D. MAXWELL II, JUSTICE.
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
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.
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).
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).
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.
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.
Chism fails to present a substantial showing of the denial of
a state or federal right.
THEREFORE ORDERED that the application is denied.
DENY: RANDOLPH, C.J., COLEMAN, MAXWELL, BEAM, CHAMBERLIN,
ISHEE AND GRIFFIS, JJ.
GRANT: KITCHENS AND KING, P.JJ.
P.J., OBJECTS TO THE ORDER WITH SEPARATE WRITTEN STATEMENT