OF JUDGMENT: 07/10/2015
FROM WHICH APPEALED NESHOBA COUNTY CIRCUIT COURT HON. MARCUS
D. GORDON TRIAL JUDGE.
ATTORNEYS FOR APPELLANT: EDMUND J. PHILLIPS JR. JAMES EDWIN
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KAYLYN HAVRILLA MCCLINTON.
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).
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.
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.
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.
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.
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