Watkins v. State, No. 2003-KA-02269-COA.

• Decision Date: 22 February 2005
• Docket Number: No. 2003-KA-02269-COA.
• Citation: 910 So.2d 591
• Parties: Cornelius Dwayne WATKINS, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Supreme Court

910 So.2d 591

Cornelius Dwayne WATKINS, Appellant, v. STATE of Mississippi, Appellee.

No. 2003-KA-02269-COA.

Court of Appeals of Mississippi.

February 22, 2005.

Jeanine M. Carafello, Jackson, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before LEE, P.J., MYERS and CHANDLER, JJ.

MYERS, J., for the Court.

¶ 1. On September 4, 2003, a jury in the Leake County Circuit Court returned a verdict against Cornelius Dwayne Watkins, finding him guilty of driving under the influence, third offense (or felony DUI). On September 5, 2003, the court sentenced Watkins to serve five years in the custody of the Mississippi Department of Corrections, four years suspended, leaving only one year to serve. Six months of this one year sentence are to be served in the Leake County Jail, and the details of how the remaining six months are to be served will be determined by the court at a later date. This lenient, split six months arrangement was designed to allow Watkins the opportunity to apply for house arrest after serving the first six months in the Leake County Jail. Watkins was also fined $5,000 and placed on probation for four years.

¶ 2. On September 29, 2003, the circuit court denied Watkins's motion for JNOV, or in the alternative for a new trial. Aggrieved by the trial court's judgment, Watkins now appeals, raising the following single issue:

DID THE TRIAL COURT ERR IN PERMITTING A PREVIOUS UNCOUNSELED MISDEMEANOR DUI CONVICTION TO BE CONSIDERED FOR ENHANCEMENT PURPOSES IN THE SENTENCING PHASE?

¶ 3. Finding no reversible error, we affirm the judgment of the circuit court.

FACTS

¶ 4. On October 25, 2001, Watkins's vehicle flipped over and landed in a ditch on the Natchez Trace Parkway in Leake County. Particulars of the accident and how it occurred were not fully developed below. Watkins's girlfriend, Yolanda Teat, was a passenger in the vehicle when it flipped. When Officer Kline of the National Park Service arrived, she noticed that Watkins showed signs of intoxication. Watkins and Teat were taken to the emergency room, and Officer Kline followed to interview Watkins and Teat regarding the accident. At the hospital, Watkins told Officer Kline that he was driving the vehicle and that he had been drinking and had smoked marijuana earlier in the day. Officer Kline then took Watkins to the Leake County Jail.

¶ 5. At the jail, an Intoxilyzer test was administered, and Watkins's alcohol level was found to exceed the legal limit. Based upon the results of this test, Watkins was charged with driving under the influence, pursuant to Miss.Code Ann. § 63-11-30 (Rev.2004). On August 29, 2002, Watkins was ultimately indicted for DUI, third offense, and on September 4, 2003, the matter was tried before a jury in the Leake County Circuit Court. At the trial, Teat testified that she was actually the one driving the vehicle and that, in order to protect her (because she had also been drinking on the night in question), Watkins lied to the police when he said that he was driving the vehicle. In the end, however, the jury found that Watkins was the one driving the vehicle at the time of the accident.

¶ 6. Watkins had been twice previously convicted of DUI in the State of Georgia. As evidence of these previous convictions, the State introduced certified documents from the Georgia courts. One of these documents showed that Watkins was convicted of DUI, first offense, on December 1, 1998, and the other of these documents showed that Watkins was convicted of DUI, second offense, on February 15, 2001.

LEGAL ANALYSIS

DID THE TRIAL COURT ERR IN PERMITTING A PREVIOUS UNCOUNSELED MISDEMEANOR DUI CONVICTION TO BE CONSIDERED FOR ENHANCEMENT PURPOSES IN THE SENTENCING PHASE?

¶ 7. Watkins makes a somewhat curious argument about his previous convictions. He never disputes that he in fact had two previous DUI convictions in Georgia; rather, he argues that the first of his previous DUI convictions (the December 1, 1998 conviction) from Georgia should not have been used to "enhance" his sentence, making the present conviction his third DUI offense within five years. The reason he argues that the first conviction should not have been considered is because (1) he was unrepresented in the first DUI proceeding, and (2) he received jail time as a result of the first DUI conviction, which places this case within the rule announced in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994).

¶ 8. The State argues that notwithstanding Watkins's rather technical argument, this was, in fact, Watkins's third DUI conviction within five years and, therefore, it was not error to sentence him for DUI, third offense. This is because, as the prosecutor below argued, the crime defined under Miss.Code Ann. § 63-11-30(2)(c) is being three times convicted of DUI within five years, which denotes that two prior DUI convictions are necessary elements of the crime, not merely sentence enhancing factors.

¶ 9. In addition, the State argues that Watkins failed to introduce any evidence to show that his first DUI conviction was in fact uncounseled and resulted in jail time. The State goes on to argue that, because of the presumption of validity attached to abstracts of conviction, Watkins was required to put on proof of any alleged irregularities in the proceedings that resulted in the prior convictions. The State contends that Watkins failed to put on any such proof. As a result of this failure, even if he is correct in his analysis of the Nichols rule, Watkins has not proved that his first DUI conviction was uncounseled and resulted in jail time. Therefore, the State argues that Nichols is not applicable to this case.

STANDARD OF REVIEW

¶ 10. We review a trial judge's rulings on sentencing matters in order to determine if the sentence imposed falls within the applicable statutory guidelines: "It is well settled in this State that the imposition of sentence in a criminal proceeding is within the sole discretion of the trial judge, and that this Court will not reverse a sentence where it is within the limits prescribed by statute." Corley v. State, 536 So.2d 1314, 1319 (Miss.1988) (citing Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984); Contreras v. State, 445 So.2d 543, 546 (Miss.1984); Bracy v. State, 396 So.2d 632, 636 (Miss.1981)). Thus, our review of sentencing matters generally involves the simple question, "Does the sentence fall within the statutory guidelines?" If it does, then we will affirm the sentence.

¶ 11. In the present case, however, we find the sentencing question to be, in reality, a question of the admission of evidence. This is because the objections to the prior convictions arose before the sentencing phase of the trial. The issue of the prior convictions did not come up again in the actual sentencing phase of the proceedings, and the court unquestionably imposed a sentence within the guidelines set forth in Miss.Code Ann. § 63-11-30(2)(c), which allows a range of sentences from one year to five years. But the fact that the issue of the prior convictions did not come up in the sentencing phase in this case is not unusual, as the question of the number of prior convictions under Miss.Code Ann. § 63-11-30 generally precedes the question of sentencing and determines the range of sentences available to be imposed. Rigby v. State, 826 So.2d 694, 699(¶ 6) (Miss.2002).

¶ 12. This is because the number of prior convictions determines which subsection of Miss.Code Ann. § 63-11-30 applies, and each pertinent subsection of Miss.Code Ann. § 63-11-30 contains a range of sentences and fines that may be imposed for violation of that particular subsection. Thus, if the trial court had refused to allow the first abstract of conviction into evidence, then Watkins could not have been sentenced as he was under Miss.Code Ann. § 63-11-30(2)(c); rather, he would have had to have been sentenced for DUI second under Miss.Code Ann. § 63-11-30(2)(b), since, in that event the State would only have proven one prior DUI conviction. If that had been the case, the sentence imposed would fall outside of the statutory guidelines set forth in Miss.Code Ann. § 63-11-30(2)(b), which allows a range of sentences from five days to one year.

¶ 13. But the trial court below admitted both of the abstracts of conviction evidencing Watkins's prior convictions, which made the relevant subsection Miss.Code Ann. § 63-11-30(2)(c), the subsection dealing with a third DUI offense within five years. As noted above, the trial court imposed a sentence directly out of that subsection. Given this circumstance and given Watkins's stipulation to the validity and admissibility of the abstract of the second DUI conviction, the dispositive issue in this case becomes the admission of the abstract of the first DUI conviction.

¶ 14. Since, then, the primary issue in this case is the admission of evidence, our standard of review is abuse of discretion. Gibson v. Wright, 870 So.2d 1250, 1258(¶ 28) (Miss.Ct.App.2004). When we find there to have been an abuse of discretion, we still "will not reverse an erroneous admission or exclusion of evidence unless the error adversely affects a substantial right of a party." Id. Thus, employing this standard, we examine the trial court's ruling for abuse of discretion, and if we find an abuse of discretion we then inquire into the effect, if any, the ruling had on a substantial right of the party. Id.

DISCUSSION

¶ 15. We find the case of Rigby v. State, cited above, to be directly applicable to the arguments presented by both of the parties. The Rigby court, after cataloging general approaches to this issue used in other states, held:

All other states [other than those previously discussed] who have considered this issue view prior convictions as sentence enhancing factors, and thus bifurcation occurs between the guilt and sentencing phases. Bifurcated trials conducted by judges at...