Opinions – Miss. Ct. App. June 3, 2014

Jane asked me to cover today’s handdown as she serves as a poll watcher. Make sure you go vote today!

Wilson v. State of Mississippi: Straightforward and simple rejection of the “weight of the evidence” challenge. Allow me to editorialize for a moment, and point out that the Court of Appeals seems to systematically ignore the Supreme Court’s command in Bush that a challenge to the weight of the evidence is significantly easier to meet than sufficiency of the evidence. I have yet to see the Court of Appeals cite to Bush‘s “thirteenth juror” standard for challenges to the weight of the evidence, even though the Supreme Court made a point of overruling all authority that applied the “all evidence accepted as true” standard for challenges to weight. It’s troubling.

Harmon v. Harmon: Courtney Harmon appealed the grant of a habitual cruelty divorce. The chancellor found that Courtney had engaged in degrading sexual behavior (accusations of infidelity, sexual name-calling, and “degrading sexual comments about her anatomy and terrible false claims about her”), habitual cursing and yelling, habitual gambling (to the tune of $500 to $1000 dollars per month lost), jealousy, and stalking. The Court of Appeals found the “pattern of behavior sufficiently revolting” to justify an HCIT divorce. Courtney also challenges the property division. The Court of Appeals acknowledges that the chancellor classified their “other” home (these people had two homes! I’ve got a mortgage and no home!) as Courtney’s separate property, and thus awarding their primary residence to Linda, his ex-wife, was not an equal property division. However, the fact-finding that the chancellor did on the parties’ contribution to the marital relationship demonstrated that this was an equitable property division.

Clack v. City of RidgelandDUI, lying cop, incompetent (if not worse) prosecutor and judges who rubberstamp every conviction because they are lifetime prosecutors – – Clack was convicted of DUI but not after his attorney fought hard to get all the discovery he needed. In vain since the officer here was Daniel Soto and the prosecutor in this case is incompetent. Clack asked for any video of the stop. Soto insisted that his police car was not equipped with a camera. After testimony was completed in County Court, the prosecutor announced that Ridgeland police cars did have such equipment but that it was unknown whether there was a video in this case. Then at the hearing on the motion for new trial, the prosecution admitted there was a video and that it was potentially exculpatory. The court nonetheless refused to grant a new trial.

Clack appealed. As usual, the prosecution failed to file a brief. The court ordered him to file a brief than fined him $500 for not doing so. The court (Judge Emfinger – lifelong prosecutor)nonetheless committed its own error and refused to grant relief even though the prosecution admitted that it had withheld potentially exculpatory evidence.

On appeal to the Supremes (here, the COA), the prosecutor again failed to file a brief. The Court of Appeals notes that this is the FOURTH TIME IN A YEAR that the prosecutor has failed to file a brief on appeal in the Court of Appeals. And, because the law is the law, it reverses and remands because of the OBVIOUS BRADY ERROR. Justice Ishee concurs but writes that he would render given the misconduct here. Am I (Jane) the only one fed up with this bullshit? The cop, the prosecutor, and two judges care nothing for the constitution. Thank you, COA, and especially Justice Ishee. People, especially lawyers, should be no less than outraged at stuff like this. It is happening way too much.

Bufkin v. Kingconditional sentences – Bufkin was convicted of possession of precursors and sentenced to 12 years. However, two were in the Intensive Supervision Program, with post release supervision for nine years with 5 of those supervised. A month into the ISP Bufkin got a DUI and was found to have alcohol in his home. He was taken off ISP and ordered to serve the rest of his sentence. Bufkin appealed the revocation to MDOC and lost. He then appealed to the Circuit Court and amended his complaint to ask for an evidentiary hearing and the results of the blood tests. The Circuit Court upheld the revocation and did not address Bufkin’s other issues includingthe legality of the sentence imposed. On appeal, the Ct. of Appeals finds that MDOC had a substantial basis for revoking Bufkin’s IFP status. However, the issues regarding his sentence were not so easily disposed of. First of all, Bufkin was convicted in Jasper County. He sued in Greene County (the location of the prison wherein he is serving his time). The State admitted in its brief that Bufkin’s claim regarding the length of the sentence he was to serve on revocation needed to be remanded to Greene County so that it could transfer the case to Jasper County. The Ct of Appeals held that the appeal to Greene County of the revocation was proper because Bufkin was pursuing an appeal from an administrative remedy. However as to the length of the sentence Bufkin was to serve (Bufkin argued that MDOC could require him to serve no more than the two years that was the length of the ISP) – this was a conditional sentence that has been the subject of much debate in Ivory v. State, 999 So.2d 420 (Miss. App. 2009).
In Johnson v. State, 77 So.3d 1152 (Miss.App. 2012), the court sentenced Eldridge Johnson to ten years in custody with two to be served in the ISP and upon successful completion of the the ISP, the remaining eight years to be suspended. The majority held that the sentencing court would have to afford Johnson a revocation hearing at the conclusion of the two year period (whether served in ISP or in custody after violating ISP), to determine whether he had violated the eight-year suspended sentence portion of his sentence.

Here, despite the state’s request that the case be remanded, the Miss.S.Ct. has stated that the sentencing court has original and exclusive jurisdiction to considfer the legality of the sentence in a PCR proceeding. Therefore, the Court vacates in part without prejudice for Bufkin to file a pcr motion asserting that the non-suspended portion of his sentence has expired or the state can file if it wishes to pursue the revocation of Bufkin’s suspended sentence.

In Ivory, Annie Ivory was sentenced to 15 years with one year in ISP and, upon successful completion of ISP, the remaining years to be suspended with four of those to be served under post release supervision. After violating the terms of the ISP, she was remanded to serve the rest of her sentence. On appeal the Court upheld her sentence but only because the ISP term was one year and the court had retained jurisdiction for one year to suspend the sentence on successful completion of the ISP. A separate opinion in that case argued that the sentence’s provision that Ivory be placed on post release supervision without further order of the court violated MCA Sect. 47-5-1003 which states that ISP cannot be a condition of post release supervision. And in Jones v. State, 97 So.3d 1254, 1258 (MissApp. 2012) the Court held that the circuit court could not impose this type of conditional sentence.

In Johnson v. State, 77 So.3d 1152 (Miss.App. 2012), the court sentenced Eldridge Johnson to ten years in custody with two to be served in the ISP and upon successful completion of the the ISP, the remaining eight years to be suspended. The majority held that the sentencing court would have to afford Johnson a revocation hearing at the conclusion of the two year period (whether served in ISP or in custody after violating ISP), the circuit court would have to have a revocation hearing to determine whether he had violated the eight-year suspended sentence portion of his sentence.

Here, despite the state’s request that the case be remanded, the Miss.S.Ct. has stated that the sentencing court has original and exclusive jurisdiction to consider the legality of the sentence in a PCR proceeding. Therefore, the Court vacates in part without prejudice for Bufkin to file a pcr motion asserting that the non-suspended portion of his sentence has expired or the state can file if it wishes to pursue the revocation of Bufkin’s suspended sentence.

3 thoughts on “Opinions – Miss. Ct. App. June 3, 2014

  1. You are not the only one outraged. As someone who has sued and defended law enforcement, there was/is no reasonable explanation for continuing this prosecution. Soto’s conduct is disappointing enough, but that it went to the COA before the accused can get a “measure” of justice is disgusting. The criminal justice system should not exist to rubber stamp, especially in light of fundamental constitutional violations.

    No one expects perfection, but surely the Founding Fathers (who weren’t perfect) intended something more than a lying police officer and missing evidence.

  2. Same as in the Yarbrough case I won three weeks ago. SHOULD NEVER HAVE HAD TO BE APPEALED. But that’s what happens when the trial judge is a lifelong prosecutor who has no problem making misrepresentations to the jury to get a death sentence as Judge James Kitchens (Lowndes County) did in Quintez Hodges. And I’m supposed to respect this person because they got elected to a job for which they are clearly unfit? And even though we live in a free country, lawyers can’t speak out about terrible judges because those same judges pretty much have carte blanche to treat lawyers any way they want to.

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