment.
¶7. Investigators immediately recovered the 9mm pistol. A later search of the small house revealed three more guns—a .25-caliber revolver in a living room, within a few steps of an open room where two .22-caliber revolvers were found on the same shelving unit.
¶8. McGlasten is a convicted felon. And the State charged him with four counts of unlawful possession of a firearm by a convicted felon. Miss. Code Ann. § 97-37-5(1). He was also charged with four counts of aggravated assault on a law enforcement officer. Miss. Code Ann. § 97-3-7(2)(a)(ii), (2)(b), (14)(a) (Rev. 2020). Before trial, McGlasten moved to dismiss the four individual firearm-possession counts and requested the four charges be merged into one count. McGlasten argued the four possession counts were "in all respects the same crime." He insisted that charging this one crime as four "individual offenses" violated his "constitutional rights against double jeopardy." The trial judge denied his motion.
¶9. McGlasten was tried on the eight charged counts. The jury acquitted him of all four aggravated-assault charges. But the jury found him guilty of the four counts of possession of a firearm by a convicted felon. The circuit court sentenced him to serve ten years on each count, with the sentences to run consecutively. After the trial judge denied his post-trial motions, McGlasten appealed.
Discussion
¶10. On appeal, McGlasten raises one issue—that his simultaneous possession of the four guns constituted only one violation of Mississippi Code Section 97-37-5(1). He argues his four separate convictions violated the Fifth Amendment's protection against double jeopardy. See U.S. Const. amend. V ().
I. Multiplicity
¶11. The gist of what McGlasten is arguing is that his indictment was multiplicitous. "An indictment is multiplicitous if it charges a single offense in more than one count." 41 Am. Jur. 2d Indictments and Informations § 196 (2015). "Multiplicitous charges may violate the Fifth Amendment's prohibition against double jeopardy" due to "the possibility that the defendant will receive more than one sentence for a single offense." Id. So what we must decide is whether McGlasten's indictment wrongly charged a single offense in more than one count, placing him in jeopardy of multiple punishments for one offense.
II. Issue of First Impression
¶12. Interestingly, until today, this Court has never answered this question or interpreted this issue. Nor has the Court of Appeals ever said simultaneous possession of multiple firearms constitutes multiple offenses. In fact, in Green v. State , 183 So. 3d 28, 30-32 (Miss. 2016) —the only case in which we were ever asked to decide this specific question—this Court intentionally declined to do so.
¶13. On certiorari review, Green wanted this Court to decide if his possession of three guns in his vehicle's trunk could support three separate counts of possession of a prohibited weapon by a felon. Id. at 30. Green argued our constitution's double jeopardy provision shielded him from being convicted and punished three times for his simultaneous firearm possession. Id. In response, Justice Coleman—writing for this Court—emphasized that this issue was "indeed one of first impression ," with the "the correct result " of this question being "unsettled and unclear ." Id. at 30 (emphasis added). But instead of answering the question, this Court correctly opted against deciding Green's specific multiplicity-based double jeopardy claim. Because Green had not preserved the issue before seeking certiorari review and because this Court had never held otherwise, we declined to apply plain error review. Id. at 30-32. In short, this Court did not answer the question in Green . Nor has it anytime before or since.2
III. Ambiguity
¶14. A few months after this Court decided Green , the Court of Appeals dealt with a very similar claim. The appellate court noted our recent description of the simultaneous possession issue as "unsettled and unclear." Knight v. State , 192 So. 3d 360, 366 (Miss. Ct. App. 2016) (quoting Green , 183 So. 3d at 30 ). The appellate court also recognized that Knight had dodged a murder charge by pleading guilty to possessing two firearms as a felon—guns he separately stored and possessed at different times. Id. at 368. The court reasoned Knight had likely waived any double jeopardy claims by pleading guilty. Id. at 365. But waiver aside, the appellate court pointed out he suffered no double jeopardy harm because he pled guilty to separately storing and possessing the two firearms as a felon. Id. at 367-68.
¶15. In analyzing this issue, the Court of Appeals recognized the question turned on Mississippi's statutory usage of the phrase "any firearm" as opposed to "a firearm." Id. at 367. The appellate court looked to other state and federal courts that had interpreted these phrases and found a consistent pattern: courts that have reviewed the term "any firearm"—including all federal courts—have found the allowable unit of prosecution ambiguous and have permitted only one conviction for simultaneous possession of multiple firearms. Id. (emphasis added) (citing Bell v. United States , 349 U.S. 81, 82-83, 75 S. Ct. 620, 99 L.Ed. 905 (1955) ; Hill v. State , 711 So. 2d 1221, 1224-25 (Fla. Dist. Ct. App. 1998) ; State v. Garris , 191 N.C.App. 276, 663 S.E.2d 340, 348 (2008) ). But in states with statutes that use the term "a firearm," courts have found multiple convictions are allowed. Id. (emphasis added) (citing Taylor v. State , 929 N.E.2d 912, 922 (Ind. Ct. App. 2010) ; State v. Kidd , 562 N.W.2d 764, 766 (Iowa 1997) ; State v. Lindsey , 583 So. 2d 1200, 1204 (La. Ct. App. 1991) ; State v. Stratton , 132 N.H. 451, 567 A.2d 986, 989 (1989) ).
A. Other courts have reached the same conclusion.
¶16. We agree with the Court of Appeals that the application of this approach by other jurisdictions is both overwhelming and consistent.
¶17. As the Court of Appeals noted, federal circuit courts have unanimously followed the approach that "any firearm" renders the allowable unit of prosecution ambiguous. So only one conviction may stand when firearms are simultaneously possessed. Knight , 192 So. 3d at 367 n.1 (citing United States v. Kennedy , 682 F.3d 244, 255 (3d Cir. 2012) ; United States v. Richardson , 439 F.3d 421, 422 (8th Cir. 2006) ; United States v. Buchmeier , 255 F.3d 415, 422 (7th Cir. 2001) ; United States v. Adams , 214 F.3d 724, 728 (6th Cir. 2000) ; United States v. Verrecchia , 196 F.3d 294, 298 (1st Cir. 1999) ; United States v. Dunford , 148 F.3d 385, 390 (4th Cir. 1998)...
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