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Chism v. State

Supreme Court of Mississippi

July 25, 2019

ADAM CHISM Petitioner
v.
STATE OF MISSISSIPPI Respondent

          ORDER

          JAMES D. MAXWELL II, JUSTICE.

         Now before the en banc Court is Adam Chism's Application for Leave to File Motion for Post-Conviction Relief, filed October 9, 2018, and November 6, 2018. The State of Mississippi's response and Chism's rebuttal are also before us.

         Chism was convicted of burglary of a dwelling and sentenced as a habitual offender to life in prison. Chism v. State, 253 So.3d 343, 344, 349 (Miss. Ct. App. 2018). The Court of Appeals affirmed his conviction and sentence. Id. at 349. This Court denied his petition for a writ of certiorari, and the mandate issued October 4, 2018.

         Chism raises one claim: The habitual-offender portion of his sentence is illegal, because neither of his prior convictions were crimes of violence. While this claim could have been raised on direct appeal, an illegal-sentence claim is a recognized exception to the waiver bar. 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). To overcome that bar, however, the claim must have some arguable basis. Means v. State, 43 So.3d 438, 442 (Miss. 2010).

         Here, there is no arguable basis for Chism's illegal-sentence claim. Mississippi Code Section 99-19-83 clearly mandated that Chism be sentenced as a habitual offender to life in prison. Before his current conviction, Chism had been convicted of burglary of a dwelling in 2009 and auto burglary in 2012. These two convictions arose out of separate incidents, and Chism was sentenced to and did serve separate terms in prison of one year or more. Further, the 2009 burglary of a dwelling was "a crime of violence, as defined by [Mississippi Code] Section 97-3-2." Miss. Code Ann. § 99-19-83 (Rev. 2015). See Miss. Code Ann. § 97-3-2(1)(o) (Rev. 2015).

         Chism claims the application of Section 97-3-2 (Rev. 2014) to his 2009 burglary-of-a-dwelling conviction is ex post facto, and thus illegal, because Section 97-3-2 was not enacted until 2014. But this Court has long made clear that a sentence as a "habitual criminal is not to be viewed as either a new jeopardy or additional penalty for the earlier crimes. It is a stiffened penalty for the 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)). Chism's life sentence-the one for which he seeks leave to file a PCR motion-is not retroactive additional punishment for his 2009 conviction. It is an enhanced penalty for his 2016 conviction.

         This latest crime was committed after Section 99-19-83 was amended in 2014 to incorporate by reference Section 97-3-2's definition of "crime of violence." So the application of Section 99-19-83, which defines Chism's previous burglary-of-a-dwelling conviction as a qualifying crime of violence, is not ex post facto. See Miller v. State, 225 So.3d 12 (Miss. Ct. App. 2017).

         Thus, Chism fails to present a substantial showing of the denial of a state or federal right.

         IT IS THEREFORE ORDERED that the application is denied.

         SO ORDERED.

          TO DENY: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN, ISHEE AND GRIFFIS, JJ.

          TO GRANT: KITCHENS AND KING, P.JJ.

          KING, P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT ...


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