                   IN THE SUPREME COURT OF MISSISSIPPI

                               NO. 2010-KA-01311-SCT

CLIFF HENSLEY

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:                         05/12/2010
TRIAL JUDGE:                              HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED:                TISHOMINGO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   OFFICE OF INDIGENT APPEALS
                                          BY: W. DANIEL HINCHCLIFF
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
DISTRICT ATTORNEY:                        JOHN RICHARD YOUNG
NATURE OF THE CASE:                       CRIMINAL - FELONY
DISPOSITION:                              AFFIRMED - 09/08/2011
MOTION FOR REHEARING FILED:
MANDATE ISSUED:




       BEFORE DICKINSON, P.J., CHANDLER AND KING, JJ.

       CHANDLER, JUSTICE, FOR THE COURT:

¶1.    On May 11, 2010, a Tishomingo County jury found Cliff Hensley (Cliff) guilty of

conspiracy to manufacture methamphetamine in violation of Mississippi Code Sections 41-

29-139 and 97-1-1. Cliff was sentenced as a habitual offender to a term of twenty years in

the custody of the Mississippi Department of Corrections (MDOC). In this appeal, Cliff

asserts his sentence of twenty years is an improper sentence under the governing statutes.

                       FACTS AND PROCEEDINGS BELOW
¶2.    Jeff Palmer, former commander of the Stateline Narcotics Task Force,1 was working

closely with the Mississippi Bureau of Narcotics and the narcotics officers based out of

McNairy County, Tennessee, at the time of Cliff’s arrest. Palmer testified that an individual

buying pseudoephedrine would have to show a photo ID and sign a list identifying what kind

of pills and how many dosage units were being purchased. Palmer helped create a list for the

Stateline Narcotics Task Force of individuals who were known to cross state lines to

purchase pseudoephedrine.2 This list was placed at pharmacies, and the pharmacists or

pharmacy technicians would contact the task force when an individual on the list bought

pseudoephedrine.

¶3.    On June 20, 2007, Palmer received a phone call from the Kroger pharmacy in Corinth,

Mississippi, indicating that a Jeff Hensley (Jeff), who was on the pseudoephedrine list, had

entered the store requesting to buy pseudoephedrine. Palmer instructed the pharmacist to sell

the pseudoephedrine to Jeff.     Palmer then contacted Ben Caldwell, a Corinth Police

Department detective, to help conduct surveillance of the Kroger parking lot as Jeff was

leaving Kroger. While Palmer and Caldwell were conducting surveillance, Jeff and another

individual traveled to Burnsville, made a loop through a closed pharmacy parking lot, and

continued east on Highway 72. Shortly thereafter, Palmer and Caldwell conducted a traffic

stop of the car.




       1
        The Stateline Narcotics Task Force consisted of the Iuka Police Department,
Tishomingo County Sheriff’s Department, Corinth Police Department, and the Alcorn
County Sheriff’s Department. The task force no longer exists.
       2
           Pseudoephedrine is essential to the manufacture of methamphetamine.

                                             2
¶4.    Jeff was driving the vehicle, and Cliff was riding in the passenger seat at the time of

the stop. Palmer and Caldwell separated Cliff and Jeff, asked them questions, and received

contradictory answers concerning their trip to Alabama. Jeff gave Palmer permission to

search the vehicle. A plastic container containing around $100 in cash and forty-eight loose

pseudoephedrine pills was found.3 Two empty boxes of pseudoephedrine and a Kroger

receipt also were found.

¶5.    Cliff and Jeff were arrested and transported to the Tishomingo County Sheriff’s

Department. After reading Cliff and Jeff their Miranda 4 rights, Palmer received a written

statement from Cliff. Cliff gave Palmer the information, and Palmer made a written

statement. Cliff signed the statement agreeing with all facts contained in the statement. The

statement is as follows:

               During the past month, my brother, Jeff Hensley and I, have been
       purchasing pseudoephedrine pills. I have bought pills at Walgreen’s in
       Corinth and Kroger in Corinth. I have bought some at Rite Aid in Selmer,
       Tennessee, a couple of weeks ago. The pills I buy I give to Jeff. Jeff carries
       the pills to somebody that cooks meth. I am currently out on bond in McNairy
       County, Tennessee, for possession of meth. The last time I used meth was a
       couple of days ago.
               Today, Jeff and I rode to Corinth. Jeff bought two boxes of
       pseudoephdrine pills at Kroger. I popped the pills out and put them in a
       plastic container with our money. Jeff told me about a store in Burnsville, and
       we went there. The store was closed. We were headed to Alabama to buy
       some more pills when we were pulled over.




       3
         Palmer testified that pseudoephedrine pills are often emptied from the packaging so
the pills will be easier to hide or to begin the “break down” process necessary to include
pseudoephedrine in methamphetamine.
       4
           Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

                                              3
¶6.    Prior to the traffic stop, the officers did not know Cliff was in the vehicle, but Cliff’s

name was also on the list of individuals purchasing pseudoephedrine on a routine basis. Jeff

also gave a statement that explained their specific actions in attempting to buy pills at several

different pharmacies the day they were arrested.

¶7.    At trial, after Palmer’s testimony explaining how the brothers’ statements were

obtained, the State moved, outside the presence of the jury, to enter into evidence certified

copies of Cliff’s prior convictions. The State argued the convictions were to be introduced

under Mississippi Rule of Evidence Rule 404(b) to show Cliff’s purpose in purchasing and

being involved in the purchase of pseudoephedrine pills for the manufacture of

methamphetamine. The Court ruled that the prior convictions could be admitted to show

Cliff’s motive, opportunity, intent, preparation, plan, knowledge, or absence of mistake or

accident under Rule 404(b). The State prepared a limiting instruction to accompany these

prior convictions.

¶8.    Alicia Waldrop, a forensic drug analysis expert, testified that the pills found with Cliff

and Jeff were pseudoephedrine. After Palmer and Waldrop each concluded their testimony,

the State rested, and the defense moved for a directed verdict. The defense argued the State

was unable to prove that there had been an agreement on June 20, 2007, to manufacture

methamphetamine. The defense also argued that Hensley’s indictment should have specified

Section 41-29-315, which bars manufacture of methamphetamine, rather than Section 41-29-

139, which bars the manufacture of a controlled substance. See Miss. Code Ann. § 41-29-

315, § 41-29-139 (Rev. 2009). The motion for directed verdict was denied.




                                               4
¶9.    The State then moved to amend the indictment to charge Cliff as a habitual offender.

The motion previously had been filed, and defense counsel had been given notice of the

motion. The judge granted the motion. After putting on no witnesses, the defense rested.

The jury found Cliff guilty of conspiracy to manufacture methamphetamine. The trial judge,

finding that Cliff had been convicted three times previously of felony crimes and sentenced

on each conviction to separate terms of one year or more, sentenced Cliff as a habitual

offender pursuant to Mississippi Code Section 99-19-81 to twenty years in the custody of the

MDOC. See Miss. Code Ann. § 99-19-81 (Rev. 2007).

                                       DISCUSSION

       WHETHER THE SENTENCE OF TWENTY YEARS AS A HABITUAL
       OFFENDER WAS AN IMPROPER SENTENCE FOR CONVICTION
       OF CONSPIRACY TO MANUFACTURE A CONTROLLED
       SUBSTANCE UNDER THE MISSISSIPPI CODE SECTIONS LISTED
       IN THE INDICTMENT.

¶10.   Cliff argues that his sentence of twenty years exceeded the time allowed by the

governing statutes. “The imposition of a sentence is within the discretion of the trial court,

and this Court will not review the sentence, if it is within the limits prescribed by statute.”

Reynolds v. State, 585 So. 2d 753, 756 (Miss. 1991) (citing Reed v. State, 536 So. 2d 1336,

1339 (Miss. 1988)). This Court will not disturb a sentence if it does not exceed the

maximum term allowed by statute. Robinson v. State, 966 So. 2d 209, 214-15 (Miss. Ct.

App. 2007) (citing Fleming v. State, 604 So. 2d 280, 302 (Miss. 1992) (citing Adams v.

State, 410 So. 2d 1332, 1333-34 (Miss. 1982)).

¶11.   The indictment charged Cliff with conspiracy to manufacture methamphetamine, a

Schedule II controlled substance, in violation of Mississippi Code Sections 97-1-1 and 41-

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29-139(b)(1). Mississippi Code Section 97-1-1defines conspiracy generally and provides,

in relevant part:

        (1) If two (2) or more persons conspire . . .

         (h) To accomplish any unlawful purpose, or a lawful purpose by any
         unlawful means; such persons, and each of them, shall be guilty of a
         felony and upon conviction may be punished by a fine of not more than
         five thousand dollars ($5,000.00) or by imprisonment for not more than
         five (5) years or both.

 Miss. Code Ann. § 97-1-1 (Rev. 2006). The statute also provides enhanced sentencing for

 specific conspiracy crimes. Section 97-1-1(3) states:

         Where the crime conspired to be committed is capital murder or murder as
         defined by law or is a violation of Section 41-29-139(b)(1), Section 41-29-
         139(c)(2)(D) or Section 41-29-313(1), being provisions of the Uniform
         Controlled Substances Law, the offense shall be punishable by a fine of not
         more than five hundred thousand dollars ($500,000.00) or by imprisonment
         for not more than twenty (20) years, or by both.

 Miss. Code Ann. § 97-1-1(3) (Rev. 2006).

 ¶12.    Mississippi Code Section 41-29-139 states, in relevant part:

         (a) Except as authorized by this article, it is unlawful for any person
         knowingly or intentionally:
         (1) to sell, barter, transfer, manufacture, distribute, dispense or possess with
         intent to sell, barter, transfer, manufacture, distribute or dispense a controlled
         substance.
         ...

         (b) Except as otherwise provided in subsections (f) and (g) of this section or
         in Section 41-29-142, any person who violates subsection (a) of this section
         shall be sentenced as follows:
         (1) In the case of controlled substances classified in Schedule I or II, as set
         out in Sections 41-29-113 and 41-29-115, except thirty (30) grams or less of
         marihuana, and except a first offender as defined in Section 41-29-149(e)
         who violates subsection (a) of this section with respect to less than one (1)
         kilogram but more than thirty (30) grams of marihuana, such person may,
         upon conviction, be imprisoned for not more than thirty (30) years and shall

                                                 6
       be fined not less than five thousand dollars ($5,000.00) nor more than one
       million dollars ($1,000,000.00), or both.

Miss. Code Ann. § 41-29-139 (Rev. 2009).

¶13.   Cliff argues that he cannot be found guilty of conspiring to violate Section 41-29-

139(b)(1) because Section 41-29-139(b)(1) is solely a sentencing statute. Therefore, he

argues, he is not eligible for enhanced sentencing under Section 97-1-1(3). An almost

identical argument was advanced in Lane v. State, 562 So. 2d 1235, 1237 (Miss. 1990).

Lane was found guilty of conspiracy to possess cocaine with the intent to sell, barter,

transfer, or distribute the same, and the trial court sentenced him pursuant to Section 97-1-

1(3) for conspiracy to violate Section 41-29-139(b)(1). Id. at 1236. Like Cliff, Lane

argued that he could not have committed conspiracy to violate Section 41-29-139(b)(1)

because it proscribes no criminal conduct, but is a sentencing statute. Id. at 1237. Section

41-29-139(b)(1) states the method by which one who is in violation of Section 41-29-

139(a) may be sentenced. Specifically, it states “any person who violates subsection (a)

of this section shall be sentenced as follows.” Miss. Code Ann. § 41-29-139 (Rev. 2006).

This Court rejected Lane’s argument, stating:

       Section 41-29-139(a)(1) is merely the provision that defines the prohibited
       acts and § 41-29-139(b)(1) is the sentencing provision for sub-section (a).
       Lane was therefore, indicted under the correct statute. The penalty section
       for a violation of (a)(1) is in section (b)(1). The discrepancy in the code
       section is because the conspiracy statute section dealing with enhanced
       sentencing for controlled substances, § 97-1-1, directly refers to the
       sentencing provision under § 41-29-139. Lane was convicted for a violation
       of the conspiracy statute and his conspiracy was to commit a crime which
       has an enhanced sentencing provision for controlled substances. Therefore,
       the circuit judge acted well within the law when he sentenced Lane to twenty
       (20) years.



                                             7
Id. at 1237-38. Because Cliff, like Lane, “was convicted for a violation of the conspiracy

statute and his conspiracy was to commit a crime which has an enhanced sentencing

provision for controlled substances” under Section 41-29-139(b)(1), the trial court properly

sentenced him under Section 97-1-1(3), which provides a maximum sentence of twenty

years.

¶14.      Cliff’s status as a habitual offender mandated that he receive the maximum term

of imprisonment without eligibility for probation or parole. The State timely moved to

deem Cliff a habitual offender based on his prior felony convictions. The trial court

granted the State’s motion to amend the indictment pursuant to Section 99-19-81.

Mississippi Code Section 99-19-81 states:

         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 separate terms of one (1) year or more in
         any state and/or federal penal institution, whether in this state or elsewhere,
         shall be sentenced to the maximum term of imprisonment prescribed for such
         felony, and such sentence shall not be reduced or suspended nor shall such
         person be eligible for parole or probation.

Miss. Code Ann. § 99-19-81 (Rev. 2007). The order classifying Cliff as a habitual offender

required the trial court to sentence Cliff to the maximum term for the crime of conspiracy

to manufacture methamphetamine. Because Section 97-1-1(3) provides a maximum

twenty-year sentence for those convicted of conspiracy in violation of Section 41-29-

139(b)(1), Cliff’s sentence is proper.

                                       CONCLUSION




                                               8
¶15.   Because Cliff was properly sentenced under Mississippi Code Sections 97-1-1(3)

and 99-19-81, his conviction and sentence are affirmed.

¶16. CONVICTION OF CONSPIRAC Y TO M ANU FACTURE
METHAMPHETAMINE AND SENTENCE OF TWENTY (20) YEARS, AS A
HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE
REDUCED OR SUSPENDED NOR SHALL APPELLANT BE ELIGIBLE FOR
PAROLE OR PROBATION. APPELLANT SHALL PAY COSTS OF $320.50 AND
A 2% BOND FEE OF $200.00.

    WALLER, C.J., CARLSON AND DICKINSON, P.JJ., RANDOLPH, LAMAR,
KITCHENS, PIERCE AND KING, JJ., CONCUR.




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