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Ashley v. State

March 24, 1998

ASHLEY V. STATE


Before Bridges, C.j., Diaz, And Coleman, JJ.

The opinion of the court was delivered by: Coleman, J.

ROBERT ASHLEY A/K/A ROBERT LEWIS ASHLEY A/K/A ROBERT LOUIS ASHLEY, APPELLANT v. STATE OF MISSISSIPPI, APPELLEE

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

DATE OF JUDGMENT: 08/24/95

TRIAL JUDGE: HON. MIKE SMITH

COURT FROM WHICH APPEALED: PIKE COUNTY CIRCUIT COURT

NATURE OF THE CASE: CRIMINAL - FELONY

TRIAL COURT DISPOSITION: UNLAWFUL SALE OF COCAINE: SENTENCED TO SERVE A TERM OF 60 YEARS IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT BENEFIT OF PROBATION, PAROLE, GOOD TIME, OR EARLY RELEASE TO RUN CONSECUTIVE TO ANY OTHER SENTENCE IMPOSED ON DEFENDANT AND TO PAY A FINE IN THE AMOUNT OF $2,000,000

DISPOSITION AFFIRMED - 3/24/98

MOTION FOR REHEARING FILED:

CERTIORARI FILED:

MANDATE ISSUED:

A grand jury in Pike County indicted Robert Ashley for the sale of cocaine, a controlled substance, to Thomas Grennell. The indictment charged that Ashley was a recidivist pursuant to Section 99-19-81 of the Mississippi Code of 1972;*fn1 it further charged that Ashley was subject to the enhancement of punishment pursuant to Section 41-29-147 of the Mississippi Code of 1972.*fn2 The trial jury found Ashley guilty of selling the cocaine to Grennell. After he had conducted a separate sentencing hearing, the trial Judge sentenced Ashley to serve sixty years in the custody of the Mississippi Department of Corrections "without [the] benefit of probation, parole, good time, or early release" and to pay a fine of two million dollars. The trial Judge further ordered that Ashley's sentence was to run consecutively to another sentence which had been imposed against him in another case in the Pike County Circuit Court. Ashley asserts three errors on appeal: (1) a mistrial should have been granted when the trial court judge read the indictment, which included a reference to his prior convictions, to the venire, (2) the sentence is disproportionate to the crime, and (3) the severity of his sentence effectively punished Ashley for exercising his right to a trial by jury. Regardless of these assertions, this Court affirms Ashley's conviction and the trial court's sentence which it imposed on Ashley.

I. FACTS

On September 29, 1994, Thomas Grennell, an agent with the Adams County Metro Narcotics Unit, traveled to Pike County, Mississippi, to assist Kenny Cotton, an agent of the Mississippi Bureau of Narcotics, to attempt to purchase illicit drugs with the assistance of a not-so-confidential informant. Agent Grennell met Agent Cotton and the confidential informant, Anthony Matthews, in Cotton's office in McComb, where they planned their intended purchases of controlled substances. Cotton equipped Grennell with a body transmitter and gave him $300 in official state funds to be used for purchasing the controlled substances. Cotton placed the recorder for Grennell's body transmitter in the trunk of the car which Grennell and Matthews planned to drive to the locations of their purchases of cocaine.

Matthews and Agent Grennell drove to a cafe and lounge located at the intersection of Oak Street and Highway 51 in Magnolia. Matthews got out of the car and walked to the front porch of the building which housed the cafe and lounge. Matthews met Ashley on the front porch. When Ashley asked Matthews what he wanted, Mathews responded by beckoning to Agent Grennell who was still waiting in the car. Grennell got out of the car, climbed the steps to the porch, and entered the cafe and lounge in the company of Matthews and Ashley. Soon after he entered the cafe and lounge, Matthews returned to the car, where he awaited Agent Grennell's return.

As Matthews was leaving the building to return to the car, Ashley asked Grennell what he wanted. Grennell said that he wanted a "sixteenth," which is $100 worth of crack cocaine. Ashley pulled out a prescription bottle, opened it, and poured five rocks of crack cocaine out of the bottle into the palm of his hand. Then, Ashley looked at Grennell and asked him if that amount was sufficient. Grennell gave him $100 in official state funds in exchange for the five rocks of crack cocaine and returned to the car, where Matthews had been waiting for him. Before Grennell and Matthews left the cafe and lounge, Matthews pointed out to Grennell a Chevy Impala parked adjacent to the building. Grennell spoke the tag number of the car so that Agent Cotton, who was conducting surveillance for Grennell and was listening to the voices transmitted from Grennell's body transmitter, could "run the tag" to determine the identity of its owner. Cotton found that the Chevy Impala was registered to Robert Ashley, the appellant.

Cotton, Grennell, and Mathews returned to Cotton's office, where Cotton retrieved the tape from the recorder in the trunk of the car and Grennell gave Cotton the five rocks which he had bought from Ashley for $100. Cotton sealed both the tape from the recorder and the rocks in separate plastic bags. Cotton delivered the rocks to the Mississippi Crime Laboratory, where Leah Heath, a drug analyst, performed tests on the substance, the results of which confirmed that the rocks bought from Ashley contained cocaine.

II. TRIAL

On March 31, 1978, Ashley had pleaded guilty to the charge of attempted burglary in the Circuit Court of Pike County. Then, on November 12, 1993, he was convicted of the unlawful possession of crack cocaine with the intent to distribute in the Circuit Court of Pike County. These two prior felony convictions were the bass for the State's charge in the indictment that Ashley was a habitual offender, or recidivist, and the 1993 conviction of crack cocaine with the intent to distribute was the basis for the State's charge in the indictment that Ashley's sentence for the ...


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