Hampton v. State

148 So. 3d 992, 2014 Miss. LEXIS 513, 2014 WL 5285643
CourtMississippi Supreme Court
DecidedOctober 16, 2014
DocketNo. 2011-CT-01641-SCT
StatusPublished
Cited by29 cases

This text of 148 So. 3d 992 (Hampton v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hampton v. State, 148 So. 3d 992, 2014 Miss. LEXIS 513, 2014 WL 5285643 (Mich. 2014).

Opinions

ON WRIT OF CERTIORARI

RANDOLPH, Presiding Justice,

for the Court:

¶ 1. Tommy Hampton was sentenced to twenty years after his conviction of armed robbery as a habitual offender. Hampton appeals his sentence. Finding no error, we affirm.

FACTS AND PROCEEDINGS BELOW

¶ 2. Hampton was indicted for the “... tak[ing] of ... $2,190.00 ... by violence to [the victim’s] person by the exhibition of a deadly weapon ...” and “having been previously convicted of at least two (2) felony offenses ..., and having been sentenced to serve at least one (1) year with a state or federal penal institution....”1 The jury found the defendant guilty of robbery by use of a deadly weapon and was not instructed to recommend a sentence.

¶ 3. At his sentencing hearing, the State presented evidence that Hampton previously had been convicted of possession of cocaine and of burglary of a dwelling (twice) and the State had sought an enhanced sentence.2 The defendant offered evidence that he was sixty-three years old and an alcoholic. No actuarial, mortality, or life-expectancy tables were offered by Hampton.

¶ 4. The trial judge sentenced Hampton to twenty years as a habitual offender per Section 99-19-81 of the Mississippi Code, absent objection, and credited him with 199 days for time served.3 Hampton filed a motion for a new trial and/or judgment notwithstanding the verdict (JNOV) arguing, inter alia, that “the sentence ... is unreasonable, harsh and not in conformity with the applicable facts and law, and is inequitable and unjust to this Defendant.” Once again, Hampton presented no actuarial, mortality, or life-expectancy tables to the trial judge and offered no argument that the failure of the trial court to consid[995]*995er same was error. The motion was denied.

¶ 5. On appeal to the Court of Appeals,4 Hampton raised, for the first time, that his sentence exceeded his life expectancy. The Court of Appeals held that Hampton’s claim was procedurally barred, based on his failure to raise the issue before the trial court. Notwithstanding the bar, the Court of Appeals found that his sentence did not amount to a life sentence. We granted Hampton’s petition for certiorari and limit our review to the issue presented on appeal, verbatim et literatim:

Whether the trial court erred in sentencing Hampton to a sentence of twenty (20) years when such a length equates to a life sentence, which could have only been imposed by the jury.

ANALYSIS

¶ 6. Despite making no objection before the trial court and presenting no tables of estimates, publications, or argument related to life expectancy, Hampton belatedly argues that his sentence should be vacated because his sentence equates to a life sentence. Hampton asks this Court to consider life-expectancy estimates, studies, and argument never presented at the trial level. Hampton urges this Court to consider matters outside the record. The State responds that Hampton’s claim is barred, as no objection was presented to the trial court.

¶ 7. This Court declines to consider matters which were never presented or argued in the trial court and are not part of the record before us today.

This Court will not consider matters that do not appear in the record, and it must confine its review to what appears in the record. Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995) (citing Dillon v. State, 641 So.2d 1223, 1226 (Miss.1994)). Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record. Robinson, 662 So.2d at 1104 (citing Ross v. State, 603 So.2d 857, 861 (Miss.1992)).

Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001). “This Court has long held that it cannot consider that which is not in the record.” Stone v. State, 94 So.3d 1078, 1082 (Miss.2012) (citing State v. Cummings, 203 Miss. 583, 591, 35 So.2d 636, 639 (Miss.1948) (citations omitted) (“[b]e-ing an appellate court, we take the record as it comes to us, and receive no new evidence here.”), reh’g denied (Aug. 23, 2012); Pratt v. Sessums, 989 So.2d 308, 309-10 (Miss.2008) (citation omitted) (“[w]e cannot consider evidence that is not in the record.”)). As recently as September 18, 2014, a unanimous Court refused to consider an order which was not part of the record, stating that it would not consider as part of its analysis any information outside the record, even though it appeared that the Court of Appeals considered the order. Shumake v. Shumake, 147 So.3d 352, 355 ¶8, n. 1 (Miss.2014) (citing Hardy v. Brock, 826 So.2d 71, 76 (Miss.2002) (“Mississippi appellate courts may not consider information that is outside the record.”)). In arguing that his sentence exceeds his estimated life expectancy, Hampton has unequivocally gone outside the record. Considering “evidence” not presented to the trial court, the dissent relies on matters outside the record. Neither of the reports or studies referred to by Hampton in his brief, nor the arguments first presented on appeal, will be considered, as neither was presented to the trial court below, and any analy[996]*996sis of these new issues comes solely from matters not in the record before us.

¶ 8. “A contemporaneous objection must be made at trial in order to preserve an issue for appeal.” Cox v. State, 793 So.2d 591, 599 (Miss.2001) (citing Smith v. State, 530 So.2d 155, 162 (Miss.1988)). “Errors related to improper sentencing are procedurally barred if no objection is made at trial.” Hughes v. State, 983 So.2d 270, 282 (Miss.2008) (citations omitted); Hobgood v. State, 926 So.2d 847, 857 (Miss.2006); Cox, 793 So.2d at 599. In Cox, this Court held that when the defendant failed to object before the trial court that his thirty-year sentence for armed robbery “amount[ed] to” a life sentence, he was barred from doing so on appeal. Cox, 793 So.2d at 598-599. Additionally, “[a] trial judge will not be found in error on a matter not presented to him for decision.” Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995); see also Jones v. State, 606 So.2d 1051, 1058 (Miss.1992); Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988); Ponder v. State, 335 So.2d 885, 886 (Miss.1976). The Court of Appeals recognized the bar in Long v. State, 982 So.2d 1042, 1045 (Miss.Ct.App. 2008), holding that a sixty-four-year-old defendant who had failed to object before the trial court that his sentence “amounted to” a life sentence was procedurally barred from raising the issue at the appellate level.

¶ 9. The trial judge was never afforded the opportunity to consider the merits vel non of that issue. Faithful application of our precedent mandates that Hampton’s claim of error be denied, not having been preserved for appeal.

¶ 10. This Court does recognize that there are exceptions to a procedural bar for errors affecting certain constitutional rights. Rowland v. State, 98 So.3d 1032, 1036 (Miss.2012) (“we recognized that the State has neither the authority nor the right to subject a person to double jeopardy. We also have recognized exceptions to procedural bars for claims asserting illegal sentence and denial of due process at sentencing”).

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Cite This Page — Counsel Stack

Bluebook (online)
148 So. 3d 992, 2014 Miss. LEXIS 513, 2014 WL 5285643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hampton-v-state-miss-2014.