Robert K. Fowler v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-KP-00403-COA
ROBERT K. FOWLER
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
1/30/2002
HON. LEE J. HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT
ROBERT K. FOWLER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CRIMINAL - FELONY
COUNT I ARMED ROBBERY-SENTENCE OF 22
YEARS IN THE MDOC, COUNT II ATTEMPTED
MURDER-SENTENCE OF 10 YEARS IN THE
MDOC WITH SENTENCES TO RUN
CONCURRENTLY
DISMISSED WITHOUT PREJUDICE - 11/04/2003
11/18/2003 - GRANTED; AFFIRMED - 08/23/2005
MODIFIED OPINION ON MOTION FOR REHEARING
EN BANC.
CHANDLER, J., FOR THE COURT:
¶1.
The appellant’s motion for rehearing is granted. The original opinion is withdrawn and this opinion
is substituted therefor.
¶2.
Robert Fowler entered a guilty plea for armed robbery and was sentenced to serve fifteen years
in prison. As part of the State’s plea bargain agreement, his indictment for attempted murder was passed
to the files. After he successfully pursued post-conviction relief, the State pursued charges for both armed
robbery and attempted murder. The Oktibbeha County Circuit Court sentenced Fowler to ten years for
attempted murder and enhanced Fowler’s armed robbery sentence fromfifteen years to twenty-two years.
Fowler appeals, raising the following issue:
WHETHER THE TRIAL COURT ERRED IN SENTENCING FOWLER TO A HARSHER
SENTENCE AFTER HAVING HAD HIS FIRST SENTENCE VACATED
¶3.
Finding no error, we affirm.
FACTS
¶4.
Robert Fowler was indicted for armed robbery and attempted murder. He entered a plea
agreement with the State which provided that he would plead guilty to armed robbery and that the State
would pass the attempted murder charge to the files and recommend a sentence of fifteen years for armed
robbery. The trial court accepted Fowler’s guilty plea and sentence recommendation from the State.
¶5.
Fowler then claimed that his attorney erroneously told Fowler that he would be eligible for parole
after serving ten years of his fifteen year sentence. Upon this discovery, Fowler petitioned for postconviction relief in which he sought to set aside the plea because of this information. The circuit court
granted this motion and set aside Fowler’s guilty plea.
¶6.
After Fowler’s guilty plea and sentence had been vacated, the State retrieved the attempted
murder charge from the files and prepared to try Fowler on both charges. Initially, Fowler decided to
plead not guilty to these charges. Accordingly, the State did not offer a plea bargain. Fowler later
changed his mind and pleaded guilty to both charges. The circuit court accepted Fowler’s guilty pleas and
sentenced Fowler to twenty-two years for the armed robbery and ten years for the attempted murder,
with the sentences to run concurrently. Fowler now prosecutes this appeal, alleging that the harsher
sentences were a result of vindictiveness.
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ANALYSIS
WHETHER THE TRIAL COURT ERRED IN SENTENCING FOWLER TO A HARSHER
SENTENCE AFTER HAVING HAD HIS FIRST SENTENCE VACATED
¶7.
The United States Supreme Court, in North Carolina v. Pearce, 395 U.S. 711 (1969), decided
the issue of whether the Constitution limited the imposition of a harsher sentence upon retrial when a prior
conviction for the same offense had been set aside and a new trial ordered. The court held that “neither
the double jeopardy provision nor the Equal Protection Clause imposes an absolute bar to the more
severe sentence upon reconviction.” Id. at 723. The court went on to hold that due process would not
allow vindictiveness against a defendant for having attacked his first conviction to play a part in the
sentence he receives after a new trial. To assure that such a vindictiveness motivation does not exist, the
court requires that the reasons for imposing a harsher sentence must affirmatively appear in the record.
Id. at 725-26.
¶8.
In Ross v. State, 480 So. 2d 1157 (Miss. 1985), the Mississippi Supreme Court adopted the
rules of law announced in Pearce. In Ross, the defendant was sentenced to a term of ten years for
robbery. Id. at 1158. His motion for a new trial was granted, he was re-tried, and was ordered to serve
twelve years after he was re-sentenced. Id. The Mississippi Supreme Court agreed that the defendant’s
harsher sentence was vindictive and should be vacated. Accordingly, the court reversed and rendered
and substituted the original ten year sentence. Id. at 1161.
¶9.
The court in Ross issued the following pronouncements and guidelines to insure that a harsher
sentence upon re-trial is constitutionally permissible:
1. The imposition of a harsher sentence by a judge following a new trial and conviction
for the same charge is not violative of the federal, or Mississippi's, Constitution.
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2. Due process of law does require that vindictiveness against a defendant for having
successfully attacked his first conviction play no part in the sentence he receives after a
new trial.
3. Due process also requires that a defendant be freed of apprehension of such a
retaliatory motivation on the part of the sentencing judge.
4. In order to assure that it may be determined on appeal whether such a motive was
absent, the following must occur:
(a) The judge must affirmatively state in the record his reasons for the harsher sentence.
(b) The reasons must be based upon objective informationconcerning identifiable conduct
on the part of the defendant which occurred after the time of the original sentencing
proceeding, or based upon objective information concerning events which occurred after
the time of the original sentencing proceeding that may have thrown new light upon the
defendant's life, health, habits, conduct, or mental and moral propensities.
(c) The factual data upon which the increased sentence is based must be made a part of
the record.
(d) This information and data upon which the judge bases his sentence may come to the
judge's attention from evidence adduced at the second trial itself, from a new
presentencing investigation, from the defendant's prison record, or possibly from other
sources.
Id. at 1160-61 (citations omitted).
¶10.
When Fowler entered his first guilty plea and the judge sentenced Fowler to fifteen years for
armed robbery, there was no indication that the judge was aware that the State also indicted Fowler for
attempted murder. At the second sentencing hearing the judge was made aware of new evidence that led
him to believe that Fowler’s conduct was more heinous than he originally realized. Pursuant to the
mandates of Ross, this new evidence threw new light upon Fowler’s life, health, habits, conduct, and
mental or moral propensities. During the second sentencing hearing, the judge for the first time heard
evidence that Fowler’s accomplice had plans to shoot and kill the clerk of the store which Fowler robbed.
At the second sentencing hearing, the State called an expert who testified that the gun used by Fowler had
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the capacity of killing the store clerk. Fowler’s accomplice pulled the trigger, and the State’s expert
testified that the gun would have fired if the pin had been properly set.
¶11.
The record shows that the judge used Fowler’s conduct concerning his attempted murder of the
store clerk in deciding to impose a harsher sentence. The transcript from the second sentencing hearing
shows that the hearing focused almost entirely on the culpability of Fowler’s attempted murder. The judge
linked Fowler’s attempted murder charge to the enhanced sentence for the armed robbery charge.
“Now, the most culpable defendant is the one with the firearm and the one who tried to kill the clerk, but
there is culpability for all that join in this illegal act. The sentence of the law is in Count 1 which is the count
of armed robbery that you be sentenced to serve a term of twenty-two years in the Mississippi
Department of Corrections.” These two statements demonstrate that the judge used Fowler’s attempted
murder as a justification for the armed robbery charge, based on the new evidence at the hearing.
¶12.
Although Pearce and Ross remain valid law, both the United States and Mississippi Supreme
Courts have limited the scope and application of this law. See Bush v. State, 667 So. 2d 26, 29 (Miss.
1996) (citing Alabama v. Smith, 490 U.S. 794, 799 (1989); Texas v. McCullough, 475 U.S. 134, 138
(1986); Colten v. Kentucky, 407 U.S. 104 (1972)). “The Supreme Court further explained in
McCullough, ‘the evil the [Pearce] Court sought to prevent’ was not the imposition of ‘enlarged
sentences after a new trial’ but ‘vindictiveness of a sentencing judge.’” Id. (quoting McCullough, 475
U.S. at 138).
¶13.
In Alabama v. Smith, the defendant entered a guilty plea to burglary and rape in exchange for
the State’s agreement to dismiss the sodomy charge. The trial judge accepted this guilty plea and
sentenced the defendant to serve concurrent terms of thirty years for each conviction. The defendant
succeeded in having his guilty plea vacated and proceeded to trial on the three original charges. The jury
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convicted the defendant on all three charges, and the trial judge sentenced him to serve a term of life
imprisonment for the burglary conviction, and concurrent term of life imprisonment on the sodomy
conviction and a consecutive term of 150 years’ imprisonment on the rape conviction. Smith, 490 U.S.
at 794. “The Supreme Court held that there is no presumption of vindictiveness where a second sentence
imposed after a trial is heavier than a first sentence imposed after a guilty plea. Certainly, a judge who
hears the defendant, the victim, and other circumstances of the crime at trial is entitled to impose a higher
sentence than the judge who hears only the admission of guilt at a plea hearing.” Bush, 667 So. 2d at 29
(citing Smith, 490 U.S. at 803).
¶14.
This Court recognizes the differences between Bush and the case sub judice. In Bush, unlike this
case, a second judge imposed the defendant’s second sentence, and the second judge heard evidence
from a full trial rather than a sentencing hearing. Id. at 29-30. Nevertheless, we find Bush to be
instructive. In Fowler’s second sentencing hearing, the judge heard new evidence concerning the events
of Fowler’s crimes, and this evidence led the judge to believe that the crime was more heinous than the
judge originally believed. Although the judge did not explicitly state that he was imposing a harsher
sentence for armed robbery because of the new evidence at the sentencing hearing, the judge did impose
this enhanced sentence immediately after declaring that Fowler was guilty of attempted murder. In Smith,
490 U.S. at 799, the Supreme Court held that the presumption of vindictiveness must be limited to those
situations in which there is a “‘reasonable likelihood’ that the increase in sentence is the product of actual
vindictiveness on the part of the sentencing authority. When there is no such reasonable likelihood, the
burden of proof remains on the defendant” (quoting United States v. Goodwin, 457 U.S. 368, 373
(1982)). Under these particular facts, we are unable to find that the circuit judge’s enhanced sentence for
armed robbery was the result of vindictiveness. Therefore, we affirm.
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¶15. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY OF
CONVICTION OF COUNT I ARMED ROBBERY AND SENTENCE OF TWENTY TWO
YEARS AND COUNT II ATTEMPTED MURDER AND SENTENCE OF TEN YEARS, ALL
IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITH
SENTENCES TO RUN CONCURRENTLY, IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO OKTIBBEHA COUNTY.
BRIDGES AND LEE, P.JJ., MYERS AND GRIFFIS, JJ., CONCUR. IRVING, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY KING, C.J. BARNES
AND ISHEE, JJ., NOT PARTICIPATING.
IRVING, J., DISSENTING:
¶16.
The majority affirms the judgment of the trial court giving Fowler a harsher sentence on his
second plea of guilty to armed robbery after Fowler was allowed to withdraw his first plea of guilty to
the same armed robbery charge because of defective advice of counsel regarding his eligibility for
parole. In my opinion, the majority errs in affirming the judgment of the harsher sentence because the
trial judge failed to give justification for the harsher sentence by complying with the guidelines
established in Ross v. State, 480 So. 2d 1157 (Miss. 1985). Therefore, I respectfully dissent.
¶17.
In 1997, Robert K. Fowler was indicted for armed robbery and attempted murder of Undra
Peoples. He entered into a plea agreement with the State which provided that he would plead guilty to
armed robbery and the State would pass the attempted murder charge to the files and recommend a
sentence of fifteen years for the armed robbery. The trial court accepted Fowler's guilty plea.
However, prior to sentencing Fowler, the court received a victim impact statement and a presentence
investigation report. After receipt of the victim impact statement and presentence investigation report,
the trial judge followed the recommendation made in the plea agreement and sentenced Fowler on the
armed robbery charge to fifteen years in the custody of the Mississippi Department of Corrections.
The attempted murder charge was retired to the files.
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¶18.
Sometime after being sentenced, Fowler was allowed to withdraw his plea because of faulty
advice given him by his attorney regarding his eligibility for parole. After Fowler withdrew his guilty
plea, the State retrieved the attempted murder charge from the files and placed it back on the active
docket. Fowler then was rearraigned on both charges. After several failed attempts to strike a plea
bargain, Fowler finally entered an open plea of guilty to both charges. The trial judge sentenced him to
twenty-two years incarceration on the armed robbery charge and ten years on the attempted murder
charge. This appeal ensued in which Fowler alleges that he was given the harsher sentence out of
vindictiveness for withdrawing his first plea.
¶19.
Before addressing my differences with the majority over the results, I address some serious
factual misstatements made by the majority. The first misstatement is: “When Fowler entered his first
guilty plea and the judge sentenced Fowler to Fifteen years for armed robbery, there was no indication
that the judge was aware that the State also indicted Fowler for attempted murder.” Majority opinion
at ¶10. I am perplexed by this statement by the majority because the majority, in the second
paragraph of its opinion, says Fowler’s “indictment for attempted murder was passed to the files”
Actually, it was count two of the same indictment, charging armed robbery, which was passed to the
files. The statement that there is no indication that the trial judge was aware of Fowler’s indictment
for attempted murder when Fowler entered his first guilty plea is simply not true. Quite the contrary, it
is crystal clear that the trial judge was aware that Fowler had also been indicted for attempted armed
robbery.
¶20.
The second misstatement made by the majority is: “At the second hearing, the State called an
expert who testified that the gun used by Fowler had the capacity of killing the store clerk. Fowler’s
accomplice pulled the trigger, and the State’s expert testified that the gun would have fired if the pin
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had been properly set.” Majority opinion at ¶10. This statement is untrue in two respects. First, the
record is clear that Fowler never used the pistol. Second, the State did not call an expert at the
sentencing hearing. The district attorney advised the court that an employee of the district attorney’s
office “retrieved the pistol yesterday and the pistol would fire. The problem was the - - the pin that
held the cylinder in was missing, but the firing pin was - - was there and the gun was fully capable of
firing a bullet.” The district attorney’s statement was made because one of Fowler’s codefendants
who was tried before a different circuit judge had told that judge that the gun would not fire. The
record is clear that Fowler never made a statement about the firing capability of the gun.
¶21.
The third misstatement is this: “At the second sentencing hearing the judge was made aware of
new evidence that led him to believe that Fowler’s conduct was more heinous than he originally
realized . . . During the second sentencing hearing, the judge for the first time heard evidence that
Fowler’s accomplice had plans to shoot and kill the clerk of the store which Fowler robbed ”
Majority opinion at ¶ 10. It is difficult to discern the basis for the majority’s assertion in this regard
because we are not privileged to have the transcript of the first plea hearing. Therefore, neither I nor
the majority knows what evidence was introduced at the first hearing, and no one during the second
sentencing hearing mentioned the evidence which was offered during the first hearing. However, in my
opinion, it is a reasonable assumption that no evidence was presented during the second sentencing
hearing which was not presented during the first sentencing hearing. I say this because prior to the
court’s sentencing Fowler the first time, the court had the benefit of a presentence investigation report
and a victim impact statement. Surely, between these two documents, the court was probably
informed as to the totality of the offenses committed.
¶22.
The third and most egregious misstatement by the majority is this statement:
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The record shows that the judge used Fowler’s conduct concerning his attempted
murder of the store clerk in deciding to impose a harsher sentence. The transcript
from the second sentencing hearing shows that the hearing focused almost entirely on
the culpability of Fowler’s attempted murder. The judge linked Fowler’s attempted
murder charge to the enhanced sentence for the armed robbery charge.
Majority opinion at ¶11. First, the statement is not only untrue but it makes no sense. It is illogical. If
the court wanted to punish Fowler for his conduct concerning the attempted murder of the store clerk,
the court could have, and no doubt would have, made Fowler’s sentence for the attempted murder run
consecutive to his sentence for the armed robbery. Second, the record belies the verity of the
statement as will be shown later in this opinion during my discussion of what transpired at the
sentencing hearing.
¶23.
I now turn to a brief discussion of the applicable law. Ross which is cited by Fowler in his
brief appears to be almost directly on point with Fowler's situation. The operative facts in Ross are
these:
Willie James Ross was indicted and convicted in the Circuit Court of DeSoto County,
Mississippi of robbery. He was sentenced to a term of ten years; however, his motion
for a new trial was granted. Ross was retried, with a different judge presiding,
reconvicted, and sentenced to twelve years, out of the maximum of fifteen, in the
custody of the Department of Corrections.
Id. at 1158. On appeal, Ross argued, inter alia, that the trial court erred in sentencing him to twelve
years, two years more than the previous sentence which had been vacated. Id. at 1159.
¶24.
The Mississippi Supreme Court agreed with Ross's contention, reversed and rendered the
twelve-year sentence, and ordered a sentence of ten years substituted. Id. at 1161. In reversing and
rendering Ross's new sentence, the Ross court also made and issued the following pronouncements
and guidelines:
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1. The imposition of a harsher sentence by a judge following a new trial and conviction
for the same charge is not violative of the federal, or Mississippi's, Constitution.
(citations omitted).
2. Due process of law does require that vindictiveness against a defendant for having
successfully attacked his first conviction play no part in the sentence he receives after a
new trial.
3. Due process also requires that a defendant be freed of apprehension of such a
retaliatory motivation on the part of the sentencing judge.
4. In order to assure that it may be determined on appeal whether such a motive was
absent, the following must occur:
(a) The judge must affirmatively state in the record his reasons for the
harsher sentence.
(b) The reasons must be based upon objective information concerning
identifiable conduct on the part of the defendant which occurred after
the time of the original sentencing proceeding, or based upon objective
information concerning events which occurred after the time of the
original sentencing proceeding that may have thrown new light upon
the defendant's life, health, habits, conduct, or mental and moral
propensities.
(c) The factual data upon which the increased sentence is based must
be made a part of the record.
(d) This information and data upon which the judge bases his sentence
may come to the judge's attention from evidence adduced at the
second trial itself, from a new presentencing investigation, from the
defendant's prison record, or possibly from other sources.
Id. at 1160-61.
¶25.
The record in this case reflects that the trial judge failed to comply with the Ross guidelines.
He offered no explanation for the seven-year increase in the sentence for the armed robbery
conviction. The following exchange occurred at the sentencing hearing:
BY THE COURT:
He [Flowler] was not the principal person involved
with the weapon insofar as attempting to shoot the
11
clerk in the store at Green Oaks Superette. The one
who attempted to kill the clerk is in front of Judge
Montgomery.
BY MR. KITCHENS: That - - that is correct as I - - as I recall, your Honor.
BY THE COURT:
And that is to some extent not mitigating, but what it
does show the Court is that this defendant is not the
one that attempted to actually do the killing; however,
he is responsible as if he had pulled the gun and killed
or attempted to kill his own self [sic]. As you
understand and as I explained to you before, when
any two or more people combine or go in together to
commit an unlawful act - - as armed robbery, the act
or one is the act of all and they are all responsible as if
they had done the whole thing themselves by themself.
Do you understand that, Mr. Fowler?
A.
Yes, sir.
BY THE COURT:
Was there any recommendation that the State desired
to make as to a sentence to be imposed in this case?
BY MR. KITCHENS: Your Honor, my recollection of this is that it was an open plea.
I don't think the, uh-- I don't think the offer that the State
made was, uh, one that the defense wanted to accept.
BY THE COURT:
I think the State made several offers, but was there
anything that you wanted to present by way of
aggravation or mitigation or any statement that you
wanted to make as far as sentencing is concerned.
BY MR. KITCHENS: Your Honor, the victim had indicated to us that he would -that he thought that twenty-five years in the department of
corrections would be an acceptable sentence. This was the
young man that had the gun pointed at him and, uh-BY THE COURT:
How long have you already been in prison?
A.
Five years, sir.
BY MR. WILLIAMSON:
Your Honor, something for the record as well, there
are some letters that my client asked that the Court -12
BY THE COURT:
There are.
BY MR. WILLIAMSON:
-- review and take into consideration from, uh, friends
and family members of his and, uh, just for the record
as well, your Honor, in your rendition of the history of
this file the lawyer that earlier was involved in this case
--
BY THE COURT:
Was not you.
****
BY THE COURT:
A.
Yes, sir.
BY THE COURT:
¶26.
But in any event, Mr. Fowler has now pled guilty to
armed robbery and attempted murder. It becomes
incumbent on the Court to sentence this defendant.
Whatever sentence I sentence him to, he of course is
going to get credit against that sentence. Do you
understand that?
Now, the most culpable defendant is the one with the
firearm and the one that tried to kill the clerk, but there
is culpability for all that join in this illegal act. The
sentence of the law is in Count 1 which is the count of
armed robbery that you be sentenced to serve a term of
twenty-two years in the Mississippi Department of
Corrections. In Count 2 the sentence of the law is that
you be sentenced to serve a term of ten years in the
Mississippi Department of Corrections, and these
sentences are to run concurrently. You are to be given
credit for the time you've already served. You may have
a seat.
Since the trial judge failed to offer any reasons for the harsher sentence — based upon objective
information concerning identifiable conduct or events involving Fowler which occurred after the time of
the original sentencing proceeding that may have thrown new light upon Fowler's life, health, habits,
conduct, or mental and moral propensities — the harsher sentence, under the authority of Ross, should
not be allowed to stand. Consequently, I would follow the approach of the Ross court and order that
13
Fowler's armed robbery sentence be changed to fifteen years, the initial sentence that was given him for
this charge. I find nothing improper about the ten-year sentence given for the attempted murder
conviction. Therefore, I would not disturb it.
KING, C.J., JOINS THIS SEPARATE WRITTEN OPINION.
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