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Stratton v. State

Supreme Court of Mississippi

March 12, 2019

TIMOTHY STRATTON A/K/A TIMOTHY W. STRATTON Petitioner
v.
STATE OF MISSISSIPPI Respondent

          EN BANC ORDER

          MICHAEL K. RANDOLPH CHIEF JUSTICE

         Now before the en banc Court is Timothy Stratton's Application for Leave to Proceed in the Trial Court with Motion to Vacate Convictions.

         Stratton was convicted of two counts of sexual battery and sentenced to two concurrent life terms. Stratton v. State, 132 So.3d 1074, 1075 (Miss. Ct. App. 2014). The Court of Appeals affirmed his convictions and sentences, and the mandate issued on March 18, 2014. Stratton has filed one prior application. See En Banc Order, Stratton v. State, 2016-M-00217 (Miss. Aug. 4, 2016).

         In this application, Stratton claims that his sentences were obtained illegally and that his rights to due process and to a fair trial were violated in two ways.

         First, he says the jury was not instructed on venue, which is an essential element of the crime. He raised this same issue in his prior application. After due consideration, we find that this claim does not meet any recognized exception to the time, waiver, and successive-writ bars. Chapman v. State, 167 So.3d 1170, 1174-75 (Miss. 2015); Smith v. State, 149 So.3d 1027, 1031-32 (Miss. 2014), overruled on other grounds by Pitchford v. State, 240 So.3d 1061 (Miss. 2017); Bell v. State, 123 So.3d 924, 925 (Miss. 2013); Rowland v. State, 98 So.3d 1032, 1035-36 (Miss. 2012), overruled on other grounds by Carson v. State, 212 So.3d 22 (Miss. 2016); see also Bevill v. State, 669 So.2d 14, 17 (Miss. 1996); Brown v. State, 187 So.3d 667, 671 (Miss. Ct. App. 2016). And even if the claim did meet such an exception, it lacks any arguable basis to surmount the bars. Means v. State, 43 So.3d 438, 442 (Miss. 2010). This Court recently rejected a similar argument. Order, Smith v. State, 2013-M-00205 (Miss. Dec. 13, 2018) ("This Court will not consider venue questions raised for the first time in post-conviction proceedings." (citing Order, Page v. State, 2013-M-01645 (Miss. Dec. 17, 2015))).

         Second, Stratton claims that the jury instructions omitted four other essential elements. After due consideration, we find that this claim also does not meet any recognized exception to the procedural bars. And even if it did, it lacks any arguable basis for the following reasons.

         The first concerns the dates of the crimes. Although the indictment charged that the crimes occurred between certain dates, the elements instruction omitted any date range. In a direct appeal, such omission warrants relief only if unfair surprise or prejudice is shown. Wilson v. State, 515 So.2d 1181, 1183 (Miss. 1987). Stratton's only asserted prejudice is that the jury could not discern his and the victim's ages without the dates. Yet the elements instruction showed that he was well over eighteen years old when the victim was born: it said that he was born July 4, 1964, and that she was born June 2, 1997. Furthermore, she was still under age sixteen at the time of the May 2012 trial.

         Second, he asserts that the county and state were omitted. That relates to the venue omission, which was discussed above.

         Third, he says the indictment charged that he forced the victim to perform oral sex on him, but the elements instruction omitted "forcing." Force is irrelevant, however, because sexual battery of a child is a crime regardless of consent. Miss. Code Ann. § 97-3-95 (Rev. 2014).

         Finally, Stratton complains that "human being" was omitted. Not only is that assertion frivolous, but also the elements instruction identified the victim as "a child."

         Stratton is hereby warned that future filings deemed frivolous may result not only in monetary sanctions, but also restrictions on filing applications for post-conviction relief (or pleadings in that nature) in forma pauperis. See Order, Dunn v. State, 2016-M-01514 (Miss. Nov. 15, 2018).

         IT IS THEREFORE ORDERED that the application is denied.

         SO ORDERED

          TO DENY AND ISSUE SANCTIONS WARNING: RANDOLPH, C.J., COLEMAN, ...


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