Trotter v. State

• Decision Date: 29 November 1989
• Docket Number: Nos. 07-58729,07-58730,s. 07-58729
• Citation: 86 A.L.R.4th 327,554 So.2d 313
• Court: Mississippi Supreme Court
• Parties: Terence Ittis TROTTER v. STATE of Mississippi.

Page 313

554 So.2d 313

86 A.L.R.4th 327

Terence Ittis TROTTER v. STATE of Mississippi.

Nos. 07-58729, 07-58730.

Supreme Court of Mississippi.

Nov. 29, 1989.

David H. Linder, Meridian, for appellant.

Edwin Lloyd Pittman, Atty. Gen., elected Supreme Court Justice January 3, 1989; Mike C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Michael C. Barefield, Hattiesburg, for appellee.

Before DAN M. LEE, P.J., and SULLIVAN and ANDERSON, JJ.

DAN M. LEE, Presiding Justice, for the Court:

This is an appeal from the Circuit Court of Lauderdale County, Mississippi, where appellant, Terence Ittis Trotter, pled guilty to two counts of burglary. In an order deferring sentencing, the trial court imposed certain "probation-like" conditions. More than four years later, Trotter was sentenced to two concurrent two-year terms in the custody of the Mississippi Department of Corrections. Finding that the extreme delay in sentencing violated Trotter's Sixth Amendment right to a speedy trial under the particular circumstances of this case, we reverse.

STATEMENT OF THE FACTS

On June 15, 1983, Terence Trotter entered pleas of guilty to two counts of burglary. At that time, Trotter was 18 years of age and had completed the eleventh grade of school and part of the twelfth grade. The Circuit Court of Lauderdale County accepted Trotter's guilty pleas, but deferred sentencing. On August 26, 1983, Trotter appeared for sentencing and the trial judge entered an order deferring sentencing until December 2, 1983. On December 2, 1983, the trial judge entered an order again deferring sentencing until December 12, 1984. This order, however, imposed certain "probation-like" conditions, as follows:

(1) The Defendant is to remain at home at night. The Defendant is to go to Detroit to live with his parents.

(2) The Defendant shall make an accounting each day showing who he worked for and how much his employer agreed to pay him.

(3) The Defendant must pay one-half ( 1/2) of [his] earnings each week to the Circuit Clerk so that it can be used for Court costs, restitution to the victim or attorney's fee, if the Court has appointed an attorney.

(4) The Defendant must abstain from drinking alcoholic beverages or using any illegal drugs prior to sentencing.

(5) The Defendant is to report back to the Court on December 7th, 1984.

The trial judge's order also included the following declaration:

Unless the Defendant has a legal or lawful excuse, a failure to perform any of the above conditions will result in a penitentiary sentence.

(R. 14)

The record does not reflect any further activity in the case until July 8, 1987--four years after Trotter's previous appearance before the court--when the Assistant District Attorney filed a motion requesting a sentencing date on the two causes. In the meantime, Trotter had completed high school and served almost two years in the U.S. Army, receiving an honorable discharge. The fact that Trotter had never been sentenced was brought to the District Attorney's attention only when Trotter was arrested on a charge of possession of cocaine upon which charge Trotter was never indicted or tried.

On August 3, 1987, a sentencing hearing was held. After a full hearing in which Trotter contested the imposition of sentence, Trotter was sentenced to serve two years on each of the two burglary charges, the sentences to run concurrently.

From that sentence, Trotter appeals, claiming that the delay of more than four years in sentencing him violated his fifth amendment right to due process and his sixth amendment right to a speedy trial. He also claims that the delay in sentencing violated certain provisions of the Mississippi Constitution, as well as Rule 6.01 of the Mississippi Uniform Rules of Circuit Court Practice.

A preliminary point needs to be addressed. The State contends that this appeal should be dismissed for lack of jurisdiction because Trotter pleaded guilty to the charges against him. The State cites Miss.Code Ann. Sec. 99-35-101 (1972), which states:

Any person convicted of an offense in a circuit court may appeal to the supreme court, provided, however, an appeal from the circuit court to the supreme court shall not be allowed in any case where the defendant enters a plea of guilty.

In Burns v. State, 344 So.2d 1189 (Miss.1977), this Court implied that an appeal from a sentence imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself. In Burns, an appeal from denial of a habeas corpus petition challenging the legality of a sentence imposed subsequent to a guilty plea was treated by this Court as a direct appeal. While the Court acknowledged the language of Sec. 99-35-101, the Court stated: "[W]e do not deem the present case as an appeal from a guilty plea." Burns, 344 So.2d at 1190.

Now, to the merits of the appeal.

DID THE TRIAL COURT ERR IN SENTENCING TROTTER MORE THAN FOUR

YEARS AFTER ENTRY OF HIS PLEAS OF GUILTY?

At the sentencing hearing on August 3, 1987, Trotter's stepfather Jesse Underwood testified that on August 26, 1983, when Trotter first appeared for sentencing, the trial judge ordered Trotter to perform 40 hours of community service work per week. This work was to be performed from that date until the deferred sentencing date in December of 1983. According to both Underwood and Trotter, Trotter performed the community service work as ordered.

When Trotter appeared for sentencing on December 2, 1983, the trial judge again deferred sentencing, this time until December 12, 1984. Trotter then went to live with his mother and stepfather in Detroit, where he completed high school and thereafter enlisted in the Army. According to the undisputed testimony of Underwood, during the "probationary" period from December 2, 1983, to December 12, 1984, Trotter sent more than $600.00 to the court in compliance with the trial judge's order of December 2, 1983.

Although the deferred sentencing had been set for December 12, 1984, according to Trotter he contacted the court and had it delayed until December 20, 1984, because of a conflict with his army training. Trotter testified that he appeared for sentencing on December 20, 1984. Trotter stated that at that time "they talked a little bit and says I haven't got in no more trouble or nothing like that. I thought it was all over with then."

Underwood testified that he could not state with certainty who all was at the December, 1984 hearing. He stated that the only people he remembered being there were himself, Trotter, Trotter's mother, the judge, and "Mr. Clark" from the NAACP office. He stated that those present gathered in the judge's chambers. According to Underwood:

It was our understanding from the Judge that that was the end of it. He said, "Well--," he said, "Since everything has been met ...--he did community service work admirably and the money has been sent in for possible restitution and fine and he's finished high school on his own and been accepted into the Service, I see no reason why things should not remain as they are. Good luck, Mr. Trotter."

(R. 48)

Joe Clay Hamilton, the attorney who represented Trotter on the burglary charges, testified that he appeared with Trotter for sentencing on December 2, 1983. Hamilton said it was his understanding that the judge was "in essence" placing Trotter on probation for a year. Hamilton stated that he did not remember what took place at the December, 1984 hearing and, in fact, could not recall having met with the judge on that particular date. According to Hamilton, he initiated frequent contact with the district attorney's office through July, 1985, trying unsuccessfully to determine the status of the case. Finally, he closed his file.

District Attorney Charles W. Wright, Jr. testified that he could not remember whether or not Trotter showed up for the December, 1984 sentencing hearing. He admitted that prior to Trotter's arrest on the possession-of-cocaine charge the State had made no effort to have Trotter sentenced on the two burglary charges.

The trial judge stated: "This is the first time I've had a request to sentence the man, as far as my memory is concerned. He may have been in the military service is the reason I didn't sentence him before but I don't know that. My memory is not that good."

DISCUSSION

Trotter's primary argument is that the more-than-four-year delay in sentencing him violates his sixth amendment right to a speedy trial. While the United States Supreme Court has not explicitly held that sentencing is a part of trial for sixth amendment purposes, it has suggested that an unreasonable delay in sentencing may constitute a violation of the sixth amendment. See Pollard v. United States, 352 U.S. 354, 77 S.Ct. 481, 1 L.Ed.2d 393 (1957). The United States Court of Appeals for the Fifth Circuit has explicitly held that "the imposition of sentence is part of the trial for the purposes of the Sixth Amendment speedy trial guarantee." Juarez-Casares v. United States, 496 F.2d 190, 192 (5th Cir.1974). See also United States v. Campbell, 531 F.2d 1333 (1976), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 121 (1977); 3 C. Wright, Federal Practice and Procedure Sec. 521.1 (1982).

In Yates v. State, 342 So.2d 312 (Miss.1977), this Court apparently recognized that the imposition of sentence is part of the trial for sixth amendment purposes. Without explicitly holding to that effect, this Court applied the speedy trial analysis enunciated in Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972), to determine whether the appellant had been denied his right to a speedy trial.

In Barker v. Wingo, the Supreme Court identified four factors to be considered in determining whether there has been a violation of a defendant's right to speedy trial: (1) the length of the delay; (2) the reason for the delay; (3) whether the defendant has asserted his right to a speedy trial; and (4) whether the defendant has been prejudiced by...