Sallie v. State

• Decision Date: 08 March 2018
• Docket Number: NO. 2015–CT–00819–SCT,2015–CT–00819–SCT
• Citation: Sallie v. State, 237 So.3d 749 (Miss. 2018)
• Parties: Craig D. SALLIE a/k/a Craig D. Sallie, Sr. a/k/a Craig Sallie v. STATE of Mississippi
• Court: Mississippi Supreme Court

237 So.3d 749

Craig D. SALLIE a/k/a Craig D. Sallie, Sr. a/k/a Craig Sallie

v.STATE of Mississippi

NO. 2015–CT–00819–SCT

Supreme Court of Mississippi.

March 8, 2018

CYNTHIA ANN STEWART, ATTORNEY FOR APPELLANT.

OFFICE OF THE ATTORNEY GENERAL, BY: SCOTT STUART, ATTORNEY FOR APPELLEE.

EN BANC.

ON WRIT OF CERTIORARI

BEAM, JUSTICE, FOR THE COURT:

¶ 1.Craig Sallie was charged with one count of aggravated assault for shooting Gregory Johnson in the back and one count of possession of a weapon by a convicted felon.A Madison County jury found Sallie guilty of both counts, and the circuit court sentenced him to twenty years and ten years, respectively, with sentences to run concurrently in the custody of the Mississippi Department of Corrections(MDOC).The circuit court also sentenced Sallie to an additional ten years pursuant to the firearm-enhancement statute under Mississippi Code Section 97–37–37(Rev. 2014), with that sentence to run consecutively to the other sentences, for a total sentence of thirty years in the MDOC.The Court of Appeals affirmed.

Sallie v. State , 155 So.3d 872(Miss. Ct. App.2013)( Sallie I ).

¶ 2.On writ of certiorari, a majority of this Court found "Sallie was not given adequate pretrial notice that an enhanced punishment would be sought until after his conviction," which violated his right to due process.Sallie v. State , 155 So.3d 760(Miss.2015)( Sallie II ).¹The majority affirmed Sallie's convictions for aggravated assault and felon in possession of a firearm but vacated Sallie's sentence and remanded the case to the circuit court for resentencing.

¶ 3.On remand, the circuit court restructured Sallie's remaining sentences to run consecutively instead of concurrently, resulting in a thirty-year sentence without the enhanced penalty portion prescribed by Section 97–37–37.Finding no error, the Court of Appeals affirmed.Sallie v. State , 237 So.3d 758, 2016 WL 7636895, 2015–KA–00819–COA (Miss. Ct. App. Dec. 6, 2016)( Sallie III ).²

¶ 4.Sallie petitions this Court for certiorari review, raising one issue:

Whether the trial court's decision to change the sentences to run [consecutively] on Count I and Count II was error because the Court of Appeals affirmed those convictions and sentences and the Mississippi Supreme Court remanded only the sentence pursuant to [ Section 97–37–37 ].

FACTS AND PROCEDURAL HISTORY

¶ 5.On November 28, 2011, Johnson walked past Sallie's house en route to his own home.Sallie, who previously had accused Johnson of stealing a bottle of whisky from him, yelled at Johnson, demanding that Johnson come into his (Sallie's) yard.Johnson refused and told Sallie to come into the street so they could settle the dispute "like men."Johnson called Sallie an expletive and then turned to walk away.Sallie pulled out a gun and started shooting.Sallie shot Johnson five times, with one bullet hitting Johnson in the spine, paralyzing him from the waist down.

¶ 6.Sallie was charged with aggravated assault and possession of a firearm by a convicted felon.The jury found Sallie guilty of both counts.Afterward, the trial court scheduled a sentencing hearing and stated, "I also wish to consider the firearm enhancement as provided by 97–37–37(2)."SeeMiss. Code Ann. § 97–37–37(2)("any convicted felon who uses or displays a firearm during the commission of any felony shall ... be sentenced to an additional term of imprisonment ... of ten (10) years").

¶ 7.At the sentencing hearing, Sallie objected to application of Section 97–37–37 based on lack of notice from the State and based on the trial court raising the enhancement sua sponte.The trial court sentenced Sallie to twenty years for aggravated assault, ten years for felon in possession of a firearm; the court then enhanced the sentence by ten years under Section 97–37–37(2).

¶ 8.Sallie appealed, claiming the trial court erred by limiting Sallie's cross-examination of Johnson at trial, and that the firearm enhancement to his sentence post-trial was illegal given that Sallie did not receive pretrial notice that he might be sentenced under that statute.The Court of Appeals found no merit in either assignment of error raised by Sallie.

¶ 9.Addressing the latter issue, the Court of Appeals found the enhanced portion of Sallie's sentence did not run afoul of Apprendi v. New Jersey , 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435(2000), and therefore was legal.Sallie (I) , 155 So.3d at 875.In analyzing Apprendi , the court found that all the elements of the firearm enhancement had been submitted properly to the jury and had been found by the jury beyond a reasonable doubt.Id.The court concluded that the indictment did not need to reference the enhancement statute; therefore, there was no unfair surprise regarding the firearm enhancement.Id.

¶ 10.This Court granted certiorari, stating:

We agree that the trial court did not abuse its discretion by limiting Sallie's cross-examination of Johnson.Therefore, we limit our review to the question of whether Sallie received fair notice of the firearm enhancement.SeeGuice v. State , 952 So.2d 129, 133(Miss.2007)(Supreme Court"unquestionably" has the authority to limit the issues on review).

Sallie(II ), 155 So.3d at 762.

¶ 11.In analyzing the issue, this Court agreed with the Court of Appeals as to Apprendi , that the jury had found the elements of the firearm enhancement beyond a reasonable doubt.Id. at 762–63.But the majority also found that Sallie did not receive fair notice that an enhanced punishment would be sought until after his conviction, which violated Sallie's right to due process.Id. at 764.

¶ 12.The majority concluded as follows:

We decline to find error that would reverse Sallie's convictions.Therefore, we affirm in part the judgments of the Court of Appeals and the trial court.However, we find that Sallie did not receive timely or sufficient notice that the State intended to enhance his sentence using the firearm enhancement.Using the firearm enhancement to increase Sallie's sentence resulted in unfair surprise.Accordingly, we reverse in part the judgments of the Court of Appeals and the trial court, vacate Sallie's sentence, and remand the case to the Madison County Circuit Court for resentencing.

Id .

¶ 13.On remand, the trial court held a sentencing hearing, after which the trial court stated for the record as follows:

All right.I'm going to impose the same sentence as to Count I: 20 years in the custody of the [MDOC.]

The same sentence in Count II: 10 years in the custody of the of the [MDOC], but I'm going to order that those sentences run consecutively to each other.

When I imposed the original sentence and ordered that they run concurrently, I believe[d] that he was going to have another 10–year sentence that would be running consecutively to those sentences, and the [Supreme] Court has now found that that particular enhancement was improper, so that'll be the sentence of the [c]ourt.

¶ 14.Sallie appealed, claiming the trial court was without authority to alter the sentences from running concurrently to running consecutively.The case was assigned to the Court of Appeals.

¶ 15.On appeal, Sallie relied primarily on two cases for his claim that the change to his original sentence was illegal: Leonard v. State , 271 So.2d 445(Miss.1973);andEastman v. State , 909 So.2d 171(Miss. Ct. App.2005).Sallie(III ), 237 So.3d at 760–62, 2016 WL 7636895, at **2–3.In Leonard , this Court held that "once a circuit or county court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence."Leonard , 271 So.2d at 447.Eastman reiterated the same.

¶ 16.The Court of Appeals affirmed the trial court's sentencing order.Sallie(III ), 237 So.3d at 761–62, 2016 WL 7636895, at *3.Finding both Leonard and Eastman inapplicable, the Court of Appeals reasoned that this Court had vacated Sallie's entire sentence in Sallie(II ) ; therefore, the trial court had the authority to impose upon Sallie a new sentence within the same thirty-year parameter structured by the trial court in its original sentencing order.Sallie(III ), 237 So.3d at 761–62, 2016 WL 7636895, at *3.We agree with the Court of Appeals.

DISCUSSION

¶ 17.Sentencing lies within the complete discretion of a sentencing judge and is not subject to appellate review if it is within the limits prescribed by statute.Hoops v. State , 681 So.2d 521(Miss.1996).Generally, as was the case in both Leonard and Eastman , once a criminal case "has been terminated and the term of court ends, a circuit court is powerless to alter or vacate its judgment."Creel v. State , 944 So.2d 891, 893–94(Miss.2006)(quotingHarrigill v. State , 403 So.2d 867, 868–69(Miss.1981), partially superseded by statute , Miss. Code Ann. § 99–39–3(1)(Rev. 2015) ).³As well, the circuit court in most instances loses jurisdiction to amend or modify its sentence once a case has been appealed from the circuit court to this Court.Harrigill , 403 So.2d at 868(citingDenton v. Maples , 394 So.2d 895(Miss.1981) ).⁴On appeal, both this Court and the Court of Appeals"ha[ve] appellate jurisdiction to either affirm, reverse and remand, or reverse and render the judgment the lower court should have rendered."Id.Neither court has the authority to review a case"and make an arbitrary decision to amend the original sentence in any way."Ethridge v. State , 800 So.2d 1221, 1225(Miss. Ct. App.2001)(citingHarrigill , 403 So.2d at 869 ).

¶ 18.If a case is affirmed on appeal, "the lower court is issued a mandate to perform purely ministerial acts in carrying out the original sentence."Harrigill , 403 So.2d at 868.But if the case is remanded for a new trial, the circuit court again is invested with jurisdiction and discretionary sentencing authority with regard to that particular case.Id. at 869.In such instances, the same or even a greater sentence than the one previously...