IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-CP-02035-COA KERRY L. MORGAN A/K/A KERRY LOUIS MORGAN A/K/A BONES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/10/2013 TRIAL JUDGE: HON. JAMES MCCLURE III COURT FROM W HICH APPEALED: YALOBUSHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: KERRY L. MORGAN (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: MELANIE DOTSON THOMAS NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED: 04/14/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. Mississippi law provides that the sentence s o f h abitual of f enders “shall not be reduced

or suspended.” Kerry Morgan w a s i n d i c ted a nd convicted a s a h abitual of f ender, but pursuant to a plea agreem ent, the circuit court ordered that he serve m ost of his sentence on post-release supervision. Morgan, who violated t h e conditions of h is release and had it revoked, n ow argues that h e could not have actually been sentenced a s a habitual of f ender.
He d em a nds t hat his sentence be m odif ied to relieve him of the various restrictions placed on habitual of

f enders – i.e., he wants to be eligible f or earned tim e and parole.¶2. W e f i nd that Morgan was clearly sentenced as a habitual o f f ender and that he cannot

com plain of having received a sentence that was illegal only because it was too lenient. As noted in Judge Roberts’s concu r r e n c e , Morgan’s own behavior h as rem oved that leniency and c orrected the def

ect of which he com

plains. W e af

f i rm the circuit court’s dism issal of Morgan’s m otion f

or post-conviction relief

. STANDARD OF REVIEW ¶3. The c ircuit cou

r t m a y s u m m a r i l y d ism iss a PCR m otion w ithout an evidentiary hearing “[ i]f it p lai n l y a p p e ars f

rom the f ace of the m o tion, any annexed exhibits and the prior proceedings in the c a s e t h at the m ovant is n ot entitled to any relief .” Miss. Code Ann. § 99-39-11(2) (Supp. 2014). To succeed on appeal, the petitioner m ust: (1) m ake a s u

bstantial showing of the denial of

a state or f

ederal right and (2) show that the claim is procedurally alive. Y oung v. State , 731 So. 2d 1120, 1122 (¶9) (Miss. 1999). ¶4. W h en reviewing t he d enial of a PCR m otion, a n appellate court “will not disturb the trial court’s f

actual f indings unless they are f

ound to be c l early erroneous.” Callins v. State , 975 So. 2d 21 9 , 2 2 2 (¶8) (Miss. 2008). O u r review of the sum m ary dism issal o f a PCR

m otion, a question of

law, is de novo. Y

oung , 731 So. 2d at 1122 (¶9).
DISCUSSION 1. Procedural Bars / Res Judicata ¶5. Morgan w as indicted in 2 002 on charges of receiving stolen property and aggravated

2assault on a police of f icer, a s a habitual of

f ender. 1 Morgan p led guilty in January 2 004, again

as a h abitual of

f e nder, a nd received sentences which were s t ated to be as a h abitual of f ender, but nonetheless p rovided f or an e arly conditional release f rom prison. Morgan’s post-release supervision, and with it his early release, was revoked on March 11, 2005, af ter he was f

ound to have com m itted several acts of f orgery . ¶6. Morgan subsequently f iled a PCR m o tion challenging the revocation. Spec i f ically , he argued that his conditional release could not be revoked because he was n ever c onvicted of the f orgeries. T he circuit court disagreed, and this Court af f irm e d o n appeal. Morgan v. State , 995 So. 2d 787 (Miss. Ct. App. 2008). ¶7. Morgan subm i tted the instant m otion in October 2012. The circuit court, in a detailed written opinion, f

ound this second PCR m otion tim e-barred and barred as a successive writ (though the court did, in the a lternative, reject the c laim on the m erits). Morgan argues that he is challenging a sentence as illegal on its f ace, which im

p licates his f

undam ental constitutional right to be f ree f rom an i l l egal sentence. T his claim is excepted f rom the procedural bars and res judicata under the Mississippi S uprem e C o urt’s recent dec ision in Smith v. State , 149 So. 3d 1027, 1032 (¶13) (Miss. 2014). 2. Legality of Sentences

1 Morgan w as a lso indicted in Tallahatchie County on charg e s o f b urglary of a dwelling and receiving stolen property

. He pled guilty to those charges pursuant to the sam e plea agreeme n t a s t h e Yalobusha c onvictions and received sim ilar sentences. The proceedings have of

ten b een connected, but the Tallahatchie convictions a r e not challenged by the PCR m otion we consider today

. 3¶8. The heart of Morgan’s claim is that he w as illegally s entenced as a habitual of f ender,

or, as he phrases i t, that he was illegally resentenced as a habitual of f ender w hen he was f ound to have violated the term s of his c onditional r elease. The record sim ply does not bear

o u t h i s c l a i m of r esentencing by revocation. Morgan’s indictm e nt, h is petition to enter a guilty p lea, num e rous statem ents during the p lea colloquy , and the sentencing order all state that Morgan was convicted and sentenced as a habitual of f ender. At one point, af

ter the State put on i ts proof of Morgan’s prior c o n v i ctions, Morgan and the judge rem inisced about Morgan’s prior exploits. It was never suggested that Morgan was charged, convicted, and sentenced as any

thing but a habitual of

f ender. ¶9. Morgan does not dispute that, exactly , but he a rgues that the sentence did not satisf y the habitual of

f ender statute under which he was sentenced, Mississippi Code An n o t ated section 99-19-81 (Supp. 2014). It provides: Every person convicted in this state of a f elony who shall h ave b een c onvicted twice previously of any f elony or f

e deral crime u p o n charges separately brought and arising out of separate incidents at dif f erent tim es and who shall have been sentenced to sepa r a t e t e r ms of one ( 1) y e ar or m ore in any state and/or f ederal penal institution, wheth e r i n t h is state or e lsewhere, shall be sentenced to the m axim

um term of im

prisonm ent prescribed f

or such f elony , and such sentence shall not be reduced o r suspended nor shall s u ch person be eligible f or parole or probation.
M o r g an received t he m axim um sentences f

or the two of

f e nses, “in the M ississi p p i Departm ent of Corrections,” but t he sentencing orders provided that m o st of the t im e would be served on post-release supervision. The State p oints out that there are num erous e xam ples of such s entences being noted without com m ent in p rior Mississippi a ppellate decisions. It
4f

urther contend s t h a t this was not an illegal s entence at all, because section 9 9-19-81 does not specif ically preclude post-release supervision. ¶10. W e do not agree. Section 99-19-81 requires t hat a habitual of f ender be sentenced to the “m axim

um term of im prisonm ent,” which “shall not be reduced or suspended.” W hile the State is correct that trial c ourts have occasionally disregarded the statute to award m ore lenient sentences than it p erm its, it is n ot true t hat the p ractice has passed without com m ent. See, e.g., Philips v. State , 25 So. 3d 404, 408 (¶12) (Miss. Ct. App. 2010); Lamar v. State , 983 So. 2d 364, 370-73 (¶¶21-32) (Miss. Ct. App. 2008) (Roberts, J., specially concurring) (“It is s t a t u torily im

possible f

or a habitual of

f ender’s sentence to include a period of post-release supervision.”). W e take this opportunity to state that, while we r ecognize that the t rial courts m ay deviate f rom the statute in exceptional circum stances if it is constitutionally required, the laws of our State should not be c asually disregarded as a m atter of d ay -to-day plea bargaining, as appears to have happened here. S ee Aranyos v. State , 115
So. 3d 116, 123-25 (¶¶24-29) (Miss. Ct. App. 2013) (Roberts, J., c oncurring in part and in result). ¶11. Nonetheless, even though M organ’s sentence did not conf orm to the statute, its f

ailure is that it was too l enient. In such a case, our suprem e court has f l atly stated that “[ t]he law which relieves def

endants f rom the burden o f a n illegal sentence applies to situations where

t h e d ef endant is f

orced to suf

f er a greater sentence rather than the luxury o f a l e s s e r sentence.” Sweat v. State , 912 S o. 2d 458, 461 ( ¶ 9 ) (Miss. 2005). Any such error is thus

5harm less. Id. The trial court did not err in dism issing Morgan’s PCR m otion.

¶12. THE JUDGMENT OF THE CIRCUIT COURT OF YALOBUSHA COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YALOBUSHA COUNTY. LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, I SHEE, CARLTON, MAX W ELL AND J AMES, JJ., CONCUR. ROBERTS, J., SPECIALLY CONCURS WITH SEPARATE W RITTEN OPINION, JOINED BY LEE, C.J., GRIFFIS, P.J., AND FAIR, J. ROBERTS, J., SPECIALLY CONCURRING: ¶13. W e are, once again, conf ronted with t h e n a g g i n g q u e s t i o n : “Exactly what is an ‘illegal’ sentence, and what should we do about it? ” ¶14. Kerry L

. Morgan is a career f elony of f ender. In 1982, he was convicted of uttering

a f orgery in Lef

lore County , a nd he was s entenced to prison. In 1989, Morgan was c onvicted of grand larceny in Tallahatchie County , and he was sentenced to p rison

. I n 1991, he was

c o n victed of burglary of an occupied dwelling in Tallahatchie County and sente n c e d t o prison. And in 1 995, M organ was convicted of burglary in Grenada County , and y et again sentenced to prison. That was his status when he s t ood bef ore Judge A ndrew Baker on January 29, 2004, and of

f ered to p lead g uilty to f

our new f elony charges: t wo i n Y alobusha County f or aggravated assault on a law-enf orcem ent of

f icer and r eceiving stolen property ;
two i n Tallahatchie County f or burglary of a dwelling a nd receiving stolen p roperty

. He was f orty -f our y e ars old and had a sixth-grade education. ¶15. Morgan and his attorney , W illia m L

. M axey , had negotiated a very f avorable plea
agreem ent wit h Assistant D istrict Attorney Sm ith Murphey

. In C ount I of the Y alobusha
6County indictm ent f or aggravated assault on a law-enf orceme nt o f

f icer, Morgan would receive a thirty -y ear sentence as a s ection 99-19-81 habitual of f e nder, with 386 d ay s to serve, and twenty -eight y ears and eleven m onths on post-release supervision (PRS), with f ive y ears of his PRS to be reporting. For the receiving-stolen-property count, Morgan would receive

a f ive-y ear sentence as a section 99-19-81 habitual of f ender, with 386 day s to serve and three
y ears and eleven m onths on PRS. The sentences were o rdered to run concurrently with one another and concurrently with sim ilar sentences in t he Tallahatchie c ase. Morgan had been
in p retrial custody on these charge s f or 386 day s prior to appearing bef o re Judge Baker to
enter his guilty pleas. In other words, Morgan w ould be r e l e a sed the day he p led, and he would begin his PRS. If any thing is cry stal clear f

rom a perusal of the plea colloquy , it is that Morgan f ully understood and appreciate d t h e c o n s e quences of his pleas, as well as the consequences of

f uture revocations as a habitual of f ender. ¶16. Morgan’s crim inal history and 20/20 hindsight indicate that his plea agreem ent and sentencing had set him

up f or f a ilure. And f

ail h e did. E leven m onths later, on Decem ber 30, 2004, Assistant District Attorney Murphey f iled a petition to revoke Morgan’s PRS based

on f o ur n ew uttering check f

orgeries. A revocation hearing took place on March 11, 2005, bef ore Judge Baker, who considered the h earing to be one on whether o r not to revoke Morgan’s “suspended” sentence. Af ter hearing f

rom num e r o us witnesses, including Morgan’s m other, a nd the owners and em ploy e es of the various stores whe r e M o r gan presented the f

orged c hecks, J udge Baker revoked M organ’s PRS and sentenced M organ to

7serve t wenty -eight y ears a nd eleven m onths in MDOC custody as a section 99-19-81 habitual

of f ender. Interestingly , Morgan’s m other testif ied that Morgan adm itted to h er t hat he had cashed, or attem

pted to cash, his stepf

ather’s s tolen checks, so he could pay $ 1,200 t o his drug dealer, who had threatened him if he f ailed to pay

. ¶17. Now, s om e f

ourteen y ears af

ter his r e v o c a t i o n , M organ claim ed in his second PCR

m otion that his sentence as a habitual of f ender is “illegal.” He requested that the habitualof f ender portion of

his sentence “be stricken” as unlawf u l. ¶18. Wi t h o u t d o u b t , t h e s u p r e m e court has decla r e d v i o l a t i o n s o f f u n d a me n t a l constitutional rights are not s u bject to the procedural bars of the Unif orm Post-Conviction
C o l l a t e r a l Relief Act. R owland v. State , 4 2 So. 3d 503, 506 (¶9) (Miss. 2 010). And th e circuit court’s i m

position of an i llegal sentence is a violation of a f undam ental constitutional right, according t o t he suprem e court. Sneed v. State , 722 So. 2d 12 55, 1257 (¶11) (Miss. 1998) (citatio n o mitted). C onsequently , Morgan is not procedurally barred f rom asserting that his sentence is i llegal. That assertion is not a f acial claim , but deserves a p p e l l a te scrutiny

. ¶19. In the m ost generic sense, a f elony sentenc e e x c e e d i n g t h e ma x i mu m p o s s i ble statutory sentence allowed f

or the crim e com m itted is an unlawf ul sentence. S

ee Foster v. State , 148 So. 3d 1012, 1016 ( ¶12) (Miss. 2014). Morgan received thirty y ears f or aggravated assault on a law-enf orcem ent of

f icer, w hich was the m a x i mu m sentence authorized by the statute then in e f f ect. See M i s s . C ode Ann. § 97-3-7(2)(b) (Rev. 2014).

8But Morgan pled as, and was adjudicated to be, a section 99-19-81 habitual of f ender, which

m akes it m andatory that the circuit court sentence a habitual o f f ender to the “m axim

um term of im p risonm ent prescribed f

or such f elony , and such sentence shall n ot be reduced or suspend e d n o r shall such person be eligible f or p arole or probation.” The statute was ef f ective on July

1, 1977, and has not been am ended since. ¶20. Mississippi Code Annotated section 47-7-34 (Supp. 2014) was enacted in 1995 and

states: (1) W h en a court im poses a sentence upon a conviction f or any f e lony com m itted af

ter June 30, 1995, t he court, in addition to any other punishm ent im p osed i f the other punishm ent includes a term of incarceration i n a state or local correctional f

acility , ma y im

pose a term of p ost-release supervision. However, the total num

ber of y ears of incarceration plus the total num ber of y ears of post-release supervision s hall not exceed the m axi m um sentence authorized t o b e i m

posed by law f

or the f elony com m itted. T h e d e f e ndant shall be placed under post-release supervision upon release f rom the term

of incarceration. The period of supervision shall be established by the court. ( 2 ) The p eriod of p ost-release supervision shall be conducted i n t he s a me m anner as a like period of supervised probation, including a r equirem ent t hat the def endant shall abide by an y t e r ms a n d conditions as the court m ay establish. Failure to successf ully abide by t he term s and c onditio n s s h a l l be grounds to t e r mi n ate the period of post-release supervision and to recom m it the def endant t o the correctional f acility f rom which he was p r e v i o u sly released. Procedures f

o r term ination and recom m itm ent s hall b e conducted in the sam e m anner as procedures f or the r evocation of probation and im position of a suspended sentence as required pursuant to Section 47-7-37. (3) Post-release s u

pervision program s shall be operated through the probation and parole unit of the Division of Com m unity Corrections of the departm ent. The m a xim

um am ount of tim e that the M ississippi Departm ent of Corrections m ay supervise an of

f ender on the post-release supervision program is f ive (5) y ears.

9Section 4 7-7-34 contem plates that the of

f ender actually serve the initi a l p o r tion of his

sentence in custody

. But the PRS portion of his sentence shall b e conducted in the sam e

m anner as a like p eriod o f probation, and probation m ay o n l y b e g r a nted when part of the

sentence has been suspended. See Miss. Code Ann. § 47-7-33 (Supp. 2014). Procedures f or
term ination and recom m itm ent of PRS shall be conducted in the s am e m anner a s procedures
f or the revocation of probation a n d im position of a suspended sentence. M iss. Code Ann. §47-7-34(2). Judge Baker stated at the revocation hearing t hat he was revoking M organ’s “suspended” sentence. Supervision on probation or PRS can only occur when the inm ate has been released f

rom a ctual phy sical custody , returned to his hom e or c ivilian com m unity , and thereby subject to supervision by MDOC probatio n o r parole of f icers or the circuit court. Consequently , I can o n ly conclude that Morgan’s sentence to PRS as a habitual o f f e nder violates t he m andate that a habitual of f ender’s m axim

um sentence cannot be reduced or suspended, or s ubject to probation or parole. Hence, neither M organ’s initial nor his revoked sentences as a habitual of f ender are lawf

ul. ¶21. The next question is, what does an appellate court do on a PCR appeal if the circuit court, af ter a guilty plea, im

p oses an illegal sentence p ursuant to a plea a greem e n t? On the

one hand, and in the c ontext o f a previously convicted f elon who plea bargains f or a

s u s p e n ded s entence and probation, but l ater c om plains af ter revocation that his initial

sentence was unlawf

u l b e cause it v iolated the m andates of section 47-7-33, we have held that

a prisoner cannot com

plain of an “illegally lenient sentence.” See Moore v. S tate , 976 So.

1 02d 9 30, 931 (¶7) ( M iss. C t. A p p . 2 0 0 7 ) ( citation om itted). And the s uprem e court has

specif ically agreed with this analy sis. Sweat v. State , 912 So. 2 d 458, 461 ( ¶9) ( Miss. 2005) (“The law which relieves def e n d a n t s f r o m the burden of an illegal sentence applies to situations where the def

endant is f

orced to suf

f er a greater sentence rather than the luxury of

a lesser s entence. W e agree with the C ourt of A ppeals and t heref ore adopt its approach.”).
No doubt when M organ i nitially pled guilty and was released on PRS, he c ould not com plain because his sentence was “illegally lenient.” But upon revocation, Morgan received twenty

eight y ears and eleven m o nths as a habitual o f f ender, which was the m ax i mu m a n d most harsh sentence available f or aggravated assau l t o n a law-enf orcem ent of

f i cer. And now, Morgan requests t hat h i s habitual-of f ender status be stricken f

r om h is sentencing order since an adjudicated habitual of f ender can never receive PRS. ¶22. On the o ther hand, t he suprem e court h as set aside a sentence when the bargained-f or
sentence was an “unlawf

ul” one because it violated “public policy .” See Lanier v. State , 635
So. 2d 813, 816 ( Miss. 1994) (overruled on other grounds). Johnny L anier brutally m urdered

a law-enf o rcem e nt of

f i cer, who was acting in her of f icial c apacity , attem

pting to quell a dom estic-violence i n c i d e n t

. Id. at 815. Lanier was convicted of capital m urder and sentenced to death. Id. Upon rem and f or a new sentencing h earing, Lanier entered into a plea agreem ent where h e agreed to a sentence of lif e without parole. Id. T he circuit court, pursuant to the plea agreem ent, sentenced Lanier to lif e without parole. Id. At the tim e of his guilty plea, Lanier was represented by f i ve v ery com

petent attorney s, who s ought to avoid

1 1a possible death sentence. I d

. H o w e v e r , at the tim e of the crim e and sentencing, the only

two authorized punishm e nts f o r capital m

urder were death or lif

e with parole eligibility af ter
ten y ears. Id. at 816. The suprem e court h eld the sentence of lif e w i thout parole was, at that tim e, in contravention of

the public policy as expressed by the Legislature and void. Id. at 816-17. As the s uprem e court noted: “The j udiciary is responsible f or try i ng t hose accused of crim es and f

o r im posing sentence s a u t h o rize by the [ L ] egislature.” Id. at 816. Justice Hawkins eloquently

stated in his concurring opinion:
As the m ajority points out, however, a circuit c ourt’s authority to put a m an in the penitentiary com es s olely f rom , and is governed entirely b y [ ,] s tatute. The statute is his only authority f o r t he t im e and terms of the defendant’s commitment

. In the a

bsence of statute, a circuit judge sim ply h as no a

uthority to order a m a n to s erve tim e in the penitentiary or im pose the conditions of his sentence

. Id. at 820 (em

phasis added). The suprem e court set aside Lanier’s sentence and rem anded
f or another sentencing hearing, with the jury option of the death p enalty on the table. Id. at 817 (m ajority

opinion). ¶23. The sam e c an be s a id in Morgan’s case. T h e L e g i s l ature has expressed the public policy of t his State in section 99-19-81, that o f f e n d e r s who are correctly adjudicated t o be
h a b i t u a l o f

f enders in a ccordance with that s tatute shall receive the m axim um possible

sentence f

or the crim e, w ithout reduc t i o n or suspension of s entence, probation, or parole. This is a legislative determ ination that c ertain career f elony o f f enders, who have repeatedly dem onstra t ed an unwillingness or inability to live by society ’s l aws, should be im prisoned
f or t he m axim

um sentence without any ty pe of early release; society ’s ultim ate claim to self

1 2def

ense, if y ou will. Morgan certainly f its that def

inition. For M organ to have received PRS, like Lanier, who received lif e w ithout parole, is a violation o f t he public p olicy of t his State.
To be consistent with Lanier , we should declare his PRS s e ntence void, set aside his guilty plea and sentence, and rem and f or trial. ¶24. Until the suprem e court def initively answers t he question of whether an adjudicated habitual of

f ender can be s entence d t o s o me f orm of a split sentence, including PRS or probation pursuant to a plea bargain, I am inclin e d t o , a n d do, concur with the m ajority ’s af f irm ance. I d o s o with som e degree of reluctance, since I do not intend to encourage such

a p ractice, which seem s t o have becom e s om ewhat p revalent across this state. Conversely , I believe such to b e f

raught with problem s, as clearly dem onstrated by Morgan’s case. But because M organ s pecif

ically pled f

reely , knowingly , and intelligently to aggravated assault

o n a law-enf

orcem ent o f

f icer, as a section 99-19-81 habitual of f ender, the on l y l a w f

u l

sentence he could have received i nitially was thirty y ears in the c ustody of the MDOC, a s a habitual of

f e nder. And that is the e xact sentence he is now serving. Consequently , I concur. LEE, C.J., GRIFFIS, P.J., AND FAIR, J., JOIN THIS OPINION.

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