                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-CT-00963-SCT

MARK DWAYNE SUMRELL

v.

STATE OF MISSISSIPPI

                             ON WRIT OF CERTIORARI

DATE OF JUDGMENT:                         04/26/2005
TRIAL JUDGE:                              HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   STEPHEN NICK
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: DESHUN TERRELL MARTIN
DISTRICT ATTORNEY:                        JOYCE IVY CHILES
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 01/10/2008
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       SMITH, CHIEF JUSTICE, FOR THE COURT:

¶1.    Mark Dwayne Sumrell was convicted of felony shoplifting and sentenced to life

imprisonment as a habitual offender by the Washington County Circuit Court. We assigned

the case to the Court of Appeals which affirmed his conviction and sentence in Sumrell v.

State, 2006 Miss. App. LEXIS 901 (Miss. Ct. App. Dec. 5, 2006) Sumrell filed a petition

for certiorari which this Court granted. Finding no reversible error, we affirm.

                                         FACTS
¶2.    On October 13, 2003, James Ross, a security guard at the Kroger grocery store in

Greenville, Mississippi, saw Mark Dwayne Sumrell remove a leather jacket from a rack in

Kroger. Ross followed Sumrell and saw him put on the jacket. Ross also noticed that the

price tags had been removed from the jacket. Sumrell approached the store exit without

paying for the jacket. Ross apprehended Sumrell and asked him remove the jacket and go

to the store’s office with him. Sumrell asked if he could remove the jacket and leave, but

Ross insisted that Sumrell go to the office, where Ross called police.

¶3.    The police arrived, questioned Sumrell, photographed the leather jacket, and arrested

Sumrell for shoplifting. Sumrell had two prior shoplifting convictions, thus he was charged

with third-offense shoplifing, a felony. Miss. Code Ann. § 97-23-93(6) (Rev. 2006).

¶4.    The trial court appointed Carol White-Richard, of the Washington County Public

Defender’s Office, as counsel for Sumrell. Ultimately, White-Richard accepted a job with

the Washington County District Attorney’s Office and Stephen Nick was appointed as

Sumrell’s new counsel.

                                       DISCUSSION

¶5.    We find no merit to nor reason for discussion of most of the issues raised on certiorari.

We adopt the reasoning and analysis of the Court of Appeals on those issues. We do,

however, address the following issues raised for the first time on certiorari.

       I.     Whether Sumrell Legitimately Raised the Issues Before the Court
              of Appeals that he now argues before this Court.




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¶6.    After a careful review of the record, this Court concludes that Sumrell never raised

either of the issues that he now claims were not addressed by the Court of Appeals: (1) that

he was improperly sentenced under Mississippi Code Section 99-19-83; and (2) an Eighth

Amendment proportionality claim. While pro se litigants are afforded some leniency, they

“must be held to substantially the same standards of litigation conduct as members of the

bar.” Perry v. Andy, 858 So. 2d 143, 146 (Miss. 2003).

¶7.    Appellate counsel was appointed to represent Sumrell in his appeal. Sumrell’s appeal

was filed on April 28, 2005, and was assigned to the Court of Appeals in May. In August,

Sumrell mailed his own letter to the clerk of the Mississippi Supreme Court and copied his

attorney. The letter stated that he was attempting to perfect his own appeal, listing three

issues that he intended to raise in his appeal. The issues Sumrell listed included an argument

that he was illegally sentenced under the habitual-offender statute, but he failed to mention

the issue of proportionality. Sumrell did attach a list of citations to cases he deemed

important including Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637 (1983),

which addresses proportionality. In relation to the statement of issues in an appellant’s brief,

Mississippi Rules of Appellate Procedure 28(a)(3) states that “[n]o separate assignment of

errors shall be filed” and that “[n]o issue not distinctly identified shall be argued by counsel,

except upon request of the court.” We find that a mere letter to the Clerk does not

sufficiently raise or preserve an issue for appeal.

¶8.    In April of the following year, Sumrell’s court-appointed appellate counsel filed

Sumrell’s appellant’s brief. This brief officially asserted Sumrell’s issues for appeal. It

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included four issues, which were properly addressed by the Court of Appeals. One of the

issues stated, “The appellant asserts that counsel did not sufficiently contest the requested

amendment to the indictment, [i].e. changing same from 99-19-81 to 99-19-83.” The brief

included an excerpt from the trial transcript which included a statement of Sumrell’s trial

counsel asserting that the State did not show in the indictment that Sumrell was sentenced

to and actually served more than one year on the underlying offenses. However, the issue

as raised on appeal was couched as an ineffective-assistance-of-counsel claim.

¶9.     In May, Sumrell sent another letter to the Clerk of the Mississippi Supreme Court and

copied his attorney and the Mississippi Attorney General. This letter stated that Sumrell

wanted his attorney to supplement his brief with the argument that the State failed to prove

that he was sentenced to, and actually served, a year on each of the underlying offenses.

Again, we find that this letter did not act as a pro se brief, nor did it bring or preserve this

issue before the Court of Appeals. Sumrell did not file a supplemental or reply brief, and in

December 2006, the Court of Appeals handed down its decision unanimously affirming the

trial court.

¶10.    In April 2007, Sumrell finally filed a pro se motion for post-conviction relief and an

accompanying supporting brief, which he should have done in the very beginning of the

appeal process. In this accompanying brief, Sumrell for the first time legitimately argues that

the trial court erred in sentencing him under the habitual-offender statute because the State

failed to prove that he was sentenced to and actually served more than one year on the




                                               4
underlying offenses. This is also the first time Sumrell legitimately asserted that the sentence

violated his constitutional rights because it was not proportionate to the crimes committed.

¶11.   This Court recognizes that issues not raised on direct appeal or before the trial court

are procedurally barred and are not subject to further review. Wilcher v. State, 479 So. 2d

710, 712 (Miss. 1985). The Court of Appeals had rendered its opinion four months prior to

Sumrell filing this pro se brief, and the Court of Appeals opinion was final as that court had

denied Sumrell’s motion for rehearing and issued its mandate.

¶12.   In May 2007, Sumrell’s appellate counsel filed a petition for certiorari with this Court.

Again, he raised the same issues he had raised before the Court of Appeals. The issues raised

included the ineffective-assistance-of-counsel issue relating to the amendment of the

indictment under the habitual offenders statute. The petition made no mention whatsoever

of the proportionality issue.

¶13.   In June 2007, Sumrell filed a pro se petition for certiorari with this Court. In it,

Sumrell asserted that the State did not prove he was sentenced to and served one year for the

underlying offenses. Sumrell never legitimately raised this issue before the Court of Appeals.

Furthermore, Sumrell’s petition for certiorari failed to mention the proportionality issue.

This Court has held that issues not raised at trial or on direct appeal are procedurally barred.

McFarland v. Entergy Miss., Inc., 919 So. 2d 894, 904 (Miss. 2005).

¶14.   Based on the above facts gleaned from the record, we find that Sumrell did not

legitimately raise before the Court of Appeals either of the issues he now attempts to argue

before this Court.     Therefore, consideration by this Court by way of certiorari is

                                               5
inappropriate.   We accordingly apply the procedural bar. Procedural bar notwithstanding,

the Court will address these issues on the merits.

       II.    Whether Sumrell Was Properly Sentenced Under Mississippi’s
              Habitual Offender Statute.

¶15.   Mississippi’s habitual-offender statute, Mississippi Code Annotated Section 99-19-83

provides:

              Every person convicted in this state of a felony who shall have been
       convicted twice previously of any felony or federal crime upon charges
       separately brought and arising out of separate incidents at different times and
       who shall have been sentenced to and served separate terms of one (1) year or
       more in any state and/or federal penal institution, whether in this state or
       elsewhere, and where any one (1) of such felonies shall have been a crime of
       violence shall be sentenced to life imprisonment, and such sentence shall not
       be reduced or suspended nor shall such person be eligible for parole or
       probation.

Miss. Code Ann. § 99-19-83 (Rev. 2007). We note at the outset that the State must prove

that the Sumrell actually served one year or more on two felony convictions. At trial, the

trial court admitted the Mississippi Department of Corrections pen pack into evidence. The

pen pack established the following facts:

       1.     Sumrell was convicted of armed robbery, cause number 22,242, and
              sentenced to probation on September 23, 1991.

       2.     Sumrell’s probation on the armed robbery conviction was revoked on
              February 22, 1993, and he was sentenced to a three-year sentence.
              Sumrell began serving this sentence on February 11, 1993.

       3.     Sumrell was convicted of possession of cocaine, cause number 23,077,
              on February 22, 1993, and he was sentenced to a three-year sentence to
              run concurrently with his robbery sentence. Sumrell began serving this
              sentence on February 11, 1993.


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       4.       An amended order was entered on July 20, 1993.

       5.       Sumrell was released from jail on both the robbery and possession-of-
                cocaine sentences on March 23, 1994.

¶16.   The above facts indicate that Sumrell served more than one year on both sentences.

All the documents in the pen pack establish that Sumrell, in fact, was sentenced and served

a year on the separate offenses of robbery and possession of cocaine. Therefore, the circuit

court did not err in sentencing Sumrell in the present case as a habitual offender under

Mississippi Code Annotated Section 99-19-83.

       III.     Whether Sumrell’s Life Sentence Was Disproportionate In Light
                of His Crimes.

¶17.      “[T]he general rule in Mississippi is that a sentence that does not exceed the

maximum term allowed by the statute, cannot be disturbed on appeal.” Edwards v. State,

800 So. 2d 454, 468 (Miss. 2001) (citing Fleming v. State, 601 So. 2d 280, 302 (Miss.

1992)).     This Court “will review a sentence that allegedly imposed a penalty that is

disproportionate to the crime.” Id.

¶18.   In Edwards, this Court discussed the proportionality analysis as laid out by the United

States Supreme Court:

       The United States Supreme Court set forth a three-prong test for an Eighth
       Amendment proportionality analysis in Solem as follows:

                (i) the gravity of the offense and the harshness of the penalty;
                (ii) the sentence imposed on other criminals in the same
                jurisdiction; and
                (iii) the sentences imposed for commission of the same crime in
                other jurisdictions.


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       This Court noted, however, that Solem was overruled in Harmelin v.
       Michigan, 501 U.S. 957, 965-66, 111 S. Ct. 2680, 2686-87, 115 L. Ed. 2d 836
       (1991) "to the extent that it found a guarantee of proportionality in the Eighth
       Amendment. In light of Harmelin, it appears that Solem is to apply only when
       a threshold comparison of the crime committed to the sentence imposed leads
       to an inference of 'gross disproportionality.'" Hoops v. State, 681 So. 2d at 538
       (citations omitted). The appellate courts will not apply the three-prong
       disproportionality test when there is a lack of this initial showing. Young v.
       State, 731 So. 2d 1120, 1125 (Miss. 1999); Williams v. State, 784 So. 2d 230,
       236 (Miss. Ct. App. 2000).

800 So. 2d at 469. Applying our reasoning in Edwards to the case at bar, we find no merit

to the issues.

                                        CONCLUSION

¶19.   While Sumrell eventually did raise both of the issues that he now attempts to argue

before this Court, he did not do so legitimately under the Rules of Appellate Procedure and

our case law, or at the proper time to preserve the issues for appeal. Thus, we apply the

procedural bar. Alternatively, procedural bar notwithstanding, we find no valid basis for

the issues Sumrell raises considering the merits. We therefore affirm the judgments of the

Court of Appeals and the trial court.

¶20. THE JUDGMENT OF THE COURT OF APPEALS IS AFFIRMED.
CONVICTION OF FELONY SHOPLIFTING AND SENTENCE OF LIFE
IMPRISONMENT, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE
MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED.

     WALLER, P.J., EASLEY, CARLSON AND RANDOLPH, JJ., CONCUR.
LAMAR, J., CONCURS IN RESULT ONLY. DIAZ, P.J., CONCURS IN PART AND
DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY
GRAVES AND DICKINSON, JJ.




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

¶21.   I concur in the affirmance of Sumrell’s conviction for felony shoplifiting, but I dissent

from the affirmance of his sentence as a habitual offender. By holding that the trial court did

not err in sentencing the defendant under Section 99-19-83, the majority makes a finding of

fact that the trial judge never addressed, that the State never attempted to prove, and that is

simply unsupported by the record. For these reasons, I must respectfully dissent in part.

¶22.   Although the bulk of the majority opinion is devoted to finding that Sumrell is

procedurally barred, prior precedent requires that this Court apply plain-error review to the

habitual offender issue. This Court has previously held that when a defendant is wrongfully

sentenced under Section 99-19-83 rather than Section 99-19-81, such an error is a denial of

due process and is “too significant a deprivation of liberty to be subjected to a procedural

bar.” Smith v. State, 477 So. 2d 191, 195 (Miss. 1985). Because this is the exact issue raised

in this case, this Court is bound by prior precedent to apply plain-error review.

¶23.   Regarding the merits, the majority fails to acknowledge that the State must prove

“beyond a reasonable doubt” that Sumrell actually served a year or more on each conviction.

“Even though a defendant is not entitled to have a jury to pass upon the issue, the state has

the burden of proving beyond a reasonable doubt all the elements required to convict an

accused under Miss. Code Ann. § 99-19-83.” Ellis v. State, 485 So. 2d 1062, 1063 (Miss.

1986) (citing Wilson v. State, 395 So. 2d 957 (Miss. 1981)). “An essential ingredient of

[Section 99-19-83] is that the defendant shall have served at least one year under each


                                               9
sentence.” Ellis, 485 So. 2d at 1064. Accordingly, if the State fails to prove that the

defendant actually served one year or more on two felony convictions, this Court must vacate

the sentence and remand the case for resentencing. Armstrong v. State, 618 So. 2d 88, 89

(Miss. 1993) (citing Ellis, 485 So. 2d 1062).

¶24.   Despite the majority’s conclusion, the State failed to prove beyond a reasonable doubt

that Sumrell served at least a year or more on each conviction. At the sentencing hearing,

the trial court admitted Sumrell’s pen pack during the testimony of Melvin Edwards of the

Mississippi Department of Corrections. Edwards testified that the pen pack showed that

Sumrell was convicted on September 23, 1991 for robbery and sentenced to three years

supervised probation. He also testified that the documents demonstrated that Sumrell was

convicted for possession of cocaine on February 22, 1993. Edwards never stated the

sentence for the possession conviction, and he also never stated that Sumrell actually served

a year or more on each charge.

¶25.   The pen pack, consisting of MDOC documents and court orders, does show that

Sumrell was convicted of possession of cocaine and robbery; however, it does not show,

beyond a reasonable doubt, that he served at least one year for each crime. On February 22,

1993, the Washington County Circuit Court ordered Sumrell to serve a three-year sentence

for his possession conviction. On July 20, 1993, Sumrell was sentenced to another three-year

term for violating his probation. Sumrell entered MDOC custody on February 22, 1993, and

was discharged March 23, 1994. Therefore, while he served roughly thirteen months for his

possession conviction, Sumrell served only eight months for his probation violation.

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¶26.   The majority finds that Sumrell’s probation was revoked on February 22, 1993.

However, the order entered on that day sentenced Sumrell only on the possession charge.

The trial court did not order his probation revoked until July.

¶27.   This Court has held that any uncertainties in sentencing orders “must be resolved in

favor of the accused.” State v. Willis, 539 So. 2d 1043, 1045 (Miss. 1989); See also

Anderson v. State, 288 So. 2d 852, 855 (Miss. 1974) (citing Johnson v. State, 260 So. 2d

436 (Miss. 1972)). In addition, the orders imposing sentences control over the other

documents contained in the pen pack. See Anderson, 288 So. 2d at 855. Therefore, the

record fails to establish that Sumrell actually served a year or more on both charges.

¶28.   Moreover, the trial court never found that Sumrell actually served a year or more on

both prior convictions. The sentencing order simply tracked the language of the amended

indictment, which failed to include this essential element. The original indictment charged

Sumrell as a habitual offender under Section 99-19-81, which, if convicted, would require

Sumrell to be sentenced to five years. The prosecution moved to amend the indictment to

charge Sumrell under Section 99-19-83. Sumrell’s attorney objected to the amendment at

trial, and the prosecution admitted that the indictment was deficient:

       Defense:      Even with the amendment as the motion sets out, it still does not
                     satisfy the requirements of that statute under 99-19-83, and we
                     are objecting to the State proceeding under that particular statute
                     because of the errors.

       Court:        In what respect?

       Defense:      The fact that this does not satisfy the requirements of the statute.


                                              11
       Court:        What does it not satisfy?

       Defense:      It – Number 1, it doesn’t state the crime with which he’s been
                     charged. It does not state that he was sentenced and actually
                     served more than a year I think is what the requirement is. Not
                     only must he be sentenced to more than a year, he must actually
                     have served more than a year under that sentence.

       Court:        And your indictment – your indictment doesn’t include this?

       Prosecution: Probably not that portion.

Over this objection, the court allowed the amendment and sentenced Sumrell under Section

99-19-83 without finding that Sumrell had served at least a year or more on each conviction.

Without such a finding, the trial court could not have sentenced Sumrell to life as a habitual

offender. Ellis, 485 So. 2d at 1064.

¶29.   Because there was neither a finding nor an attempt to prove this essential element of

Section 99-19-83, Sumrell should not have been sentenced to life imprisonment as a habitual

offender. Armstrong, 618 So. 2d at 90; Ellis, 485 So. 2d at 1064; Smith, 477 So. 2d at 196.

In Ellis, this Court was presented with an almost identical scenario. The indictment charged

the defendant as a habitual offender under Section 99-19-83 but did not allege that he had

actually served any time. Ellis, 485 So. 2d 1062. At his sentencing hearing, the State

presented certified copies of two prior convictions, one with a sentence of three years and

one with a sentence of five years. Id. at 1062-63. No further findings were made on the

record, and the trial judge sentenced Ellis to life under Section 99-19-83. Id. at 1063. This

Court vacated the sentence and remanded the case for resentencing under Section 99-19-81

because “the state never proved, nor indeed attempted to prove in the circuit court that he had

                                              12
actually served one year or more on these [prior] sentences.” Ellis, 485 So. 2d 1063. See

also Ellis v. State, 520 So. 2d 495, 496 (Miss. 1988).

¶30.   Ellis is indistinguishable from the present case; and therefore, I would vacate

Sumrell’s sentence and remand for resentencing under Section 99-19-81 as originally

charged.

       GRAVES AND DICKINSON, JJ., JOIN THIS OPINION.




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