Smith v. State, 2018-CA-00224-COA

• Court: Court of Appeals of Mississippi
• Citation: 291 So.3d 1
• Docket Number: NO. 2018-CA-00224-COA,2018-CA-00224-COA
• Parties: Dennis Lawrence SMITH, Appellant v. STATE of Mississippi, Appellee
• Decision Date: 16 July 2019

291 So.3d 1

Dennis Lawrence SMITH, Appellant
v.
STATE of Mississippi, Appellee

NO. 2018-CA-00224-COA

Court of Appeals of Mississippi.

July 16, 2019

ATTORNEYS FOR APPELLANT: ANGELA YLONA COCKERHAM, Magnolia, CHARLES EDWARD COWAN, Jackson

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: BILLY L. GORE, Jackson

BEFORE BARNES, C.J., McDONALD AND C. WILSON, JJ.

McDONALD, J., FOR THE COURT:

291 So.3d 3

¶1. Dennis Lawrence Smith was sentenced to serve sixty years in the custody of the Mississippi Department of Corrections (MDOC) after he pleaded guilty to three counts of the sale of cocaine with the subsequent offender enhancement. Smith filed a post-conviction collateral relief (PCR) motion pursuant to Mississippi Code Annotated section 99-39-5 (Rev. 2015), arguing that his sentence was disproportionate to the crime and constituted cruel and unusual punishment. The circuit court summarily dismissed Smith's motion without an evidentiary hearing. Smith appeals that dismissal. In addition to the issues raised in his PCR motion, on appeal he argues for the first time that (1) his sentence amounts to a life sentence under the circumstances and (2) there was no evidence of a 1999 Rankin County conviction of possession of a controlled substance subjecting him to an enhanced punishment. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Smith was indicted in the Rankin County Circuit Court on or about August 15, 2013, on seven counts of violating Mississippi Code Annotated section 41-29-139 (Rev. 2013).¹ The indictment alleged that Smith was subject to an enhanced punishment pursuant to Mississippi Code Annotated section 41-29-147 (Rev. 2013) because he had previously been convicted for possession of a controlled substance in the Rankin County Circuit Court (Cause Number 10931) on August 23, 1999.

¶3. On November 18, 2013, during Smith's plea and sentencing hearing, the court discussed the elements of the crimes Smith pleaded guilty to:

Court: Now, this is a multi-count indictment. What counts is he pleading to?

Mayes:² He's pleading to 1, 3, and 4, with the subsequent offender enhancement, Your Honor.

....

Court: All right. In relation to Count 1, the elements are on or about February 10th, 2013, in Rankin County, Mississippi, you did willfully, unlawfully, feloniously, knowingly, and intentionally sale, deliver, or transfer a quantity of cocaine to a person at a time when you had been previously convicted of possession of a controlled substance in Rankin County Cause No. 10931 on or about August 23, 1999, and therefore subject to enhanced punishment as a second or subsequent drug offender. Do you understand those elements?

Smith: Yes, sir.

The court addressed the elements in relation to each count Smith pleaded guilty to. Smith admitted to the 1999 conviction as to the other two counts as well. In addition, Smith agreed with the factual basis which subjected him to an enhanced punishment:

291 So.3d 4

Mayes: The State would further prove that this defendant was convicted of possession of a controlled substance in the Circuit Court of Rankin County in Cause No. 10931 on or about August the 23rd of 1999, and as a result, is subject to enhanced punishment as a second or subsequent offender under the Uniform Controlled Substance Law.

Court: Do you have any disagreement with the factual basis?

Smith: No, sir.

Court: Mr. Houston, do you have any disagreement with the factual basis?

Houston:³ No, Your Honor.

¶4. Smith proceeded to plead guilty to three counts of the sale of cocaine as a subsequent offender. The circuit court sentenced Smith to serve a term of sixty years in the custody of the MDOC and to be released after serving fifty years for Count I and one day for Count III and Count IV.⁴ After the court sentenced Smith, there were no objections or disputes. Smith's attorney only requested that Smith be sentenced after the holidays without detailing a purpose for the request.⁵ The court asked if there was "anything further" and Smith's attorney responded, "[N]o, your honor." The court responded, "All right. Well good luck, Mr. Smith." Then, the hearing concluded.

¶5. On November 17, 2016, Smith filed a PCR motion arguing that his sentence was in violation of the United States Constitution or the Mississippi Constitution because it was (1) disproportionate to the crime and (2) constituted cruel and unusual punishment.⁶

¶6. On January 12, 2018, the circuit court ruled that it plainly appeared from the face of Smith's motion that he was not entitled to any relief; therefore, the court dismissed his motion pursuant to Mississippi Code Annotated section 99-39-11(2) (Rev. 2015).⁷ There was not an evidentiary hearing on Smith's PCR motion.

¶7. Smith timely filed his notice of appeal on February 12, 2018. On appeal, Smith argues that the circuit court failed to consider the totality of the circumstances of his crimes and the circumstances of his past behaviors when dismissing his PCR motion. For the first time, Smith argues that his sentence is grossly disproportionate because it amounts to a life sentence under the circumstances and that there was no evidence of a Rankin County conviction of possession of a controlled substance subjecting him to an enhanced punishment.

STANDARD OF REVIEW

¶8. "The trial court has ‘considerable discretion’ in determining whether to grant an evidentiary hearing." Elliott v. State , 41 So. 3d 701, 709 (¶25) (Miss. Ct. App. 2009). It is not a requirement that every PCR motion be afforded a full adversarial

291 So.3d 5

hearing by the trial-level court. Id. at 709 (¶25). A trial-level court may summarily dismiss a post-conviction relief motion "[i]f 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...." Lofton v. State , 233 So. 3d 907, 908 (¶9) (Miss. Ct. App. 2017), reh'g denied (Dec. 12, 2017), cert. dismissed , 246 So. 3d 68 (Miss. 2018) (quoting Carter v. State , 204 So. 3d 791, 793 (¶5) (Miss. Ct. App. 2016) ); Miss. Code Ann. § 99-39-11(2) (Rev. 2015). "This Court employs the clearly-erroneous standard of review when reviewing a trial court's summary dismissal of a PCR motion." Lofton , 233 So. 3d at 908 (¶9) (quoting Miss. Code Ann. § 99-39-11(2) ). This Court will affirm a summary dismissal of a defendant's PCR motion "if [he] fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right." Moore v. State , 248 So. 3d 845, 848 (¶7) (Miss. Ct. App. 2017), reh'g denied (Apr. 10, 2018), cert. denied , 247 So. 3d 1264 (Miss. 2018). When questions of law are raised, however, this Court employs a de novo standard of review. Lofton , 233 So. 3d at 908 (¶9).

DISCUSSION

¶9. The State argues that Smith's claim is procedurally barred because he waived his rights when he did not object or raise any issues during his guilty plea and sentencing hearing. But the Supreme Court has held "that the errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal." Smith v. State , 477 So. 2d 191, 195 (Miss. 1985).⁸ This Court has found that the following four types of fundamental rights survive PCR procedural bars: "(1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Putnam v. State , 212 So. 3d 86, 92 (¶16) (Miss. Ct. App. 2016). But...