                    IN THE SUPREME COURT OF MISSISSIPPI

                                NO. 2005-KA-01938-SCT


RONALD CHRIS FOSTER
a/k/a RON CHRIS FOSTER

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         09/02/2005
TRIAL JUDGE:                              HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  MICHAEL R. FARROW
                                          STEVE WALLACE
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JOHN R. HENRY
DISTRICT ATTORNEY:                        FORREST ALLGOOD
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 05/31/2007
MOTION FOR REHEARING FILED:
MANDATE ISSUED:


       EN BANC.

       WALLER, PRESIDING JUSTICE, FOR THE COURT:

¶1.    We vacated the death sentence of Ronald Chris Foster pursuant to the United States

Supreme Court’s decision in Roper v. Simmons, and directed the Circuit Court of Lowndes

County to resentence Foster to life in prison without the possibility of parole under Miss.

Code Ann. § 99-19-107 (Rev. 2000). The circuit court complied with that directive. On

appeal, Foster challenges the applicability of section 99-19-107 and argues that we erred in

not resentencing him under the 1991 version of Mississippi’s capital murder statute, which
would require a sentence of life with the possibility of parole. Because Foster’s case is

procedurally barred, and because we properly applied Miss. Code Ann. § 99-19-107 to

Foster’s case, the order from the circuit court is affirmed.

                                           FACTS

¶2.    Ronald Chris Foster was convicted in 1991 for capital murder with the underlying

felony of armed robbery and was sentenced to death. He was seventeen years old at the time

of the offense. We affirmed his conviction and sentence on direct appeal. Foster v. State,

639 So. 2d 1263 (Miss. 1994). Foster subsequently brought a motion for post-conviction

relief, arguing that his diminished mental capacity made the imposition of the death penalty

unconstitutional pursuant to the United States Supreme Court’s decision in Atkins v.

Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002). We addressed those

claims in Foster v. State, 848 So. 2d 172 (Miss. 2003), and directed the circuit court to

conduct an Atkins hearing on the issue of Foster’s mental retardation.

¶3.    In the wake of the United States Supreme Court’s decision in Roper v. Simmons, 543

U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005), which held that the application of the

death penalty against juvenile offenders violated the Eighth and Fourteenth Amendments,

we granted a motion by the State of Mississippi to withdraw our mandate for an Atkins

hearing, vacated Foster’s death sentence, and directed the Lowndes County Circuit Court to

sentence Foster to life without the possibility of parole under Miss. Code Ann. § 99-19-107.

Foster v. State, 2005 Miss. LEXIS 476 (Miss. 2005); 95-DR-00750-SCT. Foster did not

respond to the State’s motion for resentencing and did not file a motion for reconsideration

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after it was granted. After the case was remanded to the circuit court, Foster filed a motion

for a new sentencing hearing, alleging that this Court’s order imposed an impermissible ex

post facto sentence. The circuit court denied Foster’s motion, finding that it had no

discretion to consider the propriety of Foster’s claim. Foster then appealed both this Court’s

final judgment and the denial of his motion for a sentencing hearing.

                                       DISCUSSION

¶4.    On appeal, Foster argues that his sentence constitutes an impermissible ex post facto

punishment since the only sentencing options available under Miss. Code Ann. § 97-3-21

(1991) at the time of sentencing were death or life with the possibility of parole. He further

argues that Miss. Code Ann. § 99-19-107, which states that if the death penalty is deemed

unconstitutional, we must amend a defendant’s sentence to life without the possibility of

parole, is not applicable because Roper v. Simmons did not deem all applications of the death

penalty unconstitutional, but only those imposed on juvenile offenders.

¶5.    The State responds that Foster is procedurally barred from bringing an appeal to this

Court’s resentencing order, since he did not file a response to the State’s motion to

resentence, and that the application of Miss. Code Ann. § 99-19-107 presents no ex post facto

problem, since the statute was passed on July 1, 1982, years before Foster’s original

sentencing.

       I.     WHETHER FOSTER IS PROCEDURALLY                            BARRED        FROM
              CHALLENGING HIS SENTENCE.




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¶6.    The trial court was correct in noting that it had no discretion to consider Foster’s ex

post facto claim. The execution of orders issued by this Court is a purely ministerial act, and

lower courts have no authority to alter or amend them. See, e.g., Miss. Comm'n on Judicial

Performance v. Sanders, 708 So. 2d 866, 874 (Miss. 1998). Instead, Foster’s claim should

have been raised in a response to the State’s motion to this Court under

Miss. R. App. P. 27(a), or, in the alternative, in a motion for reconsideration of a motion

under Miss. R. App. P. 27(h), or in a motion for rehearing under Miss. R. App. P. 40, after

we granted the State’s motion. His failure to do so bars his claim. In the alternative, his

claim is without merit.

       II.    WHETHER THE APPLICATION OF MISS. CODE ANN. § 99-19-107
              CONSTITUTES AN EX POST FACTO PUNISHMENT.

¶7.    Foster first asserts that, after his death sentence was vacated, the only option available

to this Court was the imposition of a sentence of life with the possibility of parole under the

version of the capital murder statute in effect at the time the crime was committed. See Miss.

Code Ann. § 97-3-21 (1991). He argues that no statute in effect at the time authorized a

sentence of life without parole, and that the sentence therefore constitutes an unconstitutional

ex post facto punishment under Article 3, Section 16 of the Mississippi Constitution and

Article 1, Section 10 of the United States Constitution. This contention misstates the

applicable law. At the time of he committed the crime, Foster was equally subject to Miss.

Code Ann. § 99-19-107 (Rev. 2000), amended in 1982, which states that:

                    In the event the death penalty is held to be
              unconstitutional by the Mississippi Supreme Court or the United

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              States Supreme Court, the court having jurisdiction over a
              person previously sentenced to death shall cause such person to
              be brought before the court and the court shall sentence such
              person to imprisonment for life, and such person shall not be
              eligible for parole.

Where this statute governs a defendant’s sentence, it plainly authorizes a sentence of life

without parole. Therefore, the only question is whether the United States Supreme Court’s

prohibition on the execution of juvenile offenders falls within the scope of this statute.

¶8.    The language of the statute is clear; it intends to provide for an alternative sentence

for a person whose death sentence has been deemed unconstitutional. This Court has

previously addressed the scope of section 99-19-107 in Abram v. State, 606 So. 2d 1015

(Miss. 1992). In Abram, this Court held that the statute was applicable “for that event when

either this Court or the United States Supreme Court makes a wholesale declaration that the

death penalty in general, and/or our own statutory death penalty scheme in particular, is

unconstitutional.” Abram, 606 So. 2d at 1039. The “wholesale declaration” requirement set

out in Abram is extraneous language that is unnecessary to the application of the statute. The

statute provides that no one whose death penalty is ruled unconstitutional may receive parole.

To the extent that Abram is inconsistent with the plain meaning of section 99-19-107, it is

hereby overruled. Because Foster’s death penalty was found unconstitutional by the United

States Supreme Court’s ruling in Roper, the application of section 99-19-107 is appropriate.

                                      CONCLUSION

¶9.    Foster’s challenge to the application of section 99-19-107 to his case is barred because

he failed to raise this issue before this Court before the remand for resentencing. Because

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this Court and the circuit court correctly applied Miss. Code. Ann. § 99-19-107 in

resentencing Foster, and because application of the statute in no way constitutes an ex post

facto punishment, our order resentencing Foster to life in prison without the possibility of

parole is affirmed.

¶10. CONVICTION OF CAPITAL MURDER AND SENTENCE OF LIFE
IMPRISONMENT IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS WITHOUT THE POSSIBILITY OF PAROLE, AFFIRMED.

     SMITH, C.J., CARLSON, DICKINSON AND RANDOLPH, JJ., CONCUR.
DIAZ, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
GRAVES, J. EASLEY AND LAMAR, JJ., NOT PARTICIPATING.




       DIAZ, PRESIDING JUSTICE, DISSENTING:

¶11.   Because I disagree with overruling prior precedent and do not agree that Miss. Code

Ann. § 99-19-107 (Rev. 2000) applies in this case, I must respectfully dissent.

¶12.   Today’s “plain meaning” interpretation of Section 99-19-107 is completely at odds

with a reading of the statute that this Court previously saw as “fairly obvious.” Abram v.

State, 606 So. 2d 1015, 1039 (Miss. 1992) (“Although there are no cases addressing the

precise application of § 99-19-107, we think it fairly obvious that it is reserved for that event

when either this Court or the United States Supreme Court makes a wholesale declaration

that the death penalty in general, and/or our own statutory death penalty scheme in particular,

is unconstitutional.”). In Abram, we considered whether Section 99-19-107 was applicable

to a defendant whose death sentence had been vacated under Enmund v. Florida for failure

to prove an intent to kill. See Enmund v. Florida, 458 U.S. 782, 73 L. Ed. 2d 1140, 102 S.

                                               6
Ct. 3368 (1982), modified by Tison v. Arizona, 481 U.S. 137, 95 L. Ed. 2d 127, 107 S. Ct.

1676 (1987) (finding that proof of an intent to kill was not required under the Eighth

Amendment). In this context, we found that Section 99-19-107 was not applicable because

Enmund did not invalidate a statutory scheme in whole or in part, but merely stipulated a

minimum level of culpability that had to be found by the jury in order to impose the death

penalty. We recognized that the savings statute “is not reasonably or logically intended for

use on a case by case basis by trial courts or this Court.” Abram, 606 So. 2d at 1039.

¶13.   Accordingly, it is only where the mechanisms for instituting the death penalty (the

statutory scheme) are found to be unconstitutional that this provision applies. Such was the

case in Furman v. Georgia, where the United States Supreme Court found that Georgia’s

death penalty statutes were unconstitutional. 408 U.S. 238, 33 L. Ed 346, 92 S. Ct. 2726

(1972). This forced our Court to invalidate all death sentences because our statutory scheme

was substantially similar to the one in Georgia. Peterson v. State, 268 So. 2d 335, 338 (Miss.

1972); see also Cowart v. State, 270 So. 2d 350 (Miss. 1972) (holding that because the death

penalty was unconstitutional under Furman, the defendant must be sentenced to life).

¶14.   Both legislative history and prior precedent support this interpretation. Once the

United States Supreme Court reaffirmed the use of the death penalty in 1976, our Legislature

set about amending our death penalty scheme to comply with constitutional requirements.

Miss. Code Ann. § 97-3-21 (1977); Gregg v. Georgia, 428 U.S. 153, 49 L. Ed. 2d 859, 96

S. Ct. 2909 (1976). With our revised death penalty scheme, the Legislature also passed the

“trigger” statute “in the event the death penalty is held to be unconstitutional.” Laws, 1977,

                                              7
ch. 458, § 5. In light of Furman and the temporary suspension of capital punishment, it is

only reasonable to conclude that this statute was intended to be used in case of a wholesale

invalidation of the death penalty, whether through federal or state means. Abram, 606 So.

2d at 1039 (Miss. 1992).

¶15.   With the exception of the present case, this Court has never referred to Miss. Code

Ann. § 99-19-107 when vacating a death sentence on the basis of Roper. Compare Foster

v. State, 2005 Miss. LEXIS 476 (Miss. 2005) (citing Miss. Code Ann. § 97-3-21) with

Eskridge v. State, 2005 Miss. LEXIS 665 (Miss. 2005) (not citing Miss. Code Ann. § 97-3-

21); McGilberry v. State, 2005 Miss. LEXIS 598 (Miss. 2005) (not citing Miss. Code Ann.

§ 97-3-21); Dycus v. State, 910 So. 2d 1100, 1101 (Miss. 2005) (not citing Miss. Code Ann.

§ 97-3-21). In Eskridge, we simply remanded the case for re-sentencing without mandating

a term. 2005 Miss. LEXIS 665. While we ordered sentences of life imprisonment without

parole in McGilberry and Dycus, their sentencing hearings were conducted after the 1994

revision to Miss. Code Ann. § 97-3-21 allowing for life without parole.      McGilberry v.

State, 843 So. 2d 21 (Miss. 2003) (1996 sentencing); Dycus, 910 So. 2d 1100 (1998

sentencing).

¶16.   Furthermore, we have never referred to Miss. Code Ann. § 99-19-107 in any case

remanded for an Atkins hearing. See Scott v. State, 938 So. 2d 1233 (Miss. 2006); Brown

v. State, 875 So. 2d 202 (Miss. 2004); Conner v. State, 904 So. 2d 105 (Miss. 2004); Doss

v. State, 882 So. 2d 176 (Miss. 2004); Snow v. State, 875 So. 2d 188 (Miss. 2004); Smith v.



                                             8
State, 877 So. 2d 369 (Miss. 2004); Chase v. State, 873 So. 2d 1013 (Miss. 2004); Neal v.

State, 873 So. 2d 1010 (Miss. 2004); Carr v. State, 873 So. 2d 997 (Miss. 2004); Goodin

v. State, 856 So. 2d 95 (Miss. 2003); Russell v. State, 849 So. 2d 95 (Miss. 2003). Foster

was given the opportunity to proceed with an Atkins claim, but the order allowing his hearing

was vacated in light of Roper. Foster v. State, 848 So. 2d 172, 175 (Miss. 2003); Foster,

2005 Miss. LEXIS 476 (Miss. 2005). While this Court has never addressed the issue, I

would also hold that the trigger statute does not apply in Atkins cases. This is consistent with

our reasoning in Abram that Miss. Code Ann. § 99-19-107 (Rev. 2000) should not be applied

on a “case-by-case” basis as trial judges in Atkins cases must make a factual determination

that a defendant is or is not mentally retarded. If the trigger statute does not apply in Atkins,

then Foster should be allowed to proceed with his mental retardation claim as well.

¶17.   Our sentencing scheme at the time of Foster’s sentencing provided two alternatives:

death and life with the possibility of parole. Miss. Code Ann. § 97-3-21 (Rev. 1977).

Because the United States Supreme Court has not ruled the death penalty unconstitutional,

Miss. Code Ann. § 99-19-107 is inapplicable, and Foster’s sentence should reflect what was

available in 1991. For the foregoing reasons, I would reverse the previous sentencing order

and resentence Foster to a term of life.

       GRAVES, J., JOINS THIS OPINION.




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