Howard Monteville Neal v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-KA-01295-COA
HOWARD MONTEVILLE NEAL
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
06/27/2008
HON. R.I. PRICHARD III
LAMAR COUNTY CIRCUIT COURT
JAMES W. CRAIG
JUSTIN L. MATHENY
OFFICE OF ATTORNEY GENERAL
BY: JOHN R. HENRY
HALDON J. KITTRELL
CRIMINAL - FELONY
CONVICTED OF CAPITAL MURDER AND
SENTENCED TO LIFE IN THE CUSTODY
OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE
POSSIBILITY OF PAROLE, WITH THE
SENTENCE TO RUN CONSECUTIVELY TO
THE CURRENT LIFE SENTENCE THE
DEFENDANT IS SERVING
AFFIRMED – 11/10/2009
BEFORE MYERS, P.J., ISHEE AND MAXWELL, JJ.
ISHEE, J., FOR THE COURT:
¶1.
On February 2, 1982, following a trial in the Circuit Court of Lamar County,
Mississippi, on a change of venue from Lawrence County, Howard Neal was convicted and
sentenced to death for the January 25, 1981, capital murder of Amanda Joy Neal. Following
the United States Supreme Court decision Atkins v. Virginia, 536 U.S. 304 (2002), in which
the Supreme Court held the execution of mentally retarded individuals violated the Eighth
Amendment to the United States Constitution, Neal sought permission from the Mississippi
Supreme Court to petition the circuit court for removal of his death sentence. The supreme
court granted his request, and remanded the case to determine whether or not Neal was
mentally retarded for purposes of Atkins. After multiple evaluations, psychology experts
determined that Neal was, in fact, mentally retarded for purposes of Atkins.1
¶2.
Thereafter, on July 23, 2007, the State filed its own motion asking the court to vacate
Neal’s sentence of death and resentence him to life without parole. This motion was
subsequently followed by Neal’s request to be resentenced to life with the possibility of
parole. On August 14, 2007, the circuit court entered an order vacating Neal’s death
sentence and scheduled a resentencing hearing.
¶3.
On June 27, 2008, Neal was sentenced to serve a sentence of life in the custody of the
Mississippi Department of Corrections without the possibility of parole, pursuant to
Mississippi Code Annotated section 99-19-107 (Rev. 2007). This section provides that:
In the event the death penalty is held to be unconstitutional by the Mississippi
Supreme Court or the United States Supreme Court, the court having
jurisdiction over a person previously sentenced to death shall cause such
1
Although the Atkins court did not delineate specific standards for diagnosing mental
retardation for Eight Amendment purposes, the Mississippi Supreme Court provided
guidance in Foster v. State, 848 So. 2d 172 (Miss. 2003) and Chase v. State, 873 So. 2d 1013
(Miss. 2004). Read together, the cases mandate that an expert evaluate (1) intellectual
functioning; (2) adaptive functioning; (3) onset before the age of 18; and (4) attempts to
malinger the tests.
2
person to be brought before the court and the court shall sentence such a
person to imprisonment for life, and such person shall not be eligible for
parole.
Miss. Code Ann. § 99-19-107. The court, after having read all motions, documents, and
correspondence pertaining to the matter, found that Neal’s case met all criteria of the statute
and sentenced him to life without the possibility of parole.
¶4.
Aggrieved by this decision, Neal now appeals asserting that the Ex Post Facto and
Due Process Clauses of the United States and Mississippi Constitutions bar a sentence of life
without the possibility of parole because such sentence was not a viable sentence at the time
of his crime or conviction. Finding no error, we affirm.
DISCUSSION
¶5.
Neal’s only issue deals with the sentencing options available to the circuit court after
his death sentence was vacated. Neal argues that no statute in effect at the time of his
conviction authorized a sentence of life without parole, and his sentence violates his
constitutional right against ex post facto punishment under Article 3, Section 16 of the
Mississippi Constitution of 1890 and Article I, Section 10 of the United States Constitution.
His argument is essentially the same argument put forth by Ronald Chris Foster in Foster v.
State, 961 So. 2d 670 (Miss. 2007). He asserts that the only option available to the
resentencing court was the imposition of life with the possibility of parole under the version
of the capital-murder statute in effect at the time the crime was committed. See Miss. Code
Ann. § 97-3-21 (Supp. 2008).
¶6.
Neal’s contention, just as Foster’s, misstates the applicable law. Mississippi Code
Annotated section 99–19-107 was first enacted in 1977. Therefore, at the time Neal
3
committed the crime in 1981, he was subject to section 99-19-107 2, stating that:
[T]he court having jurisdiction over a person previously sentenced to death
shall cause such person to be brought before the court and the court shall
sentence such person to imprisonment for life, and such person shall not be
eligible for work release or parole.
“Where this statute governs a defendant’s sentence, it plainly authorizes a sentence of life
without parole.” Foster, 961 So. 2d at 672 (¶7). “The language is clear; it intends to provide
for an alternative sentence for a person whose death penalty has been deemed
unconstitutional.” Id. at (¶8). The statute clearly states that no one whose death penalty is
ruled unconstitutional may receive life with parole.
¶7.
Because Neal’s death penalty was found unconstitutional by the United States
Supreme Court’s ruling in Atkins, the application of section 99-19-107 is appropriate. The
circuit court correctly applied section 99-19-107 in resentencing Neal. The application of
the statute in no way constitutes an ex post facto punishment. Based on the supreme court’s
holding in Foster, the circuit court’s judgment resentencing Neal to life without the
possibility of parole is affirmed.
¶8.
THE JUDGMENT OF THE CIRCUIT COURT OF LAMAR COUNTY OF
CONVICTION OF CAPITAL MURDER AND SENTENCE TO LIFE IN THE
CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, WITHOUT
THE POSSIBILITY OF PAROLE, WITH THE SENTENCE TO RUN
CONSECUTIVELY TO THE CURRENT LIFE SENTENCE THE APPELLANT IS
SERVING, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
LAMAR COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES,
ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR.
2
Mississippi Code Annotated section 99-19-107 was amended in 1982. The
amendment deleted the “work release” portion of the statute.
4
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