Stevenson v. State, 93-KA-00061-SCT

• Decision Date: 16 May 1996
• Docket Number: No. 93-KA-00061-SCT,93-KA-00061-SCT
• Parties: Arthur L. STEVENSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 501

674 So.2d 501

Arthur L. STEVENSON v. STATE of Mississippi.

No. 93-KA-00061-SCT.

Supreme Court of Mississippi.

May 16, 1996.

Eugene A. Perrier, Vicksburg, for Appellant.

Michael C. Moore, Attorney General, Jackson; Jeffrey A. Klingfuss, Sp. Ass't Attorney General, Jackson, for Appellee.

En Banc.

JAMES L. ROBERTS, Justice, for the court:

INTRODUCTION

This case involves the imposition of a sentence from a plea agreement of life imprisonment without parole during a time in which the version of Miss.Code Ann. Section 97-3-21 did not permit or provide for said sentence. Finding that said sentence upon this defendant was imposed without authority of law, the defendant's case is remanded for proceedings consistent with this opinion. See Patterson v. State, 660 So.2d 966 (Miss.1995).

STATEMENT OF THE CASE AND FACTS

The defendant, Arthur L. Stevenson (hereinafter Stevenson), was incarcerated in the Warren County jail on or about July 6, 1974. While incarcerated at said jail, Stevenson attacked and stabbed to death Deputy Sheriff A.J. "Holly" Koerper. Stevenson escaped from the Warren County jail and was subsequently arrested and indicted on July 6, 1974, for capital murder pursuant to Miss.Code Ann. Section 97-3-19(2)(a), for killing a peace officer.

After a mistrial, two trials, two guilty verdicts, two death sentences, and two reversals on appeal, Stevenson was tried a fourth time in Rolling Fork, Mississippi, on April 3, 1978. Stevenson was retried for capital murder as the state was seeking the death penalty once again. However, following the pre-trial motions on the morning of April 3, 1978, the prosecutor, Stevenson's counsel, and Stevenson agreed to a plea bargain. The agreement stipulated that Stevenson would enter a guilty plea in exchange for the state not seeking the death penalty. After entering an informed guilty plea according to the trial court, Stevenson was sentenced to life imprisonment without the benefit of parole. Stevenson has been in the custody of the Mississippi Department of Corrections since April 3, 1978, and has been in custody since his arrest in 1974 following the murder of the deputy sheriff.

On May 3, 1988, Stevenson filed a motion to vacate judgment pursuant to the Post-Conviction Relief Act. The state answered said motion alleging that it was time-barred as the three-year statute of limitations pursuant to Miss.Code Ann. Section 99-39-5(2) had expired. Stevenson's motion was denied as time-barred on December 9, 1988, and no appeal was taken.

Stevenson twice sought the relief of parole from the Parole Board. This request was denied, resulting in a continuance for two more years on his sentence.

On March 4, 1991, Stevenson filed another motion to vacate and set aside the sentence and conviction in Sharkey County pursuant to the Post-Conviction Relief Act. The state alleged that his second PCR motion was time-barred. Stevenson's second PCR motion was dismissed on March 13, 1991, as time-barred under Miss.Code Ann. § 99-39-5(2). No apparent appeal was taken.

After having attorney John W. Bullard removed as his attorney of record, Stevenson subsequently filed yet another PCR motion on July 8, 1992, to vacate the sentence and to resentence Stevenson with Eugene Perrier (hereinafter Perrier) as his attorney. Stevenson and Perrier asked the circuit court of Warren County to:

withdraw any other motions or pleadings pending before this Honorable Court. In particular, movant [Stevenson] no longer desires to pursue his request for an appeal out of time or a new trial or any other relief prayed for in any pleadings filed before this court in either Warren County Cause Number 7742 or Sharkey County Cause Number 1363.

WHEREFORE, PREMISES CONSIDERED, movant respectfully requests that his present sentence of life imprisonment without the benefit of parole be vacated and that he be resentenced to life imprisonment as stated under the applicable statute in effect of April 3, 1978. Further, that all pending requests for relief filed by movant be dismissed. And for such further relief and more general relief that movant may be entitled to receive.

(emphasis added).

An evidentiary hearing was held on December 15, 1992, by the Circuit Court of the The proceedings commenced with the state calling the former District Attorney, John Ellis, the former trial judge, Ben Guider, the former Circuit Clerk of Sharkey County, Mississippi, Don H. (Ike) Collins, the former Circuit Clerk of Warren County, Mississippi, George Culkin, Warren County Sheriff Paul Barrett, and, finally, the reporter of the Vicksburg Evening Post who covered the guilty plea, Alfred J. Messina, Jr., before resting its case. Perrier called James Harris Winfield, Stevenson's trial counsel during the plea and Arthur Stevenson before resting. ¹ All of the state's witnesses testified that it was their understanding that the plea agreement for Stevenson was to be life without parole. However, Winfield and Stevenson both testified that they did not think that the plea agreement was for life without parole, but rather for simple murder with a life sentence meaning ten years.

Ninth Judicial District of Warren County and Sharkey County, Mississippi. The proceedings were held in the Board of Supervisors Room in the Warren County Courthouse. The State of Mississippi was represented by John S. Price, Warren County prosecuting attorney. Stevenson was present represented by Eugene Perrier.

In closing arguments, the state argued that its first defense was that this case should be referred back to Sharkey County for Stevenson to file an out-of-time appeal in accordance with Justice Robertson's July 17, 1989 Order ² to contest the validity of Judge Nichols' December 19, 1988 ruling which dismissed Stevenson's first PCR petition as time-barred. The state's second defense was that the PCR request was time-barred as the three years had elapsed since the date of Stevenson's plea agreement. The third defense asserted by the state was that the plea agreement was knowingly, voluntarily and intelligently entered into, and thus valid and not against public policy.

Perrier argued in his closing argument that the plea agreement was invalid and had been invalid since April 3, 1978, because it provided for the enforcement of a penalty not contained within Miss.Code Ann. § 97-3-21 as it existed in 1978. ³ Perrier additionally argued that despite the fact that three years had elapsed within which it would normally have been proper to file Stevenson's PCR petition, the cases of Grubb v. State, ⁴ 584 So.2d 786, 789 (Miss.1991), Smith v. State, 477 So.2d 191, 195-196 (Miss.1985) and Luckett v. State, 582 So.2d 428, 430 (Miss.1991), permit the Court to address the imposition of an unlawful sentence as it was plain error involving a fundamental constitutional right notwithstanding a procedural bar.

The third PCR was ruled upon on January 11, 1993, by the Honorable Frank G. Vollor. Judge Vollor issued the following ruling.

Findings of fact:

1) That the plea of defendant, Arthur L. Stevenson, was intelligently, understandingly and voluntarily entered into,

2) That the plea agreed upon was the Defendant, Arthur L. Stevenson, would accept life and waive his privileges of applying for parole: in exchange, the State of Mississippi accepted life without benefit of parole and did not seek the death penalty 3) That the defendant understood and appreciated that his sentence was to be without the benefit of parole.

In view of these findings, this court proceeds to determine if defendant's sentence is lawful.

The indictment did not charge defendant as a habitual offender which would have carried the sentence of life without parole; therefore, the sentence cannot fall under that section Bell v. State, 355 So.2d 1106 (Miss.1978), Lay v. State, 310 So.2d 908 (Miss.1975). ⁵

The court must consider whether aside from the habitual offender statute, the sentence may require life without the benefit of parole.

The Court understands the defendant to concede and the statute 97-3-21(MCA) clearly provides that the penalty of life is lawful and correct.

The critical question this court must consider is whether the defendant is entitled to parole. Section 47-7-3 provides, "Every prisoner who has been or may hereafter be convicted of any offense against the State of Mississippi.... if sentence for the term of the natural life of such prisoner, has served not less than ten (10) years of such life sentence, may be released on parole...." Nevertheless, parole is not automatic. The prisoner must make application to the parole board (47-7-17 MCA) and even then the Parole Board shall allow parole only for the best interest of society (47-7-17 MCA). An analysis similar to that suggested by Wesley Hohfeld (23 Yale Law Journal 16) of the legal relationships of the defendant and parole board will help clarify the question. The defendant by statute has a privilege that he may or may not exercise to apply for parole. Even if he exercises this privilege, he merely empowers the Parole Board to make a decision concerning his parole based on the best interest of society. When the defendant agreed as a condition of the plea bargain in which the state of Mississippi recommended life instead of seeking the death penalty that he would not exercise his privilege of applying for parole, the Circuit Court merely incorporated this agreement into the sentencing Order. Such an agreement is not unlawful or contrary to public policy. The Court standardly allows waivers of rights even of Constitutional proportions and it would be an anomaly to hold that defendant could not waive a mere statutory privilege.

This Court finds that the Sentencing Order of April 3, 1978, lawful and hereby overrules Defendant's motion to vacate sentence and resentence.

SO ORDERED this the 11th day of January, 1993.

(Emphasis added)

It is from the third PCR denial that Stevenson appeals to the Court in the case...