LARRY PRESS WELLS a/k/a LARRY P. WELLS a/k/a LARRY PRESTON WELLS
STATE OF MISSISSIPPI
[Copyrighted Material Omitted]
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/30/2009. TRIAL JUDGE: HON. JERRY O. TERRY, JR. TRIAL COURT ATTORNEYS: JOHN CHRISTOPHER GARGIULO GLENN F. RISHEL, JR.
AFFIRMED IN PART; VACATED IN PART AND REMANDED.
FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER, BY: HUNTER N. AIKENS.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.
PIERCE, JUSTICE. WALLER, C.J., RANDOLPH, P.J., LAMAR AND CHANDLER, JJ., CONCUR. KITCHENS, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY DICKINSON, P.J., AND COLEMAN, J. KING, J., NOT PARTICIPATING.
NATURE OF THE CASE: CRIMINAL - FELONY
¶1. Larry Press Wells was convicted of possessing cocaine with the intent to distribute in the Circuit Court of the First Judicial District of Harrison County. The trial court sentenced Wells to sixty years in the custody of the Mississippi Department of Corrections without parole, as a recidivist under Mississippi Code Section 99-19-81 and as a subsequent drug offender under Section 41-29-147. We affirm Wells's conviction and mandatory thirty-year sentence under Section 99-19-81. We find, however, that the trial court erred in reading Section 41-29-147 as requiring that Wells be sentenced to twice the time authorized for a second or subsequent drug conviction. Section 41-29-147 provides for discretionary (not mandatory) sentencing. Therefore, we vacate that portion of Wells's sentence and remand the matter for resentencing.
FACTS AND PROCEDURAL HISTORY
¶2. Wells was arrested on May 24, 2007, for allegedly possessing cocaine with the intent to transfer to an undercover police officer. On that day, Officer Michael Guynes of the Gulfport Police Department conducted an undercover drug sting. Guynes used a tape recorder secreted on his person to record the conversation between himself and the prospective seller, and he had marked bills with which to conduct the expected drug purchase. Guynes also had a crack pipe for use as a prop during the buy. He was given a " takedown signal" to indicate to the police officers following the sting to come and arrest the suspect. In this case, his backup was instructed to take down (arrest) the suspect when Guynes asked for his phone number.
¶3. After ensuring that he looked sufficiently disreputable, and armed with the money, tape recorder, and faux crack pipe, Officer Guynes drove to the Magnolia Grove area of Gulfport to begin the sting. Guynes drove up to Wells and asked him whether he would sell Guynes a " 40," meaning a single hit of crack, or forty dollars' worth. Wells said that he could get that for Guynes, got into the car, and led Guynes to a small grove of trees and bushes. On the tape, Wells is heard saying they were going to get " high," and Wells also said " I want to get me a hit." Guynes testified that he then gave Wells forty dollars out of the marked currency he had been provided and Wells walked around the bushes to a group of people who were waiting there. Guynes admitted on cross-examination that he could not see Wells while he was behind the bushes.
¶4. When Wells returned to the vehicle, there was some confusion about whether he had bought some crack for Guynes's use, or only for himself. Guynes testified that he saw crack in Wells's hand. Wells took the prop crack pipe and placed
the crack cocaine in it, asking Guynes for some " fire," or a way to light the drug so it could be smoked. Despite some confusion as to who would smoke the crack first, Wells ultimately asked Guynes to smoke some before Wells gave him the rest. At that point, Guynes gave the takedown signal, and law officers converged on the pair quickly, arresting Wells.
¶5. One of the arresting officers was Mark Joseph. Joseph testified that when he arrived at the car, he opened the passenger door, grabbed Wells by his wrist, dragged him to the ground, and handcuffed him. Joseph testified that, as Wells was lying on the ground, Joseph observed a glass pipe and a twenty-dollar bill (one of the marked bills provided to Guynes) in the grass near Wells's hand. He also found an " off-white rock-like substance approximately maybe four inches away from the pipe." The Mississippi Crime Laboratory tested the substance and determined that it contained 0.04 grams of cocaine. The prop pipe used by Guynes was not tested for residue, and Guynes testified that he did not know whether the prop pipe itself contained some small amount of cocaine residue as a result of Wells having placed the rock into the pipe. No other drugs were found on Wells's person.
¶6. On October 1, 2007, more than four months after Wells was arrested, the Harrison County grand jury returned an indictment against Wells for possession of cocaine with the intent to transfer or distribute pursuant to Mississippi Code Section 41-29-139(a)(1). On October 11, 2007, the State moved to amend Wells's indictment to reflect his habitual-offender status under Mississippi Code Section 99-19-81, which would mean that, if he was convicted, Wells's sentence would be the maximum sentence allowed by law, thirty years without possibility of parole. After several continuances, Wells's trial finally was set to take place on April 29, 2009, nearly two years after his arrest.
¶7. On April 24, 2009, five days before Wells's trial began, the State moved to amend his indictment to enhance his penalty as a subsequent drug-offender pursuant to Mississippi Code Section 41-29-147, doubling the maximum sentence to sixty years without possibility of parole. In support of the motion, the State listed a prior drug conviction that it already had used in October of 2007 to amend his indictment to include habitual-offender status.
¶8. Wells's trial began on April 29, 2009. The jury was instructed on the crime of possession of cocaine with intent to transfer or distribute and the lesser-included offense of simple possession and convicted Wells of possession with intent to distribute. On the day of Wells's conviction, the trial court granted the State's motion to amend his indictment to enhance his sentence under the subsequent-drug-offender statute, making him eligible for a sentence of sixty years without parole. After he was convicted, the trial court held a sentencing hearing in the presence of the jury and ruled that the prerequisites to habitual-offender status and enhanced punishment had been met. The court sentenced Wells to sixty years without the possibility of parole.
¶9. Wells raises the following points of error on appeal:
I. The evidence was insufficient to support the verdict; alternatively, the verdict was against the overwhelming weight of the evidence.
II. The trial court committed plain error in granting jury instruction
S-3, given as instruction D-2A.
III. The trial court erred in sentencing Wells as a habitual offender and a second or ...