Medina v. State

• Decision Date: 21 November 1996
• Docket Number: No. 93-KA-00238-SCT,93-KA-00238-SCT
• Citation: 688 So.2d 727
• Parties: Lourdes Basto MEDINA v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 727

688 So.2d 727

Lourdes Basto MEDINA v. STATE of Mississippi.

No. 93-KA-00238-SCT.

Supreme Court of Mississippi.

Nov. 21, 1996.

James L. Davis, III, Gulfport, for Appellant.

Michael C. Moore, Attorney General, Jean Smith Vaughan, Sp. Assistant Attorney General, Jackson, Mary Jane Lemon, Canton, for Appellee.

Before SULLIVAN, P.J., and JAMES L. ROBERTS, Jr. and SMITH, JJ.

SMITH, Justice, for the Court:

Lourdes Basto Medina appeals to this Court her conviction in the First Judicial District of the Harrison County Circuit Court of transfer of cocaine. Having made multiple sales of narcotics to an undercover agent, Medina was subject to life imprisonment without parole under Miss.Code Ann. § 41-29-139(f)(1972). However, the lower court bifurcated the trial and the jury considered only the evidence regarding the transfer of cocaine, after which Medina was convicted of this offense.

In post-trial hearings, the defense demurred to the indictment, arguing that the enhanced penalty of Miss.Code Ann. § 41-29-139(f) was unconstitutionally void for vagueness. The trial court judge agreed and held the statute to be unconstitutional. Medina was sentenced to thirty years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $1,000. Aggrieved, Medina appeals her conviction. This Court affirms the conviction and sentence.

The State of Mississippi cross-appeals and argues that the trial court erred in holding Mississippi Code Ann. § 41-29-139(f) unconstitutional. Because this issue is not properly before this Court we do not address the constitutionality of this statute.

STATEMENT OF THE FACTS

Lourdes Basto Medina was indicted on two counts of transfer and one count of sale within one thousand feet of Gulfport High School and three counts of sale of a controlled substance to Mississippi Bureau of Narcotics Agent Kevin Bell, during a consecutive time period commencing in September, 1991 and continuing until January, 1992. The charge which is the subject of this appeal was the transfer of cocaine by Medina to Agent Bell on January 10, 1992. This transaction was videotaped.

Medina filed a motion to quash, dismiss, or demurrer to the indictment and a motion to strike the sentencing portion of the indictment. Medina also filed a motion to subpoena witnesses Carlos Fernandez and Angela Fernandez and to extradite Carlos Fernandez from the Baldwin County, Alabama jail. The circuit court ordered subpoenas for Angela and Carlos Fernandez on February 5, 1993. On that same date, Medina filed a motion for continuance which the trial court granted by moving the trial to February 10, 1993. On February 8, 1993, the trial court overruled the motion to dismiss or quash the indictment and the motion to strike the sentencing part of the indictment.

On February 10, 1993, Medina filed an amended petition for a Writ of Habeas Corpus to secure Carlos Fernandez from the jail located in Bay Minnette, Alabama. Although the trial judge issued the writ, the federal authorities who had custody of Carlos, refused to comply.

In addition, on February 10, 1993, Medina renewed her motion to quash or demurrer to the indictment on the grounds that § 41-29-139(f) was unconstitutionally vague. Because of the enhancement portion of § 41-29-139(f), Medina was subject to life imprisonment without parole. The trial court held a bifurcated trial, with the jury only considering the evidence regarding the sale of cocaine. Medina was convicted, and on February 19, 1993, after the presentation of mitigating evidence, Medina was sentenced to thirty years in the custody of the Mississippi Department of Corrections and to pay a fine of $1,000.

Subsequent to sentencing Medina, Circuit Judge Jerry Terry declared the "kingpin" or penalty enhancement section of § 41-29-139(f) unconstitutionally void for vagueness and did not sentence Medina to the enhanced penalty of life imprisonment without parole.

Medina's motion ore tenus for a new trial was orally overruled, but no written order, in accordance with M.R.A.P. 4(e), was entered.

Thus, the State moved this Court to dismiss the appeal for lack of jurisdiction. This Court denied the motion and found Medina's motion to be moot. Medina was granted an out of time appeal.

DISCUSSION OF LAW

I. WHETHER THE TRIAL COURT ERRED IN FAILING TO QUASH THE INDICTMENT?

Medina challenges the validity of the indictment in the present case on several grounds, all of which relate to § 41-29-139(f). Paramount to this Court's consideration of this issue is that Medina was not sentenced under § 41-29-139(f) and thus was not subjected to life imprisonment without parole. Rather, Medina was sentenced to a term of thirty years for a simple sale of cocaine; thus, she was unharmed by the enhancement provision. Prior to discussing the various grounds complained of by Medina, this Court will again make it clear that the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense. Allman v. State, 571 So.2d 244 (Miss.1990). In the case at bar, Medina has failed to demonstrate such prejudice.

First, Medina argues that the indictment was materially flawed in that it did not allege two facts: (1) that the defendant was twenty-one years or older and (2) that Medina sold cocaine over a period of twelve consecutive months. The statutory age requirement applies only to the enhancement section of the indictment and was not applicable to the principal offense. Moreover, the trial court, during the motion to quash, found the indictment correctable since the issue was one of form and not substance and therefore allowed the State to amend the indictment to accurately reflect Medina's age.

Specifically applicable to Medina's case is Griffin v. State, 540 So.2d 17, 21 (Miss.1989)(quoting Reed v. State, 506 So.2d 277, 279 (Miss.1987)) wherein this Court held:

The test of whether an accused is prejudiced by the amendment of an indictment or information has been said to be whether or not a defense under the indictment or information as it originally stood would be equally available after the amendment is made and whether or not any evidence [the] accused might have would be equally applicable to the indictment or information in the one form as in the other; if the answer is in the affirmative, the amendment is one of form and not of substance.

The record fails to show that Medina was unable to prepare a defense due to the omission in or the amendment to the indictment regarding her age. Moreover, she wholly fails to even suggest such prejudice or harm. Thus, the trial court did not commit error in overruling the motion to quash the indictment on these grounds.

Medina also argues that the indictment was materially flawed in that it failed to specifically set forth the fact that Medina sold controlled substances over a twelve-month consecutive period. The indictment is clear; Medina was charged with selling various controlled substances over a period commencing in September 5, 1991 until January 10, 1992. The time period contained in the indictment is consecutive and is within a twelve month period. We find no merit to this argument.

Medina's claim that she would have pled guilty if she had known she faced life imprisonment without parole is totally one of hindsight. It is also in direct contradiction to her stance at trial. During her motion to quash the enhancement section of the indictment, defense counsel advised the trial court that Medina had a heavy burden knowing she faced life without parole. Moreover, prior to trial, defense counsel advised the court, "At this time Ms. Medina has always indicated clearly to me she plans to go to trial on these charges anyway." The record simply does not support Medina's argument.

In addition, Medina argues that if the trial court had dismissed the indictment prior to trial, a reasonable plea could have been negotiated. Specifically, Medina relies on the State's recommended plea offer of twenty years. However, the record clearly establishes that the State's recommended plea was twenty years without parole. Thus, even if Medina had accepted the State's offer, she Lastly, Medina argues that § 41-29-139(f) is not an enhanced penalty statute, but rather constitutes a separate offense. Thus, Medina concludes that the indictment was flawed as it charged two separate crimes within a single count indictment. This issue, however, is not properly before this Court. The law is settled that objections to indictments on the grounds that they are duplicitous must be raised before the return of the verdict. Hitt v. State, 217 Miss. 61, 63 So.2d 665 (1953); Wilkinson v. State, 77 Miss. 705, 709, 27 So. 639, 640 (Miss.1900)(objection cannot be made after verdict to an indictment bad for duplicity). Contrary to Medina's argument, Burchfield v. State, 277 So.2d 623 (Miss.1973) does not indicate otherwise. In Burchfield, this Court held that an error in an indictment may be first raised after the verdict where the indictment has failed to charge the essential or material ingredients of the offense that have been set forth in the enabling code section. Burchfield cannot be rationally read to suggest that an indictment which could be construed to charge the essential elements of more than one crime may be first challenged after the trial.

would have faced a sentence without parole. Medina is guaranteed no right to plea bargain. The United States Supreme Court has expressly held "[T]here is no constitutional right to a plea bargain." Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed.2d 30(1977). This argument is pure hindsight and one without merit.

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