Ashendrias E. Reed v. State of Mississippi , 2015 Miss. App. LEXIS 588 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-01486-COA
ASHENDRIAS E. REED A/K/A ASHENDRIAS APPELLANT
XAVIER REED A/K/A ASHENDRIAS REED
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/25/2014
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: GEORGE T. HOLMES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
DISTRICT ATTORNEY: PATRICIA A. THOMAS BURCHELL
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF GRAND LARCENY AND
SENTENCED AS A HABITUAL OFFENDER
TO FIVE YEARS IN THE CUSTODY OF
THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, WITHOUT THE BENEFIT
OF PROBATION, PAROLE, OR ANY FORM
OF EARLY RELEASE
DISPOSITION: AFFIRMED: 11/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Ashendrias Reed was convicted of grand larceny after stealing an automobile that
turned out to have a GPS tracking device onboard. He was sentenced as a habitual offender
pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015). Sentencing under
that statute requires that the defendant “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 separate terms of one (1) year or more
in any state and/or federal penal institution.” Id.
¶2. Reed contends on appeal that one of his prior convictions does not qualify under
section 99-19-81 because it does not reflect a sentence of one year or more. In that instance,
Reed was charged with grand larceny. He pled guilty, but the court withheld accepting the
guilty plea for five years, conditioned on Reed’s good behavior and his acceptance of one
year of supervision by the Mississippi Department of Corrections. Reed was subsequently
arrested for a myriad of other offenses, and the circuit court entered an order accepting the
previously nonadjudicated guilty plea. The sentencing order required that Reed complete the
regimented inmate discipline (“RID”) program, and, upon completion, that he would be
“returned” to “post-release supervision.”
¶3. According to Reed, because the adjudication order did not itself specify the term of
the RID program or the post-release supervision, Reed was not shown to have been sentenced
to a term of “one year or more” as the statute requires in order for the conviction to count
toward habitual status. See § 99-19-81.
¶4. We note at the outset that Reed failed to present this objection to his sentencing as a
habitual offender to the trial court. “When an accused fails to object to the habitual offender
issue during the sentencing phase, he is procedurally barred to do so the first time on appeal.”
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Heidelberg v. State, 45 So. 3d 730, 732 (¶6) (Miss. Ct. App. 2010); see also Vanwey v. State,
149 So. 3d 1023, 1024 (¶3) (Miss. 2014).
¶5. Notwithstanding the procedural bar, we find no merit to Reed’s argument. The trial
court’s revocation order clearly referred back to the original nonadjudication order when it
stated that Reed would “return” to “post-release supervision.” The nonadjudication order
specified a supervision period of one year. Although it is not clear how much supervision
time Reed had remaining at the time the sentence was imposed, that is immaterial; when it
is credited to the sentence, time served prior to the conviction is counted in determining
whether a sentence was for more than one year for the purposes of the habitual offender
statutes. See Feazell v. State, 761 So. 2d 140, 141-43 (¶¶7-11, 14) (Miss. 2000). Moreover,
for section 99-19-81, it is the length of the sentence that controls, not how much of it is
actually served. See Jackson v. State, 381 So. 2d 1040, 1042 (Miss. 1980).
¶6. Reed’s claim that he was improperly sentenced as a habitual offender is procedurally
barred and without merit.
¶7. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY OF
CONVICTION OF GRAND LARCENY AND SENTENCE AS A HABITUAL
OFFENDER OF FIVE YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, WITHOUT THE BENEFIT OF PROBATION,
PAROLE, OR ANY FORM OF EARLY RELEASE, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO FORREST COUNTY.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, JAMES
AND WILSON, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
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