Harris v. State

99 So. 3d 198, 2011 WL 5027185, 2011 Miss. App. LEXIS 598
Court of Appeals of Mississippi·Decided October 4, 2011·No. No. 2010-KA-00676-COA·Published·Cited by 1 cases

Opinion

IRVING, P.J.,

for the Court:

¶ 1. On April 8, 2010, Charles Harris was convicted of aggravated assault and possession of a firearm by a convicted felon. The Washington County Circuit Court sentenced him to twenty years for aggravated assault. The circuit court then imposed a ten-year sentence enhancement under Mississippi Code Annotated section 97-37-37(2) (Supp.2011) for the use or display of a firearm by a convicted felon during the commission of the aggravated assault. The circuit court also sentenced Harris to ten years for possession of a firearm by a convicted felon.1 The ten-year sentence enhancement was to run consecutively to the sentence for aggravated assault, and the sentence for possession of a firearm by a convicted felon was to run consecutively to the ten-year sentence enhancement, all to be served, without eligibility for parole or probation, in the custody of the Mississippi Department of Corrections.

¶ 2. Feeling aggrieved, Harris appeals and argues that: (1) he received an illegal sentence; (2) the circuit court erred in limiting his cross-examination of Dr. Michael Merrell; and (3) the introduction of the specific nature of his prior convictions, despite a valid stipulation, constituted reversible error.

¶ 3. Finding no reversible error, we affirm.

FACTS

¶ 4. On May 28, 2008, Harris allegedly shot Mershelda Johnson six times. Johnson testified that on the day of the shooting, she was standing on the street when Harris drove by in his car. Johnson stopped Harris and asked if he would sell her some crack cocaine. According to Johnson, Harris said that he would and told her to get into his car so that they could drive a few blocks to avoid detection by the police. Johnson testified that Harris drove to a levee near the Lighthouse Point Casino in Greenville, Mississippi. Once there, Harris allegedly gave Johnson some crack cocaine, which she smoked. Johnson testified that she offered to pay Harris for the crack, but he requested sex [201]*201instead. Johnson refused, and she asked Harris to take her back to the street where he had picked her up. According to Johnson, Harris told her to get out of the car. As Johnson exited the car, she told Harris that she planned to call the police and tell them that he had drugs. Johnson also threatened to call Harris’s wife and tell her that Harris had propositioned her for sex. Johnson testified that as she started to walk away, she heard a gunshot, and the next thing she remembered was waking up in the hospital.

¶ 5. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

1. Illegal Sentence

¶ 6. Harris argues that the ten-year sentence imposed under section 97-37-37(2)2 is illegal. He specifically argues that section 97-37-37(2) is inapplicable because “a greater minimum sentence [is] otherwise provided for by [another] provision of law....” Harris contends that his habitual-offender status provided for a “greater minimum sentence” because it required that he receive the maximum sentence for aggravated assault-twenty years.2 Additionally, Harris argues that the sentence

constitutes double jeopardy because he received separate sentences for possession of a firearm by a convicted felon under Mississippi Code Annotated section 97-37-5 (Supp.2011) and for the use or display of a firearm during the commission of a felony under section 97-37-37(2).

¶ 7. Harris did not challenge the legality of his sentence at trial; therefore, he “must rely on plain error to raise the issue on appeal, because otherwise it is procedurally barred.” Parker v. State, 30 So.3d 1222, 1227 (¶ 14) (Miss.2010) (citing Walker v. State, 913 So.2d 198, 216 (¶45) (Miss.2005)). “Plain error exists where such error affects the defendant’s substantive/fundamental rights, even though no objection was made at trial.” Id. The Mississippi Supreme Court has held that the right to be free from an illegal sentence is a fundamental right. Sneed v. State, 722 So.2d 1255, 1257 (¶11) (Miss.1998). Because Harris claims that his sentence is illegal, we will review the issue under the plain-error doctrine.

¶ 8. Having determined that the legality of Harris’s sentence may be reviewed under the plain-error doctrine, we must next determine our standard of review. Underlying Harris’s challenge to the legality of his sentence is a challenge to the circuit court’s interpretation of sec[202]*202tion 97-37-87(2). An appellate court reviews the interpretation of statutes de novo. Gilmer v. State, 955 So.2d 829, 833 (¶ 9) (Miss.2007).

¶ 9. In Mayers v. State, 42 So.3d 33, 45 (¶ 48) (Miss.Ct.App.2010), Kirk Mayers argued that the circuit court erroneously enhanced his sentence under section 97-37-37(2). Mayers was convicted of two counts of aggravated assault on law-enforcement officers, possession of a stolen firearm, and possession of a firearm by a convicted felon. Id. at 36 (¶ 1). Mayers’s sentences for aggravated assault were enhanced under section 97-37-37(2). Id. On appeal, Mayers argued “that the statute under which his sentences for aggravated assault were enhanced [did] not apply.” Id. at 45 (¶48). This Court declined to address Mayers’s argument that section 97-37-37(2) was inapplicable. Id. Instead, we held that Mayers’s sentence was illegal because “section 97-37-37(2) did not become effective until after the crime occurred.” Id. at (¶47). Accordingly, we vacated the sentence enhancements ordered under section 97-37-37(2) and remanded the case for the purpose of resen-tencing under section 97-37-37(1),3 which was in effect at the time of Mayers’s crimes. Id.

¶ 10. While neither this Court nor our supreme court has addressed the issue of whether a defendant sentenced as a habitual offender may also be sentenced under section 97-37-37(2), the United States Supreme Court has addressed the issue in the context of the federal firearm-enhancement statute, upon which section 97-37-37(2) is modeled. See Abbott v. United States, — U.S. -, 131 S.Ct. 18, 178 L.Ed.2d 348 (2010). In Abbott, the Court considered whether defendants who were subject to a mandatory minimum sentence under the Armed Career Criminal Act (ACCA)4 could also be subjected to a firearm enhancement. Id. at 23. The federal firearm-enhancement statute provides:

Except to the extent that a greater minimum sentence is otherwise provided by this subsection or by any other provision of law, any person who, during and in relation to any crime of violence or drug trafficking crime (including a crime of violence or drug trafficking crime that provides for an enhanced punishment if committed by the use of a deadly or dangerous weapon or device) for which the person may be prosecuted in a court of the United States, uses or carries a firearm, or who, in furtherance of any such crime, possesses a firearm, shall, in addition to the punishment provided for such crime of violence or drug trafficking crime—
[203]*203(i) be sentenced to a term of imprisonment of not less than 5 years;
(ii) if the firearm is brandished, be sentenced to a term of imprisonment of not less than 7 years; and

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Harris v. State, 99 So. 3d 198, 2011 WL 5027185, 2011 Miss. App. LEXIS 598 (Mich. Ct. App. 2011).

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