         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CA-00252-COA

LINDA FAY BARNETT-PHILLIPS A/K/A LINDA                                       APPELLANT
BARNETT-PHILLIPS A/K/A LINDA BARNETT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          01/16/2015
TRIAL JUDGE:                               HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED:                 RANKIN COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   CODY WILLIAM GIBSON
                                           PERCY STANFIELD JR.
                                           WILLIAM SCOTT MULLENNIX
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   MOTION FOR POST-CONVICTION RELIEF
                                           DISMISSED
DISPOSITION:                               AFFIRMED - 06/14/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND GREENLEE, JJ.

       GREENLEE, J., FOR THE COURT:

¶1.    Linda Fay Barnett-Phillips appeals the dismissal of her motion for post-conviction

relief. Because we find her motion is without merit, we affirm the circuit court’s dismissal.

                    FACTS AND PROCEDURAL BACKGROUND

¶2.    On June 11, 2012, Barnett-Phillips pleaded guilty to two counts of sale of ten dosage

units (DU) of alprazolam, more commonly known as Xanax or Niravam. On count one, the

circuit court sentenced Barnett-Phillips to twenty years’ incarceration, with fifteen years to
serve and five years of post-release supervision. On count two, the circuit court sentenced

Barnett-Phillips to twenty years, with one day to serve and five years of post-release

supervision. The circuit court entered the judgment on June 20, 2012. Barnett-Phillips did

not appeal.

¶3.    In the 2014 regular session, approximately one and one-half years after Barnett-

Phillips was sentenced, the Mississippi Legislature amended Mississippi Code Annotated

sections 41-29-139 and 47-7-3, changing the maximum sentence for sale of alprazolam in

the amount for which Barnett-Phillips pleaded guilty from twenty years to eight years, and

changing the criteria for parole eligibility. 2014 Miss. Laws ch. 457, §§ 37, 40 (H.B. 585).

The Legislature did not provide that the changed maximum sentence should apply

retroactively. See 2014 Miss. Laws ch. 457 (H.B. 585).

¶4.    On December 11, 2014, Barnett-Phillips filed in the circuit court a “Petition for Post-

Conviction Relief [(PCR)] and Motion for Recommendation to the Mississippi Parole Board

[(Parole Board)] for Early Release.” On January 16, 2015, the circuit court dismissed the

PCR petition and declined to recommend to the Parole Board that Barnett-Phillips be

paroled. The circuit court found from the face of Barnett-Phillips’s petition and motion that

she was not entitled to any relief and entered an order of dismissal under Mississippi Code

Annotated section 99-39-11(2) (Rev. 2015). The circuit court also declined to recommend

to the Parole Board that Barnett-Phillips be paroled under Mississippi Code Annotated

section 47-7-3. Barnett-Phillips appeals the dismissal and failure to recommend parole to this


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Court.

                                       DISCUSSION

¶5.      We review the dismissal of a PCR motion under an abuse-of-discretion standard.

Williams v. State, 110 So. 3d 840, 842 (¶11) (Miss. Ct. App. 2013). We will only reverse if

the circuit court’s decision was clearly erroneous. Id. We review questions of law de novo.

Id.

¶6.      On appeal, Barnett-Phillips argues the circuit court erred in dismissing her PCR

motion because it failed to retroactively apply amendments to the statute under which she

was sentenced.1 She also argues that the circuit court erred in not granting a positive

recommendation of parole.2 We find Barnett-Phillips’s arguments are without merit.

         I.    Unlawful and Unconstitutional Sentence

¶7.      Under Mississippi Code Annotated section 99-19-1 (Rev. 2015), a statutory change


         1
        Barnett-Phillips cites Mississippi Code Annotated section 41-29-139(b)(4)(A). That
section applies to the sale of less than ten DU of alprazolam. She was convicted of sale of
ten DU of alprazolam. So section 41-29-139(b)(4)(B) would be the correct subsection if the
current version of the statute applied. But as discussed in this opinion, the statute does not
apply retroactively.
         2
         Barnett-Phillips only challenges the denial of her request for judicial authorization
of parole eligibility, not whether she is eligible for parole. Thus we do not address the issue
of her parole eligibility. However, in Sinko v. State, 2015-CA-00107-COA, 2016 WL
1423430 (Miss. Ct. App. Apr. 12, 2016), we held that, based on other parts of the 2014
legislation cited above, a defendant who was convicted under section 41-29-139(a), not in
excess of the amounts specified in section 41-29-139(b), prior to July 1, 2014, was no longer
ineligible for parole by reason of that conviction. In addition, the Governor recently signed
into law a measure clarifying expansion of parole eligibility for persons convicted of selling
or manufacturing controlled substances. See 2016 Miss. Laws H.B. 107.

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affecting conviction or sentencing has no application to crimes committed prior to enactment

of the change, unless specifically stated in the amending statute. Miss. Code Ann. § 99-19-1.

While the Legislature can permit the trial court to resentence a defendant for a milder

sentence where such authorization is specifically stated in the amended law, section 99-19-1

expressly states that the previous law will “remain in effect for the purpose of providing

punishment, unless otherwise specially provided in the new statute.”3 McBride v. State, 914

So. 2d 260, 264 (¶11) (Miss. Ct. App. 2005) (quoting Lampley v. State, 308 So. 2d 87, 90

(Miss. 1975)).

¶8.    The right to be free from an unlawful sentence is a fundamental right. Alexander v.

State, 879 So. 2d 512, 514 (¶9) (Miss. Ct. App. 2004). “When a statute is amended to provide

for a lesser penalty, and the amendment takes effect before sentencing, the trial court must

sentence according to the statute as amended.” Culbert v. State, 800 So. 2d 546, 552 (¶19)

(Miss. Ct. App. 2001) (citing Daniels v. State, 742 So. 2d 1140, 1145 (¶17) (Miss. 1999)).

However, when a person is sentenced prior to a statute’s amendment, the penalty of the

statute as it existed at the time of sentencing applies. Id. (citing Davis v. State, 738 So. 2d

299, 300 (¶3) (Miss. Ct. App. 1999)).


       3
         Under Mississippi Code Annotated section 99-19-33 (Rev. 2015), “when a statute
is amended to provide for a lesser penalty, and the amendment takes effect before
sentencing, the trial court must sentence according to the statute as amended.” Daniels v.
State, 742 So. 2d 1140, 1145 (¶17) (Miss. 1999). However, we find that section 99-19-33
does not apply to Barnett-Phillips as she was convicted and sentenced years before
Mississippi Code Annotated section 41-29-139, the sentencing statute applicable to Barnett-
Phillips, was amended.

                                              4
¶9.    Barnett-Phillips argues the circuit court should resentence her in accordance with

section 41-29-139 as amended in 2014; that we should ignore section 99-19-1 because its

application is archaic; and that section 99-19-33 allows her to avail herself of the amended

version based on timing alone. We disagree.

¶10.   The law is clear on this matter, and we have specifically stated that a sentence is not

made unlawful upon the passage of an amendment to the sentencing statute after the sentence

has become final. McBride, 914 So. 2d at 264 (¶11) (citing Lampley, 308 So. 2d at 90). The

revision to section 41-29-139 was made effective July 1, 2014, nearly two years after

Barnett-Phillips’s sentencing on June 11, 2012. The Legislature could have required

resentencing under the amended statute, but it did not. Further, the Legislature, through the

plain text of section 99-19-1, has stated that if it means for a sentencing statute to be

retroactive, then it will say so in the text of the statute itself. We find Barnett-Phillips’s claim

that she should be resentenced under the amended version of the statute is without merit.

¶11.   Barnett-Phillips argues that Mississippi Code Annotated section 99-19-33 allows her

to benefit from the new law based on the timing of the sentencing rather than the commission

of the crime. Miss. Code Ann. § 99-19-33. “This section gives the trial judge the right to

sentence one convicted of [a] crime after the law has been changed so as to permit a milder

sentence before the conviction has become final.” Lampley, 308 So. 2d at 90. The statute

gives the circuit court judge the ability to sentence according to the milder punishment when

the sentencing law changes between the date of conviction and the conviction becoming


                                                 5
final. Here, Barnett-Phillips’s conviction became final when she did not appeal. The statutory

changes to section 41-29-139 were made after Barnett-Phillips’s conviction became final.

Section 99-19-33 has no bearing on Barnett-Phillips, and we, therefore, find her argument

without merit.

¶12.   Barnett-Phillips further argues that this Court can ignore section 99-19-1 because it

is archaic. Barnett-Phillips does not provide any authority to reinforce her claim that we may

ignore a statute simply because it has been in effect longer than others. Failure to cite any

authority may be treated as a procedural bar, and the Court is under no duty to consider

assignments of error in such instances. Williams v. State, 708 So. 2d 1358, 1361 (¶12) (Miss.

1998). This Court finds this issue is without merit.

       II.    Denial of Parole Recommendation

¶13.   Any offender, not having committed a violent crime under section 97-3-2, and having

served twenty-five percent or more of her sentence, may be paroled by the Parole Board if

the sentencing judge authorizes the offender to be eligible for parole consideration. Miss.

Code Ann. § 47-7-3(1)(g)(iii).

¶14.   Barnett-Phillips argues that the circuit court erred when it declined to recommend to

the Parole Board that she be deemed parole eligible.4 She again points to the amended parts

of Mississippi Code Annotated section 47-7-3 and a “Task Force Final Report” for House


       4
         Barnett-Phillips cites Mississippi Code Annotated section “47-7-7(3)(1)(f)” for
statutory authority. Section 47-7-7 was repealed effective July 1, 1976. We assume that she
meant section 47-7-3(1)(f).

                                              6
Bill 585—the bill that made the amendments to section 47-7-3 law. Though this report does

provide some insight into the legislative intent behind the amendments, it is not controlling

in this situation. The plain language of the statute is unambiguous and clear. Davis, 750 So.

2d at 1233. There is no need to resort to rules of statutory interpretation when the language

used by the Legislature is unambiguous and clear. Davis v. Pub. Emps’ Ret. Sys., 750 So. 2d

1225, 1233 (¶25) (Miss. 1999).

¶15.     The plain language of section 47-7-3 unambiguously provides that the circuit court

judge had discretion to issue a positive or negative recommendation for parole eligibility. It

uses the word “may” regarding recommending parole eligibility, not “shall.” “A basic tenet

of statutory construction is that ‘shall’ is mandatory and ‘may’ is discretionary.” Khurana v.

Miss. Dep’t of Revenue, 85 So. 3d 851, 854 (¶9) (Miss. 2012). Barnett-Phillips’s claim that

the circuit court erred by issuing a negative recommendation for parole eligibility is without

merit.

¶16.     Furthermore, the Mississippi Supreme Court has ordered that the denial of a

recommendation to the Parole Board for an early release and/or parole, pursuant to section

47-7-3, “fail[s] to implicate an appealable judgment.” Gamage v. State, No. 2015-CP-00593-

SCT (Miss. Oct. 8, 2015) (en banc order).

                                     CONCLUSION

¶17.     Because we find Barnett-Phillips’s claims are without merit, we affirm the circuit

court’s dismissal of her PCR motion. The negative recommendation for parole eligibility,


                                              7
pursuant to the supreme court’s en banc order in Gamage v. State, is not an appealable

judgment.

¶18. THE JUDGMENT OF THE CIRCUIT COURT OF RANKIN COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR AND
WILSON, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. BARNES, J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION.




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