Felix Perkins v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01387-COA
FELIX PERKINS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
07/24/2008
HON. CHARLES E. WEBSTER
COAHOMA COUNTY CIRCUIT COURT
LESLIE S. LEE
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
LAURENCE Y. MELLEN
CRIMINAL – FELONY
CONVICTED OF SELLING,
TRANSFERRING, OR DELIVERING
COCAINE WITHIN 1,500 FEET OF A
CHURCH AND SENTENCED AS A
HABITUAL OFFENDER TO THIRTY
YEARS IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF
CORRECTIONS
AFFIRMED – 12/01/2009
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
Felix Perkins was convicted by a jury in the Coahoma County Circuit Court of
selling, transferring, or delivering cocaine within 1,500 feet of a church in violation of
Mississippi Code Annotated section 41-29-142(1) (Rev. 2005). He was sentenced, as a
habitual offender, to thirty years in the custody of the Mississippi Department of
Corrections.1 Aggrieved, he appeals and asserts that the verdict that was reached is against
the overwhelming weight of the evidence and that he received ineffective assistance of
counsel.
¶2.
Finding no reversible error, we affirm.
FACTS
¶3.
In August 2006, James Hollingsworth was working as an informant with the
Clarksdale Police Department. On August 31, 2006, he purchased crack cocaine from
Perkins in a parking lot in Clarksdale, Mississippi. According to the State’s evidence, the
location where the buy took place is within 1,500 feet of Calvary Missionary Baptist
Church.2 Thereafter, Perkins was arrested and charged with selling cocaine within 1,500 feet
of a church. He went to trial on July 24, 2008.
¶4.
Sergeant Ricky Bridges testified that he and Corporal Joseph Wide met with
Hollingsworth at a pre-buy location on August 31, 2006. Sergeant Bridges searched
Hollingsworth and his vehicle for contraband, equipped him with audio and video
surveillance equipment and two evidence bags, and issued him eighty dollars in city funds.3
Sergeant Bridges stated that Hollingsworth then met with Perkins while he and Corporal
1
The trial judge, finding the thirty-year sentence sufficient punishment, granted
Perkins’s request that the court forego enhancing his sentence for selling cocaine within
1,500 feet of a church.
2
As will be discussed later, Perkins contends that he sold Sheetrock and disputes that
the sale took place within 1,500 feet of Calvary Missionary Baptist Church.
3
Sergeant Bridges testified that they expected Hollingsworth to make two buys,
spending forty dollars on each transaction.
2
Wide listened to the transaction from a nearby location.4 According to Sergeant Bridges, the
the buy occurred “west of the intersection of Sixth and Barnes,” which is 147 feet from
Calvary Missionary Baptist Church. Sergeant Bridges testified that, after the deal was
completed, Hollingsworth returned to the pre-buy location and gave them the crack cocaine
that he had purchased from Perkins. Sergeant Bridges stated that no additional drugs were
found when they searched Hollingsworth and his vehicle after the buy. Sergeant Bridges
stated that he sealed, initialed, and transported the evidence bag containing the crack cocaine
to an evidence locker at the Clarksdale Police Department. The crack cocaine was taken to
the Mississippi Crime Laboratory on September 25, 2006.
¶5.
Corporal Wide testified that, although he could not remember the exact location of
the buy, he thought that it had occurred at the intersection of Sixth and Grant Street. Despite
his uncertainty regarding the intersecting street, Corporal Wide was certain that the
transaction occurred on Sixth Street. According to Corporal Wide, the videotape depicts
Perkins putting a “white rock-like substance” in Hollingsworth’s hand.5 Corporal Wide
stated that Hollingsworth brought the substance back and gave it to one of the officers.
Corporal Wide also testified that the post-buy search of Hollingsworth and his vehicle was
not captured on video.
¶6.
Hollingsworth testified on behalf of the State and related what happened after he
4
Sergeant Bridges testified that he later viewed the videotape.
5
Teresia Hickmon, a forensic scientist with the Mississippi Crime Laboratory,
testified that a drug analysis revealed that the substance was .55 gram of crack cocaine.
3
encountered Perkins.
According to Hollingsworth, Perkins approached him at the
intersection of “Sixth and Page” and asked him what he wanted. Hollingsworth stated that
he told Perkins that he wanted to buy forty dollars’ worth of crack cocaine. Hollingsworth
testified that Perkins asked him whether he was an informant, and after he assured Perkins
that he was not, Perkins sold him crack cocaine, which Hollingsworth put in one of the
evidence bags.
¶7.
Perkins took the stand in his own defense. He testified that he was standing in the
400 block of Prince Street in Clarksdale6 when a car pulled up. He stated that he thought
that the driver needed directions so he approached the vehicle to see if he could be of
assistance. Perkins stated that, at that point, the driver stated to him, “I want 40.” Perkins
testified that he instructed Hollingsworth to “make a block” and that while Hollingsworth
was gone, he picked up a piece of Sheetrock that he had found on the ground and put it into
a paper bag. Perkins stated that he asked Hollingsworth if he was an informant because he
did not know him and was reluctant to deal with him, even though he was only selling him
Sheetrock. Hollingsworth assured Perkins that he was not an informant. Perkins stated that
Hollingsworth asked, and was allowed, to view the product before making the purchase for
forty dollars. Perkins admitted selling Sheetrock to Hollingsworth but denied selling him
crack cocaine. As stated, at the conclusion of the trial, the jury found Perkins guilty as
charged.
6
Apparently this location is more than 1,500 feet from Calvary Missionary Baptist
Church, and this is where Perkins contends that the sale took place.
4
ANALYSIS AND DISCUSSION OF THE ISSUES
1. Overwhelming Weight
¶8.
“In deciding whether a jury verdict is against the overwhelming weight of the
evidence, [an appellate court] will disturb a jury verdict only when it is so contrary to the
overwhelming weight of evidence that allowing it to stand would sanction an unconscionable
injustice.” Martin v. State, 970 So. 2d 723, 727 (¶17) (Miss. 2007) (citing Taggart v. State,
957 So. 2d 981, 987 (Miss. 2007)). Further, an appellate court “acts as a ‘thirteenth juror’
and views the evidence in the light most favorable to the verdict.” Boone v. State, 973 So.
2d 237, 242 (¶18) (Miss. 2008) (quoting Brown v. State, 970 So. 2d 710, 712-13 (¶7) (Miss.
2007)).
¶9.
Perkins contends that his conviction was reached against the overwhelming weight
of the evidence because the State never established the exact location of the buy.
Specifically, he alleges that the State failed to prove that the sale occurred within 1,500 feet
of a church. As already noted, the testimonies of the State’s witnesses do not clearly
establish where the buy occurred. Sergeant Bridges testified that the buy occurred west of
the intersection of Sixth and Barnes Streets, and Corporal Wide testified that, although he
could not recall the exact location of the buy, he was certain that it had occurred on Sixth
Street. Hollingsworth testified that the buy occurred at the intersection of Sixth and Page
Street.
¶10.
Sergeant Bridges testified that, prior to concluding that Perkins conducted the sale
5
within 1,500 feet of the church, he measured the distance between the point where the buy
occurred and Calvary Missionary Baptist Church. Sergeant Bridges testified that he used
an “electronic range finder” to perform the measurements. The record is not clear as to
whether the intersections of Sixth and Barnes Streets, Sixth and Page Streets, and Sixth and
Grant Streets are all within 1,500 feet of Calvary Missionary Baptist Church. Nevertheless,
it is clear that Sergeant Bridges testified that the buy occurred within 147 feet of the church.
Obviously, the jury considered Perkins’s testimony, that the sale took place on Prince Street,
less credible than Sergeant Bridges’s. It is well settled in Mississippi that “the jury, and not
the reviewing court, judges the credibility of the witnesses as well as the weight and worth
of their conflicting testimony.” Burrell v. State, 613 So. 2d 1186, 1192 (Miss. 1993) (citing
Gathright v. State, 380 So. 2d 1276, 1278 (Miss. 1980)). There is sufficient evidence in the
record to support the jury’s finding that the sale took place within 1,500 feet of Calvary
Missionary Baptist Church.
¶11.
Perkins further argues that Hollingsworth’s testimony was not credible because he is
a paid informant with a prior felony conviction. The jury knew that Hollingsworth was
working as a paid confidential informant and that he is a convicted felon. Despite this fact,
the jury apparently found Hollingsworth credible. Our case law does not authorize us to
second-guess the jury’s decision regarding the weight given to Hollingsworth’s testimony.
¶12.
Perkins also contends that the officers did not see the transaction because it was not
captured on video. The fact that the exchange of the crack cocaine for the forty dollars may
6
not have been captured on video does not prove that the exchange did not occur. The jury
viewed all that was captured on the video and heard testimony from Hollingsworth as to
what the video depicts. It was up to the jury to make an assessment of what transpired. Its
verdict is proof that it believed a sale of crack cocaine took place. As stated, the jury acted
well within its province.
¶13.
Finally, Perkins argues that the overwhelming weight of the evidence does not
establish that it was crack cocaine, as opposed to Sheetrock, that he sold to Hollingsworth.
We note that the record clearly establishes that the substance that Hollingsworth bought from
Perkins was placed in an evidence bag, taken to the Mississippi Crime Laboratory for
testing, and determined to be crack cocaine. There is no merit to Perkins’s contention that
the verdict against him was reached against the overwhelming weight of the evidence. Thus,
allowing his conviction to stand will not sanction an unconscionable injustice. This issue
lacks merit.
2. Ineffective Assistance of Counsel
¶14.
In Read v. State, 430 So. 2d 832, 841 (Miss. 1983), our supreme court set forth
procedural rules that must be followed when a defendant raises a claim of ineffective
assistance of counsel on direct appeal:
If . . . [after] a review of the record, . . . [an appellate court] can say that the
defendant has been denied the effective assistance of counsel, the [c]ourt
should also adjudge and reverse and remand for a new trial . . . . Assuming
that the [c]ourt is unable to conclude from the record on appeal that
defendant’s trial counsel was constitutionally ineffective, the [c]ourt should
then proceed to decide the other issues in the case. . . . On the other hand, if
7
the [c]ourt should otherwise affirm, it should do so without prejudice to the
defendant’s right to raise the ineffective assistance of counsel issue via
appropriate post-conviction proceedings. If the [c]ourt otherwise affirms, it
may nevertheless reach the merits of the ineffectiveness issue where . . . the
record affirmatively shows ineffectiveness of constitutional dimensions, or .
. . the parties stipulate that the record is adequate and the [c]ourt determines
that findings of fact by a trial judge able to consider the demeanor of
witnesses, etc. are not needed.
(Citations omitted).
¶15.
Perkins contends that his trial attorney was ineffective in at least two respects: (1)
failing to present a jury instruction that presented his theory of the case—that he sold
Sheetrock and not cocaine to Hollingsworth—and (2) failing to object to the State’s jury
instruction S-2. In order to prevail on a claim of ineffective assistance of counsel, a
defendant must show that his attorney’s performance was deficient and that he was
prejudiced by the deficiency. Strickland v. Washington, 466 U.S. 668, 687 (1984). The
defendant must also show that his attorney’s “representation fell below an objective standard
of reasonableness.” Id. at 688. Further, the Strickland Court noted that:
A fair assessment of attorney performance requires that every effort be made
to eliminate the distorting effects of hindsight, to reconstruct the circumstances
of counsel’s challenged conduct, and to evaluate the conduct from counsel’s
perspective at the time. Because of the difficulties inherent in making the
evaluation, a court must indulge a strong presumption that counsel’s conduct
falls within the wide range of reasonable professional assistance; that is, the
defendant must overcome the presumption that, under the circumstances, the
challenged action “might be considered sound trial strategy.”
Id. at 689.
¶16.
It is also well settled in Mississippi that: “A defendant is entitled to present [his]
8
theory of the case to the jury as long as there is some evidentiary basis, even if the evidence
is insufficient or of doubtful credibility, ‘and even though the sole testimony in support of
the defense is the defendant’s own testimony.’” Strickland v. State, 980 So. 2d 908, 922
(¶24) (Miss. 2008) (quoting Craig v. State, 660 So. 2d 1298, 1301 (Miss. 1995)).
¶17.
In Green v. State, 884 So. 2d 733, 734 (¶1) (Miss. 2004), our supreme court reversed
this Court, which had affirmed the trial court’s refusal to instruct the jury regarding Michael
Green’s lesser, non-included offense. Green argued that the “the trial court erred in refusing
to grant his proffered instruction which would have allowed the jury to consider the lesser[,]
non-included offense of sale of a substance falsely represented as a controlled substance.”
Id. at 735 (¶4).
¶18.
Green’s attorney had argued to the trial court that Green was entitled to a “lesser-
included offense” instruction. Id. at 736 (¶7). However, the trial court rejected the
argument, finding that selling a substance falsely represented as crack cocaine was not a
lesser-included offense of selling a control substance. The Mississippi Supreme Court
agreed with the trial court that “falsely representing a substance to be a controlled substance
is not a lesser-included offense of the offense of sale of a controlled substance.” Id.
However, the supreme court concluded that the requested instruction was a lesser, nonincluded offense instruction that Green was entitled to have presented to the jury. Id. The
supreme court noted that it has held: “where there is an evidentiary basis . . . , a criminal
defendant is entitled to have the jury instructed regarding any offense carrying a lesser
9
punishment arising out of a common nucleus of operative fact with the scenario giving rise
to the charge laid in the indictment.” Id. at 737 (¶12) (citing Mease v. State, 539 So. 2d
1324, 1329 (Miss. 1989)). Therefore, the supreme court reversed the judgments of the trial
court and this Court, concluding that the trial court erred in refusing Green’s lesser, nonincluded offense instruction, as the instructions given did not instruct the jury regarding
Green’s alleged lesser, non-included offense. Id. at 737-38 (¶¶13, 16).
¶19.
As noted, Perkins testified that he sold Sheetrock to Hollingsworth rather than
cocaine. Since Green makes it clear that Perkins would have been entitled to a lesser, nonincluded-offense instruction regarding the alleged sale of Sheetrock had he requested one,
the question is whether the failure of his attorney to do so constitutes ineffective assistance
of counsel. The record before us is not adequate to answer this question, as the decision to
forego a request for such an instruction may very well fall within the realm of trial strategy.
For example, the record does not shed any light upon whether Perkins’s attorney thought it
best to force the jury to choose between only two choices: guilty as charged or not guilty.
Requesting a lesser, non-included-offense instruction for selling a substance falsely
represented as cocaine would have given the jury a third option and an opportunity to
perhaps reach a compromised verdict. As noted, Perkins was adamant that he only sold
Sheetrock. It is not entirely implausible that, notwithstanding Perkins’s knowledge that
selling Sheetrock under the circumstances constituted only a misdemeanor, he may not have
wanted the jury to have the option of convicting him of the misdemeanor, because such a
10
conviction could still result in some jail time. Because we are unable to conclude from the
record before us that Perkins’s attorney was constitutionally ineffective for not requesting
the lesser, non-included-offense instruction, we affirm Perkins’s conviction and sentence and
refrain from addressing his claim of ineffective assistance of counsel, without prejudice to
him to raise this issue in a motion for post-conviction relief should he desire to do so.
¶20.
As for Perkins’s argument that his attorney should have objected to instruction S-2,
we conclude that Perkins’s contention of error lacks merit because instruction S-2 is not an
objectionable instruction. Instruction S-2 reads:
If you find the Defendant guilty as charged in the indictment, then the form of
your verdict shall be: “We, the jury, find the Defendant guilty of Sale,
Transfer or Delivery of Cocaine Within 1500 Feet of a Church.” If you find
the Defendant not guilty, then the form of your verdict shall be: “We, the Jury,
find the Defendant not guilty.”
It has long been established in this jurisdiction that:
When considering a challenge to a jury instruction on appeal, we do not
review jury instructions in isolation; rather, we read them as a whole to
determine if the jury was properly instructed. Burton ex rel. Bradford v.
Barnett, 615 So. 2d 580, 583 (Miss. 1993). Similarly, this Court has stated
that in determining whether error lies in the granting or refusal of various
instructions, the instructions actually given must be read as a whole. When so
read, if the instructions fairly announce the law of the case and create no
injustice, no reversible error will be found. Coleman v. State, 697 So. 2d 777,
782 (Miss. 1997) (quoting Collins v. State, 691 So. 2d 918 (Miss. 1997)). In
other words, if all instructions taken as a whole fairly, but not necessarily
perfectly, announce the applicable rules of law, no error results.
Milano v. State, 790 So. 2d 179, 184 (¶14) (Miss. 2001) (internal quotations omitted). We
cannot hold Perkins’s attorney in error for failing to object to instruction S-2, as it fairly
11
announces the law applicable to the facts presented. There was no basis for Perkins’s
attorney to object. The issue lacks merit.
¶21. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT OF
CONVICTION OF SELLING, TRANSFERRING, OR DELIVERING COCAINE
WITHIN 1,500 FEET OF A CHURCH AND SENTENCE AS A HABITUAL
OFFENDER TO THIRTY YEARS IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO COAHOMA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. ROBERTS, J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J., AND JOINED IN PART
BY MAXWELL, J.
ROBERTS, J., SPECIALLY CONCURRING:
¶22.
I concur with the majority's decision to affirm the judgment of the circuit court, but
I write separately to express my opinion that Felix Perkins’s sentence was patently unlawful.
There has been no cross-appeal by the State under Mississippi Code Annotated section 9935-103(c) (Rev. 2007) so we have no authority to remand this matter for correct sentencing,
yet I write separately to voice my concerns over some of our state’s judges’ declination to
fastidiously follow the sentencing mandates of our statutes.
¶23.
Perkins was indicted under Mississippi Code Annotated section 41-29-142(1) (Rev.
2005) for selling cocaine, a Schedule II controlled substance as listed in Mississippi Code
Annotated section 41-29-115(A)(a)(4) (Rev. 2009), within 1,500 feet of a church and as a
habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007). At the
sentencing phase of Perkins’s trial, the State presented evidence that Perkins had previously
12
been indicted for burglary of a dwelling, to which he entered a guilty plea and was sentenced
to four years in the custody of the Mississippi Department of Corrections (MDOC). In
addition, the State presented evidence that Perkins had previously been indicted for four
counts of uttering forgery, and the State presented evidence of the sentencing judgment for
the four counts of forgery, to which Perkins was sentenced to six years in the custody of the
MDOC, with three years to serve and three years suspended. Without a doubt, Perkins was
a habitual offender under section 99-19-81.
¶24.
After the circuit court received the State’s exhibits into evidence, the State requested
that Perkins be sentenced in accordance with section 99-19-81, as well as section 41-29-142,
which would have resulted in a sixty-year sentence for Perkins. In response to the circuit
court’s solicitation of input from the defense, Perkins acknowledged that section 99-19-81
left the circuit court no discretion and argued that the circuit court was authorized to sentence
Perkins to the maximum sentence allowed of thirty years under section 41-29-139(b) (Rev.
2005), but he suggested that the circuit court maintained discretion as to the enhancement
as provided by section 41-29-142. Perkins requested that the circuit court decline to apply
the statute’s enhancement, urging that thirty years without parole would be sufficient and
sixty years would be too harsh.
¶25.
The circuit court then asked the State whether it thought that the enhancement
provided by section 41-29-142 was discretionary, to which the State opined that it thought
section 99-19-81 compelled a circuit court to sentence the defendant to the maximum
13
sentence allowed with the enhancement as provided by section 41-29-142. The circuit court
disagreed, and determined that it was discretionary whether to impose the enhancement. The
circuit judge went on to state the following: “The defendant is [forty-four] years old.
Frankly[,] the [c]ourt does feel that a [thirty]-year sentence without the eligibility for parole
is sufficient punishment on this. The defendant will be required to serve one hundred
percent of the time with no good time or allowance of parole.” (Emphasis added). I disagree
with the circuit court’s interpretation of these statutes.
¶26.
Mississippi Code Annotated section 41-29-142 (1) (Rev. 2009) states in relevant part:
“[a]ny person who violates or conspires to violate [s]ection 41-29-139(a)(1) . . . by selling
. . . [or] transferring . . . a controlled substance, . . . within . . . (1,500) feet of . . . any church
. . . may be punished by a term of imprisonment or a fine, or both, of up to twice that
authorized by [s]ection 41-29-139(b).”
¶27.
Mississippi Code Annotated section 41-29-139(b)(1) (Rev. 2009) provides that a
person convicted of selling cocaine, a Schedule II controlled substance, may be imprisoned
for not more than thirty years, and shall be fined not less than $5,000 nor more than
$1,000,000. The jury specifically found Perkins guilty of selling cocaine within 1,500 feet
of a church, thereby triggering the enhancement provision provided for by section 41-29142.7 Therefore, the maximum sentence allowed for selling cocaine within 1,500 feet of a
7
“Other than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) (emphasis
added).
14
church is sixty years. There can be no doubt that the circuit judge would have had the
authority to sentence Perkins up to sixty years’ imprisonment if Perkins was not a habitual
offender. Now one must consider section 99-19-81, the habitual-offender statute.
¶28.
Section 99-19-81 provides that:
Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to separate terms of one (1) year or more in any state
and/or federal penal institution, whether in this state or elsewhere, shall be
sentenced to the maximum term of imprisonment prescribed for such felony,
and such sentence shall not be reduced or suspended nor shall such person be
eligible for parole or probation.
(Emphasis added). Accordingly, I find that, whereas section 41-29-142 authorized the
circuit court with discretion to double the maximum punishment provided by section 41-29139(b), section 99-19-81 took the sentencing discretion away from the court, at least to the
extent of deviating from the sixty-year maximum.
¶29.
Our system of government dictates that the legislative branch of the government
writes the laws, and as long as the laws are in place and they have not been determined to
be unconstitutional, it is irrelevant whether we “feel” the laws are too harsh. Therefore, I
must reiterate my position, which was stated in Lamar v. State, 983 So. 2d 364, 372-73
(¶¶31-32) (Miss. Ct. App. 2008) (Roberts, J., specially concurring):
The Mississippi Legislature has clearly removed discretion from sentencing
as to the duration of sentences in the context of habitual offenders. As a
matter of public policy, the Legislature has determined that certain repeat
offenders represent serious threats to the public safety. The Legislature
requires that habitual offenders be given the maximum authorized sentence;
15
and they may not receive a suspended sentence, probation, parole, earned-time
credit, nor any form of early release.
We as members of the judicial branch of the government, interpret and follow
the laws. We do not, and cannot, rewrite them to our liking. Circuit court
judges of this state are bound by their oaths to impose lawful sentences upon
convicted felons. Pursuant to Article 6, Section 155 of the Mississippi
Constitution, before taking office all judges must swear or affirm, among other
things, to “discharge and perform all duties incumbent upon him or her . . .
agreeably to the Constitution of the United States and the Constitution and
laws of the State of Mississippi . . . . Our circuit court judges must remain
faithful to their oaths to follow the law when sentencing offenders.”
¶30.
I hasten to acknowledge that “[t]he fact that the trial judge lacks sentencing discretion
does not necessarily mean the prescribed sentence meets federal constitutional
proportionality requirements. Notwithstanding [section] 99-19-81, the trial court has
authority to review a particular sentence in light of constitutional principles of
proportionality as expressed in Solem v. Helm.”8 Clowers v. State, 522 So. 2d 762, 765
(Miss. 1988). However, in the instant case, the defendant did not raise the constitutional
issue and the circuit court made no determination that the statutorily-mandated sentence
violated the Eighth Amendment’s prohibition against cruel and inhuman punishment. As
a habitual offender convicted of selling cocaine within 1,500 feet of a church, Perkins faced
8
The United States Supreme Court set forth certain factors for trial courts to consider
when determining whether a sentence imposed by statute was constitutional. The Supreme
Court stated: “In sum, a court's proportionality analysis under the Eighth Amendment should
be guided by objective criteria, including (i) the gravity of the offense and the harshness of
the penalty; (ii) the sentences imposed on other criminals in the same jurisdiction; and (iii)
the sentences imposed for commission of the same crime in other jurisdictions.” Solem v.
Helm, 463 U.S. 277, 292 (1983) (overruled in part Harmelin v. Michigan, 501 U.S. 957
(1991)).
16
a maximum allowable sentence of sixty years. Pursuant to section 99-19-81, Perkins was
to serve the maximum allowable sentence. Although I personally believe that a sixty-year
mandatory sentence in this case is quite harsh, it is the only sentence that could lawfully be
imposed on Perkins.
GRIFFIS, J., JOINS THIS OPINION. MAXWELL, J., JOINS THIS OPINION
IN PART.
17
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