Wallace v. State

• Decision Date: 10 September 1992
• Docket Number: No. 90-KA-258,90-KA-258
• Parties: Robert Lee WALLACE, Jr. v. The STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1184

607 So.2d 1184

Robert Lee WALLACE, Jr. v. The STATE of Mississippi.

No. 90-KA-258.

Supreme Court of Mississippi.

Sept. 10, 1992.

As Corrected Oct. 29, 1992.

Polly J. Covington, Quitman, for appellant.

Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before ROY NOBLE LEE, C.J., and PITTMAN and McRAE, JJ.

McRAE, Justice, for the Court:

Appellant Robert Wallace pleaded guilty in the Circuit Court of Clarke County to multiple felony and misdemeanor charges I. Did the trial court err by sentencing Wallace to forty-nine and one-half years imprisonment upon finding that Wallace had violated a plea agreement which provided that the charges would be dismissed following restitution and three years of good behavior?

of forgery and uttering bad checks. The Circuit Court conditionally dismissed the charges. Upon later finding that Wallace had violated the conditions of the dismissal, the court sentenced him to a total of forty-nine and one-half years imprisonment. Wallace appeals, bringing before us the following issues:

II. Does the sentence constitute disproportionate, cruel, and unusual punishment in relation to the crimes committed?

III. Did the trial court abuse its discretion by denying Wallace's motion for a continuance and by ruling that Wallace had violated the dismissal conditions where Wallace had not yet been tried for the crime constituting the violation?

IV. Did the trial court abuse its discretion in refusing to afford Wallace a separate hearing on mitigating circumstances prior to sentencing?

Finding no reversible error, we affirm.

FACTS

In October, 1988, Wallace was indicted on four counts of uttering a forgery, one felony bad check count, and nine misdemeanor bad check counts. The record indicates that he had written fourteen bad checks totaling $822.00. Four of these were forgeries written on another's account.

Pursuant to a plea bargain, Wallace agreed to plead guilty in exchange for a recommendation by the prosecution that Wallace's case be handled pursuant to Miss.Code Ann. Sec. 99-15-26 (1972). Section 99-15-26 empowers a court to postpone the acceptance of a plea and the imposition of a sentence and to eventually dismiss the charges upon a first-time offender's successful completion of certain conditions. On June 13, 1989, the Circuit Court of Clarke County accepted the prosecutor's recommendation and agreed to dismiss the charges on condition that Wallace first make restitution and violate no law for three years.

Three months later, on September 19, 1989, the prosecutor filed a petition to adjudicate Wallace guilty of the fourteen bad check and fraud charges. The petition alleged that Wallace had violated the conditions of dismissal by committing the crimes of armed robbery and grand larceny of an automobile. At a February 7, 1990, hearing on the petition, the prosecution produced evidence that on the night of August 28, 1989, Wallace had stolen about $50.00 in cash and a pickup truck from one Russ Oswalt by threatening to kill him with a knife. The evidence included testimony by two policemen who investigated the case, testimony by Russ Oswalt, the victim, and a confession signed by Wallace.

Upon finding that Wallace had committed the crime, the court adjudicated Wallace guilty of the original fourteen bad check and fraud charges and sentenced him to a total of forty-nine and one-half years imprisonment. Most components of the sentence were set to be served concurrently, leaving Wallace with a net prison term of sixteen years. On February 14, Wallace filed a motion for resentencing in which he argued that the sentence was disproportionate to the crimes he committed and that the maximum should be three years. He also contended that the court should have afforded him a separate sentencing hearing. The court denied the motion.

LAW

I. DID THE TRIAL COURT ERR BY SENTENCING WALLACE TO FORTY-NINE AND ONE-HALF YEARS IMPRISONMENT UPON FINDING THAT WALLACE HAD VIOLATED A PLEA AGREEMENT WHICH PROVIDED THAT THE CHARGES WOULD BE DISMISSED FOLLOWING RESTITUTION AND THREE YEARS OF GOOD BEHAVIOR?

Wallace argues that since the plea bargain required him to "go straight" for The recommendation of the District Attorney of three years probation, and its acceptance by the defendant in exchange for a guilty plea were well considered. If the defendant did not "go straight" and make restitution for the monetary amounts, then logically 3 years probation would be converted to 3 years to serve with the Department of Corrections.

only three years as a condition of dismissal, then the maximum sentence he should receive upon violating the conditions of dismissal would be three years. As Wallace states in his brief:

Wallace relies on Brown v. State, 533 So.2d 1118 (Miss.1988), cert. denied, 489 U.S. 1097, 109 S.Ct. 1570, 103 L.Ed.2d 936 (1989), a case in which a defendant's guilty plea was held in abeyance for four years under Sec. 99-15-26 on condition of good behavior. Upon finding that the defendant had committed other crimes during the four-year period, the circuit court adjudicated him guilty of the original crime and sentenced him to four years imprisonment. In his order, the judge stated:

The defendant was put under probation. He violated the terms of it. His original bargain was for four years pending good behavior. I am convinced that by being convicted, it wasn't good behavior, therefore, he ought to be committed to serve the four years that he originally bargained for. That will be the order of the court.

Brown, 533 So.2d at 1122. This Court affirmed the conviction and sentence. Wallace contends that under Brown, a defendant who violates the terms of his Sec. 99-15-26 "probation" cannot be sentenced to a term exceeding the conditional good-behavior period for which he "bargained."

Wallace's argument is insupportable. In Sec. 99-15-26 proceedings, the trial court never accepts the guilty plea and never imposes a sentence if the defendant fulfills the court-imposed conditions. Where a guilty plea is accepted and a suspended sentence is imposed, the court cannot later impose a period of incarceration exceeding the original suspended sentence where the defendant fails to maintain a standard of good behavior. To do so would expose the defendant to double jeopardy. See Leonard v. State, 271 So.2d 445 (Miss.1973) ("[O]nce a ... court exercises its option to impose a definite sentence it cannot subsequently set that sentence aside and impose a greater sentence."). In the instant case, the court's imposition of a forty-nine and a half year sentence was not an extension of a preexisting sentence. Indeed, Wallace could not have been sentenced prior to February 9, 1990 (the date on which the forty-nine and a half year sentence was imposed), because he had never been adjudged guilty before that date. Consequently, the three-year period of conditional good behavior did not amount to a sentencing ceiling for double jeopardy purposes, and the trial judge was not fettered by prior rulings when he sentenced Wallace.

Wallace's contention that his forty-nine and one-half year sentence constitutes a violation of his plea bargain is likewise meritless. The record does not show that Wallace ever bargained for a three year maximum sentence. What he bargained for was a conditional dismissal under Sec. 99-15-26. Nothing in the record, including Wallace's petition to enter a guilty plea, refers to any agreement concerning what sentence should be imposed if Wallace were to violate the conditions of dismissal. It may well be that the prosecutor agreed, in exchange for Wallace's guilty plea, to seek an order in which the charges against Wallace would be dismissed after no more than three years, provided that Wallace broke no laws. If so, the agreement was fully carried out: Wallace pleaded guilty; a three-year conditional period was imposed by the trial court. The agreement had no bearing on what sentence the court could impose if Wallace violated the conditions of dismissal.

It is true, as Wallace stresses, that the defendant in Brown was sentenced to serve a term of imprisonment equal to the period of conditional good behavior originally imposed. Nothing in the Brown opinion, however, indicates that the trial court in Brown could not have imposed a longer sentence had it deemed four years insufficient.

Wallace's reliance on Brown is therefore misplaced.

The assignment of error has no merit.

II. DOES THE SENTENCE CONSTITUTE DISPROPORTIONATE, CRUEL, AND UNUSUAL PUNISHMENT IN RELATION TO THE CRIMES COMMITTED?

Wallace contests four elements of his sentence on grounds of disproportionality: a fourteen-year sentence for forging and publishing a $40.00 check, a two-year consecutive sentence for forging a $50.00 check, and two fourteen-year sentences for forging and publishing checks in the amount of $54.00 and $62.00. The second and third fourteen-year sentences run concurrently with the first. He does not contest his other ten convictions, nine of which were misdemeanors.

As a general rule, sentencing is purely a matter of trial court discretion so long as the sentence imposed lies within the statutory limits. Fleming v. State, 604 So.2d 280, 302 (1992); Corley v. State, 536 So.2d 1314, 1319 (Miss.1988); Reed v. State, 536 So.2d 1336 (Miss.1988). Where a sentence is "grossly disproportionate" to the crime committed, however, the sentence is subject to attack on grounds that it violates the Eight Amendment prohibition against cruel and unusual punishment. Fleming, 604 So.2d at 302; Davis v. State, 510 So.2d 794, 797 (Miss.1987).

In Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983), the United States Supreme Court articulated a three-prong test for evaluating proportionality. The elements include:

(1) the gravity of the offense and the harshness of the penalty;

(2) comparison of the sentence with sentences imposed on other criminals in the same...