Office of State Public Defender by Erin Elizabeth Pridgen, attorney for appellant.
Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.
ON WRIT OF CERTIORARI
RANDOLPH, Presiding Justice.
¶ 1. Carlos Taylor appealed his sentence of life without parole, claiming that " the trial court abused [its] discretion in sentencing Taylor under Miss.Code Ann. Section 99-19-83, as the prosecution failed to prove all essential elements under the statute." The Court of Appeals affirmed. Taylor v. State, 122 So.3d 742 (Miss.Ct.App.2011). We granted Taylor's petition for writ of certiorari. We hold that the trial court did not abuse its discretion by sentencing Taylor under Section 99-19-83. Accordingly, we affirm Taylor's sentence of life imprisonment without the possibility of parole.
¶ 2. In November 2007, Taylor was indicted for possession of a controlled substance in a prison facility and as a habitual offender under Mississippi Code Section 99-19-83 in cause number 2007-0328. Taylor also was charged in separate, consecutively numbered indictments for possession of a firearm by a felon and assault on a law-enforcement officer as a habitual offender (cause number 2007-0326) and possession of a firearm by a felon, felony evasion, and simple assault on a law-enforcement officer as a habitual offender (cause number 2007-0327). Prior to trial, Taylor filed a motion to dismiss all charges (cause numbers 2007-0326, 2007-0327, and 2007-0328) for failure to provide a fast and speedy trial, which the trial judge denied. A jury trial was held in cause number 2007-0328 on the charge of possession of a controlled substance in a prison facility. Taylor was convicted of that offense.
¶ 3. After the jury's verdict was returned, the court held a hearing to determine whether Taylor should be sentenced as a recidivist under Mississippi Code Section 99-19-83. At the hearing, the State introduced certified copies of two separate, prior felony indictments. The State also introduced two separate sentencing orders, which revealed that Taylor had pleaded guilty to separate felonies, the sale of marijuana and sexual intercourse with a child
under age. The sentencing orders revealed that Taylor was sentenced to three years' imprisonment for the sale conviction and six years for the sex-crime conviction. The pen pack confirmed that Taylor had served the required terms. Taylor was given a reasonable opportunity to challenge the prosecution's proof. Taylor offered no evidence to rebut or contest the State's proof. The trial judge adjudicated in the sentencing order that " one (1) of [Taylor's prior] felonies [was] a crime of violence." Taylor was sentenced as a habitual offender to life imprisonment without parole.
¶ 4. Thereafter, Taylor filed in the trial court two post-trial motions: a " Motion for a New Trial or, in the Alternative, Judgment of Acquittal Notwithstanding the Verdict," and a separate " Motion to Reduce Mandated Sentence," arguing that his sentence " is grossly disproportionate to the maximum sentence of seven years he would have received had he not been [charged] as an habitual offender[,]" and that " a sentence of life without parole would be cruel and unusual punishment under these circumstances." Both motions were denied. Taylor appealed, and his case was assigned to the Court of Appeals.
¶ 5. In his brief, Taylor asserted that " [t]he trial court erred in sentencing Taylor as a habitual offender under Miss.Code Ann. § 99-19-83. During the sentencing hearing, the prosecution presented evidence that Taylor was previously convicted of sex with an underage child...." Taylor argued that " [t]here is absolutely no implication that a violent act took place during the commission of this felony." In its brief, the State argued that " [b]ased on the standard in Bandy, [ ] statutory rape, or sexual intercourse with a child underage, is per se violent." In his reply brief, Taylor described the State's position as being that " Taylor was correctly sentenced ... because Taylor's previous conviction of sex with an underage child was per se a crime of violence."
¶ 6. A good measure of confusion was injected into the appellate proceedings by the failure to furnish the Court of Appeals with a complete record of the evidence admitted at the sentencing hearing in the trial court. The " certified" copy of the pen pack presented to the Court of Appeals failed to include either the indictment or the sentencing order regarding Taylor's felony sex crime. Even after the Court of Appeals ordered the parties to submit supplemental briefs addressing whether Taylor's conviction for " sexual intercourse with a child under age" was a crime of violence, neither the appellant nor the State discovered the oversight or argued that the documents were not part of the record. The Court of Appeals concluded that Taylor's prior sex-crime conviction was a crime of violence and affirmed Taylor's sentence.
¶ 7. Taylor filed a petition for writ of certiorari, claiming that the Court of Appeals' holding conflicts with prior decisions of this Court. The petition reasserted that the pen pack did not include the sentencing order for Taylor's conviction of " sexual intercourse with a child under age, " while at the same time asking this Court to adopt the Court of Appeals' dissent. (Emphasis added.) After granting Taylor's petition, we held oral argument, during which the attorneys for both parties asserted that the record did not include the sentencing order for the felony conviction for the sex crime against an underage child. Recognizing that all evidence considered by the trial court was significant for this Court's determination of whether Taylor was lawfully sentenced as a habitual
criminal, this court directed the Clerk of Court to obtain a duplicate certified copy of the pen pack. The copy furnished in response contained the indictment charging Taylor with a prior sex offense and the sentencing order. The indictment alleged that Taylor, " being a person over eighteen (18) years of age ... did unlawfully, wilfully, and feloniously have sexual intercourse with [Jane Doe], a child under the age of fourteen (14) years." The sentencing order reads that Taylor entered a plea of guilty to " sexual intercourse with a child underage." Thus, we know with certainty that the previous conviction at issue was for " sexual intercourse with a child under age."
LAW AND ANALYSIS
I. Standard of Review
¶ 8. " It is well-settled in this state that sentencing is within the complete discretion of the trial court. ‘ Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute.’ " Long v. State, 52 So.3d 1188, 1195 (Miss.2011) (citations omitted). " The trial court's rulings are presumed correct, and this presumption will prevail unless the record shows otherwise." Hardy v. Brock, 826 So.2d 71, 76 (Miss.2002) (citations omitted). Under an abuse-of-discretion standard of review, " [t]he trial court's decision will be affirmed unless there is a ‘ definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon weighing of relevant factors.’ " Plaxico v. Michael, 735 So.2d 1036, 1039 (Miss.1999) (citation omitted).
¶ 9. This Court has provided that:
[w]e must decide cases on the facts shown by the record, not by assertions of fact made in briefs or suggestions of error, however sincere counsel may be in those assertions. Facts asserted to exist ought to, and must, be definitely proved and placed before us by a record thereof certified as required by law; otherwise we cannot, in law, know them.
Alexander v. Hancock, 174 Miss. 482, 164 So. 772 (1935), on suggestion of error, 174 Miss. 482, 165 So. 126 (1936). " Stated differently, our task on appeal is to review the actions and decisions of the trial court judge within the context of the situation as it existed at that time." Phillips v. State, 421 So.2d 476, 478 (Miss.1982) (addressing Alexander, 165 So. at 126).
II. The trial court did not abuse its discretion by sentencing Taylor as a violent habitual offender under Mississippi Code Section 99-19-83.
¶ 10. " At the bifurcated hearing required under the recidivist statutes, the State must prove, beyond a reasonable doubt, that the defendant meets the requirements for sentencing as a habitual offender. The defendant has the right to be heard at this hearing." Bandy, 495 So.2d at 491 (citing Seely v. State, 451 So.2d 213, 215 (Miss.1984)). For a defendant to be sentenced under Section 99-19-83, the State must prove that he was:
convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and ... sentenced to and served separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, ...