Nash v. State

293 So.3d 265

Willie NASH a/k/a Willie Cole Nash

v.STATE of Mississippi

NO. 2018-KA-01587-SCT

Supreme Court of Mississippi.

January 9, 2020

January 23, 2020

April 9, 2020

ATTORNEY FOR APPELLANT: WILLIAM B. BARDWELL, Ridgeland

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MATTHEW WYATT WALTON

BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

MAXWELL, JUSTICE, FOR THE COURT:

¶1. A jury found Willie Nash guilty of possession of a cell phone in a correctional facility. Nash does not appeal the jury's verdict. He only challenges his sentence, twelve years in prison. He claims the twelve-year sentence is grossly disproportionate to the crime and thus violates the Eighth Amendment.

¶2. Though harsh, Nash's sentence falls within the statutory range of three to fifteen years. And the judge based his sentencing decision on the seriousness of Nash's crime and evidence of Nash's criminal history. Because Nash has not shown that a threshold comparison of the crime committed to the sentence imposed leads to an inference of gross disproportionality, no further analysis is mandated. We affirm Nash's conviction and sentence.

Background Facts and Procedural History

¶3. While confined at the Newton County Jail on a misdemeanor charge, Nash asked a jailer for "some juice." At first, the jailer thought Nash was asking for something to drink. But then Nash slid across a cell phone that he had on his person. The jailer took the phone and gave it to the sheriff's deputy in charge. Nash later denied the phone was his. But when the deputy sheriff unlocked the phone—using the code Nash had given the jailer—he found photos of Nash, as well as a text-message exchange from the day Nash had handed over the phone in jail. The incoming message asked, "WYA" (short for "where you at"), and the outgoing message responded, "in jail."

¶4. A jury convicted Nash of possessing a cell phone in a correctional facility in violation of Mississippi Code Section 47-5-193 (Rev. 2015). Any person who violates Section 47-5-193 "shall be guilty of a felony and upon conviction shall be punished by confinement in the Penitentiary for not less than three (3) years nor more than fifteen (15) years ...."¹ Miss. Code Ann. § 47-5-195 (Rev. 2015). At Nash's sentencing hearing, the trial judge informed Nash that, while his crime may have seemed insignificant to him, there was a reason possessing a cell phone in a correctional facility "is such a serious charge." The judge also told Nash to "consider yourself fortunate." Based on Nash's prior burglary convictions, he could have been indicted as a habitual offender. This would have subjected him to a fifteen-year sentence to be served day for day. Miss. Code Ann. § 99-19-81 (Supp. 2019). The trial court sentenced Nash below the statutory maximum to a term of twelve years in the custody of the Mississippi Department of Corrections.²

¶5. Nash filed a motion for new trial challenging the sufficiency of the State's evidence and the trial court's evidentiary rulings. The trial court denied this motion, and Nash appealed.

Discussion

¶6. On appeal, Nash challenges his sentence only. He argues his twelve-year sentence violates the Eighth Amendment of the United States Constitution because it is grossly disproportionate to his crime of possessing a cell phone in jail.

¶7. The State argues Nash failed to preserve his claim because he did not challenge his sentence's proportionality before the trial court either at sentencing or in his motion for a new trial. Despite the State's assertion,³ we address the merits of Nash's sentence-based claim. As we recently noted, Eighth Amendment challenges assert an important constitutional right, and this Court "will indulge in every reasonable presumption against the waiver of a constitutional right." Portis v. State , 245 So. 3d 457, 474 n.15 (Miss. 2018) (quoting Brooks v. State , 903 So. 2d 691, 695 (Miss. 2005) ); see also Edwards v. State , 800 So. 2d 454, 468-69 (Miss. 2001) (addressing the merits of the defendant's sentence proportionality, despite being "not bound" to consider statistical evidence that was not first presented to the trial court).⁴

I. Severity of Crime

¶8. Nash begins his proportionality challenge by asking this Court to recognize "differing degrees of transgression" under Section 47-5-193. Section 47-5-193 prohibits any offender confined to a correctional facility from possessing "any weapon, deadly weapon, unauthorized electronic device, contraband item, or cell phone or any of its components or accessories to include, but not limited to, Subscriber Information Module (SIM) cards or chargers." Nash argues this statute creates "three categories ... of a descending order in severity." As Nash sees it, possession of weapons is the most serious offense, possession of contraband is less serious, and possession of a cell phone—if not used in criminal activity—is the least serious.

¶9. But the statute's language does not support his three-tiered argument. Nothing in the language of Section 47-5-193 suggests the Legislature intended to assign different levels of severity or punishment depending on whether one possessed a weapon, contraband, or a cell phone. Rather, Section 47-5-195 explicitly treats all violations of Section 47-5-193 equally. "Any person who violates any provision of Section 47-5-193 ... shall be guilty of a felony and upon conviction shall be punished by confinement in the Penitentiary for not less than three (3) years nor more than fifteen (15) years ...." Miss. Code Ann. § 47-5-195 (emphasis added).

¶10. What Nash dubs as the "mere possession of a cell phone" is a specified violation of Section 47-5-193. And the statute subjected him to the same potential punishment as any other violation of Section 47-5-193—imprisonment for not less than three years and not more than fifteen years. Miss. Code Ann. § 47-5-195.

¶11. Nash's twelve-year sentence fell within this statutory range. And "the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute." Fleming v. State , 604 So. 2d 280, 302 (Miss. 1992).

II. Proportionality of Sentence

¶12. There is, however, a very limited and rarely imposed exception to the general rule. Id. "The Eighth Amendment, which forbids cruel and unusual punishments, contains a ‘narrow proportionality principle’ that ‘applies to noncapital sentences.’ "⁵ Ewing v. California , 538 U.S. 11, 20, 123 S. Ct. 1179, 1185, 155 L. Ed. 2d 108 (2003) (quoting Harmelin v. Michigan , 501 U.S. 957, 996-97, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991) (Kennedy, J., concurring in part and concurring in judgment)).

¶13. In years past, this Court reviewed proportionality using the three-part test from Solem v. Helm , 463 U.S. 277, 292, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983). Hoops v. State , 681 So. 2d 521, 538 (Miss. 1996).⁶ But " Solem must now be viewed in the light of Harmelin v. Michigan , 501 U.S. 957, 111 S.Ct. 2680 ...." McGruder , 954 F.2d at 315. " Harmelin provoked a host of minority opinions" from the Supreme Court. Id. On rehearing, we acknowledge that in 1996 this Court in Hoops erroneously characterized Harmelin as overruling Solem "to the extent that it found a guarantee of proportionality in the Eighth Amendment." Hoops , 681 So. 2d at 538 (citing Smallwood v. Johnson , 73 F.3d 1343, 1346 n.4 (5th Cir. 1996) ). The genesis of this erroneous statement of law came from a quote from the Fifth Circuit Court of Appeals, which promoted that the Eighth Amendment contained no proportionality principle, a suggestion found in Justice Scalia's opinion in Harmelin —an opinion that ultimately did not fully carry the day. Instead, "[t]he controlling opinion [in Harmelin ] concluded that the Eighth Amendment contains a ‘narrow proportionality principle,’ that ‘does not require strict proportionality between a crime and sentence’ but rather ‘forbids only extreme sentences that are "grossly disproportionate" to the crime.’ " Graham v. Florida , 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (quoting Harmelin , 501 U.S. at 997, 1000-01, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in judgment)). Thus, to determine if a particular sentence is grossly disproportionate, a court must first compare the gravity of the offense to the severity of the sentence. Id. Only in the exceedingly " ‘rare case in which this threshold comparison leads to an inference of gross disproportionality’ " should the court "then compare the defendant's sentence with the sentences received by other offenders in the same jurisdiction and with sentences imposed for the same crime in other jurisdictions." Id. at 60, 130 S. Ct. 2011 (quoting Harmelin , 501 U.S. at 1005, 111 S.Ct. 2680 (Kennedy, J., concurring in part and concurring in judgment)).

¶14. In arguing gross disproportionality, Nash invokes Davis v. State , 724 So. 2d 342, 344 (Miss. 1998). In that case, Melissa Davis received the maximum available sentence of sixty years in prison for selling two rocks of cocaine within 1,500 feet of a church. But on appeal, this Court found no record justification for the trial court's imposing the most severe punishment available. Id. So this Court remanded for the trial judge to conduct proportionality review under Solem . Id.

¶15. In Ford v. State , this Court later explained its reasoning in Davis . Ford v. State , 975 So. 2d 859, 870 (Miss. 2008). The Ford Court noted that Davis, a first-time offender, was given the maximum sentence without any seeming justification. Id. "Because the trial judge did not use discretion in and simply opted for the maximum penalty, this Court remanded the cases for reconsideration." Id. (citing Davis , 724 So. 2d at 344 ). By contrast, the sentence in Ford , while severe, did not raise the same proportionality concerns. Though Ford was also a first-time offender, she was not given the maximum penalty of twenty years for aggravated assault. Id....