Mark Dwayne Sumrell v. State of Mississippi ( 2005 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2005-CT-00963-SCT
MARK DWAYNE SUMRELL
v.
STATE OF MISSISSIPPI
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 04/26/2005
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: STEPHEN NICK
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: DESHUN TERRELL MARTIN
DISTRICT ATTORNEY: JOYCE IVY CHILES
NATURE OF THE CASE: CRIMINAL - FELONY
DISPOSITION: AFFIRMED - 01/10/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. Mark Dwayne Sumrell was convicted of felony shoplifting and sentenced to life
imprisonment as a habitual offender by the Washington County Circuit Court. We assigned
the case to the Court of Appeals which affirmed his conviction and sentence in Sumrell v.
State, 2006 Miss. App. LEXIS 901 (Miss. Ct. App. Dec. 5, 2006) Sumrell filed a petition
for certiorari which this Court granted. Finding no reversible error, we affirm.
FACTS
¶2. On October 13, 2003, James Ross, a security guard at the Kroger grocery store in
Greenville, Mississippi, saw Mark Dwayne Sumrell remove a leather jacket from a rack in
Kroger. Ross followed Sumrell and saw him put on the jacket. Ross also noticed that the
price tags had been removed from the jacket. Sumrell approached the store exit without
paying for the jacket. Ross apprehended Sumrell and asked him remove the jacket and go
to the store’s office with him. Sumrell asked if he could remove the jacket and leave, but
Ross insisted that Sumrell go to the office, where Ross called police.
¶3. The police arrived, questioned Sumrell, photographed the leather jacket, and arrested
Sumrell for shoplifting. Sumrell had two prior shoplifting convictions, thus he was charged
with third-offense shoplifing, a felony. Miss. Code Ann. § 97-23-93(6) (Rev. 2006).
¶4. The trial court appointed Carol White-Richard, of the Washington County Public
Defender’s Office, as counsel for Sumrell. Ultimately, White-Richard accepted a job with
the Washington County District Attorney’s Office and Stephen Nick was appointed as
Sumrell’s new counsel.
DISCUSSION
¶5. We find no merit to nor reason for discussion of most of the issues raised on certiorari.
We adopt the reasoning and analysis of the Court of Appeals on those issues. We do,
however, address the following issues raised for the first time on certiorari.
I. Whether Sumrell Legitimately Raised the Issues Before the Court
of Appeals that he now argues before this Court.
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¶6. After a careful review of the record, this Court concludes that Sumrell never raised
either of the issues that he now claims were not addressed by the Court of Appeals: (1) that
he was improperly sentenced under Mississippi Code Section 99-19-83; and (2) an Eighth
Amendment proportionality claim. While pro se litigants are afforded some leniency, they
“must be held to substantially the same standards of litigation conduct as members of the
bar.” Perry v. Andy, 858 So. 2d 143, 146 (Miss. 2003).
¶7. Appellate counsel was appointed to represent Sumrell in his appeal. Sumrell’s appeal
was filed on April 28, 2005, and was assigned to the Court of Appeals in May. In August,
Sumrell mailed his own letter to the clerk of the Mississippi Supreme Court and copied his
attorney. The letter stated that he was attempting to perfect his own appeal, listing three
issues that he intended to raise in his appeal. The issues Sumrell listed included an argument
that he was illegally sentenced under the habitual-offender statute, but he failed to mention
the issue of proportionality. Sumrell did attach a list of citations to cases he deemed
important including Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983),
which addresses proportionality. In relation to the statement of issues in an appellant’s brief,
Mississippi Rules of Appellate Procedure 28(a)(3) states that “[n]o separate assignment of
errors shall be filed” and that “[n]o issue not distinctly identified shall be argued by counsel,
except upon request of the court.” We find that a mere letter to the Clerk does not
sufficiently raise or preserve an issue for appeal.
¶8. In April of the following year, Sumrell’s court-appointed appellate counsel filed
Sumrell’s appellant’s brief. This brief officially asserted Sumrell’s issues for appeal. It
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included four issues, which were properly addressed by the Court of Appeals. One of the
issues stated, “The appellant asserts that counsel did not sufficiently contest the requested
amendment to the indictment, [i].e. changing same from 99-19-81 to 99-19-83.” The brief
included an excerpt from the trial transcript which included a statement of Sumrell’s trial
counsel asserting that the State did not show in the indictment that Sumrell was sentenced
to and actually served more than one year on the underlying offenses. However, the issue
as raised on appeal was couched as an ineffective-assistance-of-counsel claim.
¶9. In May, Sumrell sent another letter to the Clerk of the Mississippi Supreme Court and
copied his attorney and the Mississippi Attorney General. This letter stated that Sumrell
wanted his attorney to supplement his brief with the argument that the State failed to prove
that he was sentenced to, and actually served, a year on each of the underlying offenses.
Again, we find that this letter did not act as a pro se brief, nor did it bring or preserve this
issue before the Court of Appeals. Sumrell did not file a supplemental or reply brief, and in
December 2006, the Court of Appeals handed down its decision unanimously affirming the
trial court.
¶10. In April 2007, Sumrell finally filed a pro se motion for post-conviction relief and an
accompanying supporting brief, which he should have done in the very beginning of the
appeal process. In this accompanying brief, Sumrell for the first time legitimately argues that
the trial court erred in sentencing him under the habitual-offender statute because the State
failed to prove that he was sentenced to and actually served more than one year on the
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underlying offenses. This is also the first time Sumrell legitimately asserted that the sentence
violated his constitutional rights because it was not proportionate to the crimes committed.
¶11. This Court recognizes that issues not raised on direct appeal or before the trial court
are procedurally barred and are not subject to further review. Wilcher v. State, 479 So. 2d
710, 712 (Miss. 1985). The Court of Appeals had rendered its opinion four months prior to
Sumrell filing this pro se brief, and the Court of Appeals opinion was final as that court had
denied Sumrell’s motion for rehearing and issued its mandate.
¶12. In May 2007, Sumrell’s appellate counsel filed a petition for certiorari with this Court.
Again, he raised the same issues he had raised before the Court of Appeals. The issues raised
included the ineffective-assistance-of-counsel issue relating to the amendment of the
indictment under the habitual offenders statute. The petition made no mention whatsoever
of the proportionality issue.
¶13. In June 2007, Sumrell filed a pro se petition for certiorari with this Court. In it,
Sumrell asserted that the State did not prove he was sentenced to and served one year for the
underlying offenses. Sumrell never legitimately raised this issue before the Court of Appeals.
Furthermore, Sumrell’s petition for certiorari failed to mention the proportionality issue.
This Court has held that issues not raised at trial or on direct appeal are procedurally barred.
McFarland v. Entergy Miss., Inc., 919 So. 2d 894, 904 (Miss. 2005).
¶14. Based on the above facts gleaned from the record, we find that Sumrell did not
legitimately raise before the Court of Appeals either of the issues he now attempts to argue
before this Court. Therefore, consideration by this Court by way of certiorari is
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inappropriate. We accordingly apply the procedural bar. Procedural bar notwithstanding,
the Court will address these issues on the merits.
II. Whether Sumrell Was Properly Sentenced Under Mississippi’s
Habitual Offender Statute.
¶15. Mississippi’s habitual-offender statute, Mississippi Code Annotated Section 99-19-83
provides:
Every person convicted in this state of a felony who shall have been
convicted twice previously of any felony or federal crime upon charges
separately brought and arising out of separate incidents at different times and
who shall have been sentenced to and served separate terms of one (1) year or
more in any state and/or federal penal institution, whether in this state or
elsewhere, and where any one (1) of such felonies shall have been a crime of
violence shall be sentenced to life imprisonment, and such sentence shall not
be reduced or suspended nor shall such person be eligible for parole or
probation.
Miss. Code Ann. § 99-19-83 (Rev. 2007). We note at the outset that the State must prove
that the Sumrell actually served one year or more on two felony convictions. At trial, the
trial court admitted the Mississippi Department of Corrections pen pack into evidence. The
pen pack established the following facts:
1. Sumrell was convicted of armed robbery, cause number 22,242, and
sentenced to probation on September 23, 1991.
2. Sumrell’s probation on the armed robbery conviction was revoked on
February 22, 1993, and he was sentenced to a three-year sentence.
Sumrell began serving this sentence on February 11, 1993.
3. Sumrell was convicted of possession of cocaine, cause number 23,077,
on February 22, 1993, and he was sentenced to a three-year sentence to
run concurrently with his robbery sentence. Sumrell began serving this
sentence on February 11, 1993.
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4. An amended order was entered on July 20, 1993.
5. Sumrell was released from jail on both the robbery and possession-of-
cocaine sentences on March 23, 1994.
¶16. The above facts indicate that Sumrell served more than one year on both sentences.
All the documents in the pen pack establish that Sumrell, in fact, was sentenced and served
a year on the separate offenses of robbery and possession of cocaine. Therefore, the circuit
court did not err in sentencing Sumrell in the present case as a habitual offender under
Mississippi Code Annotated Section 99-19-83.
III. Whether Sumrell’s Life Sentence Was Disproportionate In Light
of His Crimes.
¶17. “[T]he general rule in Mississippi is that a sentence that does not exceed the
maximum term allowed by the statute, cannot be disturbed on appeal.” Edwards v. State,
800 So. 2d 454, 468 (Miss. 2001) (citing Fleming v. State, 601 So. 2d 280, 302 (Miss.
1992)). This Court “will review a sentence that allegedly imposed a penalty that is
disproportionate to the crime.” Id.
¶18. In Edwards, this Court discussed the proportionality analysis as laid out by the United
States Supreme Court:
The United States Supreme Court set forth a three-prong test for an Eighth
Amendment proportionality analysis in Solem as follows:
(i) the gravity of the offense and the harshness of the penalty;
(ii) the sentence imposed on other criminals in the same
jurisdiction; and
(iii) the sentences imposed for commission of the same crime in
other jurisdictions.
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This Court noted, however, that Solem was overruled in Harmelin v.
Michigan, 501 U.S. 957, 965-66, 111 S. Ct. 2680, 2686-87, 115 L. Ed. 2d 836
(1991) "to the extent that it found a guarantee of proportionality in the Eighth
Amendment. In light of Harmelin, it appears that Solem is to apply only when
a threshold comparison of the crime committed to the sentence imposed leads
to an inference of 'gross disproportionality.'" Hoops v. State, 681 So. 2d at 538
(citations omitted). The appellate courts will not apply the three-prong
disproportionality test when there is a lack of this initial showing. Young v.
State, 731 So. 2d 1120, 1125 (Miss. 1999); Williams v. State, 784 So. 2d 230,
236 (Miss. Ct. App. 2000).
800 So. 2d at 469. Applying our reasoning in Edwards to the case at bar, we find no merit
to the issues.
CONCLUSION
¶19. While Sumrell eventually did raise both of the issues that he now attempts to argue
before this Court, he did not do so legitimately under the Rules of Appellate Procedure and
our case law, or at the proper time to preserve the issues for appeal. Thus, we apply the
procedural bar. Alternatively, procedural bar notwithstanding, we find no valid basis for
the issues Sumrell raises considering the merits. We therefore affirm the judgments of the
Court of Appeals and the trial court.
¶20. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.
CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF LIFE
IMPRISONMENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.
WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR.
LAMAR, J., CONCURS IN RESULT ONLY. DIAZ, P.J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
GRAVES AND DICKINSON, JJ.
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DIAZ, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING
IN PART:
¶21. I concur in the affirmance of Sumrell’s conviction for felony shoplifiting, but I dissent
from the affirmance of his sentence as a habitual offender. By holding that the trial court did
not err in sentencing the defendant under Section 99-19-83, the majority makes a finding of
fact that the trial judge never addressed, that the State never attempted to prove, and that is
simply unsupported by the record. For these reasons, I must respectfully dissent in part.
¶22. Although the bulk of the majority opinion is devoted to finding that Sumrell is
procedurally barred, prior precedent requires that this Court apply plain-error review to the
habitual offender issue. This Court has previously held that when a defendant is wrongfully
sentenced under Section 99-19-83 rather than Section 99-19-81, such an error is a denial of
due process and is “too significant a deprivation of liberty to be subjected to a procedural
bar.” Smith v. State, 477 So. 2d 191, 195 (Miss. 1985). Because this is the exact issue raised
in this case, this Court is bound by prior precedent to apply plain-error review.
¶23. Regarding the merits, the majority fails to acknowledge that the State must prove
“beyond a reasonable doubt” that Sumrell actually served a year or more on each conviction.
“Even though a defendant is not entitled to have a jury to pass upon the issue, the state has
the burden of proving beyond a reasonable doubt all the elements required to convict an
accused under Miss. Code Ann. § 99-19-83.” Ellis v. State, 485 So. 2d 1062, 1063 (Miss.
1986) (citing Wilson v. State, 395 So. 2d 957 (Miss. 1981)). “An essential ingredient of
[Section 99-19-83] is that the defendant shall have served at least one year under each
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sentence.” Ellis, 485 So. 2d at 1064. Accordingly, if the State fails to prove that the
defendant actually served one year or more on two felony convictions, this Court must vacate
the sentence and remand the case for resentencing. Armstrong v. State, 618 So. 2d 88, 89
(Miss. 1993) (citing Ellis, 485 So. 2d 1062).
¶24. Despite the majority’s conclusion, the State failed to prove beyond a reasonable doubt
that Sumrell served at least a year or more on each conviction. At the sentencing hearing,
the trial court admitted Sumrell’s pen pack during the testimony of Melvin Edwards of the
Mississippi Department of Corrections. Edwards testified that the pen pack showed that
Sumrell was convicted on September 23, 1991 for robbery and sentenced to three years
supervised probation. He also testified that the documents demonstrated that Sumrell was
convicted for possession of cocaine on February 22, 1993. Edwards never stated the
sentence for the possession conviction, and he also never stated that Sumrell actually served
a year or more on each charge.
¶25. The pen pack, consisting of MDOC documents and court orders, does show that
Sumrell was convicted of possession of cocaine and robbery; however, it does not show,
beyond a reasonable doubt, that he served at least one year for each crime. On February 22,
1993, the Washington County Circuit Court ordered Sumrell to serve a three-year sentence
for his possession conviction. On July 20, 1993, Sumrell was sentenced to another three-year
term for violating his probation. Sumrell entered MDOC custody on February 22, 1993, and
was discharged March 23, 1994. Therefore, while he served roughly thirteen months for his
possession conviction, Sumrell served only eight months for his probation violation.
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¶26. The majority finds that Sumrell’s probation was revoked on February 22, 1993.
However, the order entered on that day sentenced Sumrell only on the possession charge.
The trial court did not order his probation revoked until July.
¶27. This Court has held that any uncertainties in sentencing orders “must be resolved in
favor of the accused.” State v. Willis, 539 So. 2d 1043, 1045 (Miss. 1989); See also
Anderson v. State, 288 So. 2d 852, 855 (Miss. 1974) (citing Johnson v. State, 260 So. 2d
436 (Miss. 1972)). In addition, the orders imposing sentences control over the other
documents contained in the pen pack. See Anderson, 288 So. 2d at 855. Therefore, the
record fails to establish that Sumrell actually served a year or more on both charges.
¶28. Moreover, the trial court never found that Sumrell actually served a year or more on
both prior convictions. The sentencing order simply tracked the language of the amended
indictment, which failed to include this essential element. The original indictment charged
Sumrell as a habitual offender under Section 99-19-81, which, if convicted, would require
Sumrell to be sentenced to five years. The prosecution moved to amend the indictment to
charge Sumrell under Section 99-19-83. Sumrell’s attorney objected to the amendment at
trial, and the prosecution admitted that the indictment was deficient:
Defense: Even with the amendment as the motion sets out, it still does not
satisfy the requirements of that statute under 99-19-83, and we
are objecting to the State proceeding under that particular statute
because of the errors.
Court: In what respect?
Defense: The fact that this does not satisfy the requirements of the statute.
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Court: What does it not satisfy?
Defense: It – Number 1, it doesn’t state the crime with which he’s been
charged. It does not state that he was sentenced and actually
served more than a year I think is what the requirement is. Not
only must he be sentenced to more than a year, he must actually
have served more than a year under that sentence.
Court: And your indictment – your indictment doesn’t include this?
Prosecution: Probably not that portion.
Over this objection, the court allowed the amendment and sentenced Sumrell under Section
99-19-83 without finding that Sumrell had served at least a year or more on each conviction.
Without such a finding, the trial court could not have sentenced Sumrell to life as a habitual
offender. Ellis, 485 So. 2d at 1064.
¶29. Because there was neither a finding nor an attempt to prove this essential element of
Section 99-19-83, Sumrell should not have been sentenced to life imprisonment as a habitual
offender. Armstrong, 618 So. 2d at 90; Ellis, 485 So. 2d at 1064; Smith, 477 So. 2d at 196.
In Ellis, this Court was presented with an almost identical scenario. The indictment charged
the defendant as a habitual offender under Section 99-19-83 but did not allege that he had
actually served any time. Ellis, 485 So. 2d 1062. At his sentencing hearing, the State
presented certified copies of two prior convictions, one with a sentence of three years and
one with a sentence of five years. Id. at 1062-63. No further findings were made on the
record, and the trial judge sentenced Ellis to life under Section 99-19-83. Id. at 1063. This
Court vacated the sentence and remanded the case for resentencing under Section 99-19-81
because “the state never proved, nor indeed attempted to prove in the circuit court that he had
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actually served one year or more on these [prior] sentences.” Ellis, 485 So. 2d 1063. See
also Ellis v. State, 520 So. 2d 495, 496 (Miss. 1988).
¶30. Ellis is indistinguishable from the present case; and therefore, I would vacate
Sumrell’s sentence and remand for resentencing under Section 99-19-81 as originally
charged.
GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.
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