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Sumrell v. State

Court of Appeals of Mississippi

May 12, 2015

MARK DWAYNE SUMRELL A/K/A MARK D. SUMRELL A/K/A DEWYANE CHRISTOPHER SUMRELL A/K/A CHARLES WILLIAMS A/K/A MARK SUMRELL, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/04/2014. TRIAL JUDGE: HON. W. ASHLEY HINES. TRIAL COURT DISPOSITION: DENIED APPELLANT'S MOTION FOR POST-CONVICTION RELIEF.

MARK DWAYNE SUMRELL, APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND.

BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ.

OPINION

Page 998

CARLTON, J.

¶1. Mark Sumrell appeals the Washington County Circuit Court's denial of his motion for post-conviction relief (PCR). On appeal, Sumrell asserts the following issues: (1) whether the circuit court erred by finding that he served more than a year in prison on his prior robbery conviction; and (2) whether his sentencing as a habitual offender is illegal and constitutes cruel and unusual punishment.[1] Finding no error, we affirm.

FACTS

¶2. On February 4, 2004, a grand jury indicted Sumrell for felony shoplifting in Cause No. 2004-043. The indictment charged Sumrell as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2000). The indictment stated that Sumrell had been previously convicted of felonies in two separate cause numbers. Although the indictment stated that Sumrell was convicted of cocaine possession in Cause No. 23,077,[2] it failed to specify his crime in Cause No. 22,242. Prior to trial, the circuit court judge granted the State's motion to amend Sumrell's indictment to reflect that he was convicted of robbery in Cause No. 22,242 and to charge Sumrell as a habitual offender under Mississippi Code Annotated section 99-19-83

Page 999

(Rev. 2000) rather than section 99-19-81.

¶3. After considering the evidence and testimony presented at trial, the jury convicted Sumrell of felony shoplifting. Based on Sumrell's prior convictions for robbery and cocaine possession, the circuit court judge sentenced Sumrell as a habitual offender to life in prison in the custody of the Mississippi Department of Corrections (MDOC) without the possibility of parole. Aggrieved, Sumrell appealed to this Court, and we affirmed his conviction and sentence. Sumrell v. State, 972 So.2d 648, 652 (¶ 13) (Miss. Ct. App. 2006). After granting Sumrell's petition for a writ of certiorari, the supreme court found no reversible error and affirmed this Court's decision. Sumrell v. State, 972 So.2d 572, 573 (¶ 1) (Miss. 2008).[3]

¶4. On October 3, 2013, the supreme court entered an order in response to Sumrell's third application seeking permission to file a PCR motion in the circuit court.[4] Sumrell argued in his application that he did not serve one full year in prison on both his prior convictions for robbery and cocaine possession, as required for sentencing as a habitual offender to life imprisonment. See Miss. Code Ann. § 99-19-83. Sumrell therefore argued that his sentence of life imprisonment without parole for his felony-shoplifting conviction was illegal. After reviewing the matter, the supreme court found the evidence in the record was unclear as to whether Sumrell actually served a full year in prison for his robbery conviction. As a result, the supreme court granted Sumrell leave to proceed in circuit court with an evidentiary hearing for the limited purpose of determining whether he actually served a full year in prison for his robbery conviction.

¶5. Following the evidentiary hearing, the circuit court judge entered an order on February 4, 2014, denying Sumrell's PCR motion. The circuit court judge found that Sumrell was indicted for armed robbery in Cause No. 22,242. On September 23, 1991, Sumrell pled guilty to the lesser-included offense of robbery, and the circuit court sentenced him to three years in MDOC's custody. However, the ...


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