Phillips v. State, 53469

• Decision Date: 27 October 1982
• Docket Number: No. 53469,53469
• Citation: 421 So.2d 476
• Parties: Jackie Lee PHILLIPS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 476

421 So.2d 476

Jackie Lee PHILLIPS v. STATE of Mississippi.

No. 53469.

Supreme Court of Mississippi.

Oct. 27, 1982.

Binder, Kirksey & DeLaughter, William B. Kirksey, Alvin M. Binder, Jackson, for appellant.

Bill Allain, Atty.Gen. by Billy L. Gore, Asst.Atty.Gen., and Bill Patterson, Sp.Asst.Atty.Gen., Jackson, for appellee.

Before SUGG, P.J., and BROOM and BOWLING, JJ.

BROOM, Justice, for the Court:

Enhancement of punishment under Mississippi Code Annotated Sec. 99-19-81 (Supp.1981), our "habitual criminals" statute, is highlighted in this case appealed from the Circuit Court of Coahoma County, the Honorable Elzy J. Smith, Circuit Judge. Defendant Jackie Lee Phillips pled guilty to burglary, and now challenges the sentencing judge's consideration of an alleged "invalid conviction of escape from Kentucky penitentiary" as basis for enhancement of punishment. As an habitual offender, Phillips was sentenced to seven years imprisonment and adjudicated as not entitled to "parole or probation during the term of said sentence." We affirm.

Sole argument made is:

THE LOWER COURT ERRED IN CONSIDERING AN INVALID CONVICTION OF ESCAPE FROM A KENTUCKY PENITENTIARY FOR THE PURPOSE OF ENHANCEMENT OF PUNISHMENT UNDER THE HABITUAL OFFENDERS STATUTE, MISS. CODE ANN., SECTION 99-19-81 (SUPP.1981).

On July 8, 1981, defendant Phillips was indicted for burglary of Clinic Discount Drugs in Clarksdale, Mississippi. As subsequently amended, the indictment charged him with habitual offender status under Mississippi Code Annotated Sec. 99-19-81 (Supp.1981). Two prior state court convictions in Kentucky were the basis for charging Phillips with habitual offender status. The first such conviction, in the Circuit Court of McCracken County, Kentucky, on February 15, 1968, was for voluntary manslaughter, for which defendant Phillips was sentenced to a 21-year prison term. While serving his sentence on the voluntary manslaughter conviction, he escaped, was apprehended, pled guilty to the escape charge, and was sentenced to an additional three years in the Circuit Court of Lyons County in Kentucky. This conviction for escape was the second conviction charged in the defendant's indictment in the present case.

At trial in the instant case, the defendant, voluntarily and intelligently, and upon advice of counsel, pled guilty to the charge of burglary. Subsequently, the trial court conducted a hearing, pursuant to Rule 6.04, Mississippi Uniform Criminal Rules of Circuit Court practice, in order to determine the propriety of sentencing under Mississippi's habitual offender act. At this hearing the prosecution and defense stipulated to the defendant's previous Kentucky convictions as follows:

The parties hereto stipulate and agree that the instant stipulation may be introduced into evidence in the "Habitual" phase of any trial in the above indictment numbers and the same may be used by either party as evidence in this cause without objection by the other party and further that all arguments as to the weight and sufficiency of any item of evidence contained herein are expressly waived.

After entering this stipulation into the record, the prosecution indicated that it would rely upon the stipulation for the purposes of establishing the defendant's habitual offender status. The defendant contended that he was not properly designated as a habitual offender, attacking the Kentucky escape conviction as being constitutionally invalid because he had not "knowingly and voluntarily" pled guilty. Defense counsel filed a certified copy of Phillips' conviction, including the minutes of the trial court which read as follows:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

This cause coming on for trial, there came the attorney for the Commonwealth, there came the defendant in person and by his attorney William R. Young who was appointed by the Court to represent said defendant. Defendant acknowledged identity of person, waived formal arraignment, and both defendant and his attorney stated to the Court the defendant wished to enter a plea of guilty. The Court then made the following inquiries of the defendant; (a) whether this was his personal decision, (b) whether such desired plea on his part was voluntary, (c) whether he felt he had been properly and efficiently represented by counsel, and (d) whether he knew he had the right to a trial by jury with assistance of counsel.

To all of these questions the defendant replied in the affirmative.

Taking the stand himself, the defendant testified that he had pled guilty to the charge of escape in his 1971 Kentucky conviction in exchange for a prison official's promise that if he did so he would be let out of solitary confinement. He also testified that he had not been informed at the time of his entering the guilty plea that such a conviction could potentially be used in future criminal proceedings for the purpose of determining his status as an habitual offender. After hearing Phillips' testimony, and reviewing the evidence in the present cause, Circuit Judge Smith held that sentencing under Sec. 99-19-81, supra, was appropriate. Thus he sentenced defendant Phillips to seven years in prison without parole or probation, as provided by the statute.

At this stage of the development of the instant case, the normally staid and methodical appellate procedure acquired unusually dramatic flavor. On November 20, 1981, the defendant filed his appellant's brief, assigning the above described error. On January 6, 1982, the state filed its appellee's brief, taking the position that the trial court's actions had been correct and proper. On January 18, 1982, the defendant responded to the state's brief with "The Rebuttal Brief of Appellant". Then some rather novel developments occurred. On April 30, 1982, the defendant filed "Appellant's Supplemental Brief" alleging that on March 18, 1982, Judge Willard B. Paxton, Circuit Court Judge of Lyons County, Kentucky, had vacated two of the defendant's Kentucky convictions. Therefore, the defendant took the position that his charge of burglary should be reversed, both as to the actual charge and as to the sentencing under the habitual offender act. On May 6, 1982, the state filed the appellee's "Supplemental Response", conceding that in view of the vacation of the prior convictions in Kentucky, sentencing of the defendant under the habitual offender's statute required a reversal of the case but contending that the defendant's guilty plea of burglary should remain in effect, and the case should be remanded for resentencing only. The next installment of this continuing saga transpired on July 2, 1982, when the state filed a "Supplement to Appellee's Supplemental Response", which contained affidavits indicating that one of the defendant's vacated convictions in Kentucky had been reinstated and that appeals on the vacation of the second sentence were presently pending. In view of this fact, the state (appellee) reversed its position and once again contended that the trial court's actions in sentencing defendant under the habitual offender's statute was correct and should be affirmed.

Viewing this imposing array of briefs, rebuttals, response briefs, supplemental response briefs, and supplemental response briefs containing allegations, affidavits, and arguments in a continual state of flux, the wisdom of our steadfast rule that consideration of matters on appeal is limited strictly to matters contained in the trial record becomes obvious. Legg v. Legg, 251 Miss. 12, 168 So.2d 58 (1964); Graham v. Graham, 214 Miss. 99, 58 So.2d 85 (1952); Gavin v. Gavin, 116 Miss. 197, 76 So. 879 (1917). See also State v. Cummings, 203 Miss. 583, 33 So.2d 636 (1948). Cases cited establish that our consideration of a case on appeal will be confined strictly to the record, both in terms of facts occurring prior to trial and to facts occurring since trial. This rule holds true regardless of the nature of the facts sought to be placed before this Court, or the sincerity of counsel in attempting to do so. As Justice Griffith stated in Alexander v. Hancock, 174 Miss. 482, 164 So. 772 (1935), on suggestion of error 174 Miss. 498, 165 So. 126 (1945):

We must decide cases on the facts shown by the record, not by assertions of fact made in briefs or suggestions of error, however sincere counsel may be in those assertions. Facts asserted to exist ought to, and must, be definitely proved and placed before us by a record thereof certified as required by law; otherwise we cannot, in law, know them.

Id. at 498, 165 So. at 126.

In accordance with this long-standing rule, our review of this case will include only those facts actually contained in the record and to those arguments contained in the appellant's brief, the appellee's brief, and the appellant's rebuttal brief. Stated differently, our task on appeal is to review the actions and decisions of the trial court judge within the context of the situation as it existed at that time.

No question was raised either at trial or upon appeal as to the existence of the prior convictions in Kentucky, the nature of those convictions, or of the identity of Phillips as the person convicted. All of these matters were stipulated between the defendant and the state, and further stipulated was that the parties would "not ... challenge the weight or sufficiency of any item contained in the stipulation." Contemporaneously with this stipulation, the defendant specifically and with particularity reserved the right to challenge the constitutionality of the prior convictions and therefore their validity for use under the habitual offender statute. The question presented us is whether a defendant may attack the constitutional validity of a prior conviction (of another state) which is being used for the enhancement of punishment under our habitual offender statute, Sec. 99-19-81, supra. The defendant would have us answer this question in the...