Bryan A. Skinner v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-00743-COA
BRYAN A. SKINNER A/K/A BRYAN ABLE SKINNER
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT 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:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
05/18/1998
HON. R. KENNETH COLEMAN
MARSHALL COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
JIM HOOD
CIVIL - POST CONVICTION RELIEF
11/29/1999: POST-CONVICTION RELIEF DENIED
AFFIRMED - 06/19/2001
7/10/2001
BEFORE SOUTHWICK, P.J., BRIDGES, AND LEE, JJ.
LEE, J., FOR THE COURT:
¶1. Bryan A. Skinner was initially charged with murder, but entered a plea of guilty to manslaughter.
Skinner was sentenced by the Honorable Kenneth Coleman to serve five years in the Mississippi
Department of Corrections. Additionally, Judge Coleman credited Skinner with time served commencing
on April 11, 1998 through May 18, 1998, the date the order for Skinner's sentence for his plea of guilty to
manslaughter was entered. Skinner has filed a timely pro se petition for post-conviction collateral relief.
Skinner argues one issue on appeal: whether he has been given proper credit for time served toward his
five-year sentence for manslaughter. We find this issue is without merit.
FACTS
¶2. Contained within the record is Skinner's affidavit that was attached to his motion to clarify sentence. In
this affidavit Skinner states that he was incarcerated in the Marshall County jail serving a twenty-five-year
sentence for an armed robbery committed in Harrison County. The affidavit also stated that on December
18, 1997, the Mississippi Supreme Court reversed and rendered his conviction. Indeed, a review of the
record reveals a mandate from the Mississippi Supreme Court which was issued April of 1998. It declares
the case titled Brian Able Skinner v. State, case number 96-KA-00350-SCT, was reversed and
rendered, and reveals a stamp of the Central Mississippi Correctional Facility with the date of April 10,
1998. On October 18, 1996, while serving his sentence for case number 96-KA-00350-SCT, Skinner
was issued a warrant for arrest from the Justice Court of Marshall County for the charge of murder.
¶3. The affidavit presented with the warrant for arrest alleged that on or about October 14, 1996, Skinner
did "willfully, unlawfully, feloniously and without authority of law and with the deliberate design to effect the
death of John Kelly, kill and murder the said John Kelly, a human being. . . ." Subsequently, Skinner
entered a plea of guilty to manslaughter.
¶4. Prior to entering the plea agreement, the State made a recommendation that Skinner be sentenced to
serve a term of five years and that approximately a month of credit be given toward this charge for the time
he had been in the Marshall County jail. The Honorable Kenneth Coleman, the trial judge at the guilty plea
hearing, accepted this recommendation and sentenced Skinner to five years with credit being given for the
period commencing April 11, 1998 until May 18, 1998, the day which Skinner entered a plea of guilty to
manslaughter.
DISCUSSION
WHETHER SKINNER HAS BEEN GIVEN PROPER CREDIT FOR TIME SERVED
TOWARD HIS FIVE-YEAR SENTENCE FOR MANSLAUGHTER.
¶5. Skinner argues that pursuant to Miss. Code Ann. §99-19-23 (Rev. 2000) and Lee v. State, 437 So.
2d 1208 (Miss. 1993), he is entitled to more credit for time served than has previously been given towards
his five-year sentence for manslaughter. Skinner appears to take two approaches to this argument. First,
Skinner argues that although he was already in the Marshall County jail serving a sentence for armed
robbery at the time he received the warrant for murder, it was error not to allow him credit for the time he
was confined towards his ultimate sentence for manslaughter. He claims credit for his confinement on his
manslaughter sentence should commence on October 18, 1996, the day he was served with the warrant for
the murder, instead of April 11, 1998. Second, Skinner argues that since his charge of armed robbery was
later reversed and rendered by the Mississippi Supreme Court, he is entitled to apply the time served for the
armed robbery as credit towards his sentence for manslaughter.
¶6. The State argues that the record reveals Skinner was given credit for time served in the Marshall
County jail within the guidelines of Miss. Code Ann. § 99-19-23 (Rev. 2000). Additionally, any sentence
Skinner was serving prior to his plea of guilty to manslaughter was for the charge of armed robbery and
should not be applied as credit to the manslaughter sentence. Furthermore, the State contends that the fact
that this conviction was subsequently reversed has no impact on the subsequent sentence of manslaughter.
We first address Lee v. State, to determine whether it is applicable to the case at bar. Lee v. State, 437
So. 2d 1208 (Miss. 1983).
¶7. In Lee v. State, Lee and his wife were arrested in Ocean Springs, Mississippi. Lee, 437 So. 2d at
1208. The arrest was the result of a warrant that had been issued in Pearl River County. Id. During the
search of the automobile driven by Lee a controlled substance was discovered. Id. Lee and his wife were
taken to a jail in Ocean Springs and were later transported to the Jackson County jail. Id. Subsequently,
they were transported to the Harrison County jail to face another charge. Id. at 1208-09. However, a
detainer was placed in Lee's file for the Jackson County charge. Id. at 1209.
¶8. On appeal, Lee requested credit for time served and presented just one issue:
whether a circuit judge of one county may grant credit for time served in a second county when a
prisoner is arrested and charged with a crime in the first county and, prior to arraignment, is
subsequently transferred to the second county to face another charge, the transfer being attended by a
detainer from the first county?
Id. at 1208. The Mississippi Supreme Court held that pursuant to Miss. Code Ann. § 99-19-23, Lee was
entitled to relief. Id. The court concluded that since Jackson County had placed a detainer in Lee's file,
Jackson County retained jurisdiction over the Jackson County charge. Id. at 1209. The court explained that
since Jackson County had never removed its detainer from the file during the transfers even if one of the
other counties decided to release Lee, he would be returned to Jackson County. Id. The Mississippi
Supreme Court determined that Lee was merely loaned or housed in another county while he awaited trial
for the charge in Jackson County. Id. As stated in Lee, "[t]he key phrase of § 99-19-23 is . . . while
awaiting trial on a criminal charge . . . ." Id. Consequently, the case of Lee v. State, is distinguishable from
the case at bar.
¶9. Skinner's situation is divergent from that of Lee's because he was not awaiting a trial on two separate
charges. To the contrary, Skinner was incarcerated in the Marshall County jail serving time for the crime of
armed robbery when he was served with the warrant for murder. We find this distinction sufficient to
determine that the holding in Lee does not apply to the case sub judice. The holding in Lee does not require
this Court to allow credit for confinement on a sentence that was already being served. We also find the fact
that the sentence for armed robbery was later reversed and rendered to have no effect on the outcome.
Additionally, this Court notes that the Honorable Kenneth Coleman presided over both Skinner's guilty plea
hearing and his motion to clarify sentence which was filed pursuant to Skinner's right to file a petition for
post-conviction collateral relief.
¶10. Since Skinner was already incarcerated and serving a sentence for armed robbery, the decision Judge
Coleman faced in determining the proper credit for confinement was essentially one of determining whether
he was going to allow the sentences for armed robbery and manslaughter to run concurrently or
consecutively. The record is clear that he chose the latter. Although pursuant to Miss. Code Ann. § 97-325 (Rev. 2000), he could have sentenced Skinner to a maximum of twenty years, Judge Coleman
sentenced Skinner to five years. The sentencing order entered by Judge Coleman clearly reveals that he
only intended Skinner to receive credit for the period commencing April 11, 1998, the day after the
Mississippi Supreme Court mandate was recorded through May 18, 1998, the day he entered a plea of
guilty to manslaughter.
¶11. Sentencing is generally within the sound discretion of the trial judge and the trial judge's decision will
not be disturbed on appeal if the sentence is within the term provided by statute. Davis v. State, 724 So.
2d 342 (¶ 10) (Miss. 1998). The practical effect of this general rule is that a trial judge's sentencing decision
has traditionally been treated as unreviewable so long as the sentence was within the statutory limits. As a
general rule, a sentence that does not exceed the maximum period allowed by statute will not be disturbed
on appeal. Wallace v. State, 607 So. 2d 1184, 1188 (Miss. 1992). Skinner's sentence did not exceed the
maximum sentence allowed for manslaughter pursuant to Miss. Code Ann. §97-3-25 (Rev. 2000). Skinner
not only cited Lee v. State, but also stated Miss. Code Ann. § 99-19-23 (Rev. 2000), entitled him to
relief.
¶12. Miss. Code Ann. § 99-19-23 (Rev. 2000) states:
The number of days spent by a prisoner in incarceration in any municipal or county jail while awaiting
trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on
any sentence rendered by a court of law or on any sentence finally set after all avenues of appeal are
exhausted.
The record discloses the Mississippi Supreme Court entered a final judgment to reverse and render a
conviction for Skinner in case number 96-KA-00350-SCT on December 18, 1997. The mandate
contained within the record also reveals that on March 12, 1998, a motion for rehearing was denied by the
Mississippi Supreme Court. The mandate was finally issued by the Mississippi Supreme Court in April of
1998, more specifically what appears to be April 8, 1998. The mandate was recorded in the Central
Mississippi Correctional Facility records on April 10, 1998. Under this factual situation, Judge Coleman
followed the guidelines of Miss. Code Ann. § 99-19-23 (Rev. 2000) when he allowed Skinner credit
toward his sentence of manslaughter beginning April 11, 1998.
¶13. Miss. Code Ann. § 99-39-11 (2) (Rev. 2000) states: "If it plainly appears from the face of the motion,
any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the
trial judge may make an order for its dismissal and cause the prisoner to be notified." In Par Industries,
Inc. v. Target Container Co., the applicable standard of review was stated:
"A circuit court judge sitting without a jury is accorded the same deference with regard to his findings
as a chancellor," and his findings are safe on appeal where they are supported by substantial, credible,
and reasonable evidence. Where the trial court failed to make any specific findings of fact, this Court
will assume that the issue was decided consistent with the judgment and these findings will not be
disturbed on appeal unless manifestly wrong or clearly erroneous. The reviewing court must examine
the entire record and must accept, "that evidence which supports or reasonably tends to support the
findings of fact made below, together with all reasonable inferences which may be drawn therefrom
and which favor the lower court's findings of fact." That there may be other evidence to the contrary is
irrelevant.
Par Indus., Inc. v. Target Container Co., 708 So. 2d 44, 47 (¶4) (Miss. 1998) (citations omitted).
Therefore, the trial judge's finding is supported by substantial, credible and reasonable evidence. The trial
judge was not manifestly in error or clearly erroneous when he denied Skinner's motion. We determine that
although the mandate issued by the Mississippi Supreme Court may have subsequently voided the sentence
for armed robbery, nonetheless, Skinner was serving the sentence until the date of April 11, 1998.
Therefore, in the case at bar, the record fails to disclose that the trial judge abused his discretion in
sentencing when he only allowed Skinner credit for time served on the manslaughter charge beginning April
11, 1998, to the entry of his guilty plea on May 18, 1998. It is apparent that the argument and facts
presented by Skinner do not supply a basis for relief. Accordingly, this issue is without merit.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF MARSHALL COUNTY DENYING
POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO MARSHALL COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, MYERS AND
CHANDLER, JJ., CONCUR. KING, P.J., DISSENTS WITH A SEPARATE WRITTEN
OPINION JOINED BY PAYNE AND IRVING, JJ.
KING, P.J., DISSENTING:
¶15. I respectfully dissent from the majority opinion adopted herein.
¶16. The Marshall County Circuit Court dismissed as meritless Skinner's petition for post-conviction relief.
¶17. On November 27, 1990, Skinner was convicted of armed robbery and sentenced to twenty-five years
in the custody of the Mississippi Department of Corrections. Skinner appealed his armed robbery
conviction to the Mississippi Supreme Court. While his appeal was pending, Skinner was assigned to the
Marshall County Correctional Facility to serve his sentence.
¶18. On October 10, 1996, Skinner was involved in a fight at the Marshall County Correctional facility. A
homicide occurred as a result of that fight. An affidavit charging Skinner with murder, arising out of that
fight, was executed on October 18, 1996, and on that same day a Marshall County deputy sheriff came to
the Marshall County Correctional Facility and served an arrest warrant upon Skinner, effecting his arrest on
the charge of murder. Skinner was then given a detention notice, and a detainer was placed in his file.
¶19. On December 18, 1997, the Mississippi Supreme Court reversed and rendered Skinner's conviction
of armed robbery. The State's motion for rehearing was denied, and the mandate ordering Skinner's
discharge on the charge of armed robbery, was issued on April 8, 1998, and received at the Corrections
Department on April 10, 1998, whereupon, Skinner was transferred to the Marshall County jail to await
resolution of the murder charge.
¶20. On May 18, 1998, Skinner filed a petition to enter a plea of guilty to a reduced charge of
manslaughter. That petition to enter a guilty plea stated that Skinner had accepted a plea of "5 years to
serve." The plea petition contained no other language regarding a plea recommendation.
¶21. In accepting Skinner's plea of guilty, the following exchange occurred between the trial court and the
district attorney:
THE COURT: All right. The Court is of the opinion that the Defendant has freely and voluntarily
knowingly offered his plea of guilty. It is the Court's opinion that the Defendant is aware of his
circumstances, that he is aware of the consequences of entering plea of guilty. The Court is of the
further opinion that he is not under any legal disability, doesn't suffer from any legal limitation so far as
having conferred with his attorney and made a decision to enter a plea of guilty.
The Court is going to accept the plea of guilty as freely and voluntarily made.
Is the State going to have a recommendation?
MR. DOXEY: Yes, sir, Your Honor. The State would recommend that he be sentenced to serve a
term of five years; that there will be a little bit of credit given, about a month, since he has been in the
Marshall County Jail; that he will be credit for the timeTHE COURT: All right. He is entitled to whatever time that he has served on that, and I am going to
accept the recommendation of the State, and I do sentence you to serve a term of five years in an
institution to be designated by the Mississippi Department of Corrections. And you will be in the
hands of the Sheriff to be transported to that institution.
Thereafter, the trial court entered a sentencing order, which, in part provided:
IT IS HEREBY ORDERED AND ADJUDGED that the defendant, be and he is hereby sentenced to
five (5) years in an institution to be designated by the Mississippi Department of Corrections.
And further, the defendant is ordered to pay all costs and fees incurred in this cause, and the total,
$345.50 shall be enrolled as a civil judgment in favor of Marshall County, Mississippi. Said Judgment
to be paid within 6 months after the defendant is released from the institution. If delinquent more than
thirty (30) days, the Clerk may with the assistance of the County or District Attorney, institute
garnishment proceeding against said defendant in this Cause. This judgment shall be satisfied by the
Clerk when payment in full has been made into this Court.
The defendant is credited with __days in jail from April 11, 1998 to present awaiting disposition of
this case.
¶22. In accordance with the trial court's order, Skinner was given credit for 37 days. This represented the
time between April 11, 1998, the day after receipt of the supreme court mandate reversing and rendering
the armed robbery conviction, and May 18, 1998, the date of Skinner's guilty plea.
¶23. Skinner now alleges that because the Mississippi Supreme Court reversed and rendered his armed
robbery conviction, thereby rendering it void ab initio, he should have been given credit, pursuant to Miss
Code Ann. Section 99-19-23 (Rev. 2000), from October 18, 1996, the date of his arrest on the murder
charge.
¶24. The trial court by pro forma order(1) denied Skinner's requested relief.
¶25. The majority incorrectly holds that (1) the disposition of Skinner's armed robbery conviction has no
impact on the resolution of this case, and (2) that the issue before the trial judge was whether to cause
Skinner's manslaughter conviction to be served concurrently with his armed robbery conviction. This
holding suggests that the majority has failed to understand what appears to be a novel issue of first
impression in this State.
¶26. The question which the trial court and this Court have been asked to resolve is this. Is a person, (1)
who is jailed pending the appeal of a criminal conviction, (2) who commits a second criminal offense while
incarcerated, for which he is arrested and detained, (3) who has the first conviction reversed and rendered
on appeal, and (4) who is convicted on the second offense after the first conviction has been reversed and
rendered, entitled to receive credit on his sentence from the date of his arrest and detention on the second
offense, or from the date of the mandate finally voiding the first conviction?
¶27. As noted this specific question appears to be one of first impression. I would suggest the answer to be
he is entitled to credit from the date of arrest.
¶28. When an appellate court reverses and renders a criminal conviction, that conviction is vacated and
voided ab initio. The conviction is vacated and voided as of its inception. The point of that inception is the
date of conviction in the trial court. Skinner was convicted of armed robbery on November 27, 1990. The
mandate, reversing and rendering, was issued on April 8, 1998. However, Skinner's conviction was voided
not from and after April 8, 1998, but rather from and after November 27, 1990. Skinner was arrested and
detained on the murder charge on October 18, 1996. Skinner was convicted of manslaughter and
sentenced on May 18, 1998. When Skinner was convicted and sentenced on the manslaughter charge, the
mandate had been issued on April 8, 1998, and had voided the armed robbery conviction, from and after
November 27, 1990.
¶29. Therefore, when Skinner was sentenced on the manslaughter conviction there was no armed robbery
conviction, nor any armed robbery sentence to be served either concurrently or consecutively to the
manslaughter sentence.
¶30. The net effect of the facts then existing before the trial court on May 18, 1998, when Skinner entered
a guilty plea to the charge of manslaughter, was (1) Skinner had been arrested and detained on a charge of
murder on October 18, 1996, (2) Skinner had been continually detained from October 18, 1996 as he
awaited trial on the murder charge, (3) the murder charge had been reduced to manslaughter on May 18,
1998, and (4) Skinner was entitled to have credited against his sentence that time, between October 18,
1996 and May 18, 1998, spent in detention awaiting trial on this charge.
¶31. This is consistent with legislative dictates under Miss. Code Ann. Section 99-19-23, (Rev. 2000) and
Lee v. State, 437 So. 2d 1208 (Miss. 1983).
¶32. While the majority has attempted to distinguish Lee from the present case, that effort must fail as being
syllogistically infirm. The majority suggests that Lee does not apply because Skinner was not in a county or
municipal jail and was not awaiting trial on two separate charges. It cannot be denied (1) that Skinner was
arrested by Marshall County officials while at the State's Marshall County Correctional Facility, (2) that he
was detained there pursuant to execution of the Marshall County arrest warrant, which had been served
upon him on October 18, 1996, and (3) that when the mandate was issued, Skinner was not released, but,
pursuant to the Marshall County arrest warrant, executed on October 18, 1996, was immediately
transferred to the Marshall County jail. When the armed robbery conviction was reversed and rendered, it
voided ab initio that conviction. This meant that the time Skinner spent in jail between October 18, 1996,
and April 10, 1998, was spent solely awaiting trial on the charge of murder. Accordingly, the distinction
attempted by the majority is one without a difference.
¶33. In paragraph 10 of its opinion, the majority states:
Since Skinner was already incarcerated and serving a sentence for armed robbery, the decision Judge
Coleman faced in determining the proper credit for confinement was essentially one of determining
whether he was going to allow the sentences for armed robbery and manslaughter to run concurrently
or consecutively. The record is clear that he chose the latter.
¶34. Such assertion enjoys no support in the record before this Court. The only remark by Judge Coleman
on this issue is this, "He is entitled to whatever time that he has served on that . . . . " Such a remark does
not suggest a decision, made consciously or otherwise, to address whether the sentence was intended to be
served consecutively or concurrently. Rather, the most appropriate reading of Judge Coleman's remark is
that he intended for Skinner to receive that credit required by law.
¶35. Accordingly, the decision made by Judge Coleman was not a finding of fact, but rather addressed a
question of law. While this Court gives deference to a trial court's findings of fact, where supported by
substantial evidence, Meeks v. State, 781 So. 2d 109 (¶ 9) (Miss. 2001), we do not accord any deference
to a trial court's findings of law, but rather review them de novo. Brown v. State, 731 So. 2d 595 (¶ 6)
(Miss. 1999).
¶36. When the facts of this case are reviewed, and the proper standard of review applied to the matters of
law, we are led inescapably to the following findings of law (1) the reversal and rendering of Skinner's
armed robbery conviction vacated and voided that conviction as of November 27, 1990, (2) that when
Skinner was sentenced on May 18, 1998, on the charge of manslaughter, the armed robbery conviction did
not exist, and for purposes of sentencing on the charge of manslaughter had never existed, (3) that when
Skinner's armed robbery conviction was nullified, all time spent incarcerated between October 18, 1996
and May 18, 1998, was spent solely awaiting trial on the charge of murder, and (4) that all time which
Skinner spent awaiting trial on the charge of murder should have been credited against his ultimate sentence.
¶37. Where a trial judge has misapplied the law, he has, as a matter of law, abused his discretion. Under
these circumstances, this Court should not hesitate to reverse him. McClendon v. State, 539 So. 2d 1375,
1377 (Miss. 1989).
¶38. Therefore, I would reverse and hold that Skinner should be credited with time served from the date of
his arrest, October 18, 1996.
PAYNE AND IRVING, JJ., JOIN THIS DISSENT.
1. That order stated:
This day this cause came on for hearing upon the petition for post-conviction relief heretofore filed
herein by the defendant, and the court having examined said petition pursuant to the provisions of
Section 99-39-11(2) finds that it is manifest that the defendant is not entitled to any relief.
It is therefore ordered and adjudged that the Defendant's petition for post conviction relief should be,
and it is hereby dismissed.
The Clerk is hereby directed to furnish the Defendant and the Clerk of the Miss. Supreme Court with
a copy of this order.
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