Herbert Charles Richardson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00891-COA
HERBERT CHARLES RICHARDSON
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
4/10/2004
HON. HENRY L. LACKEY
UNION COUNTY CIRCUIT COURT
B. SEAN AKINS
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CIVIL - POST-CONVICTION RELIEF
RICHARDSON’S MOTION FOR POSTCONVICTION RELIEF WAS DENIED.
AFFIRMED - 06/21/2005
BEFORE BRIDGES, P.J., CHANDLER AND ISHEE, JJ.
BRIDGES, P.J., FOR THE COURT:
¶1.
In July of 2000, Charles Richardson pled guilty to aggravated assault and shooting into an occupied
dwelling. On the aggravated assault charge, the Union County Circuit Court sentenced Richardson to
twenty years in the custody of the Mississippi Department of Corrections. The circuit court suspended
eleven years of the sentence and left nine years to serve. On the charge of shooting into a dwelling, the
circuit court sentenced Richardson to ten years, but suspended one year, leaving nine years to serve. The
circuit court set the two nine year sentences to run concurrent to one another. Additionally, the circuit court
sentenced Richardson to five years of post-release “supervised probation,” according to Section 47-7-34
of the Mississippi Code.
¶2.
In July of, 2003, Richardson, pro se, filed a motion for post-conviction collateral relief. The circuit
court denied Richardson’s motion. Richardson obtained counsel and perfected this appeal. Aggrieved by
the circuit court’s dismissal of his motion for post-conviction collateral relief, Richardson appeals and cites
one instance of error, listed verbatim:
I.
Is a sentence of 20 years plus 5 years of post-release supervision an illegal sentence
where the maximum sentence is 20 years?
Because a defendant’s period of supervised release is not counted towards a defendant’s time served,
we find no error and affirm the judgment of the circuit court.
STANDARD OF REVIEW
¶3.
“In reviewing the trial court’s decision to deny a defendant’s petition for post-conviction relief, we
do not disturb the trial court’s findings of fact unless clearly erroneous; however, we apply the de novo
standard to questions of law. Harris v. State, 757 So.2d 195 (¶8) (Miss. 2000) (citations omitted).
ANALYSIS
¶4.
Richardson argues that his sentence is illegal. His argument is based on the theory that his sentence,
including the suspended portions of his sentence, amounts to the maximum statutory sentences. His
argument depends on the proposition that his sentence, suspended portions included, plus the five year
period of post-release supervision, equals a sentence of thirty-five years. He claims this violates a
combined thirty year maximum sentence for the two violations.
¶5.
The State argues that Richardson’s sentence is legal. The State claims that the sentence is within
the statutory limits for aggravated assault and shooting into a dwelling. According to the State, Mississippi
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law dictates that the actual period of incarceration is added to the period of post-release supervision when
determining the total sentence. Additionally, the State asserts that it is improper to add the suspended
sentence to the actual sentence and the period of post-release supervision when determining whether a
defendant’s sentence exceeds the statutory maximum sentence.
¶6.
Richardson pled guilty to aggravated assault. According to Section 97-3-7(2)(b) of the Mississippi
Code, a person convicted of aggravated assault “shall be punished by imprisonment in the county jail for
not more that one (1) year or in the Penitentiary for no more than twenty (20) years.” Miss. Code Ann.
§ 97-3-7(2)(b) (Rev. 2000). Richardson also pled guilty to shooting into a dwelling. According to Section
97-37-29 of the Mississippi Code, when one is convicted for shooting into a dwelling, that person “shall
be punished by imprisonment in the state penitentiary for a term not to exceed ten (10) years.” Miss. Code
Ann. § 97-37-29 (Rev. 2000).
¶7.
Accordingly, the circuit court had the option of sentencing Richardson to thirty years in the
penitentiary: twenty years for aggravated assault and ten years for shooting into a dwelling. The circuit
court sentenced Richardson to thirty years but suspended twelve years from the thirty year sentence and
left two nine year sentences, set to run concurrently. Richardson claims that the suspended portions of the
sentences, twelve years, added to the actual sentences of two concurrent nine year sentences, plus the five
years of post-release supervision amounts to a sentence of thirty-five years.
¶8.
While the circuit court sentenced Richardson to five years post-release “supervised probation,” the
circuit court referenced Section 47-7-34 of the Mississippi Code. Section 47-7-34 governs “post-release
supervision.” Post-release supervision, a legislative creation, is separate and distinct from probation.
Carter v. State, 754 So.2d 1207 (¶4) (Miss. 2000).
¶9.
The crux of Richardson’s claim follows Section 47-7-34's mandate that “the total number of years
of incarceration plus the total number of years of post-release supervision shall not exceed the maximum
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sentence authorized to be imposed by law for the felony committed.” Miss. Code Ann. § 47-7-34(1)
(Rev. 2000). Richardson claims that he could conceivably serve every day of his thirty year sentence and
still risk being returned to the penitentiary for five additional years, should he violate his post-release
supervision. He claims this violates Section 47-7-34's provision that the period of incarceration shall not
exceed the maximum sentence allowed by law.
¶10.
The State responds that, presumably, if Richardson violates the terms of his post-release
supervision and the circuit court revokes his post-release supervision status, the circuit court will follow the
dictates of Section 47-7-34. The State suggests that following revocation, the circuit court would impose
further incarceration in an amount so that the total number of years of incarceration plus post-release
supervision would be equal to or less than the maximum sentence found in the statute.
¶11.
It is possible that Richardson could be required to serve the suspended portions of his sentence.
See Miss. Code Ann. § 47-7-37 (Rev. 2000). If so, it is possible that Richardson could be sentenced to
an illegal sentence if Richardson had to serve his current sentence and the suspended portion of his
sentence and the currently required five years of post release supervision. However, it is equally possible
that Richardson could simply serve his current sentences, spend five years in post-release supervision, and
return to normal society as a productive and law-abiding member of the population.
¶12.
The fact remains that Richardson complains of a possibility. Richardson’s sentence, as it stands,
is not illegal. It would be if, for some reason, Richardson is required to serve the suspended portion of his
sentence in addition to his current sentence and spend five years in post-release supervision, as well. If
circumstance finds Richardson serving the suspended portions of his two sentences, then it would be proper
to adjust Richardson’s time under post-release supervision, so Richardson does not serve more than the
maximum sentences allowable under the corresponding statutes. However, that scenario is only
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prospective. Likewise, Richardson’s claim is prospective. This Court does not adjudicate a prospect
claim. As the facts stand, Richardson’s sentence is legal.
¶13.
In Brown v. State, 872 So.2d 96 (Miss.Ct.App. 2004), this Court applied the Mississippi
Supreme Court’s holding in Carter. Applying Carter, this Court held that a defendant’s period of
supervised release is not counted toward his time served. Brown, 872 So.2d at (¶11) (holding a sentence
of three years to serve, seven years suspended, and five years of post release supervision is within a statute
allowing for a ten year maximum sentence).
¶14.
It follows that Richardson’s two concurrent nine year sentences and five years of post-release
supervision is within the two combined statutory maximum sentences adding up to a thirty year maximum
sentence. Accordingly, the circuit court did not commit manifest error by denying Richardson’s motion for
post-conviction relief. We affirm the decision of the circuit court.
¶15. THE JUDGMENT OF THE UNION COUNTY CIRCUIT COURT DENYING POST
CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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