Lavern Jeffrey Moran v. State of Mississippi , 235 So. 3d 101 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00188-COA
LAVERN JEFFREY MORAN A/K/A LAVERN J. APPELLANT
MORAN
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/05/2016
TRIAL JUDGE: HON. ROGER T. CLARK
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: MICHAEL W. CROSBY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DENIED PETITION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED - 03/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.
WILSON, J., FOR THE COURT:
¶1. Lavern Jeffrey Moran appeals from the denial of his petition for post-conviction relief.
He argues that he should not have been sentenced as a habitual offender under Mississippi
Code Annotated section 99-19-81 (Rev. 2015). Under clear Mississippi Supreme Court
precedent, Moran qualified as a habitual offender. Accordingly, we affirm.
FACTS
¶2. On May 18, 2015, Moran pled guilty to two counts of burglary of a dwelling and was
sentenced to ten years on each count, with the sentences to run concurrently. The sentencing
order recited that Moran pled guilty “as a habitual offender,” and the court found that his
prior convictions met the requirements of section 99-19-81. The court ordered that Moran’s
“total” sentence of ten years “as a habitual offender” would “be served day for day in
accordance with [section] 99-19-81 . . . , said sentence being without hope of parole or
probation.”1
¶3. Eleven days later, Moran filed a petition for post-conviction relief alleging that the
court erred by sentencing him as a habitual offender. Moran’s only argument in his petition
and on appeal is that his prior felony convictions for robbery and uttering a forgery do not
meet the requirements of section 99-19-81 because both convictions were entered on the
same day, although the offenses were committed on different days and indicted separately.
¶4. Section 99-19-81 provides as follows:
Every person convicted in this state of a felony who shall have been convicted
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Although Moran’s sentence provides that he shall not be eligible for parole or
probation as a habitual offender, section 99-19-81 further required the circuit court to
impose the maximum term of imprisonment for burglary of a dwelling, which is twenty-five
years, not ten. Miss. Code Ann. § 97-17-23 (Rev. 2014); Garner v. State, 864 So. 2d 1005,
1008 (¶8) (Miss. Ct. App. 2004). The circuit court judge accepted the State’s sentencing
recommendation of concurrent terms of ten years, even while acknowledging that the
recommended sentence did not comply with the law. See Harris v. State, 527 So. 2d 647,
651 (Miss. 1988) (“Sentencing under [section 99-19-81] is not discretionary. If a defendant
is a repeat offender falling within the provisions of [section 99-19-81,] the trial judge has
no alternative but to sentence him under said statute.”); Lamar v. State, 983 So. 2d 364, 371
(¶27) (Miss. Ct. App. 2008) (Roberts, J., specially concurring) (Section 99-19-81 provides
that a habitual offender “shall be sentenced to the maximum term of imprisonment
prescribed” for his present offense, so “the circuit court [is] required to sentence [the
defendant] to the maximum sentence for each of his convictions.”). Thus, Moran’s petition
for post-conviction relief and appeal attack a sentence that is less than half the mandatory
sentence that he should have received under the law.
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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, whether in this state or elsewhere, shall be
sentenced to the 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.
¶5. Moran argues that his predicate felonies were not “separately brought” within the
meaning of the statute even though the offenses were committed on different days and
indicted separately. Moran acknowledges that his argument is squarely foreclosed by
Mississippi Supreme Court precedent. See, e.g., Kolb v. State, 568 So. 2d 288, 289 (Miss.
1990) (holding that two prior convictions entered on the same day satisfied the statute
because, even though the offenses were charged as separate counts of a single indictment,
they were committed on different days and at different places); Rushing v. State, 461 So. 2d
710, 713 (Miss. 1984) (“In the case sub judice, though both of appellant’s [prior] convictions
occurred on the same day, they arose out of . . . separate incident[s] occurring at different
times. Therefore, the trial court correctly sentenced the appellant under [section]
99-19-81.”). But he argues that Kolb and Rushing “are very old,” “are wrong,” and should
be overruled.
¶6. “This Court, sitting as an intermediate appellate court, is obligated to follow precedent
established by the Mississippi Supreme Court.” Kennedy v. State, 766 So. 2d 64, 65 (¶3)
(Miss. Ct. App. 2000). “[W]e . . . do not have the authority to overrule a decision of our
[S]upreme [C]ourt.” Miles v. State, 864 So. 2d 963, 965-66 (¶8) (Miss. Ct. App. 2003).
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Accordingly, we affirm the denial of Moran’s petition for post-conviction relief.
¶7. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, DENYING THE PETITION FOR POST-CONVICTION
RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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