OF JUDGMENT: 03/12/2015
COUNTY CIRCUIT COURT, HON. ANDREW K. HOWORTH.
ATTORNEY FOR APPELLANT: DEBRA MICHELLE GILES.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
LADONNA C. HOLLAND.
In June 2008, Remill Mason killed Terrell Richmond by
shooting him in the back of the head. Mason was fifteen years
old at the time, while Richmond was seventeen years old.
Telvin Campbell, then sixteen years old, was also present
when Mason shot Richmond. The three were in Richmond's
bedroom at his home in Marshall County. Richmond was seated
in front of his computer with his back to Mason and Campbell.
Mason walked up behind Richmond, took a nine-millimeter
handgun from his waistband, and shot Richmond in the back of
Mason was indicted for deliberate design murder. However, in
May 2009 he pled guilty to manslaughter and kidnapping. The
circuit judge imposed consecutive sentences of twenty and
thirty years in the custody of the Mississippi Department of
In 2011, Mason filed his first motion for post-conviction
relief (PCR), which the circuit court denied. In October
2014, Mason filed his second PCR motion. Mason's motion
asserted a number of claims, including that he was
"actually and factually innocent of the kidnapping
charge" and that his sentence violates the Eighth
Amendment to the United States Constitution, as interpreted
in Miller v. Alabama, 132 S.Ct. 2455 (2013). The
circuit court denied Mason's motion in March 2015, and
Mason filed a timely notice of appeal.
On appeal, Mason advances the same claims as in his second
PCR motion, which may be combined and summarized as follows:
(1) he is "actually and factually innocent of the
kidnapping charge"; (2) his conviction for both
kidnapping and manslaughter violates double jeopardy; (3) his
interrogation by law enforcement without his parents present
violated his constitutional rights; (4) the State failed to
disclose exculpatory or impeachment evidence in violation of
Brady v. Maryland, 373 U.S. 83 (1963); (5)
ineffective assistance of counsel in connection with his
guilty plea and his first PCR motion; and (6) his consecutive
sentences are unconstitutional under Miller v.
To prevail on any claim for post-conviction relief, "the
movant must . . . show that the claim is procedurally
alive." Scott v. State, 141 So.3d 34, 35
(¶2) (Miss. Ct. App. 2014). In the absence of a
statutory or judicially created exception, Mason's claims
are all barred by the applicable three-year statute of
limitations and the prohibition against successive PCR
motions. See Miss. Code Ann. §§ 99-39-5(2)
& 99-39-23(6) (Rev. 2015). No exception to the procedural
bars is applicable to claims (3), (4), and (5). Therefore, those
claims are procedurally barred and require no further
discussion. For the reasons explained below, claims (1), (2),
and (6) are without merit. Therefore, we affirm.
Mason is not actually or factually innocent of the
Mason claims that he is entitled to post-conviction relief
because he is "actually and factually innocent of the
kidnapping charge." Specifically, Mason argues that
Richmond was never confined against his will because the
evidence shows that Mason simply shot him in the back of the
head without any forewarning.
A showing of "actual innocence" is an exception to
procedural bars in federal habeas corpus proceedings. See
Howard v. State, 945 So.2d 326, 369-70 (¶95) (Miss.
2006); Sneed v. State, 85 So.3d 298, 300
(¶¶10-11) (Miss. Ct. App. 2012). This Court has
also applied the exception in proceedings under the state
Uniform Post-Conviction Collateral Relief Act (UPCCRA).
See Henderson v. State, 170 So.3d 547, 553-54
(¶¶21-23) (Miss. Ct. App. 2014). However,
"[i]t is important to note . . . that 'actual
innocence' means factual innocence, not mere legal
insufficiency." Bousley v. United States, 523
U.S. 614, 623 (1998). "To establish actual innocence,
[a] petitioner must demonstrate that, in light of all the
evidence, it is more likely than not that no reasonable juror
would have convicted him." Id. (quotation marks
omitted). Moreover, "[i]n cases where the [State] has
forgone more serious charges in the course of plea
bargaining, [the] petitioner's showing of actual
innocence must also extend to those charges."
Id. at 624.
In the present case, Mason was indicted for the more serious
offense of deliberate design murder, which carried a life
sentence. Miss. Code Ann. §§ 97-3-19(1)(a) &
-21 (Rev. 2006). The State dismissed this charge as part of
Mason's plea bargain. Whatever arguments may be made
about the charge of kidnapping, Mason cannot possibly prove
that "no reasonable juror would have convicted him"
of the "more serious charge" of deliberate design
murder. Bousley, 523 U.S. at 623-24. At his plea
hearing, Mason agreed under oath that he and Campbell planned
in advance to kill Richmond and that he killed Richmond by
shooting him in the back of the head. Mason's statement
to law enforcement also provides compelling evidence that he
is actually and factually guilty of deliberate design murder.
Accordingly, Mason is not actually or factually innocent for
purposes of his PCR claim.
Moreover, Mason also expressly agreed under oath that he and
Campbell "kidnapped [Richmond] by holding him at
gunpoint." This admission provided a sufficient factual
basis for the plea. Our Supreme Court has clearly held that
"asportation" (i.e., movement) is not an essential
element of kidnapping. See, e.g., Carr v.
State, 655 So.2d 824, 848-49 (Miss. 1995). A person is
guilty of kidnapping if, "without lawful authority,
" he shall "forcibly seize and confine any other
person . . . with intent to cause such person to be confined
or imprisoned against his or her will." Miss. Code Ann.
§ 97-3-53 (Rev. 2006); see Carr, 655 So.2d at
849. This is fairly captured in Mason's admission under
oath that he kidnapped Richmond "by holding him at
gunpoint." Accordingly, this issue is without merit.
Mason's convictions for manslaughter and kidnapping do
not violate double jeopardy.
Mason also claims that his convictions for manslaughter and
kidnapping violate the Double Jeopardy Clause. Our Supreme
Court has held that double jeopardy claims are excepted from
the UPCCRA's procedural bars. Salter, 184 So.3d
at 950 (¶22). However, Mason's double jeopardy claim
is entirely derivative of his claim that he is "actually
and factually innocent of the kidnapping charge." Mason
acknowledges that the offenses of kidnapping and manslaughter
have substantially different elements and, therefore,
conviction for both ordinarily would not raise any double
jeopardy concern. However, he argues that there was no
evidence to support the kidnapping charge and, therefore, the
sentence he received for kidnapping was, in reality, a
multiple punishment for the offense of manslaughter. As we
have already determined that Mason is not actually or
factually innocent of kidnapping-and that there was a
sufficient basis for his plea to that charge-his derivative
double jeopardy claim is also without merit.
Mason's sentence is not unconstitutional.
Finally, Mason claims that his sentence violates the Eighth
Amendment to the United States Constitution, as interpreted
by the United States Supreme Court in Miller v.
Alabama, supra, and Montgomery v.
Louisiana, 136 S.Ct. 718 (2016). This claim is also
In Miller, the Supreme Court held "that the
Eighth Amendment forbids a sentencing scheme that mandates
life in prison without possibility of parole for juvenile
offenders." Miller, 132 S.Ct. at
2469. The Court held that the sentencer must
have "discretion" to "consider mitigating
circumstances" before imposing a sentence of life
without parole on a juvenile offender. Id. at 2475.
In Mississippi, if a juvenile received a mandatory sentence
of life without parole in violation of Miller, the
remedy is a new sentencing hearing at which the sentencer has
discretion to impose a sentence of life without parole or
life with eligibility for parole. See Parker v.
State, 119 So.3d 987, 999 (¶28) (Miss. 2013).
This basic holding of Miller obviously does not
apply to Mason's sentence. The relevant statutes under
which Mason was sentenced did not "mandate" that
the judge sentence him to more than two years in
prison. The judge had discretion to
impose any total sentence between two and fifty years that
the judge deemed just and proper. Therefore,
Miller's primary holding simply does not apply
to Mason's case.
Moreover, it is important to keep in mind the nature of a
judge's discretionary sentencing decision under
Mississippi law. "There are at least four generally
recognized factors that any sentencing judge should
consider in the exercise of discretionary sentencing of
any defendant who stands before the court for
imposition of sentence: (1) Rehabilitation; (2) Retribution;
(3) Separation from society; and, (4) Deterrence, both
general and specific." Taggart v. State, 957
So.2d 981, 994 (¶31) (Miss. 2007) (emphasis added). The
sentence imposed should be an "individualized"
sentence based on "all information that the
judge may have on the particular defendant, " including
his personal "background, " and "what sentence
will hopefully have a rehabilitative effect on the
defendant." Id. (emphasis added). According to
the United States Supreme Court, "any parent knows"
and understands that a "lack of maturity and an
underdeveloped sense of responsibility are found in youth
more often than in adults and are more understandable among
the young." Roper v. Simmons, 543 U.S. 551, 569
(2005). Given the nature of discretionary sentencing, there
is no reason for this Court to assume that the circuit judge
ignored Mason's age when he sentenced him. That Mason
nonetheless received a lengthy sentence is not surprising,
let alone unconstitutional, given the nature of his crime.
In Montgomery v. Louisiana, supra, the
United States Supreme Court appeared to restate and expand
Miller . . . did more than require a sentencer to
consider a juvenile offender's youth before imposing
life without parole . . . . Even if a court
considers a child's age before sentencing him or her to a
lifetime in prison, that sentence still violates the
Eighth Amendment for a child whose crime reflects unfortunate
yet transient immaturity. . . . Miller determined
that sentencing a child to life without parole is
excessive for all but the rare juvenile offender whose crime
reflects irreparable corruption.
Montgomery, 136 S.Ct. at 734 (emphasis added;
citations, quotation marks omitted). The Court also concluded
by stating that a juvenile offender "must be given the
opportunity to show [his] crime did not reflect irreparable
corruption; and, if it did not, [his] hope for some years of
life outside prison walls must be restored."
Id. at 736-37.
Though Montgomery expanded Miller's
holding, it does not invalidate Mason's sentence, as
Mason was not sentenced to life without parole. He
received a fifty-year sentence commencing at age
fifteen. In his PCR motion, Mason asserted that
"[t]his effectively takes away his entire life, "
but he provided nothing to support that assertion.
See Lindsay v. State, 720 So.2d 182, 186
(¶¶13-17) (Miss. 1998) ("Lindsay cannot argue
his sentence is in effect a life sentence when he offers only
opinion as to what that life expectancy will be."). To
support his claim, Mason might have offered evidence such as
life expectancy tables. However, the UPCCRA requires that
such documents must be attached to the PCR motion. Miss. Code
Ann. § 99-39-9(1)(e) (Rev. 2015). This requirement is
excused only if the motion establishes good cause for a
failure to provide such evidence. See Walden v.
State, 201 So.3d 1042, 1045-46 (¶¶14-15)
Moreover, on appeal Mason all but concedes that he is not
serving a de facto life sentence. Mason's brief, authored
by capable counsel on his behalf, states that he has "a
tentative release date of November 25, 2050, " at which
point "he will be fifty-seven (57) years of age, "
and that his "life expectancy is 70 to 71 years of
age." Thus, Mason's sentence is lengthy, but
it is not a de facto life sentence. Even if Mason were
entitled to a "Miller/Montgomery
hearing, " and even if he could "show [that his]
crime did not reflect irreparable corruption, " that
would only entitle him to a sentence that would permit
"hope for some years of life outside prison walls."