Lewis C. Ausbon, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-00760-COA
LEWIS C. AUSBON, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
4/18/2006
HON. THOMAS J. GARDNER, III
LEE COUNTY CIRCUIT COURT
LEWIS C. AUSBON, JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DISMISSED.
AFFIRMED - 6/26/2007
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Lewis Ausbon, Jr. appeals to this Court from the dismissal of his motion for post-conviction
relief by the Circuit Court of Lee County.
¶2.
In July 2003, Ausbon pled guilty to burglary of a dwelling and was sentenced to a twenty year
suspended sentence. The sentence was to run concurrent with the sentence Ausbon was already
serving in Pontotoc County.
¶3.
Ausbon was convicted of another burglary in Chickasaw County in February 2005, and his
suspended sentence was revoked. Upon revocation, Ausbon was ordered to serve twelve years in
the custody of the Mississippi Department of Corrections with the remaining eight years of his
twenty-year sentence suspended, conditioned on his adherence to five years of post-release
supervision.
¶4.
On appeal, Ausbon raises the following issues:
1.
The trial court imposed an illegal suspended sentence when that court suspended the
imposition of twenty (20) year sentence pursuant to Mississippi Code Annotated
section 47-7-33 (Rev. 2004) in cause no. CR00-150GL.
2.
The trial court erred when that court sentenced appellant on the charge of burglary
of a dwelling when the language of the indictment clearly did reflect the charge of
burglary of a non-dwelling, i.e., storage house, which only carried a maximum
sentence of ten (10) years.
3.
The trial court did exceed the twenty (20) year sentence during the revocation hearing
when that court imposed a sentence of twelve (12) years, eight years suspended and
five (5) years post-release supervised.
4.
Appellant’s plea of guilty was involuntarily given when trial counsel did
misrepresent the guilty plea in that trial counsel failed to provide the appellant with
adequate information prior to appellant entering his plea of guilty.
5.
Appellant’s plea of guilty was involuntarily given when trial counsel set forth an
improper inducement when the trial counsel stated that appellant would receive no
time if he would plead guilty and would only have to complete the remaining four (4)
year post-release supervision imposed in Pontotoc County in cause no. CR99-131.
The Court finds no merit to any of the appellant’s claims and affirms the decision of the circuit court.
FACTS AND PROCEDURAL HISTORY
¶5.
On July 9, 2003, Ausbon pled guilty to burglary of a dwelling house in the Circuit Court of
Lee County in cause number CR00-150GL. After questioning Ausbon on his understanding of the
charges against him and advising him of his constitutional rights being waived by pleading guilty,
the trial court found that his guilty plea was “voluntarily and understandingly entered.”
¶6.
Ausbon was sentenced to a twenty year suspended sentence to run concurrent with the
remainder of a Pontotoc County sentence–four years of post-release supervision–that he was serving
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at that time in cause number CR99-131. Ausbon was also fined $1,000 and ordered to pay restitution
and court costs.
¶7.
In February 2005, Ausbon was arrested in Chickasaw County for burglary of a dwelling.
Based on this charge, a petition to revoke his suspended sentence was filed. A hearing was held, and
the trial court found that Ausbon had violated the terms of his release. Ausbon’s suspended sentence
in cause number CR00-150GL was revoked, and he was sentenced to serve twelve years in the
custody of the Mississippi Department of Corrections, with eight years remaining suspended and five
years’ post-release supervision.
¶8.
On February 5, 2006, Ausbon filed a motion for post-conviction relief, seeking “clarification
of his sentence.” The motion was denied, and Ausbon appealed to this Court.
STANDARD OF REVIEW
¶9.
In reviewing a circuit court’s decision to deny a motion for post-conviction collateral relief,
we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v.
State, 926 So. 2d 233, 235 (¶2) (Miss. Ct. App. 2005). However, we review questions of law de
novo. Id.
DISCUSSION
¶10.
In his “Petition to Clarify Sentence” Ausbon argued that the court should “clarify my
sentence according to the plea I made with my attorney.” The petition made no other claims for
relief, and there was no additional evidence by exhibits or affidavits to support Ausbon’s argument.
¶11.
In denying his motion, the trial court noted that it could not reduce or modify a lawfully
imposed sentence after Ausbon has already begun to serve that sentence. The court also found that
Ausbon had violated the conditions of his post-release supervision and was sentenced accordingly.
The court found that the sentence was “unambiguous and lawfully imposed.”
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¶12.
On appeal, this Court is limited to those issues which have been raised and presented to the
trial court for review.
WAS AUSBON’S SENTENCE PROPERLY IMPOSED?
¶13.
In his argument to this Court, which is not the same as the argument to the trial court, Ausbon
suggests that the circuit court did not have the authority to impose a suspended sentence when he
was a convicted felon. The trial court suspended Ausbon’s twenty year sentence at the time he pled
guilty, and eight years of the sentence remained suspended after his revocation hearing.
¶14.
This question has been previously addressed by both this Court and the Mississippi Supreme
Court. As noted by the State, in Sweat v. State, 912 So. 2d 458, 461 (¶9) (Miss. 2005), there is no
prejudice when an inmate benefits from a sentence which is more lenient than that to which he is
entitled:
The Court of Appeals has recently held that there is no prejudice suffered when a
defendant receives an illegally lenient sentence. Edwards v. State, 839 So. 2d 578,
580-81 (Miss. Ct. App. 2003). Further, when the error benefits the defendant in the
form of a more lenient sentence, it is harmless error. Chancellor v. State, 809 So. 2d
700, 702 (Miss. Ct. App. 2001). The law which relieves defendants from the burden
of an illegal sentence applies to situations where the defendant is forced to suffer a
greater sentence rather than the luxury of a lesser sentence. Id.
¶15.
If Ausbon received a lesser sentence than that to which he would have been entitled under
the law, then he has suffered no prejudice and has been given this “luxury of a lesser sentence.”
There is no reversible error.
¶16.
Ausbon also claims that the twenty year sentence was exceeded by the court’s imposing,
upon revocation, twelve years, eight years suspended, and five years’ post-release supervision.
Apparently, Ausbon calculates this to be a twenty-five year sentence; however, the five years’ postrelease supervision does not count as part of the sentence. See Brown v. State, 872 So. 2d 96, 99 (¶¶
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10-11) (Miss. Ct. App. 2004). Therefore, the twelve years to serve plus eight years suspended totals
twenty years and does not exceed the original sentence.
AUSBON’S OTHER ASSIGNMENTS OF ERROR
¶17.
The other issues raised by Ausbon were not raised with the trial court. Issues not raised with
the trial court in a post-conviction relief motion cannot be raised for the first time on appeal to this
Court. Gardner v. State, 531 So. 2d 808-09 (Miss. 1988); Colburn v. State, 431 So. 2d 1111, 1114
(Miss. 1983). These issues are procedurally barred.
¶18.
Procedural bar notwithstanding, Ausbon argues that the indictment was flawed in that it did
not reflect burglary of an occupied dwelling. The indictment was not made part of the record before
this Court, but the portion of the indictment quoted in Ausbon’s brief clearly indicates that if this
issue had been properly raised before the trial court or this Court, that the issue would have been
resolved against Ausbon. Ausbon quotes the indictment as stating that the crime occurred at a
“certain dwelling owned and occupied . . . .” The transcript of the guilty plea hearing also shows that
Ausbon’s argument is without merit. The trial court judge specifically stated to Ausbon that he was
pleading guilty to the felony charge of burglary of a dwelling, and Ausbon stated that he, in fact, was
guilty of the crime. At the guilty plea hearing, the trial judge found a factual basis for the guilty plea
and that Ausbon “knowingly, understandingly, freely and voluntarily” entered the guilty plea. We
agree.
¶19.
Ausbon also claims that his guilty plea was not voluntary because of improper inducement
where his attorney promised him that he “would receive no time if he would plead guilty and would
only have to complete the remaining four (4) year post-release supervision imposed in Pontotoc
County in cause no. CR99-131.” This is exactly the sentence that Ausbon originally received. His
sentence was suspended, and he would only have to serve the post-release supervision from his
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Pontotoc County sentence. According to the transcript of the guilty plea hearing, this was the
recommendation of the prosecution, and Ausbon agreed that this was the recommendation that he
understood that would be made. That Ausbon’s suspended sentence was subsequently revoked due
to his misconduct does not invalidate the plea.
¶20.
Lastly, any claim that Ausbon’s trial counsel was deficient is not supported by the record.
Ausbon acknowledged during the plea colloquy his satisfaction with counsel who had worked to
secure a recommendation for a suspended sentence. It was not through any deficient performance
of counsel but the misconduct on the part of Ausbon himself which resulted in his incarceration.
CONCLUSION
¶21.
Ausbon’s sentence was unambiguous and did not need clarification. Although Ausbon may
have benefitted from a better sentence than he deserved, there is no basis for reversal. The remaining
issues raised by Ausbon on appeal were not presented to the trial court and thus are procedurally
barred. These issues are also without merit, and this Court finds that the circuit court’s judgment
should be affirmed.
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF
APPEAL ARE ASSESSED TO LEE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE,
ROBERTS AND CARLTON, JJ., CONCUR.
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