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Braboy v. State

Court of Appeals of Mississippi

December 17, 2019

OTIS BRABOY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/13/2018

          BOLIVAR COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT HON. ALBERT B. SMITH III TRIAL JUDGE:

          ATTORNEY FOR APPELLANT: OTIS BRABOY (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY JR.

          BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ.

          BARNES, C.J.

         ¶1. Otis Braboy pleaded guilty to manslaughter and armed robbery. Appearing pro se, he now appeals the denial of his motion for post-conviction collateral relief (PCR). Finding no error, we affirm.

         STATEMENT OF FACTS

         ¶2. In January 2006, Braboy and Emerson Osborne devised a plan to rob eighty-six-year- old Lucy Jackson, who lived alone in Shelby, Mississippi. Using Jackson's acquaintance from church to get her to unlock and open her door, Braboy and Osborne invaded her house and robbed her of around forty dollars. Jackson died from blunt-force trauma to her head.

         ¶3. All three individuals involved in the crime were initially indicted on one count of capital murder with the underlying felony of robbery.[1] Braboy's capital-murder charge was ultimately reduced to manslaughter and armed robbery. Braboy waived indictment and arraignment, consenting to proceed on criminal information for these charges. The trial court created separate cause numbers for each charge. The criminal information documents stated Braboy, either acting individually, in concert, or aiding and abetting Osborne, killed Jackson in the heat of passion using a bludgeon, or stick, while robbing her of thirty-five to forty dollars.

         ¶4. In April 2009, Braboy pleaded guilty to the two separate charges of manslaughter and armed robbery. The trial court sentenced Braboy to twenty years for the manslaughter charge and fifteen years for the robbery charge, to be served consecutively in the custody of the Mississippi Department of Corrections.

         ¶5. In November 2018, Braboy filed a PCR motion, claiming it was improper for the trial court to impose consecutive sentences when the sentences arise from convictions involving the same set of operative facts. Braboy requested either the sentences be served concurrently or that one conviction and sentence be vacated.

         ¶6. The trial court, however, denied relief, noting that the cases Braboy relied upon were decided before 1986, when the Mississippi Legislature enacted Mississippi Code Annotated section 99-7-2, which allows for multi-count indictments. The statute, which has not been amended since 1986, also states the trial court may impose sentences to run either concurrently or consecutively to one another. Miss. Code Ann. § 99-7-2(5) (Rev. 2015). Lastly, the trial court found Braboy's PCR motion was time barred. Braboy appealed.

         STANDARD ...


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