Decisions – COA – March 22, 2016

Jeremy Todd Cooper v. Laquitta Necolle Higgins –  custody modificationCooper filed to a pro se petition to modify custody of his 12 year old son who is on the autism spectrum.  THe chancellor found that Cooper failed to show a material change in circumstances.  The COA affirms.

Dillon Williams v. State –  sentencing enhancement – Williams burglarized the home of a 91 year old woman and also assaulted her.  He also burglarized the house of the woman’s son.  Williams was charged with burglary (Count 1), burglary under circumstances likely to terrorize the victim (Count 2)  and aggravated assault (Count 3). He pleaded guilty to counts two and three.  He was sentenced to 25 for the burglary and 20  years for aggravated assault. The judge then found that both  charges carried the possibility of an enhancement of up to twice the sentence otherwise authorized, and he applied the enhancement to the aggravated assault sentence, increasing it to forty years’ imprisonment. The judge ordered the sentences to run consecutively for a total sentence of sixty-five years’ imprisonment. In his third pcr, Williams claims the sentence is illegal. The Court finds the issue procedurally barred and without merit.

Given the unique procedure set out in section 99-19-355, it would have been better for the circuit judge to confirm specifically on the record that Williams did not want a sentencing jury. But this omission does not render Williams’s sentence “illegal.” The sentence itself is legal because does not “exceed[] the maximum statutory penalty for the 7 crime.” Foster, 148 So. 3d at 1016 (¶12) (quoting Grayer, 120 So. 3d at 969 (¶16)). Williams only challenges the procedure under which his legal sentence was imposed. That claim is procedurally barred because Williams sat through his plea hearing and, a month later, his sentencing hearing without ever mentioning a sentencing jury. See Miss. Code Ann. § 99-39-21(1). It is also barred because he failed to raise the issue in either of his first two PCR motions. See id. § 99-39-23(6). Accordingly, the circuit court properly denied Williams’s third PCR motion.

Timothy Allen v. State –  receiving stolen goods – Allen was convicted of receiving stolen property.  On appeal he argues he was denied a proper alibi defense.  The Court notes that he failed to object at trial. The court gave an instruction to the jury that the state need not disprove an alibi defense.  This instruction was proper and did not shift the burden of proof inasmuch as other instructions stated the burden of proof.   He next objects to Instruction S-4 which stated that  “proof that a defendant stole the property that  is the subject of the charge against him, or her, shall be prima facie evidence that the defendant had knowledge that the property was stolen.”  The court notes that the instruction was not wrong and other instructions set forth the elements of receiving stolen goods.  Allen argues that his attorney was ineffective in failing to object to these instructions.  The COA rejects that argument. Finally he claims it was error to convict him for receipt of stolen goods worth more than $500 when after the crime was committed the legislature changed the minimum to $1000.  The COA also finds this was not error. “Accordingly, in general, the version of the statute in effect at the time an offense is committed will continue to control the defendant’s prosecution and his punishment.”

Pro se PCR appeals affirmed:

Tommy Meisner v. State

 

 

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