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Mississippi Supreme Court: Court of Appeals Improperly Permitted State to Supplement Record on Appeal in Reviewing Habitual Offender Determination

by Douglas Ankney

The Supreme Court of Mississippi, sitting en banc, held that the Court of Appeals (“COA”) improperly permitted the State to add to the record on appeal and the evidence presented to the trial court was insufficient to sustain a finding that Lorenzo Manuel was a habitual offender.

Manuel was convicted by jury of second-degree murder and aggravated assault for his role in the shooting death of Justin Shannon and the wounding of Keandria Mitchell. At his sentencing, the prosecution offered two prior sentencing orders into evidence and asked the circuit court to sentence Manuel as a habitual offender. Both orders stated Manuel had pleaded guilty to a charge of selling hydrocodone. When the judge asked if the two orders were identical, the prosecutor pointed out that one order had a case number of 08-1180 and the other had 08-1181. The judge then asked if the prosecution had anything further, and the prosecutor answered: “No, Your Honor, other than the fact that I believe that we’ve presented evidence that shows that he has been charged with two different felonies arising out of separate charges, separate times, and sentenced to a term of one year or more.”

The judge concluded, “the State has proven, and I so find beyond a reasonable doubt, that you have previously been convicted of at least two felonies on charges separately brought and arising out of separate incidents and at different times and that you have been sentenced to separate terms of one year or more.” The judge sentenced Manuel to 40 years on the second-degree murder conviction and 20 years for aggravated assault to be served consecutively, without suspension, reduction, or possibility of parole.

Manuel challenged the habitual offender finding for the first time on appeal, asserting that the State failed to prove that the two prior offenses arose out of separate incidents at different times. In response, the State moved under Mississippi Rules of Appellate Procedure (“MRAP”) Rule 10(e) to supplement the record with copies of Manuel’s indictments that revealed one drug sale allegedly occurred on August 20, 2008, and the other occurred on August 26, 2008. The COA granted the State’s unopposed motion. The COA referenced the indictments when concluding “Manuel’s prior convictions clearly arose ‘out of separate incidents at different times’ as required by the statute.” The COA affirmed Manuel’s judgment, and the Mississippi Supreme Court granted his petition for writ of certiorari on the challenge to his habitual offender sentence.

The Court observed because “Manuel failed to challenge the habitual offender sentence before the trial court, he relies on the plain error doctrine, which allows this Court to address an issue that was not raised in the trial court.” Conners v. State, 92 So.3d 676 (Miss. 2012). Determining whether plain error occurred requires the Court to “determine if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether the error has prejudiced the outcome of the trial.” Green v. State, 183 So.3d 28 (Miss. 2016). Additionally, the error must have “resulted in a manifest miscarriage of justice” or “seriously affect[ed] the fairness, integrity or public reputation of judicial proceedings.” Hall v. State, 201 So.3d 424 (Miss. 2016). Under the doctrine of plain error, the Court may recognize an “obvious error which was not properly raised by the defendant and which affects a defendant’s fundamental, substantive right.” Shinstock v. State, 220 So.3d 967 (Miss. 2017). “An accused has a fundamental right to be free of an illegal sentence.” Grayer v. State, 120 So.3d 964 (Miss. 2013). A “sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.” Id.

Manuel was sentenced to 40 years for second degree murder, which is the maximum penalty for the crime under Miss. Code Ann. § 97-3-21(2) (Rev. 2020). And Manuel’s consecutive 20-year sentence is the maximum penalty for aggravated assault under Miss. Code Ann. § 97-3-7(2)(a). The Court held in Grayer that the habitual offender enhancement “without suspension, reduction, or possibility of parole combined with the maximum sentence of the substantive crime ‘exceeds the maximum statutory penalty for the crime.’”

At the time of Manuel’s sentencing, the habitual offender statute read: “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 ... shall be sentenced to a 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.” Miss. Code Ann. § 99-19-81 (Rev. 2015).

In interpreting the phrase “separate incidents at different times” of § 99-19-81, the Court “has remarked that the ‘events should be sufficiently separate that the offender’s criminal passions may have cooled so that he has time to reflect.’” Pittman v. State, 570 So.2d 1205 (Miss. 1990). “Conversely, two offenses committed in rapid succession do not suggest the same repetitiveness of criminal design such that the offender may be thought predictably habitual thereafter.” Id.

The circuit court relied on the sentencing orders for its finding that Manuel was a habitual offender. “When reviewing the sufficiency of the evidence, [the Court] ask[s] whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of [§ 99-19-18] beyond a reasonable doubt.” Brent v. State, 296 So.3d 42 (Miss. 2020). The Mississippi Supreme Court did not consider the indictments that were added to the record on appeal. MRAP 10(e) provides: “If anything material to either party is omitted from the record by error or accident or is misstated in the record ... either appellate court on proper motion or of its own initiative, may order that the omission or misstatement be corrected, and, if necessary, that a supplemental record be filed.”

In the present case, the indictments were not entered into evidence in the trial court and they were not accidentally omitted from the appellate record. According to the Court, the addition of the indictments to the record was error, observing: “Nothing in this rule shall be construed as empowering the parties or any court to add to or subtract from the record except insofar as may be necessary to convey a fair, accurate, and complete account of what transpired in the trial court with respect to those issues that are the bases of appeal.” MRAP 10(f).

The Court concluded that from the two sentencing orders considered by the trial court, it was impossible to discern if the crimes occurred in rapid succession or if Manuel’s passions had cooled between offenses, that is, “no rational trier of fact could have found the essential elements of [§ 99-19-81] beyond a reasonable doubt.” Without the habitual offender finding, Manuel’s sentence was in excess of the maximum statutory penalty and illegal. Thus, the Court ruled “Manuel was prejudiced by this error and that this error seriously affects the fairness of judicial proceedings.”

Accordingly, the Court vacated Manuel’s sentence and remanded for resentencing in the trial court for the substantive crimes only because the double jeopardy provision of the Mississippi Constitution prohibited the State from getting a second chance to prove habitual offender status. See: Manuel v. State, 357 So.3d 633 (Miss. 2023) (en banc).  

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