Matheny v. State

289 So.3d 328

Ransom Levi MATHENY, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CP-00740-COA

Court of Appeals of Mississippi.

January 14, 2020

ATTORNEY FOR APPELLANT: RANSOM LEVI MATHENY (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER, Jackson.

BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. On April 19, 2013, a Marion County grand jury indicted Ransom Levi Matheny on three counts of child exploitation under Mississippi Code Annotated section 97-5-33(6) (Supp. 2007). On September 30, 2013, Matheny pleaded guilty to two counts of child exploitation under section 97-5-33(6). The court sentenced Matheny to two concurrent forty-year terms, with twenty years to serve in the custody of the Mississippi Department of Corrections and twenty years' post-release supervision. Matheny filed a motion for post-conviction collateral relief (PCR), which the trial court denied. Matheny appeals, arguing that section 97-5-33(6) was unconstitutional and that his indictment was defective. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On April 19, 2013, a Marion County grand jury indicted Matheny on three counts of child exploitation under section 97-5-33(6). Count One involved a child, R.C.M.,¹ who was fourteen years of age at the time; Count Two involved W.W., who was also fourteen years of age at the time; and Count Three involved C.W., who was thirteen years of age at the time. On September 30, 2013, Matheny executed a sworn "Petition to Enter Plea of Guilty" to Counts One and Two of the indictment against him. The State caused the entry of nolle prosequi for the charge in Count Three with the court's consent. The court ordered a pre-sentence investigation report and set a hearing date for Matheny's sentencing. The hearing was held on October 21, 2013. The court reviewed the pre-sentence investigation report and the twenty-six letters submitted on behalf of and in support of Matheny, and the court held conferences with representatives of the victims, Matheny's family members, the district attorney, and defense counsel. Following the conferences, the court sentenced Matheny to two concurrent forty-year terms, with twenty years to serve in the custody of the Mississippi Department of Corrections and twenty years' post-release supervision.

¶3. On September 16, 2016, Matheny timely filed a PCR motion, claiming that his indictment was defective, that he received ineffective assistance of counsel, and that his sentence was disproportionate in violation of the Eighth Amendment.² On April 23, 2018, the trial court entered its judgment denying and dismissing Matheny's PCR motion. On May 21, 2018, Matheny filed his notice of appeal. On appeal, Matheny does not raise or brief the issue of ineffective assistance of counsel; therefore, this Court will not address that issue. M.R.A.P. 28(a).

STANDARD OF REVIEW

¶4. "We review the dismissal or denial of a PCR motion for abuse of discretion. We will only reverse if the circuit court's decision is clearly erroneous. When reviewing questions of law, our standard is de novo." Kennedy v. State , No. 2016-CP-00755-COA, 287 So.3d 258, 263, 2019 WL 1349682, at *2 (¶12) (Miss. Ct. App. Mar. 26, 2019), cert. denied , 279 So. 3d 1087 (Miss. 2019). "The PCR movant bears the burden of showing he is entitled to relief by a preponderance of the evidence." Webster v. State , 152 So. 3d 1200, 1203 (¶5) (Miss. Ct. App. 2014).

ANALYSIS

I. Whether Mississippi Code Annotated section 97-5-33(6) was unconstitutional as applied.

¶5. Matheny argues that Mississippi Code Annotated section 97-5-33(6) is unconstitutional. Matheny was indicted and pleaded guilty to two counts of child exploitation pursuant to section 97-5-33(6), which provides that "[n]o person shall, by any means including computer, knowingly entice, induce, persuade, seduce, solicit, advise, coerce, or order a child to meet with the defendant or any other person for the purpose of engaging in sexually explicit conduct." (Emphasis added). Matheny argues that the statute is unconstitutional because (1) it violated his Fourteenth Amendment right to equal protection,³ (2) it is vague and therefore void, and (3) it provides for a grossly disproportionate sentence. Each issue is addressed separately below:

A. Whether Matheny's prosecution under section 97-5-33(6) violated his Fourteenth Amendment right to equal protection under the law.

¶6. Matheny argues that he was denied equal protection under the law because police and prosecutors selectively enforce section 97-5-33 against adult offenders but not against juveniles. Matheny contends that W.W. sent a sexually explicit photograph of herself to him; therefore, she committed the crime of exploitation. We disagree.

¶7. "Generally, to establish an equal protection claim the plaintiff must prove that similarly situated individuals were treated differently." Wheeler v. Miller , 168 F.3d 241, 252 (5th Cir. 1999). "Unless a suspect class or fundamental right is involved, we generally employ the rational basis test in deciding equal protection claims." Id. "Selective prosecution, if based on improper motives, can violate the equal protection clause of the fourteenth amendment." United States v. Kahl , 583 F.2d 1351, 1353 (5th Cir. 1978). Therefore, in order to bring a selective prosecution claim "the defendant must show: first, that others similarly situated generally have not been prosecuted; and second, that the Government's prosecution of him is selective, invidious, in bad faith or based on impermissible considerations such as race, religion, or his exercise of constitutional rights." Id. "A selective-prosecution claim is an independent assertion of misconduct by a prosecutor and not a defense on the merits to the criminal charge itself." Hutto v. State , 227 So. 3d 963, 989 (¶89) (Miss. 2017). "In order to succeed in a selective-prosecution claim, there must be clear evidence to rebut the presumption that the prosecutor acted lawfully." Id. The State has no initial burden to show a rational basis for convicting Matheny under the subject statute; rather, Matheny must "clearly show that the prosecution acted unlawfully based on arbitrary standards." Id.

¶8. Here, Matheny has failed to show the first factor—that he is similarly situated to the minor children. In fact, it is unconscionable for Matheny, an adult, to be similarly situated to the very group (i.e., children) that the statute is explicitly designed to protect from exploitation. In Shaffer v. State , 72 So. 3d 1070, 1072 (¶5) (Miss. 2011), the supreme court held that "Mississippi's child exploitation statute [ section 97-5-33 ] is violated when one attempts to exploit a child." Mississippi Code Annotated section 97-5-31(a) (Rev. 2006) provides that for sections 97-5-33 to 97-5-37, a " ‘[c]hild’ means any individual who has not attained the age of eighteen (18) years."⁴ Matheny is not a child under the relevant statute;⁵ therefore, it is not only unconscionable for the minor children to be prosecuted under section 97-5-33 for allegedly exploiting an adult, it is also impossible.

¶9. Additionally, Matheny has not shown the second factor— that the State's prosecutions were selective or based on impermissible considerations. Matheny has not shown that the prosecutor acted unlawfully by prosecuting him for soliciting children to partake in sexually explicit acts and not prosecuting the children who were victims of his solicitation. "It is a fundamental principle of our criminal justice system that a prosecutor is afforded prosecutorial discretion over what charge to bring in any criminal trial." Farris v. State , 764 So. 2d 411, 435 (Miss. 2000). Matheny has not provided nor does the record support evidence to rebut the presumption that the prosecutor acted lawfully, not to mention the law is clear that failure to prosecute the child is in no way a defense to Matheny. In this instance, Matheny did not make out a prima facia case; therefore, this issue is without merit.

B. Whether section 97-5-33(6) is vague and therefore void.

¶10. Matheny next argues that section 97-5-33(6) is void for vagueness because the phrase "no person shall" and the word "child" fail to provide persons of ordinary intelligence an opportunity to know whom the statute regulates or to know what is prohibited. There is nothing in the record before this Court indicating that this issue was raised in the trial court. Generally, an appellate court will not address issues raised for the first time on appeal. Young v. State , 270 So. 3d 175 (¶3) (Miss. Ct. App. 2018). But "an obvious error which was not properly raised by the defendant and which affects a defendant's fundamental, substantive right can be addressed under the plain-error doctrine." Nolan v. State , 182 So. 3d 484, 492 (¶28) (Miss. Ct. App. 2016). The supreme court has held that "[a] conviction under an unconstitutionally vague statute violates the Due Process Clause, and is an error affecting a fundamental constitutional right." Id. (quoting Fulgham v. State , 47 So. 3d 698, 700 (¶6) (Miss. 2010) ). Thus, we will address this issue.

¶11. The Legislature has the "power to create and define criminal offenses ...." Pickett v. State , 252 So. 3d 40, 48 (¶22) (Miss. Ct. App. 2018) (quoting Wilcher v. State , 227 So. 3d 890, 895 (¶28) (Miss. 2017) ). The Legislature also "has the power to define and punish any act as criminal unless limited by constitutional provisions." Id. "A statute is unconstitutionally vague and violates due process if ‘persons of common intelligence must guess at its meaning and differ as to its application.’ " Id. at (¶23). "Likewise, a statute is void for vagueness if it ‘encourages arbitrary and erratic arrests and convictions.’ " Id. In other words, "[t]he void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness so that ordinary people can understand what conduct...