Russell Benjamin Chappelle v. State of Mississippi ( 1995 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 95-KA-01249-SCT
RUSSELL BENJAMIN CHAPPELLE
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT: 07/06/95
TRIAL JUDGE: HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: KEITH PISARICH
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOLENE M. LOWRY
DISTRICT ATTORNEY CONO CARANNA
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 7/31/97
MOTION FOR REHEARING FILED: 8/19/97
MANDATE ISSUED: 12/3/97
BEFORE SULLIVAN, P.J., McRAE AND MILLS, JJ.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
Russell Benjamin Chappelle was indicted by the Hancock County Grand Jury on May 1, 1995, in a
multi-count indictment for:
Count I: Shooting into a Dwelling or building usually occupied by persons (maximum sentence:
10 years)
Counts II & III: Aggravated Assault on Peace Officer (maximum sentence: 30 years per count)
Counts IV,V, & VI: Aggravated Assault (maximum sentence: 20 years per count).
On June 28, 1995, following a lengthy plea hearing, Chappelle pled guilty to all six counts alleged in
the indictment. This plea was accompanied by the standard written plea petition. At all times,
Chappelle was assisted by counsel. At the plea hearing, Judge Vlahos questioned Chappelle
extensively concerning his actions. The trial judge also questioned Chappelle in detail regarding the
possible maximum sentence for each count of the indictment. Chappelle answered correctly on every
count. The maximum allowable sentence for the six counts was 130 years in the penitentiary. Vlahos
even warned Chappelle "that you need to dispel any hopes of probation. There's absolutely no way in
the world, unless the Lord takes me and I die before I sentence you, there's no way in the world that
you're going to get probation on this matter."
At the plea hearing, the trial court asked Chappelle if he understood that he had a right to a trial and
explained other constitutional rights which would be waived by pleading guilty. Chappelle answered
in the affirmative to all questions. At this hearing, the trial court was also told of the State's
recommendations concerning the imposition of a lighter sentence such as probation. Chappelle then
entered an open plea on all six counts. Chappelle then requested that the court not enter a sentence
until after the completion of a pre-sentence report. The court agreed.
On July 6, 1995, a sentencing hearing was held for Chappelle. At this hearing, the trial court heard
the testimony of the manager of the Waffles Plus Restaurant, the Highway Patrol Officer who first
arrived at the scene, Chappelle's parents, and Chappelle's minister. The trial court also considered
Chappelle's pre-sentence report and testimony concerning Chappelle's mental condition. In addition,
the State reinformed the judge that even though Chappelle was giving an open plea, the State had a
previous recommendation.
The trial court then sentenced Chappelle as follows:
I impose the following sentence: In cause number 8049, count number one you're hereby
sentenced to serve 10 years with the Mississippi Department of Corrections. In count number
two you're hereby sentenced to serve 30 years with the Mississippi Department of Corrections.
And in count number three you're hereby sentenced to serve 20 years with the Mississippi
Department of Corrections. And count number four, five and six you're hereby sentenced to
serve 20 years with the Mississippi Department of Corrections. Count six is going to run
concurrent with count five. Count six and five is going to run concurrent with count four.
Count six, five and four are going to run concurrent with three, two and one. But three is going
to run consecutive with two, and two is going to run consecutive with one, giving you a total of
60 years to serve with the Mississippi Department of Corrections. That will be the ruling of the
court.
Aggrieved by the length of sentence imposed, Chappelle filed a Motion to Reconsider Sentence,
asserting that the sentence was partially based on false testimony from the manager of the Waffles
Plus. The trial court found, after reviewing the record, that the sentence was in no way based on the
testimony of the Waffles Plus manager.
In addition, Chappelle filed a Motion to Withdraw Plea of Guilty, asserting that:
Defendant entered the above-stated pleas of Guilty . . . under the mistaken impression that the
State had recommended to the Court a maximum sentence of twenty (20) years to serve in the
custody of the Department of Corrections and would not have entered said pleas of Guilty had
he been aware of the possibility of receiving the above-mentioned sentence sixty (60) years
incarceration.
Furthermore, the defendant asserted that:
At the time he allegedly committed the offenses charged in this cause and at the time of entering
his pleas of guilty, [he] was unable to distinguish between right and wrong and was unable to
materially assist in his own defense, being in fact insane within the meaning of Miss. Code
Ann. § 99-13-3.
Following another extensive hearing, the trial court found "that Defendant was cognizant during the
incident, and there is nothing to indicate that Defendant didn't know the difference between right and
wrong." At the reconsideration hearing, the trial court inquired repeatedly into Chappelle's mental
condition. The trial court then found the Defendant's motion to be procedurally barred due to the
failure of the Defendant to raise the defense either prior to pleading guilty or at the sentencing
hearing.
Aggrieved by this decision, Chappelle appeals to this Court.
STATEMENT OF THE ISSUES
1. THE MOTION TO WITHDRAW THE PLEA OF GUILTY WAS TIMELY AND
REASONABLY FILED APPROXIMATELY ONE WEEK FOLLOWING
SENTENCING.
2. THE INDICTMENT CHARGING THE OFFENSE OF ATTEMPTED
AGGRAVATED ASSAULT IS SUBSTANTIALLY DEFECTIVE IF IT DOES NOT SET
OUT AN OVERT ACT OF THE ATTEMPT.
3. THE TRIAL JUDGE SENTENCING A DEFENDANT ON AN "OPEN PLEA"
SHOULD BE INFORMED BEFORE SENTENCING OF ANY PREVIOUS
RECOMMENDATIONS BY THE STATE.
STATEMENT OF THE FACTS
The Defendant, who was only nineteen years-old at the time of the incident, was living with his
parents in Sims, Alabama, where he was enrolled as an 11th grade student. After the Defendant's
fifteen year-old girlfriend became pregnant, her parents did not want her to see the Defendant. They
also disapproved of any marriage involving Chappelle. Furthermore, they wanted her to have an
abortion and even tried to persuade the Defendant to convince her to have one.
Prior to November 5, 1994, the Defendant and his girlfriend had run away from their parents and
were en route back from New Orleans. Prior to the night of the incident, they had traveled to north
Alabama to visit relatives. Chappelle had taken some guns from his girlfriend's father to sell at a pawn
shop. The Defendant was drinking alcoholic beverages, and there was a discussion of possible
suicide.
Kim Schroeder, the manager of Waffles Plus on Highway 603, was working that night. Ms.
Schroeder was outside the restaurant with another person cleaning up in the parking lot area. She
watched the Defendant and his girlfriend pull up and begin to argue. Ms. Schroeder finished cleaning
up and went back into the restaurant. Then she noticed the Defendant fire a shot that blew out a
window in the front of the building. She proceeded to get the customers and her employees to the
safety of a backroom.
The Defendant's girlfriend was outside the restaurant using the phone to call her parents. She told her
parents that the Defendant was trying to kill her, and she feared for her life. Upon hearing the shot,
she came running into the restaurant. The manager, Ms. Schroeder, put the girl in the commissary
and then left to call the police. While trying to reach the phone, the manager saw Chappelle, and she
ran out of the back of the restaurant and got into her truck. She then saw a trooper's car in front of
the restaurant and assumed that the trooper had arrested Chappelle. When she opened the back door
to return for her employees and customers, she found herself face to face with the Defendant. He
grabbed her by the throat, pointed a 12-gauge shotgun at her head, and asked for his girlfriend.
Fearing for her life, the manager told Chappelle that she had run out of the back of the restaurant.
The Defendant released Ms. Schroeder and ran out the back door. Ms. Schroeder then closed the
back door and called 911.
Carnegie, a State Trooper, was on duty at a nearby roadblock. He was informed that someone was
standing on the side of the road shooting at passing vehicles. Carnegie reported the information to his
fellow officers and then left with Officer Joe Richardson to investigate. When he arrived at the
Waffles Plus, he could see the Defendant waving his gun and people scrambling for cover. Carnegie
then entered the restaurant to assist the frightened patrons in their escape from the restaurant.
Carnegie observed the Defendant run into the back of the restaurant. Soon thereafter, the Defendant
re-entered the main room and fired into the front window of the restaurant, in the general direction of
Carnegie.
The Defendant then exited through the back of the restaurant. Carnegie exited from the front and
circled around the restaurant. He began to exchange gunfire with the Defendant. By this time, more
highway patrolmen began to arrive from the nearby roadblock. Chappelle fired numerous times at the
arriving patrolmen and shot out the front windshield of one vehicle. Chappelle was soon shot in the
shoulder by one of the officers. The officers arrested Chappelle, following a brief altercation which
required the officers to wrestle the Defendant to the ground.
Chappelle was charged with one count of shooting or discharging a shotgun into a building, two
counts of aggravated assault on a police officer, and three counts of aggravated assault. Following a
plea hearing, he pled guilty to all six indictments. He was sentenced to sixty years in the penitentiary
for the shootout.
DISCUSSION
I. THE MOTION TO WITHDRAW THE PLEA OF GUILTY WAS TIMELY AND
REASONABLY FILED APPROXIMATELY ONE WEEK FOLLOWING
SENTENCING.
Chappelle asserts that the trial court erred by finding his Motion to Withdraw Guilty Plea to be
procedurally barred. In his motion, Chappelle states that his guilty pleas were based on "a mistaken
impression that the State had recommended to the Court a maximum sentence of twenty (20) years."
In addition, Chappelle asserts that he was "unable to distinguish between right and wrong and was
materially unable to materially assist in his own defense."
Mistaken Impressions on Sentencing Recommendations
In Gardner v. State, 531 So. 2d 805, 809 (Miss. 1988), this Court refused to set aside a guilty plea
allegedly entered into based on the statements of the Defendant's attorney regarding promised
sentencing. We found that the extensive questioning and explanations to the Defendant concerning
his rights and consequences of his pleas "were sufficient to render the plea voluntary." Id.
While it is true that this Court has liberally reviewed whether the defendant based his plea agreement
on falsely given information by defense counsel, this Court has not been nearly as liberal with its
inquiry into reliance on state agreements. As seen in Martin v. State, 635 So. 2d 1352, 1354-55
(Miss. 1994), where the "circuit judge did not participate in the plea bargaining discussion between
[the defendant] and the State . . . . the state's sentence recommendation was not binding on the
court." Martin, 635 So. 2d at 1355. Furthermore, where the court informed the accused "that he is
not bound to accept the state's recommendation, it is not error if the trial court does not follow the
prosecutor's sentencing recommendation." Moore v. State, 394 So. 2d 1336, 1337 (Miss. 1981). In
Moore, the judge carefully inquired into the defendant's understanding of the legal and constitutional
rights being waived, minimum and maximum penalties, and that the court was not required to follow
the state's recommendations. The defendant acknowledged all points. The judge then accepted the
plea and the recommended sentence. However, the trial court refused to follow the recommendations
and sentenced the defendant to a longer period. Moore, 394 So. 2d at 1337. The test as stated in
Moore is therefore, whether "the defendant and his attorney were carefully and fully advised that the
district attorney's recommendation was just that -- a recommendation only -- and that the court was
in no wise bound by it." Id.
It is important to note, as in Sanders, Moore, and Gardner, the extensive questioning and discussion
held between the trial court judge and Chappelle. At the plea hearing, the questioning of the trial
court judge of Chappelle was extensive and thorough regarding potential sentencing. The trial judge
was straightforward and clear about the extent of the potential sentence:
BY THE COURT: Mr. Chappelle, I think that you need to dispel any hopes of probation.
There's just absolutely no way in the world, unless the Lord takes me and I die before I sentence
you, there's no way in the world that you're going to get probation on this.
BY MR. DANIELS (Defense Attorney): We understand that Your honor. And we understand
there's a wide range of discretion in terms of the sentence.
BY THE COURT: We're looking at 130 years and that's a wide area.
Furthermore, when the trial judge asked the defendant how many years he could receive for each
count of the crime, the defendant knew the exact maximum sentence:
BY THE COURT: Why are you before the court?
BY MR. CHAPPELLE: Shooting into a dwelling, aggravated assault.
BY THE COURT: Well let me start off. In 8049 it's charged that in Count 1 that you did
unlawfully and feloniously shoot and discharge a shotgun into Waffle Plus on Highway 603. Are
you familiar with that charge?
BY MR. CHAPPELLE: Yes, sir.
BY THE COURT: Have you gone over it with your attorney --
BY MR. CHAPPELLE: Yes, sir.
BY THE COURT: -- Mr. Daniels. You went over that charge with him?
BY MR. CHAPPELLE: Yes, sir.
BY THE COURT: And did he tell you how many years you can go to the penitentiary on that
charge?
BY MR. CHAPPELLE: Ten years.
BY THE COURT: Ten years.
The court followed this procedure with each count. The Defendant knew the maximum sentence for
each count, without prompting from his attorney.
It is clear that the trial court is not bound by the plea agreement where the court informed the
accused "that he is not bound to accept the state's recommendation, it is not error if the trial court
does not follow the prosecutor's sentencing recommendation." Moore v. State, 394 So. 2d 1336,
1337 (Miss. 1981). Furthermore, in the case sub judice, since there was not actually an agreement,
but rather the defendant pled under an open plea, the defendant can only rely upon the mercy of the
court.
As noted in Wilson v. State, 577 So. 2d 394, 397-98 (Miss. 1991), "[i]t is not enough to ask an
accused whether counsel has explained his constitutional rights. Nor is a standardized petition to
enter a plea sufficient standing alone. The court must go further and determine in a face-to-face
exchange in open court that the accused knows and understands the rights to which he is entitled."
Wilson v. State, 577 So. 2d at 397-398. This was clearly the case for Chappelle.
Therefore, the decision of the trial court is affirmed as to this issue.
Procedural Bar on Raising Issue of Mental Incompetency
In his request for reconsideration of sentencing, Chappelle raised for the first time the issue of mental
incompetency. Even though this motion for reconsideration was made soon after his sentencing, it
was still tardy. Defenses such as mental incompetency should be raised at the plea hearing or at the
latest the sentencing hearing. Not only were there numerous occasions for the defendant to raise the
issue of mental incompetency, but there were also sufficient opportunities for the court to observe
Chappelle's behavior and demeanor. No mention, with the exception of some testimony concerning
the effects of a car wreck, was made concerning the Defendant's mental state. There is no merit as to
this issue. Therefore, the ruling of the trial court is affirmed.
II. THE INDICTMENT CHARGING THE OFFENSE OF ATTEMPTED
AGGRAVATED ASSAULT IS SUBSTANTIALLY DEFECTIVE IF IT DOES NOT SET
OUT AN OVERT ACT OF THE ATTEMPT.
Chappelle asserts that the indictment's five counts of "attempted aggravated assault" were insufficient
in their failure to charge the necessary elements of the crime of attempted aggravated assault. "It is
elemental that every person accused of a crime has the legal right to be informed properly of the
charges under which he is to be tried," Joshua v. State, 445 So. 2d 221, 221 (Miss. 1984). In
situations involving attempts, such as in the case sub judice, the indictment "requires proof of an
overt act in order to sustain a conviction of an attempt to commit a crime." Joshua, 445 So. 2d at
222 (citing Bucklew v. State, 206 So. 2d 200 (Miss. 1968)).
Chappelle was indicted on five counts of violating Miss. Code Ann. § 97-3-7 (2)(1994) which reads
as follows:
(2) A person is guilty of aggravated assault if he (a) attempts to cause serious bodily injury to
another, or causes such injury purposely, knowingly or recklessly under circumstances
manifesting extreme indifference to the value of human life; or (b) attempts to cause or
purposely or knowingly causes bodily injury to another with a deadly weapon or other means
likely to produce death or serious bodily harm; and, upon conviction, he shall be punished by
imprisonment in the county jail for not more than one (1) year or in the penitentiary for not
more than twenty (20) years. Provided, however, a person convicted of aggravated assault (a)
upon a statewide elected official, law enforcement officer, fireman, emergency medical
personnel, superintendent, principal, teacher or other instructional personnel and school
attendance officers or school bus driver while such statewide elected official, law enforcement
officer, fireman, emergency medical personnel, superintendent, principal, teacher or other
instructional personnel and school attendance officers or school bus driver is acting within the
scope of his duty, office or employment, or (b) upon a legislator while the Legislature is in
regular or extraordinary session shall be punished by a fine of not more than Five Thousand
Dollars ($5,000.00) or by imprisonment for not more than thirty (30) years, or both.
Miss. Code Ann. § 97-3-7 (1994)(emphasis added).
This Court, in Joshua v. State, 445 So. 2d 221, 222 (Miss. 1984), examined the sufficiency of an
indictment for aggravated assault. The indictment in Joshua read in relevant part as follows, "[the
defendant] did, with intent, willfully, unlawfully and feloniously attempt to cause serious bodily injury
to the body of Dennis Wayne Abel who was then and there a duly appointed and presently acting law
enforcement officer." Joshua, 445 So. 2d at 222. This Court found the indictment insufficient in its
failure to set forth an overt act even though it tracked verbatim the language of the statute. The lack
of specificity in listing the actual overt act left the defendant unable to know with which act he was
being charged. Id. at 223.
Joshua was distinguished in Ward v. State, 479 So. 2d 713, 715 (Miss. 1985) due to the fact that the
Defendant was being charged with a completed act. Therefore, the lack of a set overt act was not
fatal. Furthermore, we are reminded in Ward that "the general rule is that where an indictment tracks
the language of a criminal statute it is sufficient to inform the accused of the charge against him."
Ward, 479 So. 2d at 715 (citing Hickombottom v. State, 409 So. 2d 1337 (Miss. 1982); Anthony v.
State, 349 So. 2d 1066 (Miss. 1977); State v. Labella, 232 So. 2d 354 (Miss. 1970)). However,
Ward also warns of the considerable latitude of varying factual situations with which this statute has
been used and states "in view of the availability of this criminal charge in many factual settings, it is
advisable to set forth in an indictment the factual situation which manifests indifference to human
life." Ward, 479 So. 2d at 715.
The case sub judice is readily distinguishable from the fatal indictment found in Joshua. In Joshua,
the defendant filed a motion to quash the indictment prior to trial. This simple motion preserved
Joshua's right to appeal. "The Court was fully informed of the indictment's defect by appellant's
motion to quash." Joshua, 445 So. 2d at 223. However, in the case sub judice, the defendant did not
object to the original indictment. Therefore, this error is not preserved before this Court.
III. THE TRIAL JUDGE SENTENCING A DEFENDANT ON AN "OPEN PLEA"
SHOULD BE INFORMED BEFORE SENTENCING OF ANY PREVIOUS
RECOMMENDATIONS BY THE STATE.
Chappelle asserts that the trial court erred by not being informed of previous recommendations made
by the state prior to the Defendant's "open plea." If the trial court had known about the State's
recommendation that Chappelle should receive twenty years, the judge would not have sentenced
Chappelle to sixty years. The State responds that this is facially incorrect stating that "[e]ven a
cursory reading of Judge Vlahos' sentencing of Chappelle indicates that it clearly would have made
no difference to him even if he had known what the State's early sentencing recommendations had
been." While the State is correct in its argument, neither party cites any authority to support their
position.
The State asserts that this contention of error is procedurally barred due to the Defendant's failure to
object to the omission of the recommendations at an earlier time.
After a thorough review of the record, it is clear that the trial court knew of the previous
recommendations. We are reminded of our recent decision in Simpson v. State, 678 So. 2d 712, 717
(Miss. 1996) where the defendant made claims of another "real plea bargain" of which the court was
not informed. This Court found the Defendant's silence at the time of entering the plea to be telling
concerning other possible recommendations. As in Simpson, Chappelle received excellent hearings
with an active judge. Chappelle could have objected at the time he entered his plea, instead he
remained silent. Therefore, there is no merit in this contention of error.
CONCLUSION
Chappelle makes no argument warranting a reversal of the trial judge. The issues presented are
without merit. Therefore, the judgment is affirmed.
COUNT ONE: CONVICTION OF SHOOTING INTO A DWELLING AND SENTENCE OF
TEN (10) YEARS AFFIRMED. COUNT TWO: CONVICTION OF AGGRAVATED
ASSAULT ON A PEACE OFFICER AND SENTENCE OF THIRTY (30) YEARS
AFFIRMED. SENTENCE IN COUNT TWO SHALL RUN CONSECUTIVELY WITH
SENTENCE IN COUNT ONE. COUNT THREE: CONVICTION OF AGGRAVATED
ASSAULT ON A PEACE OFFICER AND SENTENCE OF TWENTY (20) YEARS
AFFIRMED. SENTENCE IN COUNT THREE SHALL RUN CONSECUTIVELY WITH
SENTENCE IN COUNT TWO. COUNT FOUR: CONVICTION OF AGGRAVATED
ASSAULT AND SENTENCE OF TWENTY (20) YEARS AFFIRMED. SENTENCE IN
COUNT FOUR SHALL RUN CONCURRENTLY WITH SENTENCE IN COUNT FIVE.
COUNT FIVE: CONVICTION OF AGGRAVATED ASSAULT AND SENTENCE OF
TWENTY (20) YEARS AFFIRMED. SENTENCE IN COUNT FIVE SHALL RUN
CONCURRENTLY WITH SENTENCE IN COUNT THREE. COUNT SIX: CONVICTION
OF AGGRAVATED ASSAULT AND SENTENCE OF TWENTY (20) YEARS AFFIRMED.
SENTENCE IN COUNT SIX SHALL RUN CONCURRENTLY WITH SENTENCE IN
COUNT FOUR, FOR A TOTAL OF SIXTY (60) YEARS TO SERVE IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF CORRECTIONS.
PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS AND SMITH,
JJ., CONCUR. LEE, C.J., CONCURS IN RESULT ONLY.