IN THE SUPREME COURT OF MISSISSIPPI NO. 2015-KA-00066-SCT
RANDY CHARLES WILSON a/k/a RANDY WILSON

v. STATE OF MISSISSIPPI

DATE OF JUDGMENT: 09/25/2014 TRIAL JUDGE: HON. ISADORE W . PATRICK, JR. COURT FROM W HICH APPEALED: W A RREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: RICHARD T. STARRETT ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: RICHARD EARL SMITH, JR. NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 06/23/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:

EN BANC. COLEMAN, JUSTICE, FOR THE COURT: ¶1. A W arren County jury co n v i c t e d R a n d y Wi l s o n o f r e c eiving stolen property in violation o f M i s s i s s i p pi Code S ection 97-17-70. The trial c o urt sentenced W ilson to ten
y ea r s i n t h e custody of the Mississippi Departm ent of Corrections. Finding n o error, we af f irm W ilson’s conviction and sentence.

FACTS AND PROCEDURAL HISTORY¶2. On April 2, 2012, between 1:00 p.m . and 2 :00 p.m ., Paul Powers stepped o utside his

house on Canada Cross R oad in Edwards, H inds County , M ississippi. As he walked to his truck, which was parked in t he f ront y ard, P owers observed a t wo-tone blue and white “Duly ” 1 pickup truck parked in the driveway of t he property belonging t o h i s n e ighbors, Pauline a nd Randy Vessel. Powers saw two Af rican-Am erican m ales, one wearing a lightly colored, possibly white, t-shirt, and the other wearing a “greenish” colored t-shirt. Powers testif i ed that his observation was f rom a distance of about 1 34 y ards and that h e was not able to observe the f

acial f eatures of either of the two m en. ¶3. Powers testif

ied that he previously

had borrowed a sixteen-f o ot, tandem -axle utility trailer f rom the V essels. The trailer, according to Powers, was “parked in the f ront y ard of Mr. Vessel’s house right i n the f ront of his shed.” Powers stated that the m an wearing the white t-shirt picked up a “tubular object,” such as a pipe, and proceeded t o strike the f ront,

or the “tongue,” of the trailer. According to Powers, the “tongue,” also known as the “jack”

or the “hitch,” is the f

eature of t he trailer which one hooks to the back o f a t r u c k

. P o w ers testif i ed that the Vessels kept a lock on the trailer and that h e called Pauline Vessel to inquire whether any one had perm ission to borrow the trailer. ¶4. Wh e n h e l e a r n e d f r o m P a u line that no s uch p erm i ssion had been given, Power s f ollowed in his own truck: “As it [ the suspect t ruck] was going o ut of Pauline’s driveway I

was pulling out [ of

] m y driveway and got behin d t h e v e h i c l e on Canada Cross R oad. W e

1 A lth o u g h th e slan g t erm , d eriv ed f ro m th e w o rd d

u a l , ap p ears in th e r eco r d as D u ly , it u s u ally is sp elled d o o l e y . T h e w o rd d escrib es tru c k s w ith d u al rear tires; th ere are t w o tires, s id e b y s id e, o n each en d o f th e r ear ax le. S o m e h eav y -d u ty p ick u p tru ck s a r e so eq u ip p e d

. 2cam e up to Highway 2 7 to the stop sign and took a right going towards Vic k sburg on

Highway 27. A t that t i me I h a d called 911 w hich contacted H inds County .” Powers observed the suspect truck leave Hinds County and enter W arren County

. Powers testif ied that he f o l l o w e d t he truck “the whole tim e” and t hat t wo people were inside t he truck. According to Powers, “[ w]e w ere c om ing up [ Highway ] 27 a nd we got to C hina Grove Road.
W e took a lef

t of f Highway 27.” Powers continued, “[ a]t tha t t i me , once we pulled onto China Grove R oad[ ,] t he vehicle p ulled over to the right hand side of the road as [ if ] to let

m e pass. And I tried to pull in behind them and at that point the[ y ] started going down the road again.” Powers stated t hat he rem ained in c o ntact with a 9 11 operator , w h o m he updated regarding the whereabouts of the suspect truck. ¶5. According t o Powers, the t ruck pulled onto the edge o f the road a second tim e next
to a gravel driveway

. Powers drove around the t ruck, proceeded down China Grove Road,

m et an unm arked F ord F-150 law enf o rcem ent truck, and turned his own vehicle around.
Powers testif

ied that he had not been able to observe the suspect truck the entire tim e. But when Powers returned to the gravel road, h e s aw the suspect t ruck parked on the g ravel road, but with no trailer attached. The Ford F-150 law enf orcem ent truck had “pulled in there in
f ront o f t hem ” and Powers recognized “the sam e two people with the sam e clothes” as he had observed at the Vessels’ house. ¶6. Investigator Randy Lewis, the of f icer who responded to Powers’s 911 call, testif ied that the tag num

b er inf or ma t i o n received f

rom P owers i ndicated that the vehicle was registered to Tim othy W ilson. A ccording to Lewis, “Mr. W ilson and his vehicle cam e out”

3in a blue a nd white Ford whi ch m atched the tag inf orm ation provided by P owers. Lewis

t e s tif ied that T im othy W ilson was driving a n d was wearing a green work shirt. The
passenger i n t h e t r u c k was Randy Charles W ilson, who w as wearing a white shirt. Lewis then located the sixteen-f oot, double-axle trailer, which was registered to Randy V essel of Canada Cross Road, j ust of f the dead-end gravel road, C hina Grove L ane, which turned of f
f rom China Grove Road. Lewis arrested Randy W ilson and Tim othy

W ilson. ¶7. A W a rren County Grand Jury indicted R a ndy W ilson and Tim othy W ilson, charging that they : [ W ]hile aiding and abetting and/or acting in concert with each other and / o r others o n or about April 2, 2012 , in the C ounty af oresaid, and within the jurisdict i on o f this Court did willf ully , unlawf

u lly , and f

e l oniously receive, possess o r buy p ersonal p roperty , to w it: 16 foot tandem ax le tr a i ler which was f eloniously taken away f

rom Randy a nd P auline Vessell [ s ic], knowing or having reasonable g r ound s t o b elieve the sam e to h ave b een so taken wherein s uch property has a value in excess of $ 500.00 in violation of M iss. Code of 1 972, Ann. Sec. 97-17-70, contrary to the statute in such c ases m ade and provided, and against the peace and dignity of the State of

Mississippi. The case was tried on Septem ber 3 and 4, 2014, in the Circuit C ourt of W arren County

. In addition to the testim ony of Powers and L ewis, Paulin e Vessel testif ied that she and her husband had purchased the trailer in April of 2 0 0 9 and that they h ad paid $1,400 f or it. Vessel added that she h ad seen the trailer on China Grove Road “behind a house.” Vessel stated that she knew it was her trailer because her “husband had welded som e m etal pieces

on the back to put a board because we hauled f our-wheelers

. . . .” Eddie Calvin, the owner of the property on which the Vessels’ trailer was f ound, testif

ied that he did not see Tim othy

4W i lson and Randy W ilson on April 2, 2012, b ut that a m a n he believed to be a police of f icer

rem oved the trailer f

rom his property

. ¶8. The trial c ourt d e nied ore tenus m otions f o r directed verdict b y both def endants. Af

ter the m otions f

or directed v e r d i c t w ere denied, e ach def endant presented h is case-in-chief

. Tim othy W ilson presented two alibi witnesses. W illie Dotson t estif ied that, o n April 2, 2012, Tim othy was working with him in Vicksburg f rom 8:00 a.m . until 12:00 p.m ., when Tim othy lef t f or lunch and “never did com e back.” Henry R ay Hunter testif i ed that he, too, worked with Tim othy

on April 2, 2012, and that t hey were w orking t o r epair a house in Vicksburg
f rom ab o u t 7 :00 a.m . or 8:00 a.m . until lunchtim e, af ter which Tim othy did not return to work. He stated that Tim othy was going back and f

o rth between jobs that day

. ¶9. Randy W il s o n t e s t i f i e d in his own def

e nse. He stated that h is brother Tim othy had driven h im to China Grove R oad about 6:00 a .m . or 6:30 a.m . o n April 2, 2012, t o see a lady
f riend at a ho u s e w h e re she lived. According to Randy , he rem ained with his f riend until “about a quarter to one or som ething like that,” until his brother returned to collect him . It

was af t er Tim othy had picked him u p that L ewis “pulled us over a n d asked u s about a trailer.” R andy denied having been to Hinds County that day

. The f em ale f riend with whom Randy c laim ed to have been on April 2, 2012, now lives in J oliette, Illinois. Randy indicated that his f r iend, who was m arried, did not w ish t o participate in his def ense, as he and she had been rom antically

involved and she did not want her husband to f ind out. ¶10. The State c alled J e f f Riggs, Under S herif

f f or the W arren County Sherif f ’s Of f ice, who participated in the investigation on China Grove Lane on April 2, 2012. R iggs testif ied

5that R andy had i ndicated to h im that he had been p icked up by his brother, Tim othy , f rom his girlf riend’s house. He stated that China Grove Lane “is a dead

- e n d r o ad” on which there

were about seven houses. Because Randy did not point t o a s pecif ic house, Under Sherif

f Riggs checked two r andom houses on C hina Grove Lane “to see if possibly that was where the girlf riend was.” According to Riggs, nobody was hom e. ¶11. The jury f

ound both R andy W ilson and Tim ot h y Wilson guilty as charged. Randy
W i lson f i led a m otion f

o r judgm ent notwithstanding the verdict, which the trial court denied.
He was sentenced to ten y e ars in the custody of the Mississippi D epartm ent of Corrections: “three (3) y ears t o serve, w ith r em aining balance suspended with post release supervision f or f ive (5) y ears . . . .” This appeal concerns only Randy W ilson’s conviction and sentence.
ANALYSIS ¶12. W i lson raises f

ive issues on appeal.
1. Whether the trial court com m itted p l a i n e rror by allow ing Jury Instruction S -4, w h ich i nform ed t he jury that proof the d efendant s t o l e the property in question is prim a facie evidence that t he def e n d ant knew that the property w as stolen property . Alternatively , w hether defense counsel w as i neffective for failing to object to Instruction S-4. ¶13. Instruction S-4 inf orm e d the jury “that proof that a def endant stole the property that is t he subject of the charge against him , or h er, shall be prima f a c ie e vidence that the def endant had knowledge t hat the property was s tolen.” The language of the jury i nstruction tracked the language of Mississippi C ode Sectio n 9 7-17-70(3)(b): “Proof that a def endant

6stole the property that is th e subject of a charge under this section 2 shall be prim a f acie evidence that the def

e ndant h ad knowledge t hat the property w as stolen.” Miss. Code Ann. § 97-17-70(3)(b) (Rev. 2014). ¶14. Def

ense counsel lodged no objection to Instruction S -4. W e have held repeatedly that
“an o f f e nded party ’ s f

ailure to o bject to jury instructions at trial procedurally bars the issue

on appeal.” Neal v. S

tate , 15 So. 3d 388, 397 (Miss. 2 009) (quoting Sm ith v. S tate , 835 So. 2d 927, 939 (Miss. 2002)). Nevertheless, an “obvious error which was not properly raised by the def

endant and which af

f ects a def endant’s f undam ental, substantive right” m ay be considered b y the Court under the doctrine of plain e r ror. Johnson v

. State , 155 S o. 3d 733,
738 (Miss. 2014) (quoting B urdette v. State , 11 0 S o . 3 d 2 96, 303 (Miss. 2013)). “For the plain-error doctrine to a pply , there m

ust h ave b een an error that resulted in ma n i f e s t

m iscarriage of j ustice o r s e riously a f f ects the f airness, i ntegrity or public r eputation of judicial proceedings.” Id. W ith regard to an alleg a t i o n o f error in i nstructing t he jury , the
Court has held that, “‘[ i]f the [ jury ] instructions f

airly a nnounce the law of th e c a s e and

create no i njustice, no reversible error will b e f ound.’” V

ictory v. State , 83 So. 3d 370, 373 (Miss. 2012) (quoting Newell v. State , 49 So. 3d 66, 73 (Miss. 2010)).

2 M ississip p i C o d e S e ctio n 9 7

- 1 7 -7 0 (1 ) p r o v id es th e f o l lo w in g : A p erso n c o m m its th e crim e o f receiv in g sto len p ro p erty if h e i n t en tio n ally p o ssesses, receiv e s, retain s o r d i sp o ses o f sto len p ro p erty k n o w in g th at it h as b een sto len o r h av in g reaso n ab le g ro u n d s to b eliev e i t h as b een sto len , u n l ess th e p ro p erty i s p o ssessed , receiv ed , r e t a i n e d o r d isp o sed o f w ith in ten t to resto re it to th e o w n er. M iss. C o d e A n n . § 9 7 -1 7 -7 0 (1 ) (R ev . 2 0 1 4 ). 7¶15. W i lson claim s that Instruction S-4 deprived h im “of his co n s t i t u tional right to due

process,” am ounting to plain error, and that Section 97-17-70(3)( b) constitutes “an im p erm issible shif

ting of the burden o f proof on an essential elem ent of a c r im inal charge.”
W i lson c ites R eith v

. St a t e , 1 3 5 So. 3 d 862, 865 (Miss. 2014), in which the Court f orbade the u s e o f a j u r y instruction which inf orm ed t he jury t hat “[ d ]eliberate design m ay be
presum ed f

r o m t h e u nlawf

ul and deliberate use of a deadly weapon.” The Reith Court reversed R eith’s conviction of deliberate design mu r der and held that “[ d]eliberate design

m ay not be presum ed

. . . .” Id. at 867. The Court continued, “[ w ]e a d mo n i s h t h e circuit

cou r t s n ot to g rant an instruction which relies upon a presum ption of intent, as i t conf

licts with t he p resum

p t ion of i nnocence, r elieving t he State of i ts b urden t o prove guilt bey ond a reasonable doubt on an essential elem ent of the of f ense.” Id. ¶16. But the Reith Court observed that sim ilar instructions “‘have been bef o re the Court
f or m any y ears and a long line of cases have discussed such instructions.’” Id. at 865 (qu o t i n g T

ran v . State , 6 81 So. 2d 514, 517 (Miss. 1996)). The Court “‘consistently held such an instruction erroneous . . . .’” Id. In the case s ub j udice , at issue is not a judicially created jury instruction, but a legislatively created s tatute, which provides a m eans by which the State m ay prove the elem ent of knowledge. The State m ay prove the def endant’s guilty knowledge by adducing proof that the def e ndant s tole the property t hat i s the subject of the receiving stolen property charge. Mis s . C o de Ann. § 97-17-70(3)(b). The jury i nstruction accurately

stated the law regarding the crim e of receiving stolen property

. See V ictory , 83 So. 3d at 373.

8¶17. U n d e r the p resent circum stances, the given jury instruc t i o n , w h i c h i s b a s e d o n

Mississippi Code Section 97-17-70(3)(b), did not violate W ilson’s f undam ental r ight to due
p r o c ess of law. Because the allegedly of f ensive jury instruction accurately stated th e l a w regarding the crim e of receiving stolen property , n o m anif est m iscarriage of j ustice resulted
f rom giving Instruction S-4. ¶18. Wi l s o n a l t e r natively argues that counsel’s f ailure t o o b

j e c t t o I n s t r u c t i o n S

- 4 constituted inef

f e c t i v e assistance of counsel. Claim s of inef f ective assistance of counsel generally are reviewed in post-conviction p roceedi n g s ; nevertheless, we m ay “‘reach the

m erits o f t he inef

f ectiveness issue where

. . . t he record af f irm atively shows inef

f e ctiveness of constitutional dim ensions.

. . .’” Taylor , 167 So. 3 d at 1146 ( quoting Read v. State , 430
So. 2d 832, 841 (Miss. 1983)); see also M.R.A.P. 22(b) (“Issues which m ay be r aised in postconviction proceedings m a y also be raised on direct appeal if such i ssues are based on f acts f ully apparent f

rom the record.”) ¶19. W e h ave held that “ [ w]hether a def endant has rece i v e d i n e f f e c t i v e a s s istance of counsel is a question of law r eviewed d e novo under two prongs: ‘[ f ]irst, the def

endant m ust show that counsel’s perf

orm ance was def

icient

. . . . Second, the def endant m ust show that the def icient perf

o rm ance p rejudiced the def ense.’” Taylor v. State , 167 So. 3d 1 143, 1146 (Miss. 2015) ( quoting Strickland v. W ashington , 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984)). “‘There is a strong but rebuttable presu mp t i o n t h a t trial counsel was

com petent a n d perf

orm e d within the wide range of reasonable conduct expected f rom counsel.’” Conners v. State , 92 So. 3d 676, 686 (Miss. 2012) ( quoting Knight v. State , 72

9So. 3d 1056, 1060 (Miss. 2011)). The burden is on the petitioner to rebut the presum ption by showing t h a t c o u n s e l’s perf orm ance did not m eet t he Strickland standard. I d. “The
f ailure of counsel to m a ke certain objections m a y f all within the am

bit o f t rial strategy , and theref ore m ay not give rise to a claim f or inef f ective assistance of counsel.” Nix v. State , 8 So. 3d 141, 144 (Miss. 2009) (citing Bell v. State , 879 So. 2d 423, 440 (Miss. 2004)). ¶20. W i lson relies on two d e cisions f r om t he Mississippi Court of Appeals t o support his
argum ent that c ounsel’s f

a ilure to object to Instruction S-4 constituted def icient perf

orm ance and that such def

icient p erf orm ance prejudiced h is def ense. In Blunt v. State , the Mississippi
Court of Appeals reversed the circuit court’s denial o f post-conviction relief to Blunt, f inding that his counsel had rendered inef f ective assistance. Blun t v . State , 55 So. 3 d 2 07, 211-12 (Miss. Ct. App. 2 011). I n Blunt , the l a n g u a g e o f t he given jury i nstruction had been condem ned by the Mississippi Suprem e Court: “an instruction like the one [ Blunt’s counsel] request ed in Blunt’s trial ‘is c ontradictory and conf using and does not correctly state the applicable law because one a cting in self -def ense does not act at his own peril.’” B lunt , 55 So. 3d at 211 (quoting J

o hnson v. State , 908 So. 2d 758, 764 (Miss. 2005)). ¶21. Counsel’s f

ailure to object to Instruction S-4, which stated a controlling rule of law and tracked, alm ost verbatim , t he language of Mississippi Code Section 97-17-70(3)(b), did

not constitute def

icient pe r f

o r ma n c e which could b e said to have prejudiced W ilson’s def ense. Unlike t h e d e f

endants in Blunt and McTiller , W ilson has not presented any evidence t o r ebut the presum ption of his attorney s’ c om petency , nor has he dem onstrated that counsel’s perf

o rm ance f

ell b elow the Strickland standard. Because Instruction S-4

1 0accurately stated the l aw regarding the crim e of receiving stolen p roperty , the perf orm ance of W ilson’s counsel f

ell “‘within the wide rang e o f r e a s onable c onduct e xpected f rom counsel.’” Conners , 92 So. 3d at 686 (quoting Knight , 72 So. 3d at 1060). ¶22. W i lson’s claim

that his counsel was constitutionally inef f ective f or f ailure to object to Instruction S-4 is without m erit.
2. Whether the trial court com m itted p lain err o r by allow ing Jury Instruction S-3, w hich inf o r me d the jury that the State is not required to disprove the defendant’s alibi but rather that the State m ust prove the defendant’s g u i lt b ey ond a reasonable doubt. Alternatively , w hether defense counsel w as i neffective for failing to object to Instruction S-3. ¶23. Jury

Instruction S-3 provided the f ollowing: The Court instructs the jury that the State is not required to d isprove an a libi. In other words, the S tate is not required to prove that any alibi def ense is not t r ue; the S tate is only required t o p rove, bey ond a reasonable doubt, tha t t h e def e n d a nts, Randy Charles W ilson and Tim othy A llen W ilson, are guilty , bey ond a reasonable doubt, of Receiving Stolen Property as charged.
W i lson claim s on appeal t hat Inst r u c t i o n S

- 3 “ u

n c o n s t i tutionally placed the burden of proving the alibi squarely upon t he def endants” and t hat “[ s]hif

t ing t h e burden of proving the alibi to the def endants deprived them

of a f a ir trial.” ¶24. Def

ense c ounsel objected to the original language of Instruction S-3, which did not specif y that the crim e was receiving stolen property . However, the State agreed to add the requested language. Counsel did not object to t he allegedly unconstitutional language of the instruction. As stated above, the Court has held t hat “an of f ended party ’s f

ailure to object

to jury instructions at trial pro c e d u r a lly bars the i ssue on appeal.” Neal , 15 So. 3d at 397 (quoting Sm ith , 835 So. 2d at 939).

1 1¶25. Nevertheless, t he doctrine of plain error a l l o w s t h e Court to correct “obvious error

which was not properly raised by the d ef endant and which af

f ects a def endant’s f undam ental, substantive right.” Johnson , 155 So. 3d at 738 (quoting Burdette , 1 10 So. 3 d at 303). “For

t h e p l a i n -error doctrine to apply , there m ust have b een a n error that resulted in m anif est

m iscarriage of j ustice or seriously af f ects the f a ir n e s s , i ntegrity or public r eputation of judicial proceedings.” Id. W ith regard to a n allegation of e rror i n instructing the jury , the
Court has held tha t , “ ‘ [ i]f the [ jury ] instructions f

airly announce the l aw o f the case and

c r e a t e n o i n

j u s t ice, no reversible error will be f ound.’” V

ictory , 83 S o. 3 d at 373 (Miss. 2012) (quoting Newell , 49 So. 3d at 73). ¶26. T h e C ourt has rejected j ury instructions w hich m isstated the prosecution’s burden : “Harvey Holm es’s alibi instruction im properly stated that it was t he governm ent’s burden to convince the jury that h is ali b i was n ot true. The state is not required to disprove a def endant’s alibi; the burden is sim ply to prove the de f

e n d a n t ’ s g uilt bey ond a r easonable doubt.” Holm e

s v. State , 481 S o. 2d 319, 320 n.1 (Miss. 1985) (em phasis in original) (citing
Forrest v. State , 352 S o. 2d 1328, 1330 ( Miss. 1977)) ( “It is elem ental t hat the State does not have t o p rove an alibi to be untrue. Its burden sim ply is to prove [ def

endant’s guilt] bey ond

a r e a s onable d oubt

. . . .”); see also D ubose v. State , 320 So. 2d 773 ( Miss. 1975) (Cour t rejected jury instructi o n w hich placed on the State the burden t o d isprove alibi def ense “because the state, af

ter presenting its case in chief , d oes not have the burden to prove that the alibi was untrue b y rebut t a l t e s t i mo n y af ter the accused rests. The s tate’s burden is to
prove f r om the evidence, bey ond a reasonable doubt, that the accused was at the scene of the

1 2alleged crim e a nd com m itted the [ crim e].”); Newton v. State , 2 29 Miss. 267, 9 0 S o. 2d 375,

377 (1956) (“Since the State’ s p r o o f i n chief was contradictory of appellant’s proof of an alibi, the State was not required to rebut by other evidence t he appellant’s proof of an alibi and thereby

[ negate] appellant’s proof .”). ¶27. As in Newton , “the State’s proof , in chief , was contradictory of the appellant’s proof of a n a l i b i , a n d i t w a s the province of the jury to determ ine f rom the evidence the guilt or innocence of

the appellant.” N

ewton , 90 S o. 2d at 377. Because Instruction S-3 correctly
inf orm ed the jury of the State’s bu r d e n o f p roof where a n a libi def e nse is concerned,
W i lson’s claim

of reversible error is without m erit. ¶28. W i lson m akes the alternate argum ent t hat counsel was inef f ective f or f ailing to object

to Instruction S-3. As i n Issue 1, c ounsel’s f ailure t o object to Instruction S-3, which stated

a controlling rule of law a nd tracked, alm o st v erbatim , the language of c a s e law f rom the Court, did not c onstitute def icient perf

orm ance which could be said to have prejudiced
W i lson’s def

ense. W ilson has not presented any e videnc e t o r e b ut the presum ption of his lawy ers’ c om

petency , n o r has he dem onstrated that counsel’s perf orm ance f

e l l below the
Strickland

standard. W ilson’s claim of inef f e ctive assistance of c o unsel is without m erit.
3. Whether the p rosecution com m itted plain error during closing argum ent b y a rguing facts not in evidence, by m isstating t he Mississippi Rules of Evidence, and by ex pressing a personal belief i n t h e defendant’s guilt. Alternatively , w hether defense c o u n s e l w a s i neffective for failing to object to the p rosecution’s allege d m isconduct. ¶29. W i lson a rgues that various statem ents the prosecutor ma d e in his closing argum ent prejudiced his def

ense.

1 3¶30. “The standard of review which t his C our t mu s t a p ply to lawy er m isconduct during

opening statem ents or closing argum ents is ‘whether the natural and probable ef f ect of the
im p roper argum ent is to c reate unjust prejudice against t h e a c c u s ed s o as to result in a decision inf

l uenced by the prejudice so created.’” Galloway v. State , 122 S o. 3d 614, 643 (Miss. 2 013) (quoting Sheppard v. State , 777 So. 2 d 659, 661 (Miss. 2 000)). “The purpose of a closing argum ent is to f airly sum up the evidence.” G alloway , 122 So. 3d at 643 (citing
R o g ers v. State , 796 So. 2d 1022, 1027 ( Miss. 2001)). P rosecutors “are not allowed to

em ploy tactics which are ‘inf lam m atory , highly pre

j udicial, or reasonably calculated to unduly inf

luence the jury .’” Galloway , 122 So. 3 d at 643 (quoting Sheppard , 7 77 So. 2d at 661). “‘The prosecutor m ay com m ent upon any f acts introduced into evidence, a nd he m ay draw whatever deductions and inf erences that seem proper t o h i m f rom the f

acts.’” Galloway , 122 So. 3d at 643 (quoting Bell v. State , 725 So. 2d 836, 851 (Miss

. 1 9 9 8)). “Counsel ‘cannot, however, state f acts which are not in evidence, and which the c ourt does

not judicially know, i n aid of his evidence. Neither can he a ppeal to the prejudi c e s of m en by i njecting prejudices not contained i n s o m e s o urce of the e vidence.’” Id. , (quoting Sheppard , 777 So. 2d at 661 (quoting Nelm s & Blum C o. v. Fink , 1 59 M iss. 372, 131 So. 817, 821 (1930)). ¶31. At trial, the def

ense m ade n o objections t o the prosecutor’s statem ents, w hich W ilson claim s prejudiced his def ense on appeal. “In general, the f ailure to o bject to the prosecution’s statem ents in closing argum ent c onstitutes a procedural b a r . ” Ross v. State , 954 So. 2d 968, 1 001 (Miss. 2 0 07) (citing Spicer v. State , 921 So. 2d 292, 309 (Miss. 2006)).

1 4Nevertheless, t h e f a ilure to o b

ject “in e xtrem e c ases, . . . will n ot act as a bar to consideration.” Ross , 954 So. 2d at 1002 (citing Wood v. State , 257 So. 2d 1 93, 2 00 (Miss. 1972)). ¶32. The prosecutor m ade the f ollowing statem ent in his closing argum ent: W h at they w ant y o u to b elieve is that t here is t his conspiracy , P aul P owers and all these cops, and under-sherif f , . . . that there is a conspiracy

. Let m e tell y ou a b o u t t h a t 9 11 call and about all this e vidence that w e don’t h a ve. Eugene Perrier [ T im othy W ilson’s counsel] has a [ l l] that evidence. He’s got that report f

r om 911. But let m e t ell y ou, there are r ules of e vidence. You’ve h eard u s say t he word, h earsay , objection hearsay ? H earsay m e a ns t hat if y ou have a w itness that tells y o u about it well then y ou don’t need to bring the docum ent in also. In ref erence to Paul Powers’s testim ony that he w as relay ing inf orm a tion to authorities via 911, the prosecutor stated in closing that “we know that its in H inds County , not on
any body ’ s testim ony but based on that 911. He f ollowed the truck f

rom Hinds C o u n t y t o W a rren County

. ” W ilson argued that the State c o m m itted reversible e rror by ref e rencing the 911 calls, which were not in evidence, and by m isstating the hearsay rule. ¶33. It is true t hat “[ a]rguing statem ents of f act which are not in evidence o r n e c e s s a rily
inf erable f rom f acts in evidence is error when t hose statem e nts are prejudicial.” Ross , 954 So. 2d at 1002 (internal citations om itted). However, on cross-exam ination by counsel f or Tim othy W ilson, Paul Powers testif ied that he was certain that the tag num ber of the truck he had f ollowed and t he tag num

ber of the truck which appeared in the p ictures adduced in evidence were the sam e . Def e nse counsel h ad asked w hether Powers had written down the tag num ber and Powers responded, “[ n]o, but I called in 911 Dispatch and I know that they

1 5will have the tag num ber on a recording.” In closing, def e nse counsel f

or Tim othy W ilson had stated the f

ollowing:
You know we heard f

rom M r. Paul Powers. He kept ref erencing h is a

uthority to what, a 911 report to t he 9 11 center. And h e is a f irem an, a volunteer f irem an. He prof

essed to have personal knowledge that they have a recording of every thing that happened, both in Hinds County a nd W arren County

. W h ere is that inf orm a tion? If it is there why don’t y ou have it? W hy don’t y o u know the exact tim e the call was m ade? W hy don’t [ y ou] know the e xact person t hat was contacted ? Wh y d on’t y ou know what was given t o t he authorities[ ? ] Instead, y ou a re just lead, just trust m e, believe m e, this is what h appened. W e got that tag b ecause it w a s c a l led in. But we don’t have any thing showing it was called in. The prosecutor’s statem en t s r e g a r d ing a 911 report w ere responsive to what Tim othy
W i lson’s def

ense counsel had s a id in his closing argum ent. He sim ply was pointing out that
Powers h ad testif

ied that he had f

ollowed the truck f

rom Hinds County into W arren County

. Powers h ad personal knowledge of what he had related to the 9 11 operator. It cannot be said that the f acts discussed were not in evidence, or t hat their m ention b y the prosecutor in his closing argum ent unf

airly prejudiced W ilson’s def

ense. Ross , 954 So. 2d at 1002. ¶34. W i lson also takes um brage with another statem ent by the prose c u t or in his closing
argum ent: “Another jury i nstruction tells y ou and these things are very clear that any proof that the p erson s tole the property that they are in possession of is evidence that they knew the property was stolen.” W ilson argues that ref e rencing Instruction S -4 in the closing a rgum ent “was f atally prejudicial to the def ense.” However, as has been d iscussed above, his a rgum ent is unavailing in l ight of the determ ination that no error occurred in the trial c ourt’s giving of Instruction S-4. T he argum ent cannot be said to h ave been “ ‘ i n f l am m atory , highly

1 6prejudicial, or reasonably c alculated t o unduly inf luence the jury

. ’ ” Galloway , 122 So. 3d at 643 (quoting Sheppard , 777 So. 2d at 661). ¶35. Finally , W i lson argued that the prosecution im properly expressed personal belief in the def e ndant’s guilt:
You are g o ing to look at all the evidence

. . . . [ a]nd once y o u d o t h a t w e believe that y ou will be c onvinced as we are that o n Apri l 2 nd, 2012[ ,] Tim othy W ilson and Randy W ilson com m itted t h e c r i m e of receiving stolen property of being in p ossession of the stolen 16-f oot trailer t hat was owned by the Vessel’s [ s ic].
W i lson argues t h a t t h e “ a s we are” l anguage was an im perm issible com m ent by the prosecutor regarding his personal belief s. ¶36. I t i s t r u e, as W i lson argues, that “‘[ a] prosecutor is f orbidden f

rom interjectin g h i s personal belief

s regarding the veracity of w itnesses during closing argum ent.’” Moffett v. State , 156 So. 3d 835, 859 ( Mi s s . 2014) (quoting Foster v . State , 639 So. 2d 1263, 1288 (Miss. 1994) ( citing U.S. v. Y oung , 470 U.S. 1 , 5, 20, 105 S. Ct. 1038, 84 L. Ed. 2d 1 (1985))). However, the prosecutor in the instant case was not expressing a personal belief regarding the veracity o f witnesses. Prosecutors’ statem ents of p ersonal belief s regarding the guilt of t h e d e f

endant also are disallowed: “this State does not allow a prosecutor to

com m ent on his personal belief s about a def

endant’s guilt or i nnocence.” Mack v. State , 650
So. 2d 1289, 1320-21 (Miss. 1994) (citing Jones v. Butler , 864 F.2d 348, 359-60 (5th Cir. 1988)). ¶37. In Mack , the prosecutor was f o und t o have “overstepped his bounds in arguing to the jury .” M ack , 650 So. 2d at 1321. In that case, “the prosecutor’s repeated ref e rence to what

1 7‘I know’ as opposed to what the state or ‘we’ k now m ay have suggested t o t he jury that the prosecutor h ad som e i nf

orm ation or knowledge that was not p resented to t he jury .” Id. (em phasis added). The Court held t hat “ [ t]he prosecutor’s com m ents woul d h a ve been
perm issible [ ] had he n ot repeatedly used the pronoun ‘I,’” w hich “leaves open the inf erence that the prosecutor personally believed that Mack com m itted t he c a pital m urder.” Id. Nevertheless, the Mack Court held the error to h ave b een h arm less. Id. In any event, Randy
W i lson’s def

ense counsel m ade no objection. Further, t h e p r o s e c u t or did not repeat or

em phasize the com m e nt, but rather said it i n passing. In light of the exceptional strength of the State’s case, and in light of the context in which the statem ent was m ade, even if there had been error it would not arise to the level of plain error necessary to o vercom e the f ailure to object. ¶38. As in W ilson’s other assignm ents of error, he a rgues that his counsel was inef f ective
f or f a iling to object to the above statem ents. However, it cannot be said that counsel’s f ailure

to object to the State’s closing statem en t c o n s t i tuted def icient perf

orm ance, nor that the alleged def

icient perf

orm ance prejudiced W i lson’s def ense. T aylor , 167 So. 3d at 1146 (quoting Strickland v. Washington , 466 U.S. at 687).
4. Whether cum ulative error requires reversal. ¶39. W i lson next claim s that, “ [ e]ven if the i ndividual errors discussed above do not m e rit reversal in their own right, the cum ulative ef f ect of these errors deprived Randy W ilson of a f air trial.” The cum

ulative error doctrine provides that “where one error, standing alone,

m ay not warrant reversal, r eversal m ay be required if the errors, taken together, ‘create such

1 8an atm osphere o f bias, passion, and prejudice that they ef f ectively den y t h e d e f

e n dant a f undam entally f

a ir trial.’” Dickerson v. S t ate , 175 So. 3d 8, 35 (Miss. 2 015). However, in

t he absence of individual errors, no cum ulative error exists. See Dickerson , 175 So. 3 d a t 35.
5. Whether Randy Wilson’s sentence is illegal. ¶40. Mississippi Code Section 97-17-70(3) f orm erly provided t hat any person “ who shall be convicted of receiving stolen property which exceeds Five H undred Dollars ($500.00) in value shall be com m i tted to the custody o f the S tate Departm ent of Corrections f or a term not exceeding ten (10) y e ars or by a f ine not m ore than Ten Thousand Dollars ($10,000.00) or both.” Miss. Code A nn. § 97-17-70(3) (Rev. 2006). Ef f ective J uly 1, 2014, S ection 97-17-
7 0 c h a n g e d to provide t hat the value of t he stolen property be “One Thousand Doll a r s ($1,000.00) or m o re, bu t l e s s t h a n F i ve Thousand Dollars ($5,000.00)

. . . .” M iss. Code
Ann. § 97-17-70(4) (Rev. 2014). The penalty f or that of f ense was changed t o “ i m

prisonm ent in the custody o f the State Departm ent of Corrections f or a term not e x ceeding f

ive (5) y ears or by a f ine of not m ore than Ten Thousand Dollars ($10,000.00) or both.” Id. ¶41. In t he instant case, the c ircuit court sentenced W ilson to ten y ears p ursuant t o the older version of the s t atute. Rely ing on Mississippi Code S ection 99-19-33 a nd Daniels v. State , 742 So. 2d 1140 (Miss. 1999), W ilson argues that the t rial court erred in not sentencing h im under the newer, m ore lenient version of Section 97-17-70. W e disagree, and we overrule
Daniels and West v. State , 725 So. 2d 872 (Miss. 1998), abrogated by Jackson v. State , 860

1 9So. 2d 653 (Miss. 2003), to the extent that they conf lict with Mississippi Code Section 99-19- 1, as m ore f

ully set f orth below. ¶42. Mississippi Code Section 99-19-1 provides as f ollows:
No statutory cha n g e o f a n y law af f e cting a crim e or its punishm ent or the collection of a penalty s h a l l a f f ect o r def

eat the prosecution of any crim e co mmi t t e d p rior to its enactm ent, or the collection of any penalty , whether such prosecution be instituted bef ore or af ter s uch ena c t m e n t ; a nd all laws def i n i n g a c rim e o r prescribing its punishm ent, or f or the im position of penalties, shall be c ontinued i n o peration f or the purpose of p roviding punishm e nt f

or crim es c om m itted under them , and f or collect i o n o f such penalties, notwithstanding am endatory o r repealing statutes, unless o therwise specially provided in such statutes. The above-quoted statutory l anguage provides t hat no n ew statutory enactm ent shall def eat
t h e p r o s e c ution of a crim e com m itted bef ore the enactm ent of the new s tatute. Moreover , and m ore pertinent to the issue today , Section 9 9-19-1 continues by m andating

– a g ain by using the word “shall”

– t hat all laws prescribing punishm ent f or a crim e rem ain in ef

f ect f or the p ur p o s e o f ascribing punishm ent “unless o therwise s pecially provided” in a newly enacted statute. Miss. Code Ann. § 99-19-1 (Rev. 2015). ¶43. Despite Section 99-19-1’s pronouncem ent that, i n cases like today ’s, the sentencing

court m ust f ollow the version of a statute in e xistence at the tim e a crim e was c om m itted, in
Daniels v . State , 742 So. 2d 1140 (Miss. 1999), we held that “when a statute i s am ended to provide f or a l esser penalty , and the am endm e nt t akes ef f ect bef ore s entencing, the trial court

must sentence a c c o r d i n g to the statute as am ended. Any precedent holding otherwise is in
error.” Id. at 1145 (¶ 17). In short, our holding in D aniels directly contradicts t he l egislative
pronouncem ent of Section 99-19-1. The Court m ay be able to overrule its o w n c ases, but

2 0absent a showing b ey ond a reasonable doubt that a statute is unconstitutional, the Court m ay

n o t o verrule s t atutes. Accordingly , Section 99-19-1 s hould dictate today ’s r esult. Ev e n i f the Court s o me how had the p o wer to ignore statutes it dislikes, the C o urt’s holding in
Daniels , results f

rom a m i sreading of West v. S t ate , 7 25 So. 2d 872 (1998), which itself

m isread State ex r el. Pittm an v . Ladner , 5 12 S o. 2d 1271, 1277 (Miss. 1 987), which in turn

m is r e ad Allen v

. State , 4 40 S o. 2d 544 (Miss. 1983), such that the whole developm ental chain r esem

bles a j urisprudential gam e o f Telephone. I n truth, Ladner did not overrule
Allen , and even if it did, the holdings of W est a nd Daniels im

perm issibly result in a judicial rewriting of

two statutes – Sections 99-19-1 and 99-19-33. ¶44. The C ourt has no business am ending or d i s r e g arding statutes. Little v. Miss. Dep’t

o f T ransp. , 129 So. 3d 132, 138 ( ¶ 12) (Miss. 2013) (“W e —the judicial b r a n c h o f
governm ent—should not p lace ourselves i n t h e p osition of changing the substantive law enacted by the Legislature.

. . .”) (citing Stockstill v. State , 854 S o. 2 d 1017, 1022-23 (¶ 13) ( M iss. 2003)). Courts h a ve a “constitutional m andate t o f a i thf ully apply the pro v i s i o n s o f constitutionally enacted legislation.” Tallahatchie Gen. Hosp. v. H owe , 49 So. 3d 86, 9 2 (¶ 17) (Miss. 2010). Likewise, it is not within t h e b a i l i w i c k of the C ourt to write statutes; rather, t he Court c onstrues t hem as written. Z am broni v. State , 217 Miss. 418, 424, 64 So. 2d 335, 337 (1953). I n Harris v. State , 179 Miss. 38, 175 S o. 342 (1937), the Court wrote, “[ W ]e are adm onished a nd have clearly in m ind t hat penal statutes m ust be s t rictly construed, and that the court can ne i t h e r a d d t o nor take f r om them , and we cannot by judicial

2 1construction, or considerations of expediency , supply what i s palpably om itted f rom a statute.” Id. at 344. ¶45. Even if the Court could obviate a s t a t u t e merely by overruling a case i n which we interpreted it, the conclusion of t he Daniels Court, that Allen v. State , 440 So. 2d 544 (Miss. 1983), has been overruled, is not correct. See Daniels , 742 S o. 2d at 1145 (¶ 17). In Allen , the C i rcuit Court of Forrest County convicted the def endant, Jesse Allen Jr., of arm ed robbery

. Id. at 545. T he robbery t ook p lace on May 23, 1973. Id. At the tim e of the crim e, Mississippi Code Section 97-3-79 (1972) s et t he m axim um penalty as d eath but provided that
if the jury f

ailed t o “f i x the penalty at death, the court s hall f i x t he penalty at i m

prisonm ent in t he penitentiary f

o r a n y term not less than three y ears.” Allen , 440 So. 2d at 545. The circuit court af

f ixed a sixty -y ear sentence. Id. ¶46. The L e g i s l a t

ure, however, a m ended the sentencing statute to rem ove the death penalty option bef

ore t he circuit court sentenced Allen. Id. Further, in Stewart v. State , 372 So. 2d
257 ( Miss. 1979), the Mississippi Suprem e Court added the prohibition against s e ntencing

one convicted of arm ed robbery f or a period of t i m e e x c e e d ing the lif e expectancy of the def endant. Allen , 440 So. 2d at 545. The Allen Court reached the conclusion that, “under the am e n ded s tatute Allen’s se n t e n c e i s t oo long.” Id. Accordingly , a t issue in Allen was whether the circuit court properly had senten c e d A l l e n under the o lder version of the

s e n t e ncing statute, which was in ef f ect on t he date of the crim e but not o n the da t e o f sentencing. In answering the question, the Allen Court wrote as f ollows: The p ower to prescribe penalties to b e e x acted f rom those com m itting acts ma d e u n l awf

ul under the crim inal laws of this state is vested entirely in o u r

2 2Legislature. Purely and sim ply , our Legislature f

i xes the p unishm ents f

or crim es. G

abriel v. Bram e , 200 Miss. 767, 773, 28 So

. 2 d 5 8 1 , 583 (1947); Howell v. State , 300 So. 2d 774, 7 80 (Miss. 1 974); Upshaw v. State , 350 So. 2d 1358, 1360 (M i s s . 1977). There can be no doubt but that it was in the lawf ul power o f the Circuit Court o f Forrest C ounty to im pose upon Allen any sentence authorized by Section 97-3-79 as t hat statute read on May 23, 1973, the date on which Allen robbed the bank.
Id. ¶47. In reachin g t

h e s t r o n g l y w o r d ed and unanim ous h olding quoted above, the Allen Court considered the now-em

battled Mississippi Code Section 99-19-1. The Allen Court relied on the statutory language a nd held t hat t he sentencing court d id not err in c hoosing to sentence Allen pursuant to the earlier version of the s tatute. “W e f ind it indisputable that the Circuit
Court had power to im

pose u pon J esse Jam es Allen, Jr. any sentence within the scope of the

s t a t u t e a s i t was w ritten on t he date h e com m i tted his of f ense.” Id. at 546 (citing Byrd v . State , 165 Miss 30, 36-37, 143 So. 852, 853 (1932)). ¶48. Four y ears later, the Allen Court’s holding, strongly w orded though i t m ay have been,

was whispered into the ear of the Court in State ex rel. Pittm an v. Ladner , 512 So. 2d 1271 (Miss. 1987). F a r f

r o m being a crim i nal c ase considering evolving sentencing statutes, Ladner presented a dispute over a public contract. Nevertheless and as m ore f ully e xplained below, one sm all section of language f rom Ladner has led subsequent courts to the belief

–

m istaken, in m y view – that Ladner o verruled the A llen C ourt’s h olding that i n a crim inal

case a sentencing court does not err when, pursuant to Section 9 9

- 1 9 -1, it sentences a def endant under an earlier, harsher sentencing provision.

2 3¶49. At the heart of Ladner was the grant o f em ergency school-repair contracts. Ladner ,

512 So. 2 d at 1272. The Hancock County S chool Board entered into c o ntracts to repair tornado d ama g e to Gulf

view Elem entary S chool. Id. a t 1273. The school board m et, declared an em ergency situation, contracted with one party to clean u p the s chool property , and em powered the school superintendent to enter into other contracts f o r security , cleanup, and repair. Id. In the f

ollowing m onths, the s chool board a u t h o r ized pay m ent based on several contracts, i ncluding a pay m ent of $27,784.32 to Gulf Electric, Inc. I d. Gulf Electric

em ploy e d one of t he m em

bers of the school board, Louie Ladner. Id. On the advice of the board attorney , Ladner abstained f rom all b oard votes regarding Gulf Electric, but he actually worked as a Gulf

Electric em

ploy ee on the project. Id. ¶50. The State of Mississippi f iled suit in the C hancery Court of Hancock C ounty against the f i ve school-board m em

bers a nd the s chool superintendent. Id. The State a l leged that the def endants had f

ailed to f ollow statutory com

petitive bidding requirem ents f ound in the thenexisting Mississippi Code Sections 31-7-3 9 , 3 1-7-41, 31-7-43, 31-7-45 and 37-11-27 (1972),

a n d t h a t t h e d ef endants had violated the conf lict-of -interest statute f

ound at Section 3 7

- 1 1

- 2 7

. Id. at 1273-1274. The com p laint alleged that all def

endants were liable as individuals and on their of

f icial bonds f

or penal dam ages. Id. at 1274. ¶51. The def

endants f iled a m otion to dism iss under Mississippi Rule of Civil Procedure 12(b)(6), contending t hat the statutory authority that provided the basis f or the com

p laint had been repealed o n January 1, 1981, the y ear af te r t h e a l l eged a ctivity

. Id. a t 1 274. Both parties also later m oved f or sum m ary ju d g ment. Id. As t o the claim s f ounded on the

2 4statutory com petitive bid rule, the chancery court granted partial sum m a ry j udgm ent in f avor of the d ef endants because o f the repeal of the statute. I d. T he c hancery court granted partial

sum m ary judgm ent in f

avor o f the State as to the conf l ict of interest claim a n d a w a r d e d dam ages and assessed f

ines. Id. T he State appealed and the def endants cross-appealed. Id. ¶52. The Ladner appeal turned o n whether the Court considered the three-bid requirem ent

as i t existed in 1980 or as it stood repealed at the beginning of 1981. Id. at 1275. As the
Court wrote, “[ T]he S ch o o l Board without question violated the three bid requirem ent. If Section 31-7-43 as i t read i n 1980 is enf orceable, the judgm ent below m ust be reversed. On the other hand, with the exception to be noted i n Section I V below, the School Board

com plied with the s tatutes as they read today .” Id. Af ter a lengthy and detailed review of the law regarding the vesting of contract duties and other interests in the State, the Ladner
Court held that f

or the State to proceed under a repealed statute, “the right the State seeks to
assert [ m ust] be based upon som e contract, property or other vested right, that the right have b e i ng as a right notwithstanding t he statute’s nonbeing.” Id. at 1277. In other w o r d s a n d
im p ortantly , the Ladner Court’s holding that the trial court m ust rely on the latter version of the bidding statutes was b ased on the l a w surrounding the vesting of contractual duties,

w h ich would have no application in crim inal cases. It is here that t he brief , unexplaine d

m ention of Allen occurs. T o g i v e context, we quote below a f ew sentences b ef

ore the language concerning Allen and the single sentence m entioning it: The legislature of

this state, as the principal exponent of the public policy of this state, has d e clared that the three bid requirem ent will no longer obtain in em ergency public works circum stance s . B e c a u s e t he statute has been c hanged, and because this Court is obliged to act consistent with a rational r eading of

2 5the legislative declaration, we have as a m atter of reason, p recedent and choice

determ ined that we should stay our hand f rom enf orcem e nt of that w hich h as been repeal e d

. P u t m ore specif ically , we a ccord a prior consideration to the public policy

pronouncem ent of

the state qua legislature, wholly interdicting the actions of

the State qua its attorney general and its auditor.
But it is n ot that the statute did not exist in 1980; rather, our perception o f and respect f o r the purpose and ef

f ect o f t h e subsequent legislative directive is such that we will no longer enf orce the pre-1981 s tatute. Any i ntim ation to the contrary f ound in Allen v. State , 440 So. 2d 5 44, 545–46 (Miss.1983) is sim ply in error.
Id. at 1276-1277. The above-quoted instance is the entirety of the discussion of Allen that

can be f ound in Ladner

. The treatm ent of Allen hardly suf f ices as an overruling of the case. The “m atter of reason, precedent and choice” to which the Court r ef ers in the above-quoted language i tself ref

ers to the very lengthy discussion of the vesting of contractual rights. The
Ladner holding theref

ore resulted f

r o m a specif

ic, specialized a rea of the l aw r e g a r ding vested interests o f the State in contract law. T he L adner Court was not o verruling Allen , but rather w a s h o l ding that Allen did not obviate the previously discussed law of vested contractual rights. ¶53. T h e next participant in t he gam e of Telephone, to in whose ear the L a d n e r C o u r t whispered its m essage disclaim ing “any intim ation” of a contrary notion f rom Allen , was the
Court that considered the case of West v. State , 725 So. 2d 872 (Miss. 1998), abrogated on other grounds by Jackso n v. State , 860 So. 2d 653 (Miss. 2 003). In West , the def endant, Tracy Lee W est, stood convicted o f capital m urder and had been sentenced to death. West , 725 So. 2d at 876. The C ourt af f irm ed his conv i c t i o n b u t reversed the d eath sentence because the trial court had f ailed to instruct the jury t hat it could consi d e r t h e a l t e r nate

2 6sentence of lif e without parole. Id. Between the tim e that West com m itted the underly ing

m urder of a store clerk in Gulf

port, Mississippi, and his trial, the Legislature had am ended the capital m

urder sentencing statutes to allow f or a possible sentence o f lif e i m prisonm ent without the p ossibility o f parole. Id. at 877 ( ¶ 7). On appeal, W e st argued that the trial court had e rred in ref

using to in s t r u c t t he jury , in accordance with t he a m ended statutes, that it could choose to sentence him to lif e without parole. I

d . ¶54. The statutes at issue were Section 97-3-21 and 99-19-101. The West C ourt relied on the plain language of Section 97-3- 2 1 a n d held that t he Legislature intended t he option of
lif e without the p ossibility of parole to apply to any def endant who was “charged, tried, convicted, and sentenced to lif e im prisonm ent” a f

t e r J u l y 1, 1994. Id. at 8 78. The West Court f irst wrote that Section 99-19-1, a t issue in the c ase sub judice , had no application because “Section 99-19-1 provi d e s t h at all l aws prescribing p unishm e nt will continue to
govern t he p enalties of all crim es com m itted under them , n otwithstanding ame n d a t ory or repealing statutes, unless otherwise especially provided in such s tatutes .” Id. a t 878-879 (¶ 16). As noted above, t he West Court held that S ections 97-3-21 a nd 99- 1 9

- 1 0 1 p r ovided otherwise. ¶55. The d issent contends that the am endm ent to t oday ’s pertinent statute, Section 97-17- 70, also provides o therwise, but the dissent m erely cites the am endm ent’s ef f ective date and the occurrence of the word “conviction” in the text of the st a t u te. The 1 994 act am ending Section 97-3-21, at issue in West , explicitly p r o vided t hat it w ould apply “to any case in which pre-trial, trial or resentencing proceedings t ake place af ter July 1, 1994,” 1994 Miss.

2 7Laws c h. 566 § 5 , and contained a separate section setting a general ef f ective d ate of July 1,
1994. 1 9 94 Miss. Laws ch. 5 6 6 § 6. The section establishing the general ef f ective date did

n o t “ o t h e r w ise provide” f

or t he applicability of Section 9 9-19-1. Rather, t he specif ic d i r e c t i v e that applied the changes t o cases with proceedings that took place af ter July 1, 1994, did so. The act that am e nded Section 97-17-70 contained n o such specif ic provision and c ontained only a general ef

f e ctive d ate of J uly 1, 2014. See 2014 Miss. Laws c h. 457. The distinction also is an im

portant di f

f erence, and unlike the statute at issue in West , no part of the

am endm ents at issue today directs that Section 99-19-1 does not apply

. ¶56. The West C ourt’s discussion of A l l e n a n d L a d

ner was dicta

. It occurred af ter the
C o u rt had reached its holding based on the above-described discussion o f statutor y interpretation and af

ter it had dis c ussed whether t he new option of lif e without parole violated the prohibition against ex post facto l aws. Id. at 880 (¶ 2 0). The Court included the discussion in response to an argum ent a dvanced b y the State, th a t under Section 99-19-33 and Allen , the trial court had the option of f ollowing the earlier sentencing schem e. West , 725 So. 2d at 881 (¶ 29). Section 99-19-33 read then, as now, as f ollows:
If any statute s hall p rovide a punishm ent of the sam e character, but o f m ilder ty pe, f or an of f ense which w a s a crim e under pre-existing law, then such m ilder punishm ent m ay be im posed by the court but no conviction, o therwise valid, shall be set a side and new trial g ranted m erely because of a n error of the court in f ixing punishm ent. S uch error shall only entitle the party i njured to vacate or reverse the judgm ent a s to the punishm ent, a nd the legal punishm ent shall then be im

posed by another sentence based on the original conviction or plea of guilty

. 3

3 In d eed , S e ctio n 9 9 -1 9 -3 3 ap p lies n o t to situ atio n s in w h ich th e p u n ish m en t f o r th e sa m e c rim e h as b e en ch an g e d , b u t in w h ich th e L eg islatu r e h as created a n e w , seco n d crim e th at crim in alizes th e s am e b eh av io r. S ee M i ss. C o d e A n n . § 9 9

- 1 9 -3 3 (“If a ny statute shall 2 8The West C ourt wrote that t he s econd sentence of Section 99-19-33 changed t he w ord “m ay ”

in the f irst sentence into “shall.” Id. at 881 (¶ 30). “Thus, it appears t hat the use of ‘m ay ’ in the f irst sentence in f

act intends to convey ‘ shall,’ f or there c an be no discretion to decline

to a pply an am endatory pr o v i s i on if declining to do so results in reversible error.” Id. In doing so, the West Court m ade t wo m istakes. First, it assum ed that the phrase “error of the

court in f i xing punishm ent” f

ound in the second half of the f irst sentence o f Section 99-19-33

m eant that it was e rror to sentence a def endant according to an earlier statute i n p lace when the def endant com m i tted the crim e in question. Nothing i n t he statute so states, and there are certainly other errors that can be m ade in af f i xing punishm e nt. ¶57. Second, the West Court’s s triking the w o r d “ ma y ” i n f avor of “shall” results in the judicial abrogation of S ection 99-19-1, which expl i c i t l y o b l i gates the trial court to do that which the West Court rewrote Section 99-19-33 to prohibit. Sections 9 9-19-1 and 99-19-33

were enacted together in a special session of the L egislature i n 1902. 1 902 Miss. Laws ch.
102-103. Together, they com prised the e ntirety of Senate Bill 3, described a s “AN ACT to prevent u n intended def

e at of crim inal pros e c u t i ons and of e n f orcem ent of penalties by statutory changes of crim inal laws.” 4 Id. In the Code of 1 9 4 2 , t h e Code of 1930,
Hem ingway ’s 1917 Code, and the Code of 1906, the two sections were printed one af ter the other, as enacted. “[ L]egislative intent m ust be determ ined f

rom t he total language of the act
provide a punishm ent of the sam e character, but of m ilder t y pe, for an offense which was a crime under pre-existing law

. . . .”) (em phasis added)). Accordingly , it h as no application to the instant case, where the issue is a change in punishm ent f or a single crim e . 4 Even the title of t he act indicates that the purpose o f both section s was to preserve crim inal prosecutions that had proceeded under prior versions of applicable statutes. 2 9and n ot f

rom one section thereof considered apart f rom the rem ainder.” Lewis v. Hinds Cty.
Circuit Court , 158 So. 3d 1117, 1122 (¶ 13) (Miss. 2015). W hen it edited Section 99-19-33

to substitute the word “shall” f or the word “m a y ” in the f irst s e ntence, the West Court erred and im properly rewrote the statute in a w ay that disregarded the tota l l a n g u a ge of the act, which the Court had no authority to do. As discussed above, t he second sentence of Section 99-19-33 does not contradict the f irst, as other possible errors in sentencing exist. ¶58. I n s h o r t , w e l a c k t h e constitutional authority to do what the West C o u r t d i d

. Accordingly , we overrule W e st to the extent t hat it i m

p roperly changed the “m a y ” to “shall,” thereby issuing a hol d i n g t h a t w o uld hold trial courts in error f or sentencing a def

endant under the older of

two sentencing statutes. ¶59. The West Court f

urther com

pounded its problem s in its treatm ent of Allen. The Court wrote as f ollows: Furtherm ore, t he State’s reliance on Allen v. State , 440 So. 2d 544 (Miss.1983) is of no avail. Allen is the o nly case w hich interprets § 9 9-19-33 to af f ord trial judges the discretion to apply the pre-am ended statute. That holding, that trial courts had discreti o n t o enf orce a pre-am ended version of a statute, was expressly overruled in State ex rel. Pittm an v . Ladner , 512 S o. 2d 1271, 1277 (Miss.1987) . . . .
West , 7 2 5 S o . 2d a t 882 (¶ 31). However, as s hown above, the Ladner Court hardly overruled Allen

. Secondly , the Allen Court did not s o m uch interpret Section 99-19-33 to af f ord trial j udges the discretion t o enf orce a n earlier s entencing statute, as it acknowledged that Section 99-19-1 allowed trial j udges t o do so. Allen , 440 So. 2 d at 546. Unlike the West Court, the Allen Court studied the history of the two sections, noting that both dated back to 1902, and reach e d an interpretation that gave harm onious ef f e ct to the w hole 1902 act.

3 0Finally , the West Court incorrectly described Allen as “the only case w hich interprets § 99-

19-33 to af

f ord trial judges the d iscretion to apply the pre-am ended statute.” W est , 725 So. 2d a t 882 (¶ 31). At least t wice bef ore, in cases cited by the Allen Court, the Court had interpreted Sections 99-19-1 and 99-19-33 together t o allow trial judges the discretion to apply the earlier version of the statute. See L am pley v. S tate , 308 S o. 2d 87, 90 (Miss. 1975) (af ter c onsidering Section 99-19-33, the Court held that Section 99-19- 1 “ e x p r essly provided that t he previous l aw will rem ain in ef f ect f o r the purpose of providing punishm ent, unless otherwise specially provided in the new statute”); see also Byrd v. S tate , 165 M iss. 30, 143 So. 852, 853 (1932). ¶60. The f

inal stop, bef

ore the Allen Court’s Section 99-19-1 holding reaches us in today ’s

case, is Daniels v

. State , 742 So. 2d 1 1 4 0 (Miss. 1999). Daniels cem ented the abovedescribed m issteps into our jurisprudence. In Daniels , a jury convicted Richard Daniels of capital rape. The Coahom a County Circuit C ourt sentenced him t o serve a lif e term

. Id. at 1141 (¶ 3 ). At the t im e of t he com m ission of Daniels’s crim e, Mississippi Code Section 97-
3-65 (1994) provided f

or either a sentence of death or a sentence of lif e im p risonm ent. Id.

at 1144 (¶ 13). A f

ter the c rim e but bef

ore sentencing, t he Legislature am ended the statute
to p rovide f

o r a sentence of “im

prisonm ent f

o r lif e in the S tat e P e n i t e n tiary or such lesser

term o f im

prisonm ent a s the court m ay d eterm ine, but not less than twenty (20) y ears.” Id. (citing Miss. Code Ann. § 97-3-65(2)(c) ( Supp. 1998)). The Daniels Court cited the West Cou rt’s opinion and held t hat a trial judge has n o d iscretion but to sentence a def endant to the lesser penalty when the Legislature so am ends t he statute af ter the com m ission o f a crim e.

3 1Id. a t 1145 (¶ 1 7). The Daniels Court relied on t he holding in West , in which the Court noted

the purported overruling of A llen by the Ladner Court. H owever, as detailed above, it is at best a stretch to consider the Ladner Court’s brief and am biguous treatm ent o f A l

l e n an overruling based l argely o n a d iscussion of the vesting of contractual rights. Moreover, the
West Court’s holding, as the Court continues t o f o llow it, im

perm issibly abrogated Section 99-19-1, which was part of the sam e legislative a ct that created Section 9 9-19-33. As we do with West , we over r u le Daniels to the extent that it holds that Section 99-19-33 requires a sentencing cour t t o a p p l y a newer sentencing statute instead of the sentencing schem e in ef f ect when a crim e was com m i tted. ¶61. Once again, the Court indeed m ay o verrule i t s o w n cases, but w e have no authority

t o a brogate, disregard, or e dit statutes enacted by the L egislature. The West C ourt’s dict a regarding Allen and the t wo code sections largely relied on a clearly e r r o n eous r eading of
Ladner and resulted in editing one statute, Section 9 9-19-33, in a way t hat abrogated another, Section 9 9-19-1. Again, Sections 99-19-1 and 99-19-33 were Parts I and II, respectively , of the sam e act in 1902. B oth sections com prised the entirety of the act, and i n previous versions of the M ississippi Code, were codif ied one af ter the other. Section 99-19-1 clearly requires the trial court t o sentence an of f ender under a sentencing statute in place a t the t im e of the crim e. Accordingly , the trial judge properly sentenced W ilson, and the instant issue has no m erit. ¶62. CONVICTION OF RECEIVING STOLEN PROPERTY AND SENTENCE OF TEN (10) YEARS, THREE (3) YEARS TO SERVE, WITH REMAINING BALANCE SUSPENDED W ITH POST-R E L E A S E SUPERVISION FOR FIVE (5) YEARS IN T H E CUSTODY OF THE MISSISSIPPI DEPARTMENT OF C ORRECTION S ,
3 2AFFIRMED. SAID SENTENCE S H ALL RU N C ONSECUTIVELY WITH

S E N T E N C E IN C AUSE N UMBER 1 1 , 0 0 5 9 C R P . A P P E L L A N T S H A L L P A Y C O U R T COSTS IN THE AMOUNT OF $104 A ND STATE ASSESSMENTS I N THE AMOUNT OF $280.50.
DICKINSON AND RANDOLPH, P.JJ., LAMAR AND BEAM, JJ., CONCUR. MAX W ELL, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. KITCHENS, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPA R A T E WRITTEN O PINION JOINED BY WALLER, C.J., AND KING, J. KITCHENS, JUSTICE, CONCURRING IN PART AND DISS ENTING IN PART: ¶63. I concur in t he m ajority ’s af f irm ance of Wi l s o n ’ s c o n v iction f or r eceiving stolen property

. I respectf

ully dissent in part, however, because I w ould reverse a nd rem and the case
to the Circuit Court of W arren County f or resentencing. The trial c ourt was without authority

to s entence h im to any term of im prisonm ent which e x ceeded f ive y ears under the am ended version of

Section 97-17-70(4) (Rev. 2014). ¶64. In its prior version, Mississippi Code Section 97-17-70(3) provided that any person “who shall be convicted of receiving s tolen p roperty which exceeds Five Hundred Dollars ($500.00) in value shall be com m i tted to the custody of the S tate Departm ent of Corrections
f or a term not exceeding ten (10) y ears or b y a f ine not m ore t han Ten Thousand Dollars ($10,000.00) o r both.” Miss. C ode Ann. § 97-17-70(3) (Rev. 2006). Section 97-17-70

c h a n ged, ef

f ective July 1, 2 014, to provide that the value of the stolen property be “O n e Thousand Dollars ($1,000.00) o r m ore, but less than Five Thousand Dollars ($5000.00) .

.

. .” Miss. Code Ann. § 97-17-70(4) (Rev. 201 4 )

. T h e penalty f or the of f ense of receiving stolen property was a ltered to “imp r i s onm ent in the custody of t he State Departm ent of

3 3Corrections f or a t erm not e x c e e d i n g f i v e (5) y ears or by a f

ine of not m ore than Ten Thousand Dollars ($10,000.00) or both.” Id. ¶65. Mississippi C o d e S e c t i o n 9 9 -19-33 provides that, “ [ i ]f any statute shall provide a punishm ent of the sam e character, but o f m ilder ty pe, f or an of f ense which was a c rim e under pre-existing law, t hen such m ilder puni s h ment m ay be im posed by t he court

. . . .” Miss. Code Ann. § 99-19-33 (Rev. 2015). This Court has held that “when a statute i s am ended to provide f or a l esser penalty , and the am endm e nt t akes ef f ect bef ore sentencing, the trial court

must sentence a c c o r d i n g to the statute as am ended. Any precedent holding otherwise is in
error.” Daniels v. State , 742 So. 2d 1140, 1145 (Miss. 1999) (em phasis added). ¶66. In Daniels , this Court reversed and rem anded Daniels’s lif e sentence f

o r c a pital rape because, bef

ore sentencing had taken place, the applicable statute, which originall y prescribed a m andatory penalty either of death or lif e im prisonm ent, ha d been am ended to provide a “sentence of ‘im p risonm ent f

or lif e in the State Penitentiary or such lesser term of
im p risonm ent as the court m ay determ ine, but not less than twenty (20) y ears.’” Daniels , 742
So. 2d at 1144 (quoting Miss. C ode Ann. § 9 7-3-65(2)(c) (Supp. 1998)). See Johnson v. State , 260 So. 2d 436, 4 39 (Miss. 1 972) ( “[ W ]hen the f acts which constitute a crim inal of f ense m ay f

all under either o f two statutes, o r when there is s ubstantial doubt as to which of the two is to be applied, the case will be ref erred to the statute which im poses the lesser punishm ent.”) ¶67. Here, the crim e occurred April 2, 2012. W ilson was indicted in January 2013 under the prior version o f Section 97-17-70, which p rescribed a m axim um p enalt y of ten y ears’

3 4im

p risonm ent. The am e ndm ent to Section 97-17-70, which incorporated the lesser penalty of up to f i ve y e ars’ im

prisonm e nt, becam e ef

f ective July 1, 2014. W ilson was tried and convicted in Septem

ber 2014. W i lson’s counsel argued at sentencing that t he n e w v e r s i on of the statute should b e applied and the t rial c o u r t r ejected the argum ent: “this action
h appened prior t o the c hange of the law and until the S uprem e C ourt tells u s d i f f e r e n t t h e Court will stand b y the o riginal el em ents in sentencing.” W i lson was sentenced on Septem ber 17, 2014, to “[ t]en y ears i n the custody of t he Mississippi Departm e n t of C orrections, three (3) y ears t o serve, with rem aining balance suspended with post release supervision f or f ive (5) y e a rs . . . .” As such, u n der Section 99-19-33 and D a n i e l s , Wi l s o n argues that his

sentence is i llegal, that h is sentence should b e v acated, and t hat the case should b e rem anded
f or resentencing. ¶68. The State urges us to consider Mississippi Code Section 99-19-1, which provides:
No statutory change of any law af f ecting a c r i m e or its punishm ent or the col l e c t i o n of a penalty shall a f f ect o r def

eat the prosecution of any crim e com m itted prior to its enactm ent, or the collection of a n y p e n alty , whether such prosecution be instituted bef o r e o r a f ter s uch enactm ent; and all laws def i n i n g a c rim e o r prescribing its punishm ent, or f or the im position of penalties, shall be c ontinued in o peration f or the purpose of p roviding punishm e nt f

or crim es c om m itted under them , and f or c o l l e c t ion o f such penalties, notwithstanding am endatory o r repealing statutes, unless o therwise specially provided in such statutes. Miss. Code. Ann. § 99-19-1 (Rev. 2015). The State argues t hat “Section 99-19-1 is clear that the applicable sentence at the tim e a crim e is com m itted should be used. And the language
in § 99-19-33 c learly states that a m ilder punishm e n t f rom an am ended statute m ay be
im p osed.”

3 5¶69. The m ajority opinion agrees with the State and engages in an exegesis of this Court’s

jurisprudence, concluding that, w hile this “Court indeed m ay overrule its own cases, . . . we have no authority to abrogate , d i s r egard, or edit s tatutes enacted b y the Legislature.” Maj. Op. ¶ 61. It is true t hat this Court h as n o authority , absent a determ i n ation of unconstitutionality , to ignore duly enacted statutes. ¶70. In West v. State , this Court considered wh e t h e r t h e t r i a l c o u r t h a d c o mmitted reversible error by

ref using the def

endant’s “repeated requests to apply the am e ndm ents to Miss. Code Ann. §§ 97-3-21 and 99-19-101, and to instruct the sentencing jury that it could

sentence [ the d ef

endant] to lif

e im prisonm ent without p arole.” West v. State , 725 So. 2d 872, 877 (Miss. 1998), abrogated on other grounds by Jackson v. State , 860 So. 2d 653 (Miss. 2003). Prior to the def

endant’s trial, Section 97-3-21 was am e nded to allow the sentencing jury to consider, in a ddition to penalties of either death or lif e im pr i s o n me n t with the possibility of parole, the penalty of lif e im prisonm e n t without the possibility of p arole. Id. The a m ending act provided that “ ‘[ t]he provisions o f this act shall apply to a n y case in which pre-trial, trial or resentencing p roceedings take place af ter July 1, 1994.’” Id. (quoting 1994 Miss. Laws ch. 566 § 5). The def endant’s trial com m enced on August 8, 1994. Id. ¶71. Thi s C o u r t o b s e r v e d t h a t “ S e c t i o n 99-19-1 provides t hat all l aws prescribing punishm ent will continue to g o v e r n the penalties of all crim es c om m itted under them , notwithstanding am endatory or repeali n g statutes, unless otherwise especially provided in such statutes .” I

d. at 8 78-79 (em

phasis in original). Because the “plain m eaning of the language in § 97-3-21 indicates that the legislature intended any def e ndant whose pretrial,

3 6trial, or sentencing proceedings com m enced af ter July 1 , 1994 to have his sentencing juries instructed on the sentencing options of lif e , lif e without parole, or death,” this Court held that “the proscriptions o f § 99-19-1 do n ot preclude the application o f the am endm e n ts” to the def endant. Id. at 878-79. ¶72. In the present case, Section 97-17-70 specif ied that it was to be ef

f ective “f rom and af ter July 1 , 2 0 1 4.” Miss. Code Ann. § 97-17-70. Subsection 4 of Section 97-17-70 specif ically addresses “[ a]ny

person who shall be convicted of receiving stolen property

. .

. .” M iss. Code Ann. § 97-17-70(4) (em phasis added). W ilson was convicted in Septem ber
2014. T heref

ore, a s in West , by its express language, Section 99-19-1 “does not preclude the application of

the am e ndm ents” to W ilson. ¶73. T h e ma

j o r i t y discredits the West Court’s interpretation of Section 99-1 9

- 3 3 a n d determ ines that it does not apply in th i s c a s e . M aj. Op. ¶ 56, n.3. The Court in West considered the totality of

Section 99-19-33 as f

o llows:
If any s tatute shall p rovide a punishm ent of the sam e c haracter, but of m ilder ty pe, f or an of f ens e w h i c h was a crim e under pre-existing law, then such m ilder punishm e nt m a y be im posed b y the court but n o conviction, o therwise valid, shall be set a side and new trial granted m e r ely because of a n error of the court in f ixing punishm ent. Such error shall o nly entitle t he p arty i njured to vacate or reverse the judgm ent as to the punishm ent, and the l egal punishm ent shall then be im

posed by another sentence based o n the original conviction or plea of guilty

. West , 725 So. 2 d a t 881 ( quoting Miss. C ode Ann. § 99-19-33). The C ourt held t hat Section
99-19-33 “ does n ot grant a judge discretion” in s entencing, because “[ a ] lthough the language

seem s to suggest discretion i n stating that the lighter sentence may b e im posed by the court, the subsequent sentence states that a judge’s f ailure to im

pose the lighter sentence is error”

3 7and t hat “such error entitles t h e party injured t o a vacation or reversal of the punishm ent

portion of the judgm ent.” West , 725 So. 2d at 881. ¶74. This Court ref

e renced t h e r u l e t h a t “ w h i l e p e r mi ssive language of a statute is
presum ably interpreted in its ordinary sense, i t w ill b e interpreted a s m andatory where the

context c om

pels such a construction.” West , 725 S o. 2d at 881 (citing Leflore Bank & Trust Co. v . Leflore County , 202 Miss

. 552, 558, 32 So. 2d 744, 746 (1947)). According to this Court, “there can be no discretion to decline to apply an am endatory provision i f declining to do so results in reversible error.” West , 725 So. 2d 881. ¶75. The m a

jority a rgues that “striking the word ‘m ay ’ in f a vor o f ‘shall’ resul t s i n the judicial abrogation of S ection 99-19-1, which explicitly obligates the tr i a l c o u r t t o do that which t he West Court rewrote Section 99-19-33 to prohibit.” Maj. Op. ¶ 57. W i th r e s p e ct, this C ourt did not strike the word “m ay ” a nd substitute the word “ s hall” i n West , but rather engaged in a reasonable interpretation of a self -contradictory statute. In its f irst sentence, Section 99-19-33 provides that the trial court has discretion with regard to sentencing and,
in the s econd sentence, it p rovides that erroneous sentencing e ntitles the def end a n t t o a reversal of the punishm ent and n ot the reversal of the conviction. Furtherm ore, as discussed above, Section 99-19-1 does not apply to t his case, nor did i t a p p l y i n W e st , because the

r e s p e c t i ve statutes in issue incorporated an ef f ective date, af

ter which t he respective def endants were tried, convicted, and sentenced. ¶76. At the very l east, the rule of lenity applies t o a patently a m biguous statute : “ penal

statutes are to be interpreted strictly against the s tate and construed liberally in favor of the

3 8accused

. W here a statute is patently am biguous, it m

ust be interpreted in f

avor of the accused.” McLam b v. State , 456 So. 2d 743, 745 ( Miss. 1 984) (citing State v . R ussell , 358
So. 2d 409 (Miss. 1978); Carter v . State , 334 So. 2d 376 (Miss. 1976); Walton v. State , 219 Miss. 72, 6 8 So. 2d 87 (1953); Terry v. State , 172 Miss. 303, 160 So. 574 ( 1935)) (em phasis added). ¶77. W h ile I a g r e e t h a t W i l s o n ’ s c o n viction f or receiving stolen property should be af f irm ed, I decline to join t he m ajority ’s ref usal t o apply the controlling law with regard to his sentence. Accordingly , I dissent in part. WALLER, C.J., AND KING, J., JOIN THIS OPINION.

3 9