Russell v. State, 2019-CT-01670-SCT

CourtUnited States State Supreme Court of Mississippi
Citation346 So.3d 435
Parties Allen M. RUSSELL a/k/a Russell Allen v. STATE of Mississippi
Docket Number2019-CT-01670-SCT
Decision Date16 June 2022

346 So.3d 435

Allen M. RUSSELL a/k/a Russell Allen
STATE of Mississippi

NO. 2019-CT-01670-SCT

Supreme Court of Mississippi.

June 16, 2022






¶1. This certiorari case considers whether Allen Russell's life sentence without the possibility of parole for possession of marijuana, as an habitual offender under Mississippi Code Section 99-19-83 (Rev. 2020), violates his Eighth Amendment right to be free from cruel and unusual punishment. The Court of Appeals stalemated five to five, resulting in an affirmance of the judgment of the trial court. Russell v. State , No. 2019-KA-01670-COA, 2021 WL 1884144, at *3 (Miss. Ct. App. May 11, 2021). We affirm Russell's sentence.


¶2. As part of a criminal investigation, Hattiesburg Police Department officers went to the residence of a potential suspect, Allen Russell. Upon arrival, officers obtained a warrant to search the address for Russell and any other items related to the investigation.

¶3. Officers entered Russell's home and found him in the attic. Officers noticed a

346 So.3d 437

pair of jeans near Russell with his social security card, driver's license, and five small bags of marijuana in his pocket. At the scene, the five bags of marijuana weighed 79.5 grams (a little more than two and a half ounces). A later forensic analysis confirmed that the combined weight of two bags was 43.710 grams, but the remaining three bags were not evaluated because the statutory requirement to charge Russell with possession of marijuana had been satisfied.

¶4. Russell was indicted for one count of possessing more than 30 grams but less than 250 grams of marijuana. Miss. Code Ann. § 41-29-139(c)(2)(B)(1) (Rev. 2018). The indictment also charged Russell as a violent habitual offender under Mississippi Code Section 99-19-83 (Rev. 2020).

¶5. Russell moved to quash the indictment and argued that (1) the application of Section 99-19-83 violated his Constitutional right against ex post facto laws, and (2) a sentence of life without parole "egregiously violated" his Eighth Amendment protection against cruel and unusual punishment. The motion was brought forward for a hearing at arraignment. Russell presented no witnesses or other evidence at the hearing, only argument. The State argued that Russell's motion to quash was premature and should be addressed at sentencing. The circuit court agreed and took the matter under advisement.

¶6. The jury convicted Russell of possession of marijuana in an amount greater than 30 grams but less than 250 grams.

¶7. At Russell's sentencing hearing, the trial court heard additional argument related to the motion to quash previously taken under advisement. Once again, Russell presented no witnesses or evidence, only argument. The court then specifically denied the motion to quash, although only mentioning the ex post facto claim in his oral ruling. Subsequently, the State presented evidence of Russell's prior felony convictions: two for burglary of a dwelling and one for felon in possession of a firearm. At this point, Russell was again given an opportunity to call witnesses but chose not to do so, nor did he present any other evidence. Based on Russell's prior felony convictions, the circuit court found that Russell was a violent habitual offender and sentenced him to life in prison without eligibility for probation or parole.

¶8. Thereafter, Russell unsuccessfully moved for a new trial, or alternatively, a judgment notwithstanding the verdict. Again, Russell challenged his sentence as cruel and unusual punishment under the Eighth Amendment. The court denied the motion. Russell appealed and argued that his "life sentence for possessing more than 30 grams but less than 250 grams of marijuana constitutes cruel and unusual punishment."

¶9. From a five to five evenly split court, Presiding Judge Carlton opined that Russell's life sentence as an habitual offender was not grossly disproportionate to the crime committed for two reasons. Russell , 2021 WL 1884144 at *3. First, Judge Carlton found that "[a] sentence of life without parole is not grossly disproportionate to an habitual offender's crime of possession of a controlled substance." Id. at *2 (alteration in original) (internal quotation marks omitted) (quoting Hudson v. State , 31 So. 3d 1, at 4 (Miss. Ct. App. 2009), rev'd on other grounds by Hudson v. State , 30 So. 3d 1199, 1208 (Miss. 2010) (quoting Wall v. State , 718 So. 2d 1107 (Miss. 1998) ). Second, Presiding Judge Carlton stated that Russell's sentence was within the prescribed statutory limit and, therefore, was not grossly disproportionate. Id. at *3.

¶10. Thereafter, this Court granted Russell's petition for a writ of certiorari. Russell does not ask to set aside his conviction.

346 So.3d 438

Rather, he seeks a lesser sentence. Russell maintains that this Court should vacate his sentence and remand for new sentencing so that the trial court may consider the Eighth Amendment in sentencing Russell for possession of marijuana.


¶11. Russell was convicted of possession of marijuana in an amount greater than 30 grams but less than 250 grams under Section 41-29-139(c)(2)(B)(1). This section 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 ...." Miss. Code Ann. § 41-29-139 (c)(2)(B)(1).

¶12. Russell's sentence was enhanced because he is a violent habitual offender under Section 99-19-83, which states:

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, ... 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.

Miss. Code Ann. § 99-19-83.

¶13. Russell was considered a violent habitual offender because he pled guilty to two separate charges of burglary of a dwelling in 2004 and once to a charge of felon in possession of a firearm in 2015. Russell served eight years, seven months and three days on his fifteen-year concurrent sentence for burglary of a dwelling.1 Russell participated in a Regimented Inmate Discipline Program, which led to his early release. Russell was also sentenced to ten years as a felon in possession of a firearm, with two years to serve, eight years suspended, and five years of post-release supervision. Appropriate evidence was presented to prove, beyond a reasonable doubt, that the requirements of Section 99-19-83 had been met.

¶14. Because the trial judge followed the law to the letter, we affirm.

¶15. The trial judge did not have sentencing discretion in this case. Mississippi Code Section 99-19-83 provided for one sentence: life without parole. Miss. Code Ann. § 99-19-83 (Rev. 2020). As is noted in Clowers v. State , 522 So. 2d 762, 765 (Miss. 1988), however, our discussion does not end there. As stated in Clowers :

The fact that the trial judge lacks sentencing discretion does not necessarily mean the prescribed sentence meets federal constitutional proportionality requirements. Notwithstanding § 99-19-81, the trial court has authority to review a particular sentence in light of constitutional principles of proportionality as expressed in Solem v. Helm . That authority is a function of the Supremacy Clause. U.S. Const. Art. VI, cl. 2 ; Bolton v. City of Greenville , 253 Miss. 656, 666, 178 So. 2d 667, 672 (1965).

Id. at 765.

¶16. In Solem v. Helm , 463 U.S. 277, 290, 103 S. Ct. 3001, 77 L.Ed. 2d 637 (1983), the United States Supreme Court held that a criminal sentence must not be disproportionate to the crime for which the

346 So.3d 439

defendant is being sentenced. The Court set out objective factors that should guide the proportionality analysis in each case: "(i) the gravity of the offense and the harshness of the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii) the sentences imposed for commission of the same crime in other jurisdictions." Id. at 292, 103 S. Ct. 3001.

¶17. "[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 (Miss. 2020) (citing Graham v. Florida , 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L.Ed. 2d 825 (2010) ). As the Nash Court explained, "...

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