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Miller v. State

Court of Appeals of Mississippi

May 2, 2017

DENNIS TYRELL MILLER A/K/A DENNIS MILLER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/10/2015

         COURT FROM WHICH APPEALED NESHOBA COUNTY CIRCUIT COURT HON. MARCUS D. GORDON TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS JR. JAMES EDWIN SMITH III.

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON.

         EN BANC.

          WILSON, J.

         ¶1. On August 22, 2014, Dennis Tyrell Miller killed his girlfriend, Jarita Monique Green, during an argument in their apartment. A Neshoba County grand jury indicted him for deliberate design murder. A jury trial was held on July 6, 2015. Miller argued self-defense, but the jury found him guilty of manslaughter. At sentencing, the State established that Miller had prior felony convictions for burglary of a dwelling, burglary of a building, and the sale of cocaine. Miller was then sentenced as a violent habitual offender to life imprisonment without eligibility for parole or probation or any reduction or suspension of the sentence. See Miss. Code Ann. § 99-19-83 (Rev. 2015).

         ¶2. On appeal, Miller raises only one issue. He argues that his sentence as a violent habitual offender should be vacated because prior to July 1, 2014, burglary of a dwelling was not considered a "per se 'crime of violence' under Section 99-19-83." Brown v. State, 102 So.3d 1087, 1092 (¶21) (Miss. 2012). Prior to July 1, 2014, burglary of a dwelling qualified as a "crime of violence" only if there was "proof of an actual act of violence during the commission of the burglary." Id. However, effective July 1, 2014, the Legislature enacted Mississippi Code Annotated section 97-3-2 (Rev. 2014), which expressly defines burglary of a dwelling, among other crimes, as a per se crime of violence. Miller killed Green after section 97-3-2 was enacted; therefore, he was properly sentenced for his present offense of manslaughter as a violent habitual offender.

         ¶3. In his reply brief on appeal, Miller asserts that his sentence violates the Ex Post Facto Clauses of the United States Constitution and Mississippi Constitution. U.S. Const. art. I, § 9, cl. 3 & § 10, cl. 1; Miss. Const. art. 3, § 16. However, as we explain below, this argument is without merit. Miller's enhanced sentence "is a stiffened penalty for [his] latest crime, which is considered to be an aggravated offense because a repetitive one." Smith v. State, 465 So.2d 999, 1003 (Miss. 1985) (emphasis added) (quoting Branning v. State, 224 So.2d 579, 580-81 (Miss. 1969)). It is not an "ex post facto" punishment for his prior burglary. Miller committed his latest crime of manslaughter after July 1, 2014; therefore, his enhanced sentence for that offense is valid and constitutional. Accordingly, we affirm.

         DISCUSSION

         I. Waiver

         ¶4. In the trial court, Miller made no argument that section 97-3-2's definition of crimes of violence did not apply to his prior conviction for burglary of a dwelling. Rather, at his sentencing hearing, counsel for Miller made a confusing argument that Miller's prior conviction for burglary of a dwelling did not fit section 97-3-2's definition, even though that provision states that "[b]urglary of a dwelling" "shall be classified as [a] crime[] of violence." Miss. Code Ann. § 97-3-2(1)(o). The circuit court rejected this argument, sentenced Miller as a violent habitual offender, and the hearing ended. Miller made no argument that section 97-3-2 did not apply to his prior conviction, let alone that its application would be unconstitutional. Indeed, at his sentencing hearing, Miller seemingly accepted that section 97-3-2 did apply.

         ¶5. In his opening brief on appeal, Miller asserted for the first time that section 97-3-2 should not apply to his prior conviction for burglary of a dwelling. However, his opening brief still did not mention the Ex Post Facto Clauses of the United States Constitution or Mississippi Constitution or raise any other constitutional issue. The ex post facto issue was first raised in a single paragraph near the end of Miller's reply brief.

         ¶6. Ordinarily, "[a] defendant is procedurally barred from raising an objection on appeal that is different than that raised at trial. A trial judge will not be found in error on a matter not presented to him for decision." Jones v. State, 606 So.2d 1051, 1058 (Miss. 1992) (internal citations omitted). However, we have recognized that "the right to be free from an illegal sentence" and "the right not to be subject to ex post facto laws" are among those "fundamental rights" that, under Mississippi Supreme Court precedent, are excepted from "all procedural bars that apply to [even] . . . petitions" for post-conviction relief. Salter v. State, 184 So.3d 944, 950 (¶22) (Miss. Ct. App. 2015). In addition, the State did not argue that the new issue raised in Miller's opening brief was procedurally barred. Therefore, we will address Miller's arguments on the merits.

         II.Miller's ...


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