Wells v. State
| Decision Date | 27 October 2016 |
| Docket Number | NO. 2015-KA-01483-SCT,2015-KA-01483-SCT |
| Parties | Larry Press Wells a/k/a Larry P. Wells a/k/a Larry Preston Wells v. State of Mississippi |
| Court | Mississippi Supreme Court |
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER BY: HUNTER NOLAN AIKENS, GEORGE T. HOLMES.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE.
BEFORE RANDOLPH, P.J., LAMAR AND KITCHENS, JJ.
KITCHENS
,
¶ 1. Larry Wells was convicted of possession of cocaine with intent to transfer pursuant to Mississippi Code Section 41–29–139(a)(1) (2005)
and was sentenced as an habitual offender and a recidivist drug offender to sixty years in the custody of the Mississippi Department of Corrections. Wells v. State , 160 So.3d 1136, 1140 (Miss. 2015), overruled on other grounds by
Rowsey v. State , 188 So.3d 486 (Miss. 2015). Wells appealed his conviction and sentence and this Court affirmed the conviction but remanded the case for resentencing. Id. at 1147. On remand, the Circuit Court of the First Judicial District of Harrison County declined to apply the subsequent-drug-offender enhancement and reduced Wells's sentence from sixty years to thirty years. Wells appealed, contending that the trial court's refusal to sentence him under the amended version of the statute, which became effective before his resentencing, was erroneous. But, because the statutory amendment occurred several years after the commission of the crime and after Wells's initial sentencing, we affirm the second sentence imposed by the trial court.
¶ 2. Wells was indicted for possession of 0.04 grams of cocaine1 with the intent to distribute on October 1, 2007. Wells , 160 So.3d at 1140
. On October 11, 2007, the State moved to amend the indictment to allege that Wells was an habitual offender under Mississippi Code Section 99–19–81 (2007).2
Id. Five days before trial, on April 24, 2009, the State moved to amend Wells's indictment to allege that he was a subsequent drug offender under Mississippi Code Section 41–29–147 (2009).3
Id. A jury in the Circuit Court of the First Judicial District of Harrison County convicted Wells of possession of cocaine with intent to distribute in violation of Mississippi Code Section 41–29–139(a)(1) (2009).4
Id. Wells was sentenced as an habitual offender and as a subsequent drug offender to a total of sixty years without the possibility of parole. Id.
¶ 3. On appeal, this Court affirmed Wells's conviction but vacated his sentence. We observed that “the trial court believed it had no choice but to double Wells's sentence as a subsequent drug offender” and that such belief was erroneous because “Section 41–29–147
says that ‘any person convicted of a second or subsequent offense under this article may be imprisoned for a term up to twice the term otherwise authorized ....’ ” Id. at 1146
(quoting Miss. Code Ann. § 41–29–147 (Rev. 2013)) (emphasis in opinion). Because sentencing under Section 41–29–147 is discretionary, this Court remanded the case for resentencing “so the trial judge can determine, in his discretion, whether to enhance Wells's sentence as a subsequent drug offender, or not.” Wells , 160 So.3d at 1146.
¶ 4. On remand, the Circuit Court of the First Judicial District of Harrison County conducted a hearing. The court “ruled that the penalty shall not be enhanced and the original sentence of Thirty (30) Years pursuant to Section 99–19–81
... without hope of parole or probation in the custody of the Mississippi Department of Corrections is hereby reinstated.”
¶ 5. Aggrieved, Wells filed a notice of appeal, a motion to proceed in forma pauperis , and an affidavit of poverty. The court adjudicated Wells indigent and appointed the Mississippi Office of Indigent Appeals to represent him on appeal. On appeal, Wells raises a single issue, arguing that he should have been sentenced under the amended penalty for possession with intent to sell 0.04 grams of a Schedule II controlled substance. See Mississippi Code Section 41–29–139(b)(1)(A)
(Supp. 2016) (A person, upon conviction for an amount of the Schedule II controlled substance of “[l]ess than two (2) grams or ten (10) dosage units,” may “be imprisoned for not more than eight (8) years ....”)
¶ 6. “The imposition of a sentence is within the discretion of the trial court, and this Court will not review the sentence, if it is within the limits prescribed by statute.” Burgess v. State , 178 So.3d 1266, 1279 (Miss. 2015)
(quoting Reynolds v. State , 585 So.2d 753, 756 (Miss. 1991) ). “This Court reviews questions of law de novo.” King v. State , 165 So.3d 1289, 1291 (Miss. 2015) (citing Bell v. State , 160 So.3d 188, 189 (Miss. 2015) ).
¶ 7. When Wells was sentenced the first time, in April 2009, the potential prison time for possession of cocaine with intent to distribute, irrespective of amount, was not more than thirty years. Mississippi Code Section 41–29–139(b)(1) (2009)
. Section 41–29–139 was amended in 2014,5 and now prescribes a maximum prison sentence of eight years for possession of “[l]ess than two (2) grams or ten (10) dosage units” of cocaine with intent to distribute. Miss. Code Ann. § 41–29–139(b)(1)(A) (Supp. 2016). This Court remanded Wells's case for resentencing on February 12, 2015, and the mandate issued on May 7, 2015.6 After a sentencing hearing, which was conducted on September 8, 2015, Wells was resentenced on September 9, 2015, to thirty years' imprisonment without the possibility of probation or parole.
provides:
If any statute shall provide a punishment of the same character, but of milder type, for an offense which was a crime under pre-existing law, then such milder punishment may be imposed by the court but no conviction, otherwise valid, shall be set aside and new trial granted merely because of an error of the court in fixing punishment. Such error shall only entitle the party injured to vacate or reverse the judgment as to the punishment, and the legal punishment shall then be imposed by another sentence based on the original conviction or plea of guilty.
Miss. Code Ann. § 99–19–33
(Rev. 2015). Wells argues that this Court has “interpreted Section 99–19–33 to mean that, where a sentencing statute is amended to provide for a lesser penalty, the trial court must impose the lesser penalty if the statute is amended before sentencing.” (citing Daniels v. State , 742 So.2d 1140 (Miss. 1999) ; West v. State , 725 So.2d 872 (Miss. 1998) ) (emphasis in original).
¶ 9. It is true that this Court has held that “when a statute is amended to provide for a lesser penalty, and the amendment takes effect before sentencing, the trial court must sentence according to the statute as amended.” Daniels , 742 So.2d at 1145
. The Court was applying the interpretation of Section 99–19–33 from West v. State :
Although the language seems to suggest discretion in stating that the lighter sentence may be imposed by the court, the subsequent sentence states that a judge's failure to impose the lighter sentence is error. Moreover, such error entitles the party injured to a vacation or reversal of the punishment portion of the judgment. Thus, it appears that the use of “may” in the first sentence in fact intends to convey “shall,” for there can be no discretion to decline to apply an amendatory provision if declining to do so results in reversible error. This Court has held that while permissive language of a statute is presumably interpreted in its ordinary sense, it will be interpreted as mandatory where the context compels such a construction. Leflore Bank & Trust Co. v. Leflore County , 202 Miss. 552, 558, 32 So.2d 744, 746 (1947)
. Thus, a harmonized reading of § 99–19–33 compels this Court to construe “may” as “shall.”
.
¶ 10. Recently, this Court overruled West
and Daniels. Wilson v. State , 194 So.3d 855, 874 (Miss. 2016). Wilson had been convicted for receiving stolen property after the statutory penalty for that crime was reduced from up to ten years to up to five years. Id. The trial court sentenced Wilson, pursuant to the older and harsher version of the statute, to ten years' imprisonment. Id. This Court affirmed, noting the language of Mississippi Code Section 99–19–1 :
No statutory change of any law affecting a crime or its punishment or the collection of a penalty shall affect or defeat the prosecution of any crime committed prior to its enactment, or the collection of any penalty, whether such prosecution be instituted before or after such enactment; and all laws defining a crime or prescribing its punishment, or for the imposition of penalties, shall be continued in operation for the purpose of providing punishment for crimes committed under them, and for collection of such penalties, notwithstanding amendatory or repealing statutes, unless otherwise specially provided in such statutes.
(quoting Miss. Code Ann. § 99–19–1 (Rev. 2015)).
¶ 11. The Court found that “[t]he Court may be able to overrule its own cases, but absent a showing beyond a reasonable doubt that a statute is unconstitutional, the Court may not overrule statutes” and that “Section 99–19–1
should dictate today's result.” Id. at 868. The Court held: “the West Court's holding, as the Court continues to follow it, impermissibly abrogated Section 99–19–1, which was part of the same legislative act that created Section 99–19–33.” Id. at 874. The Court continued: “As we do with West, we overrule Daniels to the extent that it holds that Section 99–19–33
requires a sentencing court to apply a newer sentencing statute instead of the sentencing scheme in effect when a crime was committed.” Id. And “Section 99–19–1 clearly requires the trial court to sentence an offender under a sentencing statute in place at the time of the crime.” Id. Here, at the time of the commission of the crime, in May 2007, see
Wells , 160 So.3d at 1139, the prior version...
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