MEANS v. State of Miss.

• Decision Date: 26 August 2010
• Docket Number: No. 2008-CT-01117-SCT.,2008-CT-01117-SCT.
• Citation: 43 So.3d 438
• Parties: Charles MEANS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

43 So.3d 438

Charles MEANS v. STATE of Mississippi.

No. 2008-CT-01117-SCT.

Supreme Court of Mississippi.

August 26, 2010.

COPYRIGHT MATERIAL OMITTED.

Charles Means, appellant, pro se.

Office of the Attorney General by Deirdre McCrory, Jackson, attorney for appellee.

EN BANC.

ON WRIT OF CERTIORARI

WALLER, Chief Justice, for the Court:

¶ 1. Charles Means brought a post-conviction-relief petition to vacate his banishment order and the revocation of the suspension of his sentence for violating it. The trial court summarily dismissed Means's petition, and the Court of Appeals affirmed. We granted Means's petition for certiorari to review the propriety of his banishment. But the record before us does not indicate whether the trial court addressed the requisite banishment considerations, as enunciated in Cobb v. State, 437 So.2d 1218 (Miss.1983), so we reverse and remand.

FACTS AND PROCEDURAL HISTORY

¶ 2. On November 1, 2005, as the result of a negotiated plea arrangement, Charles Means pleaded guilty in the Circuit Court of Forrest County to one count of possession of a controlled substance with intent to distribute, in violation of Mississippi Code Section 41-29-139(a). Miss.Code Ann. § 41-29-139(a) (Rev.2009). He was sentenced to a term of twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). But the trial court suspended Means's entire sentence, provided he comply with several conditions, including that he remain 100 miles away from the Forrest County Courthouse for the entire twenty-five-year period of the suspended sentence. This condition commonly is known as banishment.

¶ 3. Less than four months later, on February 24, 2006, Means was found in Hattiesburg, Mississippi, within 100 miles of the Forrest County Courthouse. Means admitted to violating the banishment condition, and on March 13, 2006, the trial court revoked the suspension and ordered Means to serve the full twenty-five-year prison sentence. Pursuant to the Uniform Post-Conviction Collateral Relief Act (UPCCRA), Means filed his first motion for post-conviction relief (PCR) on February 7, 2007, alleging that his attorney had misrepresented the sentence he would receive. But Means did not attack the banishment provision, the revocation, or the imposition of the twenty-five-year sentence. The trial court summarily dismissed Means's first PCR motion, and Means did not appeal the dismissal.

¶ 4. On March 18, 2008, Means filed another PCR motion in the trial court. In this second motion, he sought "to vacate [his] illegal sentence and unauthorized revocation." Means claimed the trial court lacked authority to impose the banishment condition, and he also asserted that the trial court was limited to imposing a five-year term of probation. On June 4, 2008, the trial court summarily dismissed Means's second PCR motion as being procedurally barred under Mississippi Code Section 99-39-21(1) (Rev.2007), because Means had failed to raise this issue in his first PCR motion. The trial court also found that Means's motion was barred as a successive writ, pursuant to Section 99-39-23(6) (Rev.2007). Finally, the trial court found that "Means'[s] sentence is legal" and that it was without authority to modify the sentence after he had begun to serve it. Means appealed.

¶ 5. The Court of Appeals affirmed the trial court's dismissal of Means's second PCR motion. Means v. State, 43 So.3d 461 (Miss.Ct.App.2009). The Court of Appeals found, in pertinent part, that: (1) the banishment condition imposed by the trial court complied with Cobb v. State, 437 So.2d 1218 (Miss.1983), and McCreary v. State, 582 So.2d 425 (Miss.1991); (2) Means's PCR motion was procedurally barred under Section 99-39-21(1) because Means had made no objection to his sentence at the sentencing hearing; and (3) Means's PCR motion was procedurally barred as a successive writ under Section 99-39-23(6). Means, 43 So.3d at 463-65. Means petitioned this Court for certiorari, which we granted on March 4, 2010 years' imprisonment. Yet the circuit judge suspended the sentence and put Cobb on probation for five years, provided he leave Stone County and stay 125 miles away from the county. Id. at 1219. On direct appeal, Cobb raised several arguments regarding the impropriety of the banishment.

¶ 16. In addressing Cobb's contentions, this Court first held that the banishment provision bore a reasonable relationship to the purpose of probation. We specifically pointed out that "Mississippi Code Annotated § 47-7-35 (Supp. 1982) provides that courts shall determine the terms and conditions of probation and may order the probationer to `(g) Remain within a specified area[.]'" Cobb, 437 So.2d at 1219 (quoting Miss.Code Ann. § 47-7-35(g) (Supp.1982)). And we explained that, "[i]nstead of being a matter of right, it is by grace that probation is granted a defendant, and within his sound judicial discretion the trial judge may fix reasonable conditions of ... probation." Id. at 1221 (citing Owens v. Kelley, 681 F.2d 1362 (11th Cir.1982)).

¶ 17. We also found that the banishment did not violate public policy nor defeat the rehabilitative purpose of probation. Cobb, 437 So.2d at 1220-21. We noted that the judge "recogniz[ed] that Cobb had an uncontrollable temper, [and] related this to the community," explaining that until Cobb learned to control his temper, it was not likely that he could live in harmony with his brother's family. Id. at 1220. The judge cautioned that, had the boy died, Cobb likely would have received a life sentence. Id. But the judge did not want to punish "a man of [Cobb's] character" so severely. Since Cobb's house was only three-eighths of a mile from his brother's house, the circuit judge thought the best interests of everyone required getting Cobb "away from his brother and family[.]" Id. at 1220-21. The circuit judge noted that "compared to what I could have done, I think I have been relatively kind." Id. at 1221. We also recognized that "some amount of punitive aspects of probation serve the public interest as well as the probationer's interest." Id. at 1221. So we agreed with the circuit judge that "the ends of justice and the best interests of the public as well as the defendant would be served by the [banishment]." Id. at 1220.

¶ 18. Finally, we found that the trial court had not violated Cobb's constitutional rights by imposing the banishment condition. We noted that:

Here the record shows that the trial judge carefully and meticulously explained to Cobb his rights which shows that Cobb understood that he could be sentenced to 20 years in the penitentiary upon the indictment to which he pled guilty. As found by the trial judge, Cobb voluntarily and knowingly pled guilty and specifically acknowledged his guilt. Then the court deferred sentence, so that the Mississippi Department of Corrections could "conduct an investigation of this defendant" and present a presentence report to the trial court, all of which presumably was done. The judgment of the court fixing the sentence and conditions here complained of shows that Cobb (while represented by counsel) signed the judgment underneath the following language: "I accept the above probation in accordance with the terms thereof".

Cobb, 437 So.2d at 1221. We thus found that Cobb's rights under the First, Fifth, and Fourteenth Amendments to the United States Constitution had not been violated by imposition of the conditions of his probation, including the banishment. Id.

¶ 19. Based on the trial court's on-the-record adjudication of all those factors, this Court held on appeal, in pertinent part, that:

Upon the record as made and presented, we find that the conditions imposed by the sentencing judge were reasonably related to Cobb's circumstances and his intended rehabilitation. [U]pon these facts, we are unable to say that removing him from the area was unreasonable or arbitrary ... or in any sense violated public policy or his authority under the pertinent statutes.

Cobb, 437 So.2d at 1220, 1221 (emphasis added). Further, in McCreary, we explained why Cobb's banishment had been affirmed. We stated that:

In Cobb, the Court satisfied itself from the record that the banishment provision bore a reasonable relationship to the purpose of probation; that the ends of justice and the best interest of the defendant and the public would be served; that public policy was not violated and the rehabilitative purpose of probation was not defeated; and that Cobb's rights under the First, Fifth and Fourteenth Amendments to the United States Constitution were not violated.

McCreary, 582 So.2d at 427 (citing Cobb, 437 So.2d at 1219-21) (emphasis added). So this Court affirmed Cobb's banishment because we were satisfied from the record as made and presented—which included specific facts regarding Cobb's situation, character, and offense—that Cobb's banishment would achieve a rehabilitative purpose, serve the ends of justice, and protect the rights and interests of Cobb and the public. Cobb, 437 So.2d at 1219-21; McCreary, 582 So.2d at 427.

¶ 20. Our decisions in Cobb and McCreary do not necessarily place an affirmative duty on the trial judge to articulate the Cobb factors on the record. Cobb and McCreary simply indicate that we will affirm a banishment only if we are satisfied from the record as made and presented that the banishment is appropriate, taking the Cobb factors into consideration. Cobb, 437 So.2d at 1219-21; McCreary, 582 So.2d at 427. But we cannot be satisfied from the record that the banishment is proper if no record is made or presented that the banishment would achieve the goals outlined by Cobb and McCreary. So a trial judge who imposes banishment as a condition of probation or a suspended sentence, and wishes to have the banishment affirmed on appeal, will be best served by articulating, on the record, the reasons for and benefits of the banishment under ...