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Perryman v. State

Court of Appeals of Mississippi

September 3, 2013

Sheldon J. PERRYMAN a/k/a

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[Copyrighted Material Omitted]

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Sheldon J. Perryman, appellant, pro se.

Office of the Attorney General by Stephanie Breland Wood, attorney for appellee.

Before IRVING, P.J., BARNES and MAXWELL, JJ.

MAXWELL, J.

¶ 1. More than a decade after he pled guilty and was sentenced for five separate felony convictions, Sheldon J. Perryman succeeded in having a successor judge vacate his sentences. But he is now unsatisfied with his new harsher sentences and argues the imposition of a lengthier term of imprisonment triggers a presumption of vindictiveness on this second judge's part. We disagree and find the mere fact a new judge imposes a more severe sentence than that imposed by the original sentencer does not, itself, give rise to a presumption of judicial vindictiveness. And absent such a presumption, Perryman must show actual vindictiveness on the successor judge's part, which we find he has failed to do.

¶ 2. However, we have serious concerns with the voluntariness of Perryman's waiver of counsel at his resentencing. And upon review, we find the trial judge's failure to advise Perryman of the " dangers and disadvantages" of self-representation, as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), rendered his purported waiver of his Sixth Amendment right to counsel involuntary. We therefore vacate his sentence and remand for resentencing.

Background

¶ 3. After Perryman allegedly shot four different people with a .38 caliber pistol, a Coahoma County grand jury charged him in December 1998 with four counts of aggravated assault and one count of felon in possession of a firearm. This indictment also alleged Perryman was a habitual offender [1] but did not specify which of the

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two statutory sentencing enhancements applied.[2]

¶ 4. The following month, January 1999, Perryman entered negotiated guilty pleas on each of the five counts. And the circuit judge, the late Honorable Elzy J. Smith, sentenced Perryman under the less severe of the two habitual-offender statutes, Mississippi Code Annotated section 99-19-81 (Rev.2007). Though he faced over eighty years' imprisonment, Perryman received twenty years on each of the four aggravated-assault counts and three years on the firearm charge, with all sentences running concurrently.

¶ 5. More than twelve years later, on August 5, 2011, Perryman filed a motion to correct and modify his sentence. The reviewing judge, the Honorable Charles E. Webster, who had succeeded Judge Smith, treated Perryman's filing as a motion for post-conviction relief (PCR). The gist of Perryman's argument was that the felony convictions supporting his habitual-offender status were not crimes " arising out of separate incidents" as required for enhanced punishment under section 99-19-81.

¶ 6. In a thorough and well-reasoned opinion, Judge Webster found that because the two shootings arose from the same incident, the statutory requirements for a habitual-offender sentence under section 99-19-81 were not met when Judge Smith sentenced Perryman. So Judge Webster vacated Perryman's original sentences and ordered that he be resentenced.

¶ 7. The resentencing occurred on January 17, 2012. That day, while Judge Webster was preparing for the hearing, he realized he had not appointed counsel for Perryman. The judge told Perryman he could either appoint counsel and postpone the hearing, or Perryman could waive counsel and be sentenced that day. Though the judge did not follow the requirements of Uniform Rule of Circuit and County Court 8.05, nor advise Perryman of the perils of self-representation, Perryman informed the court he preferred to proceed without counsel and be sentenced that day. The judge allowed Perryman to be heard without counsel.

¶ 8. Perryman asked that he be sentenced to time served, for the twelve years he had been in custody. But Judge Webster rejected his request and instead sentenced him to twenty years on each of the four aggravated-assault counts and three years on the gun charge. He then ordered the sentences in Counts I and II for aggravated assault to run consecutively, not concurrently, as Judge Smith had previously done. Thus, Perryman's new sentence was essentially forty years, which was twice the former twenty-year mandatory sentence as a habitual offender.

¶ 9. Perryman now appeals, arguing Judge Webster's more severe sentence gives rise to a presumption of judicial vindictiveness and that his waiver of his Sixth

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Amendment right to counsel was not voluntary because he was not advised of the " dangers and ...


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