Oliver v. State, 2007-CP-02071-COA.

• Court: Court of Appeals of Mississippi
• Writing for the Court: Barnes, J.
• Citation: 20 So.3d 16
• Parties: Jessie Montrell OLIVER a/k/a Money, Appellant, v. STATE of Mississippi, Appellee.
• Docket Number: No. 2007-CP-02071-COA.,2007-CP-02071-COA.
• Decision Date: 14 April 2009

20 So.3d 16 Jessie Montrell OLIVER a/k/a Money, Appellant,
v.
STATE of Mississippi, Appellee. No. 2007-CP-02071-COA. Court of Appeals of Mississippi. April 14, 2009. Rehearing Denied July 28, 2009. Certiorari Denied October 29, 2009.

[20 So.3d 19]

Jessie Montrell Oliver, pro se.

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

Before LEE, P.J., GRIFFIS and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Jessie Montrell Oliver pleaded guilty in the Circuit Court of DeSoto County to three counts of armed robbery and was sentenced to ten years on each count, to be served in the custody of the Mississippi Department of Corrections (MDOC), with the sentences to run consecutively, followed by ten years of post-release supervision (five years reporting and five years non-reporting). Oliver, proceeding pro se, filed a motion for post-conviction relief, which the circuit court summarily denied. Oliver now appeals. Finding no error, we affirm.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. Although the record provides very little detail as to the underlying crimes in this case, we can discern that Oliver and his accomplices committed armed robberies of various Hispanic males in DeSoto County over a period of several days in July 2005. Oliver was indicted in April 2006 for conspiracy to commit armed robbery, three counts of armed robbery, and one count of aggravated assault. On October 20, 2006, Oliver pleaded guilty to the three counts of armed robbery and was sentenced to ten years to serve in the custody of the MDOC in Count II, ten years to serve in the custody of the MDOC in Count III, which was ordered to run consecutively to the sentence for Count II, and ten years to serve in the custody of the MDOC in Count IV to be followed by ten years of post-release supervision (five years reporting and five years non-reporting) with this sentence to run consecutively to Count II and Count III. Counts I and V were remanded to the file.

¶ 3. On September 26, 2007, Oliver filed a motion for post-conviction relief to vacate and set aside his convictions and sentences, asserting several errors. The circuit court denied Oliver's motion for post-conviction relief on October 31, 2007, stating no evidentiary hearing was warranted. Oliver filed his notice of appeal on November 12, 2007.

STANDARD OF REVIEW

¶ 4. We will not disturb a circuit court's denial of a motion for post-conviction relief unless the decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002). "A [circuit] court may dismiss a motion for post-conviction relief `if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.'" Dyson v. State, 996 So.2d 172, 173(¶ 3) (Miss.Ct.App.2008) (quoting Miss.Code Ann. § 99-39-11(2) (Rev.2007)). "However, where questions of law are raised the applicable standard of review is de novo." Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004) (citation omitted).

I. Whether Oliver was denied due process and subjected to an illegal sentence as a first-time offender.

¶ 5. Oliver contends that, as a first-time offender, he received an unduly harsh sentence. "Sentencing is within the discretion of the trial court and will not be disturbed on appeal absent a finding of

20 So.3d 20

abuse of discretion." Brown v. State, 989 So.2d 882, 886(¶ 20) (Miss.Ct.App.2007) (citing Kirksey v. State, 728 So.2d 565, 568(¶ 14) (Miss.1999)). "This Court will not disturb a sentence that is imposed as long as the sentence is within the terms set forth in the statute." Lee v. State, 918 So.2d 87, 88(¶ 4) (Miss.Ct.App.2006). The mere fact that "a defendant is convicted of a felony for the first time does not preclude a maximum sentence." Johnson v. State, 908 So.2d 900, 902(¶ 6) (Miss.Ct.App. 2005) (citing Nichols v. State, 826 So.2d 1288, 1292(¶ 16) (Miss.2002)). Thus, the sentence that Oliver received, which was not the maximum sentence available, was not illegal, even if he had been a first-time offender. However, upon review, we find Oliver's claim of being a first-time offender completely devoid of merit as he admitted to previous convictions of possession of stolen property and burglary of a vehicle in his petition to enter his pleas of guilty.

II. Whether Oliver's sentences were excessive, disproportionate, and resulted in a violation of the Fifth and Fourteenth Amendments to the United States Constitution.

¶ 6. Oliver claims that the sentences imposed by the circuit court were excessive and disproportionate to the offenses as they exceeded Oliver's life expectancy. Oliver calculates that, at the time of his birth, his life expectancy was sixty-four years. He was twenty-seven years old at sentencing; therefore, he claims that forty years is, in effect, a life sentence and that the circuit court judge should have conducted a "sentencing proportionality analysis" prior to imposing Oliver's sentence.

¶ 7. As already stated, "[a]s a general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed on appeal." Towner v. State, 837 So.2d 221, 227(¶ 20) (Miss.Ct. App.2003) (citing Wallace v. State, 607 So.2d 1184, 1188 (Miss.1992)). "A sentence is subject to review, however, where it is alleged that the penalty imposed is disproportionate to the crime charged." Williams v. State, 784 So.2d 230, 236(¶ 13) (Miss.Ct.App.2000). In Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the United States Supreme Court developed a three-prong analysis to identify whether a sentence was disproportionate by reviewing: (1) the gravity of the crime and harshness of the penalties, (2) other criminals' sentences in the same jurisdiction for the same crimes, and (3) sentences other jurisdictions impose for commission of the same crime. In Hoops v. State, 681 So.2d 521, 538 (Miss.1996), the Mississippi Supreme Court further clarified that the Solem three-prong analysis only applies "when a threshold comparison of the crime committed to the sentence imposed leads to an inference of `gross disproportionality.'" (Citation omitted).

¶ 8. The Mississippi Supreme Court has stated that:

In cases where the judge has in effect sentenced the defendant to a term of years that is basically a life sentence, the rule that governs in Mississippi is the one set out in the case Stewart v. State, 372 So.2d 257, 259 (Miss.1979). The rule as set out by the Stewart case states, "... the trial court will make a record of and consider all relevant facts necessary to fix a sentence for a definite term of years reasonably expected to be less than life. The court should consider the age and life expectancy of the defendant and any other pertinent facts which would aid in fixing a proper sentence." Stewart, 372 So.2d at 259.

Lindsay v. State, 720 So.2d 182, 185(¶ 11) (Miss.1998). "[A] trial court has to consider

20 So.3d 21

a defendant's life expectancy when determining the length of a sentence in armed robbery convictions." Cannon v. State, 919 So.2d 913, 917(¶ 11) (Miss.2005). However, "[a] sentence is not an illegal life sentence if it is reasonably calculated to be less than life." Roland v. State, 939 So.2d 810, 812(¶ 7) (Miss.Ct.App.2006).

¶ 9. Oliver recognizes that he pleaded guilty to three counts of armed robbery, which the circuit court informed him at the plea hearing could carry a sentence of less than life on each count. See Gaskin v. State, 618 So.2d 103, 108 (Miss.1993) (without a jury recommendation, the maximum penalty for armed robbery is "a definite term [of years] ... less than life"). Therefore, "[e]ach sentence imposed for conviction of multiple offenses is to be imposed without respect to each other, even where the several offenses grew out of a single unbroken chain of events." McCline v. State, 856 So.2d 556, 560(¶ 19) (Miss.Ct.App.2003) (citing Erwin v. State, 557 So.2d 799, 803 (Miss.1990)). "This remains true even though the aggregation of the sentences exceeds the defendant's actuarial life expectancy." Id.

¶ 10. However, Oliver counters by claiming that the armed robbery was really just one crime, broken into multiple crimes in order to lengthen the sentence. He also argues that his co-defendant, Arrica Jefferson, only received five years, which indicates that his sentence was disproportionate. We reject both of these arguments. Oliver knowingly and voluntarily pleaded guilty to all three counts of armed robbery and was fully informed of the maximum and minimum sentence for each count. As to the issue of Jefferson's sentence, we find that her...