Ronald Chris Foster v. State of Mississippi ( 2005 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-KA-01938-SCT
RONALD CHRIS FOSTER
a/k/a RON CHRIS FOSTER
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT: 09/02/2005
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MICHAEL R. FARROW
STEVE WALLACE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
DISTRICT ATTORNEY: FORREST ALLGOOD
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 05/31/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
WALLER, PRESIDING JUSTICE, FOR THE COURT:
¶1. We vacated the death sentence of Ronald Chris Foster pursuant to the United States
Supreme Court’s decision in Roper v. Simmons, and directed the Circuit Court of Lowndes
County to resentence Foster to life in prison without the possibility of parole under Miss.
Code Ann. § 99-19-107 (Rev. 2000). The circuit court complied with that directive. On
appeal, Foster challenges the applicability of section 99-19-107 and argues that we erred in
not resentencing him under the 1991 version of Mississippi’s capital murder statute, which
would require a sentence of life with the possibility of parole. Because Foster’s case is
procedurally barred, and because we properly applied Miss. Code Ann. § 99-19-107 to
Foster’s case, the order from the circuit court is affirmed.
FACTS
¶2. Ronald Chris Foster was convicted in 1991 for capital murder with the underlying
felony of armed robbery and was sentenced to death. He was seventeen years old at the time
of the offense. We affirmed his conviction and sentence on direct appeal. Foster v. State,
639 So. 2d 1263 (Miss. 1994). Foster subsequently brought a motion for post-conviction
relief, arguing that his diminished mental capacity made the imposition of the death penalty
unconstitutional pursuant to the United States Supreme Court’s decision in Atkins v.
Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). We addressed those
claims in Foster v. State, 848 So. 2d 172 (Miss. 2003), and directed the circuit court to
conduct an Atkins hearing on the issue of Foster’s mental retardation.
¶3. In the wake of the United States Supreme Court’s decision in Roper v. Simmons, 543
U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), which held that the application of the
death penalty against juvenile offenders violated the Eighth and Fourteenth Amendments,
we granted a motion by the State of Mississippi to withdraw our mandate for an Atkins
hearing, vacated Foster’s death sentence, and directed the Lowndes County Circuit Court to
sentence Foster to life without the possibility of parole under Miss. Code Ann. § 99-19-107.
Foster v. State, 2005 Miss. LEXIS 476 (Miss. 2005); 95-DR-00750-SCT. Foster did not
respond to the State’s motion for resentencing and did not file a motion for reconsideration
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after it was granted. After the case was remanded to the circuit court, Foster filed a motion
for a new sentencing hearing, alleging that this Court’s order imposed an impermissible ex
post facto sentence. The circuit court denied Foster’s motion, finding that it had no
discretion to consider the propriety of Foster’s claim. Foster then appealed both this Court’s
final judgment and the denial of his motion for a sentencing hearing.
DISCUSSION
¶4. On appeal, Foster argues that his sentence constitutes an impermissible ex post facto
punishment since the only sentencing options available under Miss. Code Ann. § 97-3-21(1991) at the time of sentencing were death or life with the possibility of parole. He further
argues that Miss. Code Ann. § 99-19-107, which states that if the death penalty is deemed
unconstitutional, we must amend a defendant’s sentence to life without the possibility of
parole, is not applicable because Roper v. Simmons did not deem all applications of the death
penalty unconstitutional, but only those imposed on juvenile offenders.
¶5. The State responds that Foster is procedurally barred from bringing an appeal to this
Court’s resentencing order, since he did not file a response to the State’s motion to
resentence, and that the application of Miss. Code Ann. § 99-19-107 presents no ex post facto
problem, since the statute was passed on July 1, 1982, years before Foster’s original
sentencing.
I. WHETHER FOSTER IS PROCEDURALLY BARRED FROM
CHALLENGING HIS SENTENCE.
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¶6. The trial court was correct in noting that it had no discretion to consider Foster’s ex
post facto claim. The execution of orders issued by this Court is a purely ministerial act, and
lower courts have no authority to alter or amend them. See, e.g., Miss. Comm'n on Judicial
Performance v. Sanders, 708 So. 2d 866, 874 (Miss. 1998). Instead, Foster’s claim should
have been raised in a response to the State’s motion to this Court under
Miss. R. App. P. 27(a), or, in the alternative, in a motion for reconsideration of a motion
under Miss. R. App. P. 27(h), or in a motion for rehearing under Miss. R. App. P. 40, after
we granted the State’s motion. His failure to do so bars his claim. In the alternative, his
claim is without merit.
II. WHETHER THE APPLICATION OF MISS. CODE ANN. § 99-19-107
CONSTITUTES AN EX POST FACTO PUNISHMENT.
¶7. Foster first asserts that, after his death sentence was vacated, the only option available
to this Court was the imposition of a sentence of life with the possibility of parole under the
version of the capital murder statute in effect at the time the crime was committed. See Miss.
Code Ann. § 97-3-21 (1991). He argues that no statute in effect at the time authorized a
sentence of life without parole, and that the sentence therefore constitutes an unconstitutional
ex post facto punishment under Article 3, Section 16 of the Mississippi Constitution and
Article 1, Section 10 of the United States Constitution. This contention misstates the
applicable law. At the time of he committed the crime, Foster was equally subject to Miss.
Code Ann. § 99-19-107 (Rev. 2000), amended in 1982, which states that:
In the event the death penalty is held to be
unconstitutional by the Mississippi Supreme Court or the United
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States Supreme Court, the court having jurisdiction over a
person previously sentenced to death shall cause such person to
be brought before the court and the court shall sentence such
person to imprisonment for life, and such person shall not be
eligible for parole.
Where this statute governs a defendant’s sentence, it plainly authorizes a sentence of life
without parole. Therefore, the only question is whether the United States Supreme Court’s
prohibition on the execution of juvenile offenders falls within the scope of this statute.
¶8. The language of the statute is clear; it intends to provide for an alternative sentence
for a person whose death sentence has been deemed unconstitutional. This Court has
previously addressed the scope of section 99-19-107 in Abram v. State, 606 So. 2d 1015(Miss. 1992). In Abram, this Court held that the statute was applicable “for that event when
either this Court or the United States Supreme Court makes a wholesale declaration that the
death penalty in general, and/or our own statutory death penalty scheme in particular, is
unconstitutional.” Abram, 606 So. 2d at 1039. The “wholesale declaration” requirement set
out in Abram is extraneous language that is unnecessary to the application of the statute. The
statute provides that no one whose death penalty is ruled unconstitutional may receive parole.
To the extent that Abram is inconsistent with the plain meaning of section 99-19-107, it is
hereby overruled. Because Foster’s death penalty was found unconstitutional by the United
States Supreme Court’s ruling in Roper, the application of section 99-19-107 is appropriate.
CONCLUSION
¶9. Foster’s challenge to the application of section 99-19-107 to his case is barred because
he failed to raise this issue before this Court before the remand for resentencing. Because
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this Court and the circuit court correctly applied Miss. Code. Ann. § 99-19-107 in
resentencing Foster, and because application of the statute in no way constitutes an ex post
facto punishment, our order resentencing Foster to life in prison without the possibility of
parole is affirmed.
¶10. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED.
SMITH, C.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR.
DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
GRAVES, J. EASLEY AND LAMAR, JJ., NOT PARTICIPATING.
DIAZ, PRESIDING JUSTICE, DISSENTING:
¶11. Because I disagree with overruling prior precedent and do not agree that Miss. Code
Ann. § 99-19-107 (Rev. 2000) applies in this case, I must respectfully dissent.
¶12. Today’s “plain meaning” interpretation of Section 99-19-107 is completely at odds
with a reading of the statute that this Court previously saw as “fairly obvious.” Abram v.
State, 606 So. 2d 1015, 1039 (Miss. 1992) (“Although there are no cases addressing the
precise application of § 99-19-107, we think it fairly obvious that it is reserved for that event
when either this Court or the United States Supreme Court makes a wholesale declaration
that the death penalty in general, and/or our own statutory death penalty scheme in particular,
is unconstitutional.”). In Abram, we considered whether Section 99-19-107 was applicable
to a defendant whose death sentence had been vacated under Enmund v. Florida for failure
to prove an intent to kill. See Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S.
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Ct. 3368 (1982), modified by Tison v. Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct.
1676 (1987) (finding that proof of an intent to kill was not required under the Eighth
Amendment). In this context, we found that Section 99-19-107 was not applicable because
Enmund did not invalidate a statutory scheme in whole or in part, but merely stipulated a
minimum level of culpability that had to be found by the jury in order to impose the death
penalty. We recognized that the savings statute “is not reasonably or logically intended for
use on a case by case basis by trial courts or this Court.” Abram, 606 So. 2d at 1039.
¶13. Accordingly, it is only where the mechanisms for instituting the death penalty (the
statutory scheme) are found to be unconstitutional that this provision applies. Such was the
case in Furman v. Georgia, where the United States Supreme Court found that Georgia’s
death penalty statutes were unconstitutional. 408 U.S. 238, 33 L. Ed 346, 92 S. Ct. 2726(1972). This forced our Court to invalidate all death sentences because our statutory scheme
was substantially similar to the one in Georgia. Peterson v. State, 268 So. 2d 335, 338 (Miss.
1972); see also Cowart v. State, 270 So. 2d 350 (Miss. 1972) (holding that because the death
penalty was unconstitutional under Furman, the defendant must be sentenced to life).
¶14. Both legislative history and prior precedent support this interpretation. Once the
United States Supreme Court reaffirmed the use of the death penalty in 1976, our Legislature
set about amending our death penalty scheme to comply with constitutional requirements.
Miss. Code Ann. § 97-3-21 (1977); Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96
S. Ct. 2909 (1976). With our revised death penalty scheme, the Legislature also passed the
“trigger” statute “in the event the death penalty is held to be unconstitutional.” Laws, 1977,
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ch. 458, § 5. In light of Furman and the temporary suspension of capital punishment, it is
only reasonable to conclude that this statute was intended to be used in case of a wholesale
invalidation of the death penalty, whether through federal or state means. Abram, 606 So.
2d at 1039 (Miss. 1992).
¶15. With the exception of the present case, this Court has never referred to Miss. Code
Ann. § 99-19-107 when vacating a death sentence on the basis of Roper. Compare Foster
v. State, 2005 Miss. LEXIS 476 (Miss. 2005) (citing Miss. Code Ann. § 97-3-21) with
Eskridge v. State, 2005 Miss. LEXIS 665 (Miss. 2005) (not citing Miss. Code Ann. § 97-3-
21); McGilberry v. State, 2005 Miss. LEXIS 598 (Miss. 2005) (not citing Miss. Code Ann.
§ 97-3-21); Dycus v. State, 910 So. 2d 1100, 1101 (Miss. 2005) (not citing Miss. Code Ann.
§ 97-3-21). In Eskridge, we simply remanded the case for re-sentencing without mandating
a term. 2005 Miss. LEXIS 665. While we ordered sentences of life imprisonment without
parole in McGilberry and Dycus, their sentencing hearings were conducted after the 1994
revision to Miss. Code Ann. § 97-3-21 allowing for life without parole. McGilberry v.
State, 843 So. 2d 21 (Miss. 2003) (1996 sentencing); Dycus, 910 So. 2d 1100 (1998
sentencing).
¶16. Furthermore, we have never referred to Miss. Code Ann. § 99-19-107 in any case
remanded for an Atkins hearing. See Scott v. State, 938 So. 2d 1233 (Miss. 2006); Brown
v. State, 875 So. 2d 202 (Miss. 2004); Conner v. State, 904 So. 2d 105 (Miss. 2004); Doss
v. State, 882 So. 2d 176 (Miss. 2004); Snow v. State, 875 So. 2d 188 (Miss. 2004); Smith v.
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State, 877 So. 2d 369 (Miss. 2004); Chase v. State, 873 So. 2d 1013 (Miss. 2004); Neal v.
State, 873 So. 2d 1010 (Miss. 2004); Carr v. State, 873 So. 2d 997 (Miss. 2004); Goodin
v. State, 856 So. 2d 95 (Miss. 2003); Russell v. State, 849 So. 2d 95 (Miss. 2003). Foster
was given the opportunity to proceed with an Atkins claim, but the order allowing his hearing
was vacated in light of Roper. Foster v. State, 848 So. 2d 172, 175 (Miss. 2003); Foster,
2005 Miss. LEXIS 476 (Miss. 2005). While this Court has never addressed the issue, I
would also hold that the trigger statute does not apply in Atkins cases. This is consistent with
our reasoning in Abram that Miss. Code Ann. § 99-19-107 (Rev. 2000) should not be applied
on a “case-by-case” basis as trial judges in Atkins cases must make a factual determination
that a defendant is or is not mentally retarded. If the trigger statute does not apply in Atkins,
then Foster should be allowed to proceed with his mental retardation claim as well.
¶17. Our sentencing scheme at the time of Foster’s sentencing provided two alternatives:
death and life with the possibility of parole. Miss. Code Ann. § 97-3-21 (Rev. 1977).
Because the United States Supreme Court has not ruled the death penalty unconstitutional,
Miss. Code Ann. § 99-19-107 is inapplicable, and Foster’s sentence should reflect what was
available in 1991. For the foregoing reasons, I would reverse the previous sentencing order
and resentence Foster to a term of life.
GRAVES, J., JOINS THIS OPINION.
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