JEREMY SHANE FOGLEMAN a/k/a JEREMY FOGLEMAN a/k/a JEREMY S. FOGLEMAN
STATE OF MISSISSIPPI
OF JUDGMENT: 08/18/2016
HARRISON COUNTY CIRCUIT COURT HON. ROGER T. CLARK JUDGE
COURT ATTORNEYS: IAN LAWRENCE BAKER ROBERT CHARLES STEWART
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER BY:
W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ALICIA M. AINSWORTH
DISTRICT ATTORNEY: JOEL SMITH
WRIT OF CERTIORARI
A jury convicted Jeremy Fogleman of felony failure to stop
his motor vehicle for police. Because Fogleman fled at a high
rate of speed, showing an indifference to the consequences
and to causing injury, the trial judge designated
Fogleman's offense a crime of violence under Mississippi
Code Section 97-3-2(2) (Rev. 2014). This finding resulted in
Fogleman's parole-ineligibility period increasing from
one-fourth to one-half of his five-year sentence-a sentence
clearly allowed by statute and authorized by the jury's
Even though Fogleman's sentence fell within the statutory
range of up to five years in prison and the judge's
findings did not increase a statutory maximum or minimum
sentence, the Court of Appeals reversed and rendered the
crime-of-violence designation. The appellate court held that
the resulting parole-ineligibility increase violated the
Sixth Amendment because it was based on facts found by a
judge, not a jury.
The United States Supreme Court has held that the Sixth
Amendment requires factual determinations that increase
maximum or minimum sentences be submitted to a jury
and found beyond a reasonable doubt. But there is a notable
distinction between a judge making factual findings that
affect an actual sentence-for example, increasing the maximum
or minimum sentence-versus those that merely impact time
served. The first scenario requires a jury finding, while the
second, which we confront here, does not. Our review shows
that Fogleman's sentence-five years in prison, with no
eligibility for parole or early release until half his
sentence had been served-fell well within the range
authorized by statute and by the jury's
verdict. We find the judge's crime-of-violence
designation merely impacted the minimum time Fogleman had to
serve before becoming parole eligible. It did nothing to
affect Fogleman's sentence. Thus, no Sixth
Amendment violation occurred.
We reverse the decision of the Court of Appeals and reinstate
the judgment of the Circuit Court of Harrison County.
Facts and Procedural History
On August 27, 2014, a Biloxi police officer attempted to stop
a Dodge Charger with a partially obscured license plate. The
owner, Jeremy Fogleman, had a suspended driver's license
and an outstanding arrest warrant. Rather than obey the
officer's signals to stop, Fogleman took off. He led
numerous Biloxi police officers on a high-speed chase through
residential neighborhoods and down Highway 90 at speeds
reaching seventy miles per hour. The chase ended when
Fogleman's Charger crashed into another car at an
intersection. The occupants of the other car suffered minor
injuries. Fogleman was immediately arrested.
Fogleman was indicted and tried before a jury. The jury
convicted him of failing to stop his vehicle when signaled by
law enforcement while operating his vehicle with reckless or
willful disregard for the safety of persons or property.
See Miss. Code Ann. § 97-9-72(2) (Rev. 2014).
This offense carried statutory penalties of up to five years
in prison. After the jury was dismissed, the State moved to
classify Fogleman's crime as a crime of violence. The
State argued Fogleman "used physical force, or made a
credible attempt or threat of physical force against another
person as part of [his] criminal act." Miss. Code Ann.
§ 97-3-2(2) (Rev. 2014).
The trial judge sentenced Fogleman-within the statutory
maximum-to five years in Mississippi Department of
Corrections' custody. See Miss. Code Ann. §
97-9-72(2). The judge also granted the State's motion and
designated in the sentencing order that Fogleman had
committed a crime of violence under Section 97-3-2(2). Under
this provision, "No person convicted of a crime of
violence listed in this section is eligible for parole or for
early release from the custody of the Department of
Corrections until the person has served at least fifty
percent (50%) of the sentence imposed by the court."
Fogleman appealed. On appeal, he did not challenge his
conviction. Rather, his sole claim is that the trial judge
erred by applying Section 97-3-2(2).
We assigned Fogleman's appeal to the Court of Appeals.
The appellate court ruled that Section 97-3-2(2) is
unconstitutional. Relying on Alleyne v. United
States, 570 U.S. 99, 113, 133 S.Ct. 2151, 2161, 186
L.Ed.2d 314 (2013), the Court of Appeals concluded that
Section 97-3-2(2) violates the Sixth Amendment to the United
States Constitution because it allows a judge, not a jury, to
make a factual finding that increases the mandatory minimum
amount of time a convict must serve. Fogleman v.
State, 2016-KA-01244-COA, 2018 WL 4444057, at *3 (Miss.
Ct. App. Sept. 18, 2018). The Court of Appeals reversed and
rendered the crime-of-violence designation in the sentencing
The State petitioned for certiorari review, which we granted.
After review, we reverse the Court of Appeals' decision
and reinstate the trial judge's crime-of-violence
designation. We find Section 97-3-2(2) does not increase the
statutory minimum sentence, so it does not run afoul
of Alleyne's holding and is not
I.Alleyne and Section ...