Decisions – COA – June 2, 2015 – part 2

Kristoffer Hearron v. MDOC –  exhaustion of remedies of  prison grievances – Hearron was convicted of possession of cocaine with intent to distribute and sentenced as a habitual to thirty years.  “Since his incarceration,Hearron has filed numerous claims with the MDOC’s Administrative Remedy Program (ARP). ARP policy dictates that only ten claims or motions may sit pending at any one time.”   In 2013, he  filed multiple motions including a request for a TRO against MDOC. MDOC sent the motions back because  he already had nine pending motions. Hearron was told he could submit one of them but Hearron never did so. Aggrieved, Hearron filed a motion for a TRO against the MDOC in the Greene County Circuit Court. The circuit court dismissed Hearron’s motion for a TRO for lack of jurisdiction and ordered him to exhaust his administrative remedies before proceeding further.  Hearron filed the same in Jefferson County Circuit Court and that court also dismissed his claims. Hearron appeals. The COA affirms.

Nurdin and Adnan Aydin v. Marty Daniels Constructionstatute of repose –  Marty Daniels Construction LLC (collectively Daniels), built a custom home for a family  in Oxford.   During the building process, trees, shrubs, and dirt were removed from the property, thus creating a gully. The property owners instructed Daniels to take the materials that were removed for building purposes and deposit them into the gully as opposed to hauling the materials away. Several owners later, the Aydins owned the house.  In 2010  sinkholes began forming where the gully had been filled.  The Aydins  filed suit  claiming that Daniels  had fraudulently concealed the gully.  The circuit court granted Daniels’s request to dismiss on the grounds the action was time barred.  The COA affirms finding that the suit was filed a decade too late pursuant to the statute of repose, M.C.A. section 15- 1-41.

In the Matter of the Estate of Fred Forrest –  dismissal for failure to cite authority –  Fred was married to Diane but had four sons from prior relationships. When Fred died, Diane and the sons disagreed about the division of the estate but  reached a settlement while in court. Diane nonetheless appeals. The COA dismisses because Diane, representing herself, failed to cite any authority in her brief.

Patrick Deckard v. Lesa Deckard –  contempt for failure to pay child support –  Patrick and Lesa were divorced in  2003 after having three sons.   Lesa was awarded physical custody of the children with Patrick receiving visitation rights and paying  $1,200 per month in child support and  maintaining medical insurance on the children.  In 2013, Lesa filed a complaint for contempt claiming  Patrick owed her  $106,980 in past-due and unpaid child support; $7,197 in past-due medical bills; and $2,203.83 in past-due  pharmacy bills. Patrick filed a cross-complaint for modification arguing that the final judgment of divorce required that all three children be under Lesa’s care and control, but that Taylor moved in with his paternal  grandparents approximately one month after the divorce. As a result, Patrick requested that the pleadings be retroactively modified to the date that Taylor moved out of Lesa’s home to avoid unjustly enriching Lesa.  Patrick also asked to retroactively abate the child support to the date of the final judgment of divorce. Finally, Patrick requested that he be given credit for time that Sean lived with him and that Lesa pay Patrick child support for that time period as well.  The chancelllor denied Patrick’s requests finding that while Taylor was living with Patrick’s parents, Patrick gave them no money for his support. He also found Patrick in contempt for the past due child support and medicals.  The chancellor granted Lesa $500 is attorneys fees.  Lesa asks for another $250 on appeal.  The COA affirms and gives Lisa her extra $250.

Antonio Cooper v. State –  too many enhancements – Cooper was found guilty of agg. assault and felon in possession.  The trial court found he was an habitual and sentenced him  to 20 years for the agg. assault and ten years as felon in possession.  The court ordered that Cooper serve an additional ten years for displaying a firearm in the commission of armed robbery pursuant to MCA Sect. 97-37-37(2).  On appeal the state admits that it was error for the court to impose two enhanced sentences for the agg. assault conviction.  The COA agrees and reverses and renders Cooper’s ten year enhancement on the agg. assault conviction.

Both parties cite Harris v. State, 99 So. 3d 169 (Miss. 2012), as analogous. In Harris, a jury convicted the defendant of aggravated assault and possession of a firearm by a convicted felon. Id. at 171 (¶9). He had been charged under two sentence enhancements – as a habitual offender under section 99-19-81, and for use and display of a firearm during a felony under section 97-37-37(2). Id. at 170 (¶3). The trial court sentenced the defendant as a habitual offender to the maximum sentence of twenty years for aggravated assault, and ten years for possession of a firearm by a convicted felon. The trial judge sentenced the defendant to an additional ten years for the latter crime under the firearm enhancement. The Mississippi Supreme Court reversed this Court’s judgment on the sentencing issue, agreeing with the defendant that the additional ten-year sentence was in error because the mandatory twenty-year sentence for aggravated assault as a habitual offender carried “a greater minimum sentence” than the ten year firearm-enhancement sentence. Id. at 172, 174 (¶¶11, 13-14, 26).

We find the Harris analysis applicable here. The trial court was required to sentence  Cooper as a habitual offender to the maximum sentence of twenty years for aggravated assault; thus, section 99-19-81 provided a “greater minimum sentence” than the ten-year enhancement. Accordingly, the trial court erred in sentencing Cooper under 97-37-37(2). We therefore reverse and render the ten-year-enhancement portion ofJohnson’s sentence for the aggravated-assault conviction.

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