Russell v. State

• Decision Date: 11 May 2021
• Docket Number: 2019-KA-01670-COA
• Citation: 346 So.3d 461
• Parties: Allen M. RUSSELL a/k/a Russell Allen, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

346 So.3d 461

Allen M. RUSSELL a/k/a Russell Allen, Appellant,

v.STATE of Mississippi, Appellee.

No. 2019-KA-01670-COA

Court of Appeals of Mississippi.

May 11, 2021

Rehearing Denied August 10, 2021

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE

EN BANC.

CARLTON, P.J., FOR THE COURT:

¶1. A Forrest County jury found Allen Russell guilty of possession of marijuana in an amount greater than 30 grams but less than 250 grams. The Forrest County Circuit Court sentenced Russell as a violent habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015) to life imprisonment in the custody of the Mississippi Department of Corrections (MDOC) without eligibility for probation or parole. On appeal from the circuit court's judgment, Russell argues that his sentence constitutes cruel and unusual punishment and is grossly disproportionate to his felony conviction. Finding no error, we affirm.

FACTS

¶2. While investigating a felony that occurred the morning of November 29, 2017, officers from the Hattiesburg Police Department developed Russell as a suspect in the crime. After arriving at Russell's apartment complex and confirming the apartment in which Russell lived, the officers evacuated the occupants of several surrounding apartments. The officers observed someone peering through the curtain of Russell's apartment, but no one responded to the officers’ attempts to make contact. The officers used a bullhorn to explain their presence outside the apartment and to provide Russell with an opportunity to voluntarily exit his apartment. Despite their attempts, the officers’ efforts to contact Russell proved unsuccessful.

¶3. In the event that Russell had been unable to hear their previous attempts to contact him, the officers breached the windows of the apartment after obtaining a search warrant. They then attempted again, unsuccessfully, to contact Russell. The officers next deployed a flash bang by the apartment's front door, which also failed to elicit any response to their commands for any occupants to exit the apartment. The officers eventually entered the apartment through the front door. Although they did not immediately see Russell, the officers observed a closet that contained a stool positioned underneath an opening to the apartment's attic crawl space. The officers called to Russell and tried to persuade him to exit the attic. After Russell failed to respond, the officers threw a chemical agent into the attic crawl space. Russell finally exited the attic wearing only a white tank top and his underwear.

¶4. After arresting Russell, the officers entered the apartment and observed a pair of blue jeans through the hole leading to the attic crawl space. Inside the jeans, the officers found Russell's driver's license and Social Security card as well as five bags of a green leafy substance that appeared to be marijuana. An analysis performed on two of the five bags by the Mississippi Forensics Laboratory confirmed that the two bags tested contained marijuana with a combined weight of 43.710 grams.¹

¶5. The jury convicted Russell of possession of marijuana in an amount greater than 30 grams but less than 250 grams. During the sentencing hearing, the State presented evidence of Russell's prior felony convictions. In April 2004, Russell pled guilty to two separate charges of burglary of a dwelling and received two concurrent fifteen-year sentences in MDOC's custody. The State presented evidence that Russell served eight years, seven months, and three days on each charge for burglary of a dwelling before being released from prison in February 2014. In October 2015, Russell then pled guilty to possession of a weapon by a convicted felon and received a ten-year sentence in MDOC's custody, with two years to serve, eight years suspended, and five years of post-release supervision. Based on the State's proof of Russell's two prior felony convictions, the circuit court found Russell to be a violent habitual offender and sentenced him to life imprisonment without eligibility for probation or parole. Russell unsuccessfully moved for a new trial or, alternatively, a judgment notwithstanding the verdict. Aggrieved, Russell appeals.

DISCUSSION

¶6. Russell contends that his enhanced sentence as a habitual offender constitutes cruel and unusual punishment and is grossly disproportionate to the crime committed. As this Court recently acknowledged, " ‘in the context of our habitual statutes, as well as in sentencing other offenders,’ the [Mississippi S]upreme [C]ourt ‘has recognized the broad authority of the [L]egislature and trial courts in this area and has repeatedly held that where a sentence is within the prescribed statutory limits, it will generally be upheld and not regarded as cruel and unusual.’ " McFarland v. State , 297 So. 3d 1110, 1115-16 (¶18) (Miss. Ct. App. 2020) (citation omitted) (quoting Stromas v. State , 618 So. 2d 116, 123-24 (Miss. 1993) ). A narrow exception applies, however, when the sentence imposed is grossly "disproportionate to the crime charged." Willis v. State , 300 So. 3d 999, 1009 (¶29) (Miss. 2020) (quoting Fleming v. State , 604 So. 2d 280, 302 (Miss. 1992) ).

¶7. "[T]o determine if a particular sentence is grossly disproportionate, a court must first compare the gravity of the offense to the severity of the sentence." Nash v. State , 293 So. 3d 265, 269 (¶13) (Miss. 2020). As the Nash court explained, "[o]nly in the exceedingly ‘rare case in which this threshold comparison leads to an inference of gross disproportionality’ should the court ‘then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions.’ " Id. (quoting Graham v. Florida , 560 U.S. 48, 60, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ).

¶8. In Wall v. State , 718 So. 2d 1107, 1109 (¶¶1-2) (Miss. 1998) ), the appellant was convicted of possession of a controlled substance and sentenced as a violent habitual offender under section 99-19-83. Upon review, the supreme court held that the appellant's sentence of life imprisonment without parole was not grossly disproportionate to the crime of possession of a controlled substance. Id . at 1114 (¶30). Similarly, in Hudson v. State , 31 So. 3d 1, 4 (¶12) (Miss. Ct. App. 2009) (reversed on other grounds by Hudson v. State , 30 So. 3d 1199, 1208 (¶26) (Miss. 2010) ), this Court addressed an appellant's argument that his sentence of "life imprisonment for a trace amount of cocaine is unconstitutionally excessive under the Eighth Amendment." This Court held that "[a] ‘sentence of life without parole is not grossly disproportionate to a habitual offender's crime of possession of a controlled substance.’ " Id . at (¶14) (quoting Wall , 718 So. 2d at 1114 (¶30) ). This Court explained that "[the appellant's] sentence of life without parole, which was mandatory under the circumstances, did not arise solely from his conviction of possession of cocaine. [The appellant] was sentenced to life without parole for his status as a habitual offender with a record as a violent offender." Id .² This Court therefore stated that "[t]he correct proportionality analysis for a habitual offender sentence does not consider the present offense alone, but within the habitual offender statute." Id . "This Court, sitting as an intermediate appellate court, is obligated to follow precedent established by the Mississippi Supreme Court." Kennedy v. State , 766 So. 2d 64, 65 (¶3) (Miss. Ct. App. 2000). We must therefore follow the supreme court's guidance as set forth above in Wall .³

¶9. Upon review of the case before us, and in accordance with precedent, we find that Russell's sentencing as a habitual offender was not grossly disproportionate as he claims and was clearly within the prescribed statutory limits.⁴ See Wall , 718 So. 2d 1107 at 1114 (¶30). Russell's felony conviction for possession of marijuana in an amount greater than 30 grams but less than 250 grams fell under Mississippi Code Annotated section 41-29-139(c)(2)(B)(1) (Rev. 2018), which provides the punishment of "a fine of not more than Three Thousand Dollars ($3,000.00), or imprisonment in the custody of the Department of Corrections for not more than three (3) years, or both ...." During Russell's sentencing hearing, however, the State presented evidence that Russell was a violent habitual offender under section 99-19-83. According to section 99-19-83 :

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by Section 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation[,] or any other form of early release from actual physical custody within the Department of Corrections.

¶10. Mississippi Code Annotated section 97-3-2 (Rev. 2014) identifies burglary of a dwelling as a crime of violence.⁵ As this Court recently explained, "[p]rior to 2014, to designate burglary of a dwelling as a violent crime, the State had to prove actual violence during the commission of the burglary." Moffite v. State , 309 So. 3d 529, 539 (¶44) (Miss. Ct. App. 2019) (citing Brown v. State , 102 So. 3d 1087, 1092 (¶21) (Miss. 2012) ). "In 2014, the Legislature defined burglary of a dwelling as a ‘per se crime of violence.’ " Id . (quoting Miss. Code Ann. § 97-3-2 (Rev. 2014)). This Court has recognized that it is a...