EUGENE MARTIN a/k/a E. MARTIN
STATE OF MISSISSIPPI
of Judgment: 05/28/2015
FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT HON. LEE
SORRELS COLEMAN TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: OFFICE OF THE STATE PUBLIC DEFENDER
BY: MOLLIE MARIE McMILLIN GEORGE T. HOLMES.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA McCLINTON.
Mississippi Code Section 99-19-81 authorizes the State to seek
increased punishment for those charged with a felony offense
after having twice been convicted of prior felonies. But for
this statutory enhancement to apply, the State must prove
each of the defendant's prior felony convictions resulted
in a sentence of one or more years in a state or federal
prison. If the State seeks enhanced sentencing, and the
requirements are met, Section 99-19-81 mandates the court
sentence the defendant to the maximum term of imprisonment
for the subject offense-in this case ten years.
Eugene Martin, who recently was convicted of shooting into a
dwelling and sentenced as a habitual offender under Section
99-19-81, claims one of his two prior qualifying felony
convictions resulted in a sentence of less than one year. So
he was wrongfully subjected to the sentencing enhancement.
After review, we agree. We thus affirm Martin's
conviction for shooting into a dwelling, but reverse and
remand for resentencing.
Facts and Procedural History
After a night out at a club, Martin and Gene Sherrod got into
an argument outside the apartments where they lived in
Columbus, Mississippi. Around midnight, a scuffle broke out
between the two, and Sherrod choked Martin in a headlock.
After he let go of Martin, the men returned to their
apartments. A short time later, Martin returned to
Sherrod's apartment armed with a pistol. When he was
unable to force his way inside Sherrod's locked
apartment, Martin fired several shots through the door.
On April 22, 2014, a Lowndes County grand jury indicted
Martin for firing a weapon into a dwelling, in violation of
Mississippi Code Section 97-37-29. The State moved to amend
Martin's indictment to charge him as a habitual offender
under Mississippi Code Section 99-19-81. The motion cited a
1982 conviction for burglary in Lowndes County and a 1994
federal bank-fraud conviction from California. A hearing was
held, and Martin's attorney made no objection to the
State amending his indictment to seek enhanced punishment.
After a two-day trial in May 2015, a jury found Martin
guilty. Based on the habitual-offender enhancement, the trial
judge sentenced Martin to the maximum term under the
statute-ten years in prison. Martin filed a motion for a
judgment notwithstanding the verdict or, alternatively, for a
new trial. The judge denied the motion.
On appeal, Martin's new counsel argues his sentence is
illegal because the prior federal bank-fraud conviction did
not result in a sentence of one year or more and does not
meet Mississippi Code Section 99-19-81's requirements for
a habitual-offender enhancement.
Martin did not object to the judge imposing the mandatory
maximum sentence under Section 99-19-81. And failure to
object to a habitual-offender enhancement during sentencing
procedurally bars a defendant from raising that issue on
appeal. Cummings v. State, 465 So.2d 993, 995 (Miss.
1985) (citing Tucker v. State, 403 So.2d 1271 (Miss.
1981), and Tubbs v. State, 402 So.2d 830 (Miss.
1981)). But plain-error review allows this Court to correct
obvious errors, not properly addressed below, which impact
fundamental, substantive rights. See Smith v. State,
986 So.2d 290, 294 (¶ 10) (Miss. 2008) (citations
omitted). An illegal sentence is an obvious error subject to
plain-error review. See Conner v. State, 138 So.3d
143, 150-51 (¶ 19) (Miss. 2014) (citing Grayer v.
State, 120 So.3d 964, 969 (Miss. 2013)).