Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Fogleman v. State

Court of Appeals of Mississippi

September 18, 2018

JEREMY SHANE FOGLEMAN A/K/A JEREMY FOGLEMAN A/K/A JEREMY S. FOGLEMAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 08/18/2016

          HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT TRIAL JUDGE: HON. ROGER T. CLARK

          ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY: W. DANIEL HINCHCLIFF

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY GERBER

         EN BANC.

          WILSON, J.

         ¶1. Following a jury trial in the Harrison County Circuit Court, Jeremy Shane Fogleman was convicted of failing to stop a motor vehicle pursuant to the signal of a law enforcement officer while operating the vehicle in reckless disregard of the safety of persons or property. See Miss. Code Ann. § 97-9-72(2) (Rev. 2014). After the jury was dismissed, the circuit judge sentenced Fogleman to the maximum term of five years in the custody of the Mississippi Department of Corrections (MDOC). The judge also found that Fogleman "used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act." Miss. Code Ann. § 97-3-2(2) (Rev. 2014). Based on this finding, the judge classified Fogleman's offense as a "crime of violence," which rendered Fogleman ineligible for parole and limited his eligibility for any other type of early release. See id.; Miss. Code Ann. § 47-7-3(1)(g)(i) (Rev. 2015).

         ¶2. Fogleman does not challenge his conviction on appeal. He argues only that his crime should not have been classified as a "crime of violence" and that section 97-3-2(2) violates the Sixth Amendment to the United States Constitution by increasing the penalty for the crime based on facts not submitted to the jury and found by the judge alone. We agree with Fogleman that section 97-3-2(2) is unconstitutional insofar as it deems an offense a "crime of violence" based on facts found only by the judge. Therefore, we reverse and render the provisions of Fogleman's sentence stating that the conviction is for a "crime of violence." Fogleman's sentence shall simply be for a term of five years in MDOC custody.

         FACTS AND PROCEDURAL HISTORY

         ¶3. On August 27, 2014, a Biloxi police officer observed a Dodge Charger with a partially obscured license plate. Dispatch informed the officer that there was an outstanding warrant for the arrest of the vehicle's owner, who also had a suspended driver's license.

         ¶4. When the officer activated the blue lights on his patrol car, the driver, later identified as Fogleman, sped away. The officer then activated his siren and pursued the Charger, and several officers joined the pursuit. The Charger topped seventy miles per hour as Fogleman drove through residential neighborhoods and down a busy highway. The chase ended when the Charger collided with another car at an intersection. As a result of the collision, the Charger was disabled, and the second vehicle was totaled. The occupants of the other car sustained minor injuries. Fogleman was arrested at the scene.

         ¶5. Fogleman was indicted and, following a jury trial, convicted of failing to stop his vehicle pursuant to the signal of a law enforcement officer while operating the vehicle in reckless disregard of the safety of persons or property. See Miss. Code Ann. § 97-9-72(2). After the jury was dismissed, the judge sentenced Fogleman to five years in MDOC custody. On the State's motion, the judge also found that Fogleman "used physical force, or made a credible attempt or threat of physical force against another person as part of the criminal act." Miss. Code Ann. § 97-3-2(2). Therefore, the judge classified Fogleman's offense as a "crime of violence," which made Fogleman ineligible for parole and limited his eligibility for any other type of early release. See id.; Miss. Code Ann. § 47-7-3(1)(g)(i). The judge also denied Fogleman's motion for a judgment notwithstanding the verdict or a new trial, and Fogleman filed a notice of appeal.

         ANALYSIS

         ¶6. Prior to 2014, various sentencing statutes employed the term "crime of violence," but "there was no comprehensive statutory definition of 'crime of violence.'" Miller v. State, 225 So.3d 12, 14 (¶7) (Miss. Ct. App. 2017). In 2014, the Legislature enacted Mississippi Code section 97-3-2, which in subsection (1) designates approximately twenty specific crimes as "crimes of violence." Miss. Code Ann. § 97-3-2(1); 2014 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.