IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-CP-00542-COA VINCENT YOUNG A/K/A VINCENT EDWARD YOUNG A/K/A VINCENT E. YOUNG APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/05/2016 TRIAL JUDGE: HON. JOHN KELLY LUTHER COURT FROM W HICH APPEALED: UNION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: VINCENT YOUNG (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED: 10/03/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC. FAIR, J., FOR THE COURT: ¶1. I n 1990, Vincent Young pled guilty to arm e d robbery

. In exchange f or joining the
State’s recom m endation that he rece i v e a lif e sentence, the p rosecution dropped an aggravated assault c ount a n d agreed n ot to prosecute Young as a habitual of f ender on the

arm ed robbery charge. The circuit court f ollowed t he a g reed recom m endation and sentenced Young to lif

e im prisonm ent under Mississippi Code Annotated section 97-3-79. ¶2. Now, m ore than twenty -f i ve y ears later, Young has f iled a m otion f

or post-conviction relief , claim in g that his sentence was illegal because under the prevailing interpretation of the s tatute at the tim e of his of f ense, only a jury c o uld s entence h im to lif e im prisonm ent f

orarm ed robbery

. The M ississippi Suprem e Court recently abandoned that interpretation of the

statute’s operative language, holding that statutes which perm i t the trial court to s entence a def endant to “any term ” of incarceration include l if e sentences. Bester v. State , 1 88 So. 3d 526, 529-30 (¶¶7-10) (Miss. 2016). The circuit court dism i ssed Y oung’s petition, f inding it both tim e-barred and without m erit under Bester

. On appeal, Young acknowledges that his

sentence is legal in light of Beste r , b u t h e contends that apply ing Bester ’s holding to h im

a mo u n t s t o an ex post f

acto law. W e f

ind that Young waived his r ight to challenge his

sentence by joining the State’s recom m endation. W e also conclude that Young’s sentence

was legal under Bester and that B ester did n o t v i o l ate the Ex P ost Facto Clauses of the
M i s s i s s i ppi and U nited States Constitutions. W e af f i rm the circuit c o urt’s dism issal o f Young’s PCR m otion.
STANDARD OF REVIEW ¶3. The circuit court m a y sum m arily dism iss a PCR petition “[ i]f it p lainly appears f rom
t h e f ace of t he m otion, any annexed exhibits and the p rior proceedings i n t he c a s e t h a t t h e

mo v a n t is not entitled to any relief [ .]” Miss. Code Ann. § 99-39-11(2) (Rev. 20 0 7 )

. “ O n appeal, this Court will af

f irm the sum m ary dism issal of a P CR [ petition] i f the petitioner has
f ailed to dem onstrate ‘a claim procedurally alive substantially showing t he denial of a state

o r f ederal right.’” Flowers v. State , 978 So. 2d 1281, 1283 ( ¶5) (Miss. Ct. App. 2008 ) (quoting Y

oung v. State , 7 3 1 So. 2d 1120, 1122 (¶9) (Miss. 1 999)). W e review questions of law de novo. Johnson v. State , 962 So. 2d 87, 89 (¶8) (Miss. Ct. App. 2007).

2DISCUSSION

¶4. Y o u n g argues t hat his claim is not subject t o the t im e-bar because his f undam enta l constitutional rights were v i olated by an illegal sentence. “[ E] r r o r s af f ecting f undam ental constitutional rights are excepted f rom the procedural bars of the [ U nif orm Post-Conviction Collateral Relief Act].” Rowland v. State , 4 2 So. 3d 503, 506 (¶9) (Miss. 2010). But m ere assertions of constitutional-rights violations do not suf f ice to o vercom e t he procedural bar. Chandler v. State , 4 4 So. 3d 4 42, 444 (¶8) (Miss. Ct. App. 2010). Rather, “th e r e m ust at least appear to b e som e b asis f or the t ruth o f the claim b e f o r e t h e [ p r ocedural bar] will be waived.” Id

. ¶5. Young acknowledges that his sentence is legal today i n light o f Bester v. State , 188
So. 3d 526, 529-30 (¶¶7-10) ( Miss

. 2 0 1 6 ), w here the Mississippi Suprem e Court held that

statutes that perm i t t he trial court to sentence a def endant to “any term ” include sentences of
lif e im prisonm ent. Y oung argues, however, that at the tim e he was sentenced, the controlling precedent of the M ississippi S uprem e Court held that only a jury could pronounce a lif e sentence f

or arm ed robbery

. See, e.g., Stewart v. State , 372 So. 2d 257, 258 (Miss. 1979). ¶6. First of

all, it is apparent that Young has waived any r ight to challenge the sentence he received. Young voluntarily agreed to his lif

e sentence a s part o f his plea bargain. The circuit court’s order a ccepting Young’s plea a nd im posing his sentence explained that the
State “agreed to reduce that portion of the i n dictm ent charging [ Young] as a habitual of f ender in return f

o r t h e a c c e p t ance by [ Young] of a sentence o f lif e im prisonm ent, as a

3non-habitual, f or the of f ense of [ arm ed] robbery .” T h e parties to the p l e a b a r gain even agreed that if Young’s lif e sentence i s e ver set aside, the State’s “agreem ent to reduc e t h e habitual of

f end e r p o r t i o n of the indictm ent will h ave been a brogated a nd the said habitual of f ender portion of the i ndictm ent will be restored

. . . upon the request of the State.” Young

vo l u n t a r i l y a ccepted a lif e s entence with the possibility o f parole 1 in order to avoid a lif e
sentence without the possibility of p a r o l e a s a violent habitual of f e nder. And the circuit j u d g e who a ccepted Young’s plea f ound t hat i t was “ f

reely , v oluntarily , knowingly , and intelligently

m ade.” ¶7. In this Court’s o pinion in Bester , on m aterially indistinguishable f

acts, we held that the def endant waived any objection to the legality of his lif e sentence by v oluntarily agreeing to the sentence as part of his plea bargain. Bester v. State , 188 So. 3d 576 (Miss. Ct. App. 2014), aff’d on other grounds , 1 8 8 S o . 3 d 526 (Miss. 2016). W e reasoned t hat “Bester’s

sentence [ was] n o t a n i l l egal sentence, as lif e im prisonm ent is a sentence perm itted as a lawf ul p unishm ent f

o r f orcible rape, albeit w hen im posed by a j ury .” Id. at 5 78 (¶9). Theref ore, there was “no p ublic-policy concern that B e s t e r r e c e i v e d a s e n tence not authorized by statute.” Id. W e f

u r ther reasoned that “[ b]y pleading guilty and negotiating a ‘m utually acceptable’ plea agreem ent, Bester

. . . waived his right to a trial by a jury of his peers, and also the right f

o r the jury t o im

pose his s e n t e n c e . ” I

d

. a t 580 ( ¶14). W e held that Bester

1 A p riso n er c o n v i cted o f arm ed ro b b ery p rio r to O cto b er 1 , 1 9 9 4 , i s elig ib le f o r p aro le af ter h e h as serv ed ten y ears. M iss. C o d e A n n . § 4 7 -7 -3 (c)(i) (R ev . 2 0 1 5 )

. 4could not, y ears later, “trif le with the c i rcuit court an d e f f e ctively renege on his plea
agreem ent af

t er he f reely a nd voluntarily waived his right to have a jury i m p aneled f or his trial and sentencing.” Id. a t (¶15). ¶8. The suprem e court a f f irm ed on other g rounds in Bester , but it did not disapprove of this Court’s opinion. This Court’s opinion rem ains good law, and i ts reasoning applies to the
f acts of this case. The record is clear that Young voluntarily agreed to a lif e sentence in order to avoid the risk of a sentence of lif e without t he p ossibility of parole. By doing so, he waived any

right to jury sentencing or to claim that his sentence is “illegal.” ¶9. Moreover, as the suprem e c ourt held i n Bester , Y oung’s sentence was l egal. 2 Young him self c oncedes that Bester controls; he just disputes the constitutionality of its application

to him

. W e shall address that issue in turn, but since this Court d oes not unanim ously agree that Bester c ontrols, w e will explain our r easons f or f inding it to be controlling precedent in this c ase. The Mississippi S uprem e C ourt held in Bester that the language of the statute, which provided that the court could sente n c e the def endant to “any term ” in the state penitentiary , m eant what it a ppeared to say

– the court could sentence the def endant to any
term , including lif

e im prisonm e nt, even if no jury had chosen that pun ishm ent. Bester v.

2 A l t h o u g h w e ad d ress th i s p o in t in th e altern ativ e , as th is C o u rt ro u tin ely d o e s i n p o st-co n v ictio n cases, o u r altern ativ e h o ld in g o n th is p o in t is n o t d icta. “[ W] h ere a d ecisio n rests o n tw o o r m o re g ro u n d s, n o n e can b e releg ated to th e categ o ry o f o b i ter d ictu m .” Wo o d s v. In tersta te R ea lty C o
. , 3 3 7 U .S . 5 3 5 , 5 3 7 (1 9 4 9 ); see a lso In re H e a rn , 3 7 6 F .3 d 4 4 7 , 4 5 3 -5 4 n .5 (5 th C i r. 2 0 0 4 ) (“It is w ell-estab lish ed th at altern ativ e h o ld in g s o f th is C o u rt are b in d in g o n f

u tu re p an els.”). 5State , 188 So. 3d 526, 529-30 (¶¶7-10) (Miss. 2016). The problem , according to the separate

opinion, is that B ester concerned the rape sta t u t e , while today ’s case concerns t he arm ed robbery statute. The separate o pinion reasons that even though the o perative language of the

arm ed r obbery statute and t he operative language of the rape statute are identical, this Court lacks the authority to apply the holding in Bester because the suprem e court did not expressly overrule any

of its prior decisions addressing the arm ed robbery statute. ¶10. W e certainly a gree w ith the s eparate op i n i o n t h a t t h i s C o u r t , as an interm ediate appellate court, lacks the authority to overrule decisions of the M ississippi Suprem e Court.
Nor do we claim

the authority to ignore precedent because this Court believes t he suprem e court would rule dif

f erently if it were to d ecide t he case anew. W e f ind Bester

controlling b e cause, although it o nly expressly overruled rape cases, the suprem e c ourt’s f orm e r interpretation o f the a rm ed robbery statute was expressly derived f rom a rape case that was directly overruled by Bester

. T he holding in Bester was not p rem i sed on any thing unique to the rape statute. Instead, the court spoke to the construction of specif ic statutory language

– language that has direct application to today ’s case because i t i s a l s o u sed i n the arm ed robbery st atute. The suprem e c ourt in Bester noted t he “ a ny t erm ” language of the rape statute and held: “Any term ” i ncludes lif

e im prisonm ent. “Our law has long provided that the im p osition of sentence f

o llowing a crim inal conviction is a m atter within the discretion of the Circuit Court, subject only to s tatutory a n d constitutional lim itations.” Jackson v. State , 551 So

. 2d 1 32, 149 (Miss. 1 989) (em p hasis a d d e d )

. Bester’s sentence violates neither. And “ [ s ] o long as these are no t of f ended, we rarely

interf ere.” Id. As such, Bester’s sentence is not illegal.

6Bester , 188 So. 3d at 529 ( ¶6). The operative language o f t h e r a pe s tatute and the arm ed

robbery statute is identical. The rape statute (Mississippi Code A nnotated section 97-3- 65(2)) read at the relevant tim e: [ U]pon conviction, [ t he def endant] s hall b e im

p risoned f

or lif e in the State Penitentiary if the jury by its verdict so p rescribes; and in c ases where the jury f ails to f ix the penalty at lif

e im prisonm ent the court shall f ix t h e penalty at im p risonm ent in the S t a te Penitentiary f or any t erm a s t he c ourt, i n its discretion, m ay

determ ine. The arm ed robbery statute at issue in today ’s case, Mississippi Code Annotated section 97-3- 79 (Rev. 2014) (which has not been am ended since Young’s of f ense) reads: [ U]pon c o n v i c t i o n, [ the def endant] shall be im

prisoned f

or lif e in the state penitentiary if the penalty is so f ixed by the jury ; and in cases where the jury f ails to f i x the penalty at i m

prison m e n t f

o r l i f e i n the state penitentiary the court shall f

ix t he p enalty at im

prisonm ent in the state penitentiary f or any term not less than three (3) y ears. The s uprem e court held in Bester that “any t erm ” includes lif e sentences. Bester , 188 So. 3d

at 529 (¶6). W e cannot f

airly d istinguish that holding sim ply b ecause B ester was a rape case and today ’ s case in an arm ed robbery case. ¶11. Furtherm ore, this Court has already addressed this issue, last y ear, and we concluded that Bester applies t o arm ed robbery cases. I n Hayes v. State , 203 So. 3d 1144, 1146 (¶¶6-7) (Miss. Ct. App. 2016), a post-conviction petitioner argued on appeal that h is sentence was illegal because it exceeded his lif e expectancy

. He based his argum ent o n Stewart v. State , 372 So. 2 d 257 (Miss. 1979), wh i c h w a s a n a rm ed robbery case apply ing the pre- Bester rationale to f

ind a s e ntence illegal f

or exceeding the def

e ndant’s lif

e expectancy

. T his Court

7noted that Stewart w as the “ progeny ” of Lee v. State , 322 S o . 2d 751 (Miss. 1 975), a rape

case, and thus h a d been overruled by Bester when it e xpressly overruled Lee

. S ee Hayes , 203
So. 3d a t 1146 (¶¶6-7). This Court ref erred to Stewart (the arm ed robbery case) as no longer being “good law.” Hayes , 203 So. 3d at 1146 (¶¶6-7). ¶12. The suprem e court itself has also repeatedly held or observed that the rape and arm ed robbery statutes, because they em ploy identical operative langu a ge, a r e inexorably linked.
In Stewart , the f

irst arm ed robbery case em ploy ing the old interpretation of “any term ,” the
suprem e court r ef

erred to Lee , a ra p e c ase, as a “conf licting decision” to its prior arm ed robbery precedent. S t e w a rt , 372 So. 2d a t 2 58. The Stewart court t hen sim ply applied its holding in Lee , noting that it was the “sounder rule.” Id. at 259. ¶13. In 2014, B ester was p reviewed in separate opinions in Hampton v. State , 148 So. 3d
992 (Miss. 2014), a n d F o s t e r v
. State , 1 48 So. 3d 1 012 ( Miss. 2014), both of which concerned the arm ed robbery statute and were h anded down the sam e day

. Justice Colem an authored concurring opinions in both cases, which were joined in part by three other justices.
He of f ered the sam e reasons f or overruling the p rior interpretation of the “any term ” language that the court l ater a dopted in B ester

. Justice Colem a n also n oted that the rape
statute had the sam e re l e v a n t language, but its code section had b een am ended by the Legislature in the y e ars since the decision in L ee in 1975, while the arm ed robbery statute had not been am ended since Stewart in 1979. Thus, the only conceivable reason to distinguish between Stewart a nd Lee c uts toward u pholding Lee b ased on ratif ication by the L e gislature

8– but it was Lee the suprem e court expressly overruled in Bester

. ¶14. The dissenters in Bester also recognized that the sam e standard was at issue in both
rape and arm ed robbery cases. Justice K itchens quo ted Justice Chandler’s dissent in Hampton describing Stewart a nd Lee as establishing “the standard” that h a d “ b e e n consistently applied

. . . to both arm ed robbery and f orcible rape statutes.” See Bester , 188
So. 3d at 531 (¶17) (Kitchens, J., dissenting) (quoting Hampton , 148 So. 3d a t 1010-11 (¶53) (Chandler, J., dissenting)). Justice Chandler’s dissent in Hampton had f urther observed that “[ t]he sentencing statute f or f orcible rape uses s ubstantially identical language, and our case law consistently has applied both statutes in an identical m anner.” Hampton , 148 So. 3d at 1010-11 (¶52). ¶15. Thus, we reaf

f irm our p rior holding in Hayes – Bester overruled Stewart when it overruled Lee

. Stewart was explicitly based on Lee , the r elevant statutory language is identical, and t he statutes have alway s been treated the sam e w ay by the suprem e c ourt. See Hayes , 203 So. 3d at 1146 (¶¶6-7). ¶16. Finally , we turn to Young’s claim that a c h a n g e in the interpretation of the statute

am ounts to the im

position of an ex post f

acto law when applied t o him , since Bester was handed down l ong af

ter he c om m itted the o f

f ense. Young contends that the relevant standard is an absolute one, outlined in Collins v . Y oungblood , 497 U.S. 37, 50 (1990) – that Bester “[ m ade] m ore burdensom e the punishm ent f or a crim e, a f

t er its com m ission.” But what the United States S uprem e Cour t a c t u a lly held is that the Ex P ost Facto Clause prohibits “ any

9statute

. . . which m a kes m ore b urdensom e the punishm ent f o r a crim e, af

ter i ts c om m ission, af ter its com m ission.” Id. (quoting Beazell v. Ohio , 269 U.S. 167, 169 (1925)) (em phasis added). B ester was a judicial decision, not the e n actm e nt of a statute. The Suprem e Court has held that judicial d ecisions are not subjec t t o e x p o s t f acto challenges. See Rogers v. Tennessee , 532 U.S. 451, 459-60 (2001). Thus, Bester’s contention is without m erit. ¶17. A challenge, if it were t o be m ade at all, m ust be under the Due Process C lause. The relevant test i s dif

f erent and m

uch m ore lenient – the j u d icial decision can be applied retroactively u nless it is “unexpected and indef ensible by ref

erence to the law which had been expressed prior to the c onduct i n issue.” I d

. a t 466. B ut t h i s issue has n ot been brief ed or argued and is t heref

ore barred o n appeal. See G ilmer v. S tate , 955 So. 2d 829, 837 (¶29) (Miss. 2007). W e do not f ind it barred because Young cited t he wrong constitutional clauses, but because the due process question i s one of f irst im pression and it has not b een brief e d or argued on appeal by either party

. The f ault lies with Young, w h o , as the appellant, was required to raise th e i s sue a nd m eaningf u lly support his assignm e n ts of error with “the

reasons f or t h o se contentions, with citations to the authorities, statutes, and p arts of the record relied on.’” Hill v. State , 215 So. 3d 5 18, 524 (¶20) (Miss. Ct. App. 2017) (quoting M.R.A.P. 28(a)(7)). “W hile pro se litigants are af f orded som e leniency , they m ust be held

to substantially the sam e standards of litigation conduct as m e m bers of the bar.” Id. (quoting Sumrell v. State , 972 So. 2d 572, 574 (¶6) (Miss. 2008)). ¶18. Young’s challenge to Bester as an ex post f a cto l aw is w ithout m erit, and we will not

1 0c o nsider the potential d ue process issue because his total f ailure to address it bars it f rom consideration on appeal. ¶19. AFFIRMED. LEE, C.J., IRVING, P .J., G R E E N L E E A N D W E S T B R O O K S , J J., CONCUR. BARNES, J ., CONCURS I N P ART AND I N THE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS IN PART AND D ISSENTS IN PART WITH S EPARATE WRITTEN OPINION, JOINED BY G RIFFIS, P.J., AND CARLTON, J. WILSON, J., CONCURRING IN PART AND DISSENTING IN PART: ¶20. The m ajority denies Young’s claim on three grounds: (A) by virtue of his voluntary , negotiated plea agreem ent, Young waived h is present chall e n g e t o the l egality of his lif e sentence, ante at (¶¶6-8); (B) the Ex Post F a cto C lauses of the State and Federal Constitutions apply to legislative acts, not judicial decisions, id. at (¶16); and (C) You n g waived any due process c h allenge to the retroactive application of Bester v. State , 188 So. 3d 526 (Miss. 2016), because he f ailed to brief

that issue on appeal, id. at (¶¶17-18). ¶21. I c o ncur in the r esult and in proposit i o n ( A )

— t h a t h o l d ing is dispositive, and the opinion could end there. Proposition (B) is a correct statem ent of law. I have doubts about proposition (C), but I would not write separately just to address that issue of waiver. ¶22. Rat h e r , I write separately to address the m a jority ’s extended digression on whether
Bester , a case interpreting the f orcible rape statute, im

plicitly overruled Stewart v. State , 372
So. 2d 257 (Miss. 1979), a precedent interpreting the arm e d robbery statute. See ante at (¶¶9-

1 115). This digr e s s i on is d icta, 3 as it is n ot necessary to any of the “grounds” on which the

m ajority ’s “decision rests.” Ante at n .2. Af t e r a r g u ing at l ength that Bester overruled
Stewart , the m ajority renders t he e ntire issue m oot by d eclaring t hat Young has waived any viable objection to the retroactive application of B ester

. Ante at (¶¶16-18). If Young waived that issue, then it sim

ply does not m atter whether B ester overruled Stewart

. 4 ¶23. Ordinarily , I would not write sep a r a t e l y j u s t t o r espond to d icta. I do so here only because the dicta is inconsistent with this C ourt ’ s obligation to continue to f ollow directly controlling Suprem e Court precedent. ¶24. I agree with the m ajority that if our Suprem e Court extends Bester ’s reasoning to the

arm ed robbery s tatute, then a circuit court will have the authority to sentence a def endant convicted of arm ed robbery t o l if e im prisonm ent without a jury recom m endation. The arm ed robbery statute p rovides that “in cases where the jury f ails to f ix t he penalty a t i m

prisonm ent f or l i f e in the state penitentiary the court shall f ix the penalty at im

prisonm e nt in the state penitentiary f

or any term not less than t h r e e (3) y ears.” Miss. Code Ann. § 9 7-3-79 (Rev. 2014) (em

phasis added). Interpreting the s im ilarly worded f orcible rape statute in Bester , the Suprem e Court held: “ ‘Any t erm ’ includ e s l if e im prisonm ent.” Bester , 188 So. 3d at 529

3 “D i cta are statem en t s ‘n o t n ecessary to th e co u rt’ s r u lin g .’” S m ith v. N o rm a n d C h ild ren D i versified C la ss T

r. , 1 2 2 S o . 3 d 1 2 3 4 , 1 2 3 7 (¶5 ) (M iss. C t

. A p p . 2 0 1 3 ) (q u o tin g M cK ib b en v. C i ty o

f Ja ckso n , 1 9 3 S o . 2 d 7 4 1 , 7 4 5 (M iss. 1 9 6 7 )).

4 T h e m aj o r i ty also s tates th at i t ad d resses th e issu e b ecau se “th is C o u rt d o es n o t u n an im o u sly a g ree th at B ester co n tro ls.” A n te at ( ¶9 ). T h is is c ircu lar. T h e d i sag reem en t w o u l d n o t arise, an d th is o p in io n w o u ld n o t ex ist, if th e m aj o rity o p in io n d id n o t raise an d ad d ress th e issu e. 1 2(¶6). Theref ore, the Court held that the statute perm itted a judge t o im p ose a lif e sentence without a jury recom m e ndation. Id. I agree with the m ajority t h a t t h ere is no m aterial dif f erence between the relevant language in t he f orcible rape statute and t he arm ed robbery statute; h owever, s ince its decision in Bester , the Suprem e Court has not revisited t he proper interpretation of

the arm e d robbery

statute. ¶25. Our problem , as an interm ediate appellate c ourt, is that directly controlling Suprem e Court precedent holds that the a rm ed robbery statute does n ot perm it the sentenc i n g j u dge

to im pose a lif e sentence without a jury recom m endation. See Stewart , 3 7 2 So. 2d at 259.
In Stewart , the Suprem e Court held that unless a j ury f irs t d e t e r m i nes that the def endant should be sentenced to lif e im prisonme n t , the judge m ust sentence the def

endant to “a def inite term ” of

y ears “reasonably

expected to b e less than lif e.” Id. The Suprem e Court has never overruled Stewart , and this Court lacks authority to do so. ¶26. B e s t e r d o e s n o t o v e rrule Stewart

. Indeed, the concise m ajority opinion in Bester f oc u s ed solely on the f

orcible rape statute and did n ot even m ention Stewart or the arm ed robbery statute. See Bester , 188 So. 3d at 527-30 (¶¶1-10). Only a d issent brief ly ref erenced
Stewart

. See id. at 531 (¶17) (Kitchens, J., dissenting). ¶27. Thus, w hile Bester ’s reasoning s ignals t hat the Supre me C o u r t ma y o r is likely to overrule Stew a r t i n t h e f uture, that is no basis f

or this Court to declare that Stewart has already been overruled. “ This Court, sitting as a n i nterm ediate a ppellate court, is bound by establi s h e d p r e c edent as set out by the Mississippi Suprem e Court and w e do not have the

1 3authority t o overrule the d ecisions of that [ C]ourt.” Bevis v. Linkous Constr. Co. , 856 So. 2d

535, 5 41 ( ¶18) ( Miss. Ct. App. 2003). As the United States Sup r e m e Court h as instructed the f ederal courts of

appeals, “If

a precedent of [ the Suprem e] Court has direct application
in a c ase, y et appears to rest on reasons rejected in som e other line of decisions, the Court of Appeals should f

ollow the case which directly controls, leaving to [ the Suprem e] Court the prerogative of o v erruling its own decisions.” Rodriguez de Quijas v. Sh e a r s on/Am. Exp. Inc. , 490 U .S. 477, 484 (1989). An interm ediate appellate c ourt m ay not, “ on its own authority , . . . take[ ] the step of

renouncing” precedent of a higher court. Id. ¶28. T h e m ajority notes that this Court has “ref erred to Stewart

. . . as no lon g e r b e i n g ‘good law.’” Ante a t (¶11) (quoting Hayes v. State , 203 So. 3d 1144, 1146 (¶7) (Miss. Ct. App. 2016)). However, Hayes a ddressed a s entence f or child exploitation that was im posed under a m aterially dissim ilar s tatute—a statute t hat specif ies a m axim

um term of y ears. In Hayes , we expressly r ecognized that Stewart ’s holding “did not apply to sentencing statutes that designate a specif

ic m axim um term of y ears.” H

ayes , 203 S o. 3d at 1146 (¶7). Given that Stewart si mp l y “ d i d n o t a pply ” in Hayes , our c om m entary that Stewart w as no longer “good law” was dicta. ¶29. The m ajority also notes that Justice Colem an has argued in two specially concurring opinions that Stewart should be overruled. 5 However, those opinions were “joined in part”

5 F o ster v. S ta te , 1 4 8 S o . 3 d 1 0 1 2 , 1 0 2 0 (¶2 6 ) (M iss. 2 0 1 4 ) (C o l em an , J., sp ecially co n c u r r i n g ) ; H

a m p to n v. S ta t e , 1 4 8 S o . 3 d 9 9 2 , 1 0 0 5 (¶3 6 ) (M iss. 2 0 1 4 ) (C o lem an , J., sp ecially co n cu rrin g )

. 1 4by only three other justices, two of whom have since retired f r om the Court. Those special concurrences are not precedent and, theref ore, cannot overrule precedent. ¶30. Moreover, although Justice Dickinson joined Justice Colem an’s opinions in part, he also wrote separately to state that “due-process considerations” w ould p reclude retroactive application o f a ny decision overruling Stewart —i.e., that Stewart ’s interpretation of the

statute would continue t o govern in a case s uch as t his o ne. 6 I ndeed, Justice Colem a n him self acknowledged that “the retroactive application o f a ny holding overruling Stewart ” would raise d ue process “concerns.” 7 He did not address that issue precisely because he recognized “the f act that a m ajority of the C ourt disagree[ d] with him and wishe[ d] to uphold Stewart .” 8 Thus, n ot even one justice i n Foster or Hampton stated that Stewart should be overruled and that its o v e r r u ling should b e applied retroactively in a case such as this. Only one thing is clear f rom the v a ri o u s o p i n i o n s in Foster and Hampton : a m ajority of the Court was unwilling to overrule Stewart

. ¶31. Overruling Ste w art would also require the Suprem e Court to consider the principle of stare decisis, w hich is som etim es said to b e “ particularly applicable to cases involving the

6 F o ster , 1 4 8 S o . 3 d at 1 0 2 5 -2 6 (¶3 9 ) (D ick in so n , P .J., d issen tin g ); a cco rd H a m p t o n , 1 4 8 S o . 3 d at 1 0 0 6 (¶3 7 ) (D ick in so n , P .J., d i ssen tin g ).

7 F o ster , 1 4 8 S o . 3 d at 1 0 2 5 (¶3 7 ) (C o lem an , J., sp ecially co n cu rrin g ); H a m p to n , 1 4 8 S o . 3 d at 1 0 0 5 (¶3 5 ) (C o lem an , J., sp ecially co n cu rrin g ).

8 Id

. In B ester , th e C o u rt req u ested b rief i n g f ro m an am icu s cu riae o n a sim ilar issu e b u t th en d id n o t m en tio n th e i ssu e in its o p in io n . S ee B ester , 1 8 8 S o . 3 d at 5 3 6 n .1 0 (K i n g , J., d issen t in g )

. Y o u n g raises th e retro activ ity issu e in h i s b rief

in th is ap p eal. 1 5construction of statutes.” Land Comm’r v. Hutton , 307 So. 2d 415, 421 (Miss. 1974). That

rem ains a decision f

or the Suprem e Court, not this Court. ¶32. On behalf of the State, the Attorney General “ r ecognizes that

. . . this Court

. . . cannot expressly overrule S

tewart .” The State raises this issue—whether the arm ed r obbery statute
perm its a lif

e sentence without a jury recom m endation—only to preserve it “f or certiorari review, should such a review be necessary . ” The State’s prim a ry argum ent is that this Court should af f irm because Young waived any c h allenge to his lif e sentence when he accepted the

sentence as part of a voluntary , negotiated plea a greem ent. Thus, t he State also r ecognizes that only the Suprem e Court can overrule Stewart

. 9 ¶33. Following its discussion of Bester and Stewart , t he ma j o r i t y f i n d s t h a t Y oung’s retroactivity claim is “barred” f or a second r eason: H e cites the wrong constitutional clauses. Young m istakenly r elies on the Ex Post Facto Clauses of the State and F ederal Constitutions, whic h g o v e r n the retroactive application of legislative a cts, rather than the “ lim itations on

ex post f a cto judicial decision m aking

. . . i nherent in the notion of due process .” Rogers v. Tennessee , 5 32 U .S. 451, 4 56 (2000) (em phasis a dded); ante at (¶¶16-18). In other words, the substance of Young’s c laim is clear, but he r elies on the w rong a u thority , s o the claim is barred. This seem s strict f or a p ro se prisoner who, o n his f irst m otion f

or post-conviction

9 Wh ile a co n cessio n b y th e A tto rn e y G e n e ral is n o t b in d in g o n th is C o u rt, see M cC o llu m v. S ta te , 1 8 6 S o . 3 d 9 4 8 , 9 5 0 n .7 (M i ss. C t. A p p . 2 0 1 6 ) , it is at least as n o tew o rth y as a co n cessio n o f a p ro se litig an t. S ee a n te at (¶9 ) ( n o t in g th at “Y o u n g h im self co n ced es th at B e ster co n tro ls”). 1 6relief

, f iled a concise, legible, and intelligible brief that presents only one claim

. 10 But if Young’s claim really i s barred f or two dif

f erent r easons, that j u s t ma k e s the m ajority ’s extended discussion of Bester a nd Stewart all the m ore unnecessary . ¶34. In sum m ary , I concur i n t h e h o l ding in paragraph e ight o f the m ajority opinion. I

re spectf ully dissent f

rom t he d icta that f

ollows because i t is inconsistent with this Court’s obligation to f

ollow directly

controlling Mississippi Suprem e Court precedent. GRIFFIS, P.J., AND CARLTON, J., JOIN THIS OPINION.

10 S ee, e.g
. , C h a p m a n v. S ta te , 1 6 7 S o . 3 d 1 1 7 0 , 1 1 7 2 (¶7 ) (M iss. 2 0 1 5 ) (“[ A ] p ro se p riso n er’s m erito rio u s claim s m ay n o t b e ig n o red b ecau se o f in artf u l d raf tin g .”); cf. S la

yto n v. Willin g h a m , 7 2 6 F .2 d 6 3 1 , 6 3 4 n .7 (1 0 th C i r. 1 9 8 4 ) (“A p ro se litig an t’s m e re citatio n o f th e w ro n g co n stitu tio n al am en d m en t d o es n o t p r e c l u d e h i s cau se o f actio n so lo n g as th e f acts h e alleg es state a claim u n d e r an o b v io u sly

ap p licab le co n stitu tio n al p ro v isio n .”). 1 7