OF JUDGMENT: 11/25/2014
COUNTY CIRCUIT COURT HON. GERALD W. CHATHAM, SR.
ATTORNEY FOR APPELLANT: RALPH STEWART GUERNSEY
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
KATY TAYLOR GERBER JEFFREY A. KLINGFUSS
Following a three-day jury trial in DeSoto County,
Mississippi, defendant Zachary Cozart was found guilty of
manslaughter and sentenced to thirty years in the custody of
in the Mississippi Department of Corrections, pursuant to
Mississippi Code Section 97-3-25(b) (Rev. 2014). Cozart
appealed, arguing error in violation of the state's Ex
Post Facto Clause. The Court of Appeals found that, although
Section 97-3-25(b) was not enacted until after the
defendant's crime, Cozart waived any objection to the
harsher sentence when he agreed to a jury instruction that
echoed the revised manslaughter penalty statute. Cozart
v. State, No. 2014-KA-01741, 2016 WL 1745244 (Miss. Ct.
App. May 3, 2016), cert. granted, 205 So.3d 1085
We granted certiorari to determine whether Cozart's
thirty-year sentence under amended Mississippi Code Section
97-3-25(b) amounted to an ex post facto violation and whether
this application rises to the level of plain error. We find
that it does and reverse Cozart's sentence, remanding the
issue to the circuit court for further proceedings consistent
with this opinion.
AND PROCEDURAL HISTORY
On July 1, 2010, twenty-one-month-old Ethan Connor was
pronounced dead at Le Bonheur Children's Hospital in
Memphis, Tennessee. Shortly after his passing, Zachary
Cozart-Ethan's mother's paramour-was indicted in
DeSoto County on charges of capital murder and felonious
Prior to trial, Cozart entered an Alford
of guilty to the reduced charge of manslaughter. On July 10,
2013, the court entered an agreed order reducing Cozart's
charges from capital murder to manslaughter under Mississippi
Code Section 97-3-35. The matter was set for sentencing on
September 12, 2013, though it was continued multiple times at
Cozart's request. On March 25, 2014, Cozart filed a
motion to withdraw his guilty plea and the circuit court
executed an agreed order setting it aside. Cozart's trial
commenced on October 27, 2014.
During the jury-instruction conference, Cozart's trial
attorney offered an instruction for manslaughter as a
lesser-included offense of capital murder. The State took
issue with the instruction's language and requested time
to review it within the context of the manslaughter statute.
After comparing the two, the State agreed to the instruction
with one minor revision, as suggested by the court.
Following the close of the trial, the jury acquitted Cozart
of capital murder but found him guilty of manslaughter. The
court sentenced him to thirty years in the custody of the
Mississippi Department of Corrections, with fifteen years
suspended and ten years of post-release supervision. Cozart
appealed, asserting that both his due process rights and the
Ex Post Facto Clause were violated when the court issued this
sentence. This Court assigned the case to the Court
Cozart argued that when he was indicted in 2010, the
punishment for manslaughter was imprisonment in the
penitentiary for "not less than two years, nor more than
twenty years." Miss. Code Ann. § 97-3-25
(2006). However, when sentenced, the trial judge
applied the law's 2013 update, which expanded on the
original law by including a provision for child homicide and
an increased sentence "not to exceed thirty (30)
years." Miss. Code Ann. § 97-3-25(2)(b) (Rev.
The Court of Appeals determined that, while Cozart was
sentenced under a statute not in effect at the time of his
offense, his failure to object to the potential sentence
prior to the jury's instruction effectively waived his
right to assert an ex post facto violation. Cozart v.
State, No. 2014-KA-01741, 2016 WL 1745244, at *3 (Miss.
Ct. App. May 3, 2016), cert. granted, 205 So.3d 1085
(Miss. 2016). The court held this issue to be without merit
and affirmed the circuit court's judgment. We granted
certiorari on this individual issue to review whether the
sentence rendered by the circuit court was proper.
It is well-established that "[t]he imposition of a
sentence is within the discretion of the trial court, and
this Court will not review the sentence, if it is within the
limits prescribed by statute." Jackson v.
State, 965 So.2d 686, 688 (Miss. 2007) (citing
Reynolds v. State, 585 So.2d 753, 756 (Miss.1991)).
However, the issue of whether the application of a statute
constitutes an ex post facto violation is a question of law.
"Where questions of law are raised the applicable
standard of review is de novo." Brown v.
State, 731 So.2d 595, 598 (Miss. 1999) (citation
omitted). Accordingly, we review the question of whether the
circuit court's prescribed sentence constituted an ex
post facto violation under the de novo standard and
"will only reverse for an erroneous interpretation or
application of law." Rice v. Merkich, 34 So.3d
555, 557 (Miss. 2010).
Here, we find that while Cozart presented a jury instruction
that resulted in the court's sentence, this does not
preclude an appeal of his sentence. Having reviewed the ex
post facto claim and analyzed the issue for plain error, we
find that the trial court's application of the ...