Fogleman v. State

283 So.3d 685

Jeremy Shane FOGLEMAN a/k/a Jeremy Fogleman a/k/a Jeremy S. Fogleman

v.STATE of Mississippi

NO. 2016-CT-01244-SCT

Supreme Court of Mississippi.

August 29, 2019

ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA M. AINSWORTH, Jackson

EN BANC.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. A jury convicted Jeremy Fogleman of felony failure to stop his motor vehicle for police. Because Fogleman fled at a high rate of speed, showing an indifference to the consequences and to causing injury, the trial judge designated Fogleman's offense a crime of violence under Mississippi Code Section 97-3-2(2) (Rev. 2014). This finding resulted in Fogleman's parole-ineligibility period increasing from one-fourth to one-half of his five-year sentence—a sentence clearly allowed by statute and authorized by the jury's verdict.

¶2. Even though Fogleman's sentence fell within the statutory range of up to five years in prison and the judge's findings did not increase a statutory maximum or minimum sentence, the Court of Appeals reversed and rendered the crime-of-violence designation. The appellate court held that the resulting parole-ineligibility increase violated the Sixth Amendment because it was based on facts found by a judge, not a jury.

¶3. The United States Supreme Court has held that the Sixth Amendment requires factual determinations that increase maximum or minimum sentences be submitted to a jury and found beyond a reasonable doubt.¹ But there is a notable distinction between a judge making factual findings that affect an actual sentence—for example, increasing the maximum or minimum sentence—versus those that merely impact time served. The first scenario requires a jury finding, while the second, which we confront here, does not. Our review shows that Fogleman's sentence—five years in prison, with no eligibility for parole or early release until half his sentence had been served—fell well within the range authorized by statute and by the jury's verdict.² We find the judge's crime-of-violence designation merely impacted the minimum time Fogleman had to serve before becoming parole eligible. It did nothing to affect Fogleman's sentence . Thus, no Sixth Amendment violation occurred.

¶4. We reverse the decision of the Court of Appeals and reinstate the judgment of the Circuit Court of Harrison County.

Background Facts and Procedural History

¶5. On August 27, 2014, a Biloxi police officer attempted to stop a Dodge Charger with a partially obscured license plate. The owner, Jeremy Fogleman, had a suspended driver's license and an outstanding arrest warrant. Rather than obey the officer's signals to stop, Fogleman took off. He led numerous Biloxi police officers on a high-speed chase through residential neighborhoods and down Highway 90 at speeds reaching seventy miles per hour. The chase ended when Fogleman's Charger crashed into another car at an intersection. The occupants of the other car suffered minor injuries. Fogleman was immediately arrested.

¶6. Fogleman was indicted and tried before a jury. The jury convicted him of failing to stop his vehicle when signaled by law enforcement while operating his vehicle with reckless or willful disregard for the safety of persons or property. See Miss. Code Ann. § 97-9-72(2) (Rev. 2014). This offense carried statutory penalties of up to five years in prison. After the jury was dismissed, the State moved to classify Fogleman's crime as a crime of violence. The State argued Fogleman "used physical force, or made a credible attempt or threat of physical force against another person as part of [his] criminal act." Miss. Code Ann. § 97-3-2(2) (Rev. 2014).

¶7. The trial judge sentenced Fogleman—within the statutory maximum—to five years in Mississippi Department of Corrections' custody. See Miss. Code Ann. § 97-9-72(2). The judge also granted the State's motion and designated in the sentencing order that Fogleman had committed a crime of violence under Section 97-3-2(2). Under this provision, "No person convicted of a crime of violence listed in this section is eligible for parole or for early release from the custody of the Department of Corrections until the person has served at least fifty percent (50%) of the sentence imposed by the court." Id.

¶8. Fogleman appealed. On appeal, he did not challenge his conviction. Rather, his sole claim is that the trial judge erred by applying Section 97-3-2(2).

¶9. We assigned Fogleman's appeal to the Court of Appeals. The appellate court ruled that Section 97-3-2(2) is unconstitutional. Relying on Alleyne v. United States , 570 U.S. 99, 113, 133 S. Ct. 2151, 2161, 186 L. Ed. 2d 314 (2013), the Court of Appeals concluded that Section 97-3-2(2) violates the Sixth Amendment to the United States Constitution because it allows a judge, not a jury, to make a factual finding that increases the mandatory minimum amount of time a convict must serve. Fogleman v. State , 2016-KA-01244-COA, 276 So.3d 1213, 1216–17, 2018 WL 4444057, at *3 (Miss. Ct. App. Sept. 18, 2018). The Court of Appeals reversed and rendered the crime-of-violence designation in the sentencing order.

¶10. The State petitioned for certiorari review, which we granted.

Discussion

¶11. After review, we reverse the Court of Appeals' decision and reinstate the trial judge's crime-of-violence designation. We find Section 97-3-2(2) does not increase the statutory minimum sentence , so it does not run afoul of Alleyne 's holding and is not unconstitutional.

I. Alleyne and Section 97-3-2(2)

¶12. Alleyne 's holding is an extension of Apprendi v. New Jersey , 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000). In Apprendi , the United States Supreme Court held that facts that increase the penalty for a crime—beyond the statutory maximum—are elements of the crime that, under the Sixth and Fourteenth Amendments, must be submitted to a jury and found beyond a reasonable doubt.³ Apprendi , 530 U.S. at 482-83, 120 S.Ct. 2348. Two years later, the Supreme Court reiterated that only those facts that increase a defendant's penalty beyond the statutory maximum allowed by the jury's verdict had to be submitted to a jury. Harris v. United States , 536 U.S. 545, 557, 122 S. Ct. 2406, 2414, 153 L. Ed. 2d 524 (2002), overruled by Alleyne , 570 U.S. 99, 133 S.Ct. 2151. According to Harris , Apprendi 's holding did not apply to facts that increased the statutory minimum. As the Harris Court put it, factual findings that limited a judge's sentencing discretion within the range of penalties authorized by the jury's verdict were considered sentencing factors, not elements, and thus did not violate the Sixth Amendment. Harris , 536 U.S. at 566-67, 122 S.Ct. 2406.

¶13. But nearly eleven years after the Harris decision, the Supreme Court, in a sharply divided opinion, changed course. In Alleyne , the Supreme Court held that "[a] fact that increases a sentencing floor ... forms an essential ingredient of the offense" and must be submitted to the jury. Alleyne , 570 U.S. at 113, 133 S.Ct. 2151. In other words, "[w]hen a finding of fact alters the legally prescribed punishment so as to aggravate it, the fact necessarily forms a constituent part of a new offense and must be submitted to the jury." Id. at 114-15, 133 S. Ct. 2151. Thus, according to Alleyne , Apprendi applies not only to an increased statutory maximum sentence but also to an increased statutory minimum sentence.

¶14. The Alleyne Court considered a federal sentencing statute— 18 U.S.C.A. § 924(c)(1)(A). This statute applied to crimes of violence or drug trafficking, in which firearms are involved.⁴ Id. at 103-04, 133 S. Ct. 2151. In Alleyne , the jury's verdict supported a sentencing range from five years in prison to life. Id. at 117, 133 S. Ct. 2151. But under Section 924(c)(1)(A)(ii), if the defendant brandished a firearm during the crime, rather than simply possessing it, the mandatory minimum sentence increased from five years to seven years. Id. at 104, 133 S. Ct. 2151 ; see also 18 U.S.C.A. § 924(c)(1)(A) (West 2018). In Alleyne , the district judge made a factual finding that Alleyne had brandished a firearm and, thus, the mandatory minimum sentence increased from five to seven years. Id. The Supreme Court found that this violated Alleyne's Sixth Amendment rights.

¶15. But that is not what we face here. The sentencing range authorized by the jury's guilty verdict for felony failure to stop a motor vehicle for law enforcement was zero to five years in prison. Miss. Code Ann. § 97-9-72(2). There was no mandatory minimum sentence that was triggered by a judicial finding. Nor is there a tiered sentence structure that would—for example—increase the statutory sentence from zero to five years to two to five years based on judge-made factual findings like in Alleyne .⁵ Here, Fogleman was sentenced to five years, a sentence clearly within the parameters of Section 97-9-72(2).

¶16. Still, the Court of Appeals ruled Fogleman's sentence was unconstitutional—not for the length of his sentence (five years) but rather for the amount of time he must serve before becoming eligible for parole or early release. Instead of focusing on Section 97-9-72(2), the statute under which Fogleman was sentenced, the Court of Appeals focused on Section 97-3-2(2). That section provides that,

In any felony offense with a maximum sentence of no less than five (5) years, upon conviction, the judge may find and place in the sentencing order, on the record in open court, that the offense, while not listed in subsection (1)⁶ of this section, shall be classified as a crime of violence if the facts show that the defendant used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act. No person convicted of a crime of violence listed in this section is eligible for parole or for early release from the custody of the Department of Corrections until

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