Opinion
No. 2002-KP-00403-COA.
November 4, 2003. Rehearing Filed November 18, 2003. Petition for Rehearing filed September 6, 2005
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. LEE J. HOWARD, DATE OF TRIAL COURT JUDGMENT: 1/30/2002
DISPOSITION: DISMISSED WITHOUT PREJUDICE
ATTORNEY FOR APPELLANT: ROBERT K. FOWLER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY: FORREST ALLGOOD
BEFORE MCMILLIN, C.J., THOMAS AND CHANDLER, JJ.
¶ Robert K. Fowler entered guilty pleas to charges of attempted murder and armed robbery. He seeks to perfect a direct appeal from those pleas. Finding that this Court has no jurisdiction, we dismiss this appeal.
STATEMENT OF THE CASE
¶ The record in this case is far from complete. It appears that Fowler initially entered a single guilty plea to armed robbery. However, Fowler was incorrectly advised by counsel that he would be eligible for parole after serving ten years of a fifteen year sentence. Consequently, Fowler pursued post-conviction relief in the circuit court. The circuit court granted post-conviction relief and set aside the initial guilty plea. Subsequently, different counsel was appointed, and Fowler entered the two guilty pleas at issue in the present action. The circuit court sentenced him to ten years' confinement for attempted murder, and twenty-two years for armed robbery, with the sentences to run concurrently.
DISCUSSION
¶ The substance of Fowler's argument is that it was unfair for the circuit court to impose a harsher sentence upon his second entry of guilty pleas than it had entered upon his initial guilty plea. Moreover, he asserts that the State violated some unspecified legal principle in telling him that he would receive only one plea offer, and that was to serve thirteen years and eight months. The substance of this argument is that he was told by his initial counsel that he would only serve ten years, yet after prevailing in his post-conviction relief action, the State then only offered to recommend the longer term of thirteen years and eight months. He asserts that both the circuit court and district attorney were motivated by vindictiveness resulting from his successful post-conviction relief attack on the initial guilty plea.
¶ Mississippi Code Annotated Section 99-35-101 (Rev. 2000) precludes a direct appeal in a case where a guilty plea is entered. See also Miller v. State, 794 So.2d 1065 (¶ 6) (Miss.Ct.App. 2001). Where a direct appeal challenges the legality of a sentence, an appellate court may assert jurisdiction. Trotter v. State, 554 So.2d 313, 314 (Miss. 1989). In this case, however, Fowler's contentions go to whether the plea was obtained involuntarily and in violation of constitutional rights. These issues are not addressable on direct appeal, and are subject to redress only under Mississippi's Uniform Post-Conviction Collateral Relief Act. Miss. Code Ann. §§ 99-39-1 through 99-39-29 (Rev. 2000). Therefore, this appeal is dismissed for lack of jurisdiction, without prejudice as to the merits of the issues Fowler may seek to raise through a petition for post-conviction relief.
¶ THIS APPEAL IS DISMISSED WITHOUT PREJUDICE. ALL COSTS OF THIS APPEAL ARE TAXED TO OKTIBBEHA COUNTY. McMILLIN, C.J., BRIDGES, THOMAS, LEE, AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING AND SOUTHWICK, P. JJ. MYERS, J., NOT PARTICIPATING.
¶ With respect for the majority, I must dissent from its characterization of the nature of Fowler's appeal, as well as the result it reaches today.
¶ Fowler was indicted for armed robbery and attempted murder. He entered into a plea agreement with the State which provided that he would plead guilty to armed robbery and that the State would pass the attempted murder charge to the files and recommend a sentence of fifteen years for the armed robbery. The trial court accepted Fowler's guilty plea and the sentence recommendation from the State. Thereafter, Fowler contended that he had been told by his lawyer that Fowler would have to serve only ten of the fifteen years before being eligible for parole.
¶ Fowler discovered that he had been given erroneous information regarding his eligibility for parole and filed a petition for post-conviction collateral relief in which he sought to set the plea aside because of this erroneous information. The trial judge granted the petition and set aside the plea and sentence.
¶ After Fowler's plea and sentence had been vacated, the State retrieved the attempted murder charge from the files and prepared to try Fowler on both charges, that is, the armed robbery, as well as the attempted murder. Fowler, without the benefit of a plea agreement with the State, decided to plead guilty to both charges. The trial court accepted his pleas and sentenced him to twenty-two years for the armed robbery and ten years for the attempted murder, with the sentences to run concurrently. Contending that the sentences were the result of vindictiveness, Fowler prosecuted this appeal.
¶ The majority, citing a statutory provision which prohibits a direct appeal from a plea of guilty, dismisses Fowler's appeal for lack of jurisdiction. However, the majority acknowledges that a defendant may challenge an illegal sentence in a direct appeal. Notwithstanding the fact that a defendant may appeal an illegal sentence, the majority — finding that "Fowler's contentions go to whether the plea was obtained involuntarily and in violation of constitutional rights"- refuses to decide Fowler's appeal on the merits.
¶ For several reasons, I am perplexed by the majority's characterization of the nature of Fowler's appeal. I explain my consternation in the paragraphs that follow.
¶ First, the nature of Fowler's appeal is succinctly stated in the caption of his notice of appeal entitled "Notice of Appeal of Sentence." Moreover, the contents of the notice of appeal leave no doubt regarding the nature of the appeal. In the body of the notice, Fowler wrote:
By this notice, Robert K. Fowler appeals to the Supreme Court of Mississippi against the State of Mississippi from the sentence entered in this case on January 30, 2002, by order entered on January 31, 2002.
¶ Second, while Fowler does not have a statement of the issues section in his pro se brief, what he says in the table of contents is instructive. In the table of contents, following the "Statement of the Argument," Fowler states the following which I quote verbatim:
I. Whether the trial court erred in sentencing Appellant to a harsher sentence than before, after Appellant had his original conviction and sentence set aside?
II. Whether the Court's actions in sentencing displayed vindictiveness?
¶ Third, in the conclusion portion of his brief, Fowler states the following:
Surely, this Honorable Court will see the display of vindictiveness by the Honorable Judge Lee Howard and the injustice done against petitioner and that the sentence imposed by the lower court is in need of reduction in order for justice to prevail. Petitioner wishes that upon any relief that may be granted, that this Honorable Court have the Honorable Judge Lee Howard recused and therefore play no part in resentencing proceedings that take place involving petitioner Robert Fowler.
¶ Fourth, in his argument, Fowler cites several cases which address the issue of whether a harsher sentence may be given, on retrial, to a defendant who has successfully pursued post-trial relief. There is but one conclusion to be drawn from the facts related in the preceding paragraph: Fowler's appeal attacks the legality of his sentence and not the voluntariness of his plea of guilty. Therefore, it is my belief that the majority errs gravely in not addressing Fowler's appeal on the merits. Since I believe this Court has jurisdiction to address Fowler's appeal on the merits, I do so in the discussion which follows.
¶ One of the cases cited by Fowler in the argument portion of his brief is Ross v. State, 480 So.2d 1157 (Miss. 1985). This case appears to be almost directly on point with Fowler's situation. The operative facts in Ross are these:
Willie James Ross was indicted and convicted in the Circuit Court of DeSoto County, Mississippi of robbery. He was sentenced to a term of ten years; however, his motion for a new trial was granted. Ross was retried, with a different judge presiding, reconvicted, and sentenced to twelve years, out of the maximum of fifteen, in the custody of the Department of Corrections.
Id. at 1158. On appeal, Ross argued, inter alia, that the trial court erred in sentencing him to twelve years, two years more than the previous sentence which had been vacated. Id. at 1159.
¶ The Mississippi Supreme Court agreed with Ross's contention, reversed and rendered the twelve-year sentence, and ordered a sentence of ten years substituted. Id. at 1161. In reversing and rendering Ross's new sentence, the Ross court also made and issued the following pronouncements and guidelines:
1. The imposition of a harsher sentence by a judge following a new trial and conviction for the same charge is not violative of the federal, or Mississippi's, Constitution. (citations omitted).
2. Due process of law does require that vindictiveness against a defendant for having successfully attacked his first conviction play no part in the sentence he receives after a new trial.
3. Due process also requires that a defendant be freed of apprehension of such a retaliatory motivation on the part of the sentencing judge.
4. In order to assure that it may be determined on appeal whether such a motive was absent, the following must occur:
(a) The judge must affirmatively state in the record his reasons for the harsher sentence.
(b) The reasons must be based upon objective information concerning identifiable conduct on the part of the defendant which occurred after the time of the original sentencing proceeding, or based upon objective information concerning events which occurred after the time of the original sentencing proceeding that may have thrown new light upon the defendant's life, health, habits, conduct, or mental and moral propensities.
(c) The factual data upon which the increased sentence is based must be made a part of the record.
(d) This information and data upon which the judge bases his sentence may come to the judge's attention from evidence adduced at the second trial itself, from a new presentencing investigation, from the defendant's prison record, or possibly from other sources.
Id. at 1160-61.
¶ The record in this case reflects that the trial judge failed to comply with the Ross guidelines. He offered no explanation for the seven-year increase in the sentence for the armed robbery conviction. The following exchange occurred at the sentencing hearing:
BY THE COURT: Was there any recommendation that the State desired to make as to a sentence to be imposed in this case?
BY MR. KITCHENS: Your Honor, my recollection of this is that it was an open plea. I don't think the, uh — I don't think the offer that the State made was, uh, one that the defense wanted to accept.
BY THE COURT: I think the State made several offers, but was there anything that you wanted to present by way of aggravation or mitigation or any statement that you wanted to make as far as sentencing is concerned.
BY MR. KITCHENS: Your Honor, the victim had indicated to us that he would — that he thought that twenty-five years in the department of corrections would be an acceptable sentence. This was the young man that had the gun pointed at him and, uh —
BY THE COURT: How long have you already been in prison?
A. Five years, sir.
BY MR. WILLIAMSON: Your Honor, something for the record as well, there are some letters that my client asked that the Court —
BY THE COURT: There are.
BY MR. WILLIAMSON: — review and take into consideration from, uh, friends and family members of his and, uh, just for the record as well, your Honor, in your rendition of the history of this file the lawyer that earlier was involved in this case —
BY THE COURT: Was not you.
* * * *
BY THE COURT: But in any event, Mr. Fowler has now pled guilty to armed robbery and attempted murder. It becomes incumbent on the Court to sentence this defendant. Whatever sentence I sentence him to, he of course is going to get credit against that sentence. Do you understand that?
A. Yes, sir.
BY THE COURT: Now, the most culpable defendant is the one with the firearm and the one that tried to kill the clerk, but there is culpability for all that join in this illegal act. The sentence of the law is in Count 1 which is the count of armed robbery that you be sentenced to serve a term of twenty-two years in the Mississippi Department of Corrections. In Count 2 the sentence of the law is that you be sentenced to serve a term of ten years in the Mississippi Department of Corrections, and these sentences are to run concurrently. You are to be given credit for the time you've already served. You may have a seat.
¶ Since the trial judge failed to offer any reasons for the harsher sentence — based upon objective information concerning identifiable conduct or events involving Fowler which occurred after the time of the original sentencing proceeding that may have thrown new light upon Fowler's life, health, habits, conduct, or mental and moral propensities — the harsher sentence, under the authority of Ross, should not be allowed to stand. Consequently, I would follow the approach of the Ross court and order that Fowler's armed robbery sentence be changed to fifteen years, the initial sentence that was given him for this charge. I find nothing improper about the ten-year sentence given for the attempted murder conviction. Therefore, I would not disturb it.