Trotter v. State

MILTON TROTTER Appellant v. STATE OF MISSISSIPPI Appellee

No. 2013-CT-00547-SCT

SUPREME COURT OF MISSISSIPPI

September 13, 2016

Serial: 207623

EN BANC ORDER

Four of the justices of this Court are of the opinion that the judgment of the Court of Appeals should be affirmed, and four are of the opinion that it should be reversed; consequently, that judgment must be, and is, affirmed. This principle has been part of our jurisprudence in excess of seven decades. See Rockett Steel Works v. McIntyre, 15 So. 2d 624 (Miss. 1943) ("Three of the judges of this Court are of the opinion that the judgment of the court below should be affirmed, and three of the opinion that it should be reversed; consequently, that judgment must be, and is affirmed."). This result was first dictated by Chief Justice Marshall for the United States Supreme Court, as follows:

No attempt will be made to analyze [the parties' arguments and cited cases], or to decide on their application to the case before us, because the Judges are divided respecting it. Consequently, the principles of law which have been argued cannot be settled; but the judgment is affirmed, the court being divided in opinion upon it.

Etting v. Bank of United States, 24 U.S. 59, 78, 6 L. Ed. 419 (1826) (emphasis added).

Four decades later, Justice Field addressed the effect of affirmance by a divided court:

There is nothing in the fact that the judges of this court were divided in opinion upon the question whether the decree should be reversed or not, and, therefore, ordered an affirmance of the decree of the court below. The judgment of affirmance was the judgment of the entire court. The division of opinion between the judges was the reason for the entry of that judgment; but the reason is no part of the judgment itself.

Durant v. Essex Co., 74 U.S. 107, 110, 19 L. Ed. 154 (1868)(emphasis added). See also Hertz v. Woodman, 218 U.S. 205, 213-14, 30 S. Ct. 621, 622-23, 54 L. Ed. 1001 (1910) ("[A]n affirmance by an equally divided court is . . . a conclusive determination and adjudication of the matter adjudged; but the principles of law involved not having been agreed upon by a majority of the court sitting prevents the case from becoming an authority for the determination of other cases, either in this or in inferior courts.").

Now, 190 years after Chief Justice Marshall wrote, the U.S. Supreme Court continues to reaffirm this principle. See Dollar Gen. Corp. v. Miss. Band of Choctaw Indians, 136 S. Ct. 2159, 195 L. Ed. 2d 637 (2016) ("The judgment is affirmed by an equally divided Court."); accord United States v. Texas, 136 S. Ct. 2271, 195 L. Ed. 2d 638 (2016).

We followed this same principle in Beecham v. State, 108 So. 3d 394 (Miss. 2012), holding that "as the judgment of the Court of Appeals has not been decided to be erroneous by a majority of the justices sitting in this case, we affirm, without opinion, the judgment of the Court of Appeals." Id. at 394 (emphasis added).

Accordingly, as the judgment of the Court of Appeals has not been decided to be erroneous by a majority of the justices sitting in this case, we affirm, without opinion, the judgment of the Court of Appeals.¹ The costs on appeal are assessed to Lauderdale County.

SO ORDERED, this the 13th day of September, 2016.

/s/ Michael K. Randolph

MICHAEL K. RANDOLPH, PRESIDING

JUSTICE

TO AFFIRM: WALLER, C.J., RANDOLPH, P.J., LAMAR AND BEAM, JJ.

KITCHENS, J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT JOINED BY DICKINSON, P.J., KING AND COLEMAN, JJ.

NOT PARTICIPATING: MAXWELL, J.

KITCHENS, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:

¶1. Milton Trotter was sentenced to two life sentences involving one incident in 1981: first, by the United States District Court for the Southern District of Mississippi for kidnaping; second, by the Circuit Court of Lauderdale County for murder. In 1981, the Circuit Court of Lauderdale County had ordered, based on Trotter's plea agreement with the State, that his state sentence would run concurrently with the federal sentence and that Trotter would be "allowed to serve said sentence in the federal penitentiary." In 2011, when Trotter had served thirty years on the federal kidnaping sentence, he was paroled from federal custody. The Mississippi Parole Board denied his parole on the murder sentence, and Trotter was moved from federal prison to the Mississippi State Penitentiary at Parchman.

¶2. In this, the second of Trotter's requests for post-conviction relief, he claims that his guilty plea was not voluntary. The Circuit Court of Lauderdale County applied the successive-writ bar and summarily dismissed Trotter's petition for post-conviction relief. TheMississippi Court of Appeals found that Trotter's petition was not successive and affirmed the trial court judgment because Trotter had presented no evidence that the State had promised him parole if ever he were granted parole on his federal sentence. Trotter v. State (Trotter II), 2014 WL 5584055, at *3 (Miss. Ct. App. Nov. 4, 2014).

¶3. We granted Trotter's petition for writ of certiorari because the plea agreement, ratified by the trial court, may have led him to believe that his concurrent federal and state life sentences were to be served in a federal penitentiary. Despite the Court's having divined that this case "must be . . . affirmed" in the absence of any analysis of the important legal issues presented,² I proceed to address, first, whether Trotter's claims are subject to a procedural bar and, second, whether Trotter is entitled to a hearing on the question of whether his guilty plea was entered voluntarily.

1. Whether Trotter's claims are subject to a procedural bar.

¶4. The Circuit Court of Lauderdale County and the Court of Appeals came to different conclusions regarding the application of the procedural bar. The circuit court found that Trotter's claims were time barred, but that "parole-eligibility claims have been recognizedas original actions that can be brought in circuit court outside the three-year time limit." (citing Ducksworth v. State, 103 So. 3d 762, 764 (Miss. Ct. App. 2012)). The circuit court, however, ruled that Trotter's petition was barred as a successive writ: "The Petitioner's present motion for post-conviction relief is his second such motion, and the Petitioner has failed to demonstrate any applicable exception to Miss. Code Ann. § 99-39-23(6)."

¶5. The Court of Appeals found that Trotter was "not challenging the denial of parole eligibility," but rather that he was arguing that he was being held unlawfully because his 1981 guilty plea allegedly had been entered with the understanding that he would be paroled on his state charges at the time he received federal parole. Trotter II, 2014 WL 5584055, at *2. The Court of Appeals held that "section 99-39-5(1)(h) does except untimely PCR challenges when the petitioner is 'unlawfully held in custody'" and that "[b]ecause this is essentially what Trotter argues, we find his challenge—that based on his plea agreement, he is being wrongly held in custody—is not untimely or successive." Id. at *2.

¶6. Section 99-39-5(1)(h) of the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA) provides, in pertinent part, that:

(1) Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated . . . may file a motion to vacate, set aside or correct the judgment or sentence . . . or a motion for an out-of-time appeal if the person claims:

. . .

(h) That his sentence has expired; his probation, parole or conditional release unlawfully revoked; or he is otherwise unlawfully held in custody;

. . .

Miss. Code Ann. § 99-39-5(1)(h) (Rev. 2015). Section 99-39-5(2) provides, in pertinent part, that "[a] motion for relief under this article shall be made . . . in case of a guilty plea, within three (3) years after entry of the judgment of conviction." Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Thus, the Court of Appeals erroneously found that Section 99-39-5(1)(h) applied, because that section remains subject to the three-year time bar of Section 99-39-5(2), and Trotter never filed a "motion for an out-of-time appeal." Furthermore, Section 99-39-5(1)(h) is not applicable to the successive-writ bar of Mississippi Code Section 99-39-23(6), upon which the circuit court dismissed Trotter's second petition for post-conviction relief.

¶7. The legislature excepts from the three-year statute of limitations "those cases in which the petitioner can demonstrate either":

(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or

(a)(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution.

(b) Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

Miss. Code Ann. § 99-39-5(2) (Rev. 2015).

¶8. Because Trotter's claim does not involve an intervening decision from any court, the discovery of...