Tishunda Foster v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: May 4, 2021
• Docket: 2020-CP-00457-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2020-CP-00457-COA

TISHUNDA FOSTER APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 04/01/2020 TRIAL JUDGE: HON. PAUL S. FUNDERBURK COURT FROM WHICH APPEALED: LEE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: TISHUNDA FOSTER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MICHAEL DEWAYNE WILSON SR. NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 05/04/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD, McCARTY AND EMFINGER, JJ.

McCARTY, J., FOR THE COURT:

¶1. The petitioner in this appeal asks us to reduce or modify the sentence she received

after pleading guilty. Because the request came after the term of court in which the guilty

plea was entered and more than one year from the date she entered into the custody of the

Mississippi Department of Corrections, we affirm.

BACKGROUND

¶2. The facts and procedural posture of this case are not in dispute. On August 23, 2017,

Tishunda Foster plead guilty to possession of the controlled substance methamphetamine

with the intent to sell, transfer, or distribute. The trial court sentenced her to a term of thirty years in the custody of the Mississippi Department of Corrections. On the same day, the

petitioner also plead guilty to a second charge for possession of methamphetamine with the

intent to sell, transfer, or distribute. The trial court sentenced her to twenty years of

incarceration, to run consecutively to the above sentence, but suspended the imposition of

the second sentence subject to five years of post-release supervision.

¶3. The following year, on October 5, 2018, Foster petitioned the trial court for “Parole

Consideration, Reconsideration of Sentencing and/or Early Release.” The trial court noted

that the Mississippi Department of Corrections had set Foster’s date for parole eligibility as

September 24, 2024. The trial court denied the request, finding that it did not have the

authority to alter the date of parole and that the request to modify the sentence was untimely

pursuant to state law. Foster did not appeal this ruling.

¶4. On January 2, 2020, Foster again sought for the trial court “to reduce or modify [the]

sentence imposed” by her 2017 guilty plea. She supported her petition with several letters

from family members and a pastor, plus certificates she earned while incarcerated which

honored her completion of alcohol and drug treatment and other programs. Just as in its prior

order, the trial court denied the motion, finding that it was filed beyond the time provided by

state law. Foster appealed.

DISCUSSION

¶5. “Our review of motions to reconsider a sentence is made under an abuse-of-discretion

standard.” Ducote v. State, 970 So. 2d 1309, 1312 (¶6) (Miss. Ct. App. 2007). “Sentencing

is generally within the trial court’s discretion and will not be disturbed on appeal if the

2 sentence is within the statute’s terms.” Id.

¶6. “Longstanding authority holds once a case has been terminated and the term of court

ends, a circuit court is powerless to alter or vacate its judgment, in the absence of a statute

authorizing modification of a sentence.” Id. at 1313 (¶7) (cleaned up). Under state law, and

subject to certain exceptions, the circuit court may also sua sponte “suspend the further

execution of the sentence and place the defendant on earned probation” so long as this

decision is “not earlier than thirty (30) days nor later than one (1) year after the defendant has

been delivered to the custody” of the Mississippi Department of Corrections. Miss. Code

Ann. § 47-7-47(2)(a) (Rev. 2015).

¶7. In Ducote, a prisoner sought relief from the sentence he received after a guilty plea.

970 So. 2d at 1311 (¶1). However, the motion to reconsider his sentence was filed after the

term of court had ended, so the trial court denied it in part as untimely. Id. at 1311-12 (¶3).

We affirmed, concluding that “[t]he circuit court does not have jurisdiction to hear a motion

regarding sentencing unless it is made within the term of court, the motion is pending at the

end of the term under section 11-1-16, or the trial court retains jurisdiction pursuant to

section 47-7-47.” Id. at 1313 (¶8); see also Owens v. State, 17 So. 3d 628, 633 (¶10) (Miss.

Ct. App. 2009) (affirming when a “motion for reconsideration was filed untimely, as the term

of court had already expired”).

¶8. This case presents a similar situation as addressed in Ducote. Foster sought a

reduction or modification of her sentence after the term of court had ended. She plead guilty

on August 23, 2017, but the motion to reduce or modify her sentence was not filed until

3 January 2, 2020. This was after the term of court had ended and well after the statutory

maximum time limit of one year in which a trial court may “suspend the further execution

of the sentence and place the defendant on earned probation” pursuant to section

47-7-47(2)(a). Under our standard of review, the trial court did not abuse its discretion in

denying Foster’s request to reduce or modify her sentence.

¶9. To the extent Foster asks for parole eligibility, this relief is beyond the authority of the

court system to grant. For “it is the Parole Board, not the courts, that has exclusive authority

over the grant or denial of parole.” Smith v. State, No. 2018-CP-00814-COA, 2019 WL

3297052, at *1 (¶6) (Miss. Ct. App. July 23, 2019), reh’g denied (Oct. 29, 2019), cert.

denied, 289 So. 3d 310 (Miss. 2020). Even if she were currently eligible for parole,

“[e]ligibility for parole does not require the grant of parole . . . [as] an inmate is not

guaranteed parole, even when eligible.” Id. at *2 (¶9).

¶10. Accordingly, the trial court’s order denying relief is AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, LAWRENCE, SMITH AND EMFINGER, JJ., CONCUR. McDONALD, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.