                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2007-CT-01785-SCT

RONNIE MACKEY a/k/a RONALD FANTAE
MACKEY

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                          12/20/2007
TRIAL JUDGE:                               HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED:                 FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    PRO SE
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL:
                                           BY: DEIRDRE McCRORY
DISTRICT ATTORNEY:                         JON MARK WEATHERS
NATURE OF THE CASE:                        CIVIL - POST CONVICTION RELIEF
DISPOSITION:                               REVERSED AND RENDERED - 06/07/2010
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       DICKINSON, JUSTICE, FOR THE COURT:

       We have discovered that . . . to banish the knight does not alleviate the
       suffering of the peasant.
                                                  – C.S. Lewis

¶1.    This is a banishment case in which the Circuit Court of Forrest County issued a

suspended sentenced of thirty years and then ordered the defendant not to come within one

hundred miles of Hattiesburg. Upon learning the defendant had violated the banishment

order, the trial court revoked the suspension of the sentence.
                       FACTS AND PROCEDURAL HISTORY

¶2.    Ronnie Mackey pleaded guilty to one count of transfer of a controlled substance. The

Circuit Court of Forrest County, sitting in Hattiesburg, followed the State’s recommendation

and sentenced him to a thirty-year prison term, but suspended the entire sentence. The trial

court imposed several requirements during the period of the suspended sentence, one of

which was that, within forty-eight hours, Mackey was to leave Hattiesburg and, for thirty

years, remain outside a circle with a radius of one hundred miles, centered on Hattiesburg.

¶3.    Despite the court’s ruling, and for reasons unexplained in the record, Mackey

(involuntarily) remained in jail for approximately fifty hours after sentencing. Thus, when

he was released from jail, he was already in violation of the banishment order. He was still

in town six days later when he was spotted by a police officer and arrested for violating the

condition of his suspended sentence.

¶4.    The trial court revoked the suspension and imposed the full thirty-year sentence.

Mackey filed a motion for post-conviction relief (PCR), which the trial court dismissed

without an evidentiary hearing. The Court of Appeals affirmed the trial court’s dismissal of

Mackey’s motion for PCR. He then filed a petition for a writ of certiorari, which we granted.

                                        ANALYSIS

¶5.    Mackey presents seventeen issues on appeal. However, because we find one issue —

the banishment condition of his suspended sentence — dispositive, we shall address it and

decline to address the others. We do not disturb a trial court’s factual findings unless they

are found to be clearly erroneous. However, we apply a de novo review to questions of law.

                                             2
Brown v. State, 731 So. 2d 595, 598 (Miss. 1999) (citing Bank of Miss. v. S. Mem’l Park,

Inc., 677 So. 2d 186, 191 (Miss. 1996)).

                                             I.

                                       Banishment

¶6.    When a trial judge suspends all or part of a criminal defendant’s sentence, the judge

is free to impose lawful, reasonable conditions which must be met during the period of the

suspended sentence. In the case we review today, the trial judge suspended Mackey’s

sentence, and then, as a condition of his suspended sentence, ordered him to leave town and

remain at least one hundred miles from Hattiesburg. Such a condition is commonly known

as banishment.

¶7.    In considering the paucity of banishment cases in Mississippi, this Court has

expressed serious concerns. Although this Court has not specifically forbidden banishment,

prior decisions clearly establish that arbitrary banishment will not be upheld; that is,

justification for the banishment must clearly be established in the record.

¶8.    In Cobb v. State, 437 So. 2d 1218 (Miss. 1983), the defendant, Cobb, pleaded guilty

to aggravated assault. The trial court sentenced him to twelve years imprisonment, and

“suspended the sentence and put defendant Cobb on probation for five years conditioned that

Cobb ‘leave Stone County’ and stay ‘125 miles . . . away’ from the county.” Id. at 1219.

Cobb appealed the banishment, arguing that it did not “‘bear a reasonable relationship to the

purposes of [his] probation.’” Id. In reviewing the record, however, this Court found that

the trial judge had articulated a reasonable, factual basis for the banishment. Specifically,

                                             3
the trial judge stated that Cobb (who had shot his brother’s son 1) had an uncontrolled temper,

and he lived close to his brother in Stone County. The Cobb Court stated:

       Upon the record as made and presented, we find that the conditions imposed
       by the sentencing judge were reasonably related to Cobb’s circumstances and
       his intended rehabilitation. The court recognized that Cobb’s family had
       experienced considerable trouble, and Cobb had been involved in a shooting
       of his nephew who lived near Cobb’s place of residence in Stone County.
       Upon these facts, we are unable to say that removing him from the area was
       unreasonable or arbitrary.

Id. at 1220.

¶9.    In McCreary v. State, 582 So. 2d 425 (Miss. 1991), this Court expressed grave

reservations concerning banishment orders. After the defendant, McCreary, pleaded guilty

to a charge of rape, the trial judge accepted the guilty plea, but failed to impose a sentence.

Instead, he stated that the sentence would be

       taken under advisement . . . from day to day and term to term, [and while the
       sentence remained] under advisement, [McCreary was banished from the State
       of Mississippi] for a period not to exceed two years, [following which], at
       some future time . . . [his case would] be finally disposed of as a misdemeanor.

McCreary, 582 So. 2d at 426. When McCreary was found in the State of Mississippi in

violation of his banishment, the trial judge sentenced him to twenty years in the custody of

the Mississippi Department of Corrections.

¶10.   McCreary filed a motion for PCR, claiming his guilty plea was coerced and otherwise

involuntary.2 The circuit court denied his petition, and McCreary appealed, arguing only that


       1
           Fortunately, the boy survived the shooting.
       2
           In his PCR petition, McCreary did not raise the issue of banishment.

                                                  4
his plea was coerced and otherwise involuntary. The trial court made no record of the

hearing on McCreary’s PCR motion.

¶11.      In reversing the trial court’s denial of McCreary’s PCR motion and remanding for a

hearing, this Court stated: “On the record and the pleadings, we cannot safely conclude that

McCreary will be unable to show that his guilty plea was unknowing and involuntary.” Id.

at 427.

¶12.      Although the Court’s reversal was based on this issue of whether vel non McCreary’s

plea was voluntary, this Court also addressed the trial court’s failure to sentence McCreary

following his guilty plea, stating that it found no authority to support the trial court’s

disposition of the case. Id. In addressing the banishment order, this Court characterized it

as “of particular concern.” Id. The McCreary Court, citing Cobb with approval, stated:

          In Cobb, the Court satisfied itself from the record that the banishment
          provision bore a reasonable relationship to the purpose of probation; that the
          ends of justice and the best interest of the defendant and the public would be
          served; that public policy was not violated and the rehabilitative purpose of
          probation was not defeated; and that Cobb’s rights under the First, Fifth and
          Fourteenth Amendments to the United States Constitution were not violated.
          437 So. 2d at 1219-21.3


          3
          Other authority cited in McCreary includes: Wyche v. State, 197 Ga. App. 148, 397 S.E.2d
738 (Ga. Ct. App. 1990) (banishment condition must serve some rehabilitative function); Kerr v.
State, 193 Ga. App. 165, 387 S.E.2d 355 (Ga. Ct. App. 1989) (same); People v. Pickens, 186 Ill.
App. 3d 456, 134 Ill. Dec. 746, 542 N.E.2d 1253 (Ill. App. Ct. 1989) (banishment provision must
bear reasonable relation to offense, provided defendant may apply for permission to enter prohibited
area for legitimate reasons); U.S. v. Cothran, 855 F.2d 749 (11th Cir. 1988) (banishment provision
must bear reasonable relation to offense and rehabilitation); Markley v. State, 507 So. 2d 1043 (Ala.
Crim. App. 1987) (test is whether the conditions, including any geographic restrictions, are designed
to meet the ends of rehabilitation and protect the public); People v. Watkins, 193 Cal. App. 3d 1686,
239 Cal. Rptr. 255 (Cal. Ct. App. 1987) (same); U.S. v. Abushaar, 761 F.2d 954 (3d Cir. 1985)
(same); State v. Morgan, 389 So. 2d 364 (La. 1980) (same).

                                                 5
Id. at 427 (emphasis added).       Then, in addressing banishment orders in general, the

McCreary Court expressed its view that

       banishment from a large geographical area, especially outside of the State,
       struggles to serve any rehabilitative purpose, and implicates serious public
       policy questions against the dumping of convicts on another jurisdiction.

Id. at 427-28 (citing U.S. v. Abushaar, 761 F.2d 954, 959-60 (3d Cir. 1985); Rutherford v.

Blankenship, 468 F.Supp. 1357, 1360-61 (W.D. Va. 1979)).

¶13.   In Temple v. State, 671 So. 2d 58 (Miss. 1996), this Court — expressing disfavor with

banishment provisions imposed on a defendant — stated:

       These conditions are unenforceable because they are not contained in the
       written judgment entered with the clerk, and if they were part of the judgment,
       this Court would be inclined to strike such conditions.

Id. at 59.

¶14.   Following the Cobb-McCreary precedent, the Court of Appeals — striking down a

banishment provision because of the lack of any on-the-record evidence supporting the

factors discussed in Cobb and its progeny — stated:

       [T]he trial judge failed to articulate the benefits of Weaver’s banishment. In
       order for the instant case to fall directly within the scope of the Mississippi
       Supreme Court’s decision in Cobb, the benefits of Weaver’s banishment must
       be established and on the record. Herein lies the error in the lower court’s
       decision, and the basis for our reversing and remanding this case.

Weaver v. State, 764 So. 2d 479, 480-81 (Miss. Ct. App. 2000) (emphasis added). The Court

of Appeals did not remand the case for resentencing, but rather remanded it for clarification

of an ambiguity in the sentencing order concerning probation. Id. at 481 (“On remand, the

trial court needs to clarify its sentencing order.”).

                                               6
                                                 II.

¶15.   We now turn to the trial judge’s banishment order in this case, which stated:

       It is further adjudicated and the court so finds that the banishment provision
       herein bears a reasonable relationship to the purposes of the suspended
       sentence or probation, that the ends of justice and the best interest of the public
       and the Defendant will be served by such banishment during the period of the
       suspended sentence, that the banishment provision of the suspended sentence
       does not violate the public policy of the State of Mississippi, that the
       banishment provision of the suspended sentence herein does not defeat the
       rehabilitative purpose of the probation and/or suspended sentence, and such
       provision does not violate the Defendant’s rights under the First, Fifth, and
       Fourteenth Amendments of the United States Constitution.

¶16.   In reviewing this order, we note that its language tracks, virtually verbatim, the

following language from McCreary in which this Court explained why the Cobb banishment

was not reversed:

       In Cobb, the Court satisfied itself from the record that the banishment
       provision bore a reasonable relationship to the purpose of probation; that the
       ends of justice and the best interest of the defendant and the public would be
       served; that public policy was not violated and the rehabilitative purpose of
       probation was not defeated; and that Cobb’s rights under the First, Fifth and
       Fourteenth Amendments to the United States Constitution were not violated.
       437 So. 2d at 1219-21.

McCreary, 582 So. 2d at 426 (emphasis added).

¶17.   The trial judge’s recitation of the McCreary factors, however, is not dispositive. We

also must determine whether the trial court “satisfied itself from the record,” id., that the

factors were present.4 In its decision, the trial court in Cobb relied on evidence in the “record


       4
         See, e.g., United States v. Scheer, 30 F. Supp. 2d 351, 353 (E.D.N.Y. 1998), in which the
court made detailed findings on the record that the order that defendant refrain from traveling to
Florida “is directly related to the rehabilitative goal of probation” and “that the travel restriction

                                                  7
as made and presented” that established that “Cobb’s family had experienced considerable

trouble, and Cobb had been involved in a shooting of his nephew who lived near Cobb’s

place of residence in Stone County.” Cobb, 437 So. 2d at 1220.

¶18.   The trial court conducted Mackey’s plea hearing — and the plea hearing for seven

other defendants in unrelated cases — at the same time. Most of the questions were asked

of all eight defendants at the same time. We find nothing whatsoever in Mackey’s answers

to the trial court’s questions that remotely relates to any of the McCreary factors.

¶19.   Immediately following the plea hearing, the trial court proceeded to sentencing. The

trial court asked the prosecutor if she had a recommendation concerning sentencing. The

prosecutor replied:

       Yes, Your Honor. The State understands that Mr. Mackey has one relative
       who lives in Forrest County. His other relatives do not live here. That he’s
       estranged from that one relative, and based upon that, the state would
       recommend that Mr. Mackey be sentenced to thirty years in the custody of the
       Mississippi Department of Corrections with all but time served suspended on
       his good behavior in compliance with the terms and conditions of the order of
       conviction, one of which is that he depart from Forrest County within forty-
       eight hours and remain a distance of one hundred miles from the Forrest
       County courthouse during the entire thirty years of that sentence and that he
       pay court cost, and the State would pass Count II to the file on the condition
       that he comply with the condition of Count I.

¶20.   The only statement in the prosecutor’s presentation which remotely could have been

viewed by the trial judge as justification for banishment was the representation that Mackey

had one relative in Forrest County from whom he was estranged. We find this single, benign




promotes the protection of the public.”

                                              8
reference to an “estranged relative” to be a woefully inadequate factual basis for banishment

under McCreary factors.

¶21.   Furthermore, because the trial court’s order includes no factual findings supporting

any of the McCreary factors, we have meticulously reviewed the balance of the record to

glean any scrap of evidence available to the trial court in reaching its decision to banish

Mackey. We find none.

                                            III.

¶22.   Today, we reaffirm this Court’s previous view that “banishment from a large

geographical area, especially outside of the State, struggles to serve any rehabilitative

purpose, and implicates serious public policy questions against the dumping of convicts on

another jurisdiction.” McCreary, 582 So. 2d at 428. One reason for our concern with

banishment orders is that they preclude supervision.       In other words (as provided in

McCreary and Cobb), compelling reasons must be offered to justify allowing a defendant

convicted of a serious criminal offense to leave the jurisdiction unsupervised, as opposed to

incarceration or keeping the defendant in the jurisdiction of the court, with supervision.

¶23.   We do not wish our opinion today to imply that all banishments are improper or

disfavored. A carefully crafted banishment from a small geographic area may very well

serve a substantial and legitimate concern. Furthermore, banishment from an area comprised

of a county, or several counties, allows supervised probation by the Mississippi Department

of Corrections. Indeed, a trial judge who wishes to “banish” a defendant from, for example,

the southern six counties, may — under authority of Section 47-7-35 (which provides that

                                             9
courts may order the probationer to “remain within a specified area”) — place the defendant

on supervised probation, and order the probationer to remain in the northern seventy-six

counties. See Miss. Code Ann. § 47-7-35 (Rev. 2004). We emphasize, however, that a trial

judge’s reasons for ordering banishment — regardless of the size of the geographic area —

must be articulated and supported in the record by a factual basis, as required by Cobb and

McCreary.

                                       CONCLUSION

¶24.   The judgment of the circuit court denying the motion for post-conviction relief is

reversed, as is the affirmance of that judgment by the Court of Appeals. The trial court’s

order revoking Mackey’s suspended sentence based on a violation of the banishment order

is reversed and rendered.

¶25.   REVERSED AND RENDERED.

       WALLER, C.J., CARLSON, P.J., LAMAR AND CHANDLER, JJ., CONCUR.
CARLSON, P.J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION
JOINED BY WALLER, C.J., DICKINSON, LAMAR AND CHANDLER, JJ.
RANDOLPH, J., DISSENTS WITH SEPARATE WRITTEN OPINION. GRAVES,
P.J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN
OPINION JOINED BY KITCHENS, J.; RANDOLPH, J., JOINS IN PART. PIERCE,
J., NOT PARTICIPATING.

       CARLSON, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶26.   While I wholeheartedly concur in the majority opinion authored by Justice Dickinson,

I write separately to briefly expand the discussion in the majority opinion on the critical issue

before the Court. In Johnson v. State, 925 So. 2d 86 (Miss. 2006), this Court, in an 8-0



                                               10
opinion, went to great lengths, once and for all and in one opinion, to explain the distinct

differences between suspended sentences, supervised probation, and post-release supervision.

¶27.   For the sake of brevity, based on the reasons articulated in Johnson, this Court should

continue to recognize and respect the unique aspects of these separate and distinct sentencing

mechanisms available to our trial judges. In today’s case, Mackey was not placed on

probation. The trial judge imposed a thirty-year straight suspended sentence. Mackey was

not ordered by the trial judge to be placed under the supervision of the Mississippi

Department of Corrections. Mackey was not directed to report to a MDOC probation officer.

There is nothing illegal about the trial judge’s imposition of a thirty-year suspended sentence.

There is nothing illegal or improper with a trial judge imposing banishment as a condition

of a suspended sentence, supervised probation, or post-release supervision. Instead, in

today’s case, we merely have found a lack of support in the record before us to justify the

trial judge’s imposition of the banishment provision as a condition of Mackey’s suspended

sentence.   Since the trial judge’s order revoking Mackey’s suspended sentence is based

solely on the “violation” of the banishment provision of Mackey’s suspended sentence, the

revocation order must be reversed, as noted by the majority.

¶28.   With this being said, I concur in today’s majority opinion.

     WALLER, C.J., DICKINSON, LAMAR AND CHANDLER, JJ., JOIN THIS
OPINION.




                                              11
       RANDOLPH, JUSTICE, DISSENTING:

¶29.   On the record presented, I cannot join the Majority in finding that the trial court

abused its discretion in including a banishment condition in its sentencing order. However,

even if one were to assume arguendo that the banishment condition, as part of Mackey’s

suspended sentence, is ipso jure illegal, the Majority errs by rendering a modified sentence,

as opposed to vacating the guilty plea. We are not told how a defendant can knowingly,

intelligently, and voluntarily plead guilty to an illegal or unlawful condition of a sentence.

If illegal or unlawful, Mackey should be accorded the relief requested in his post-conviction-

relief motion, that “he and the State should be returned to the positions they were in before

the plea agreement was entered, as his plea was involuntary.” Therefore, I respectfully

dissent.

                                              I.

¶30.   Before this Court reverses the revocation order, it should ascertain whether the

banishment condition of Mackey’s suspended sentence, contained within the sentencing

order, “was unreasonable, arbitrary, or in any sense violated public policy or [the trial

court’s] authority under the pertinent statutes.” Cobb v. State, 437 So. 2d 1218, 1221 (Miss.

1983). No statute “prevents convicted felons from receiving a flat suspended sentence, ‘so

long as the sentence does not involve a period of supervised probation and does not exceed

the maximum penalty statutorily prescribed for the felony offense committed.’” Watts v.

State, 1 So. 3d 886, 888 (Miss. Ct. App. 2008), cert. denied, 999 So. 2d 1280 (Miss. Feb. 5,

2009) (quoting Johnson v. State, 925 So. 2d 86, 105 (Miss. 2006)). The Cobb Court stated

                                             12
that it would look to “the record as made and presented,” to determine if “the conditions

imposed by the sentencing judge were reasonably related to [the defendant’s] circumstances

and his intended rehabilitation.” Id. at 1220 (emphasis added). See also McCreary v. State,

582 So. 2d 425, 427 (Miss. 1991) (“[i]n Cobb, the Court satisfied itself from the record that

the banishment provision bore a reasonable relationship to the purpose of probation . . . .”)

(emphasis added).5 The Cobb standard is satisfied in the case sub judice. The sentencing

order at issue stated that “the ends of justice and the best interest of the public and [Mackey]

. . . [are] best served,” by requiring, inter alia, the following “good behavior” in an effort to

rehabilitate Mackey:

       (a) Commit no offense against the laws of this or any other state . . . ;
       (b) Avoid injurious or vicious habits and persons and places of disreputable or
       harmful character;
       (c) Work faithfully at suitable employment so far as possible;
       (d) Support his dependents . . . ;
       (e) Possess or consume no alcoholic beverages or mood altering drugs . . . .

If the banishment condition bears a reasonable relationship to Mackey’s circumstances and

intended rehabilitation, then there is no basis for this Court to reverse either the circuit court

or the Court of Appeals. These conditions were not accorded to Mackey as “a matter of

right,” but by “grace” in the “sound judicial discretion [of] the trial judge . . . .” Cobb, 437

So. 2d at 1221. Obviously, the best interest of Mackey and the public is served by Mackey

accepting the responsibility of supporting his family, while engaged in gainful employment.



       5
        Contrary to the Majority’s assertion, I find nowhere in Cobb or McCreary where “a trial
judge’s reasons for ordering banishment . . . must be articulated . . . .” (Maj. Op. at ¶ 23).

                                               13
I fail to appreciate that the best interest of the public is served by the Majority’s disposition,

which results in no jail time (other than time served), to a person who was indicted on two

counts for the sale of controlled substances, and one count of receipt of stolen property;6 or,

alternatively, how the best interest of the public would not be served by Mackey taking a job

and supporting his wife and son. The record also indicates that Mackey is no stranger to the

Forrest County Circuit Court, where he also was convicted of grand larceny in 1996. As long

as the conditions were reasonable under the circumstances, they should be upheld. I

conclude that they satisfy the standards imposed by Cobb.

¶31.   Contrary to the Majority’s assertion that the record contains no “scrap of evidence

available to the trial court in reaching it decision to banish Mackey[,]” the record reflects

fairly debatable bases for imposition of the banishment condition, which supports the best

interest of justice and Mackey. (Maj. Op. at ¶ 21). Mackey swore in open court that he (1)

was going to Minnesota (more than 100 miles from Hattiesburg), where he (2) could take

care of his wife and son who lived in St. Louis Park, Minnesota, (3) had a job in

Minneapolis, Minnesota, and (4) could continue with his life and try to better himself and his

conditions.

¶32.   The record is patently clear that the petitioner’s wife lived in Minnesota, his child

lived in Minnesota, and he had a job in Minnesota. At the time he was arrested for the

revocation hearing, he claimed to have a train ticket to Chicago, Illinois. The record also


       6
        Mackey had one charge of sale of controlled substances, along with a charge of
receipt of stolen property, passed to the files.

                                               14
reflects that he had only one family member living in Forrest County, from whom he was

estranged, all factors ignored by the Majority in concluding that the trial judge abused his

discretion for not articulating what he knew and considered in the sentencing order. Based

upon the evidence “made and presented” in this record, a fair-minded jurist could conclude

that the “conditions imposed by the sentencing judge[,]” including the banishment condition,

were “reasonably related to” Mackey’s “intended rehabilitation.” Cobb, 437 So. 2d at 1220.

                                                 II.

¶33.   Alternatively, if one concluded, as have the Majority and Presiding Justice Graves,

that the banishment condition of Mackey’s suspended sentence is unlawful7 or illegal, the

proper disposition of this case is controlled by the analysis in Presiding Justice Graves’s

dissent.

¶34.   Mackey claims, inter alia, that the offer of this “illegal” sentence was just too good

to be passed on by any person. Under oath, he has petitioned this Court to set aside his plea

of guilty, asserting it was involuntary and he should be allowed to withdraw it. No

conviction can stand without a guilty plea or conviction by a jury. See Miss. Code Ann. §

99-19-3(1) (Rev. 2007).




       7
         Eight judges of the Court of Appeals found it “lawful, yet lenient,” with two judges joining
in result only. Mackey v. State, – So. 3d –, 2009 WL 921117, at *2 (Miss. Ct. App. April 7, 2009).
The Majority fails to address the Court of Appeals’ attending analysis, i.e., “that a prisoner
may not challenge the legality of a lenient suspended sentence only after he is unable to
satisfy the conditions attached to that sentence.” Id.

                                                 15
¶35.   The Majority’s resolution fails to comport with due process. If the Court accepts the

premise that, indeed, the sentence, its conditions, and/or the revocation of the sentence were

illegal, and further accepts the premise that no person would turn them down, then Mackey

should receive the relief he seeks and be allowed to withdraw his plea of guilty to a crime he

claims he never committed. In short, this Court must examine this conundrum from the start.

If the plea was invalid, it follows that imposing the remaining conditions of the sentence is

likewise invalid.

¶36.   Mackey asserts that his sentence is illegal, a point with which the Majority and

Presiding Justice Graves agree. Yet the Majority fails to address Mackey’s assertions that

he would not have pleaded guilty, but for being offered such an attractive illegal sentence.

The Majority’s focus on the revocation order, versus his guilty plea and sentencing order, is

placing the cart before the horse. If Mackey is granted the relief he seeks, as opined by

Presiding Justice Graves, the appropriate remedy would be to grant Mackey’s plea, and allow

him to withdraw his guilty plea, which was prompted by the offer of the illegal sentence.

Then Mackey could elect to negotiate a new plea or demand his right to a jury trial. Mackey

recognized this and cited McCreary as authority. All he has asked from this Court was to

withdraw his plea of guilt and stand before a jury of his peers to prove his innocence, a right

guaranteed to him by both the United States and Mississippi Constitutions.




                                              16
                                             III.

¶37.   For all of the aforementioned reasons, I respectfully dissent to the Majority and join

the separate opinion of Presiding Justice Graves in part.

     GRAVES, PRESIDING                JUSTICE,      CONCURRING           IN   PART        AND
DISSENTING IN PART:

¶38.   The majority of this Court finds that a condition of Mackey’s guilty plea agreement

and sentence is unenforceable and simply reverses his revocation. Because I would find that

Mackey’s plea was not knowing, intelligent, and voluntary, I respectfully concur in part and

dissent in part.

¶39.   A valid guilty plea must be a voluntary and intelligent choice by the defendant.

Hannah v. State, 943 So. 2d 20, 25 (Miss. 2006). Mackey has the burden of proving that his

plea was not voluntarily, knowingly, and intelligently given. Id. (quoting Gardner v. State,

531 So. 2d 805, 810 (Miss. 1988)). The United States Supreme Court has relied on the Fifth

Circuit Court of Appeals’ standard of voluntariness of guilty pleas, as follows:

       (A) plea of guilty entered by one fully aware of the direct consequences,
       including the actual value of any commitments made to him by the court,
       prosecutor, or his own counsel, must stand unless induced by threats (or
       promises to discontinue improper harassment), misrepresentation (including
       unfulfilled or unfulfillable promises), or perhaps by promises that are by their
       nature improper as having no proper relationship to the prosecutor’s business
       (e.g. bribes).

Brady v. United States, 397 U.S. 742, 90 S. Ct. 1463, 25 L. Ed. 2d 747 (1969) (quoting

Shelton v. United States, 246 F. 2d 571, 572 n. 2 (5th Cir. 1957), rev’d on other grounds, 356

U.S. 26, 78 S. Ct. 563, 2 L. Ed. 2d 579 (1958)).


                                             17
¶40.   Rule 8.04 of the Mississippi Uniform Circuit and County Court Rules provides, in

relevant part:

              Before the trial court may accept a plea of guilty, the court must
       determine that the plea is voluntarily and intelligently made and that there is
       a factual basis for the plea. A plea of guilty is not voluntary if induced by fear,
       violence, deception, or improper inducements. A showing that the plea of
       guilty was voluntarily and intelligently made must appear in the record.

URCCC 8.04(3).

¶41.   The majority finds that the banishment provision is unenforceable and that the trial

court erred in revoking Mackey’s suspended sentence on the basis of this illegal sentence.

The banishment provision is a misrepresentation as contemplated by both the Fifth Circuit

Court of Appeals and the United States Supreme Court and an improper inducement as

defined by the Mississippi Uniform Circuit and County Court Rules. Mackey asserts that he

would not have pleaded guilty, if not for the offer of this illegal sentence. This Court has

more than sufficient evidence and legal authority before it to find that Mackey’s plea was not

knowing, intelligent, and voluntary. Therefore, I would set aside Mackey’s guilty plea.

Hence, both the State and the defendant would be returned to the positions they were in

before the plea agreement was entered.

¶42.   For the reasons stated herein, I respectfully concur in part and dissent in part.

     KITCHENS, J., JOINS THIS OPINION.                     RANDOLPH, J., JOINS THIS
OPINION IN PART.




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