        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-CA-00056-COA

MALCOLM CRUMP A/K/A MALCOLM                                                 APPELLANT
CORDEZ CRUMP

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          12/13/2017
TRIAL JUDGE:                               HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:                 GRENADA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                   ROBERT FRED LINGOLD JR.
                                           VICKI L. GILLIAM
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 07/30/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, C.J., TINDELL AND McCARTY, JJ.

       TINDELL, J., FOR THE COURT:

¶1.    Malcolm Crump appeals the denial of his petition for post-conviction relief (PCR) by

the Grenada County Circuit Court. Crump argues that the circuit court erred by denying his

petition because: (1) the prosecution breached its plea agreement to dismiss Crump’s habitual

offender and subsequent offender enhancements, and (2) he was illegally sentenced as a

habitual offender because the State failed to meet its burden beyond a reasonable doubt.

Upon review, we find no error and affirm the circuit court’s denial of Crump’s PCR petition.

                                          FACTS

¶2.    A grand jury indicted Crump on three separate charges of “Sale of a Schedule II
Controlled Substance-Methamphetamine” (Indictment Nos. 2015-047, 2015-048, and 2015-

049) in violation of Mississippi Code Annotated section 41-29-139 (Rev. 2013). Each

indictment included two enhancements—one as a second or subsequent offender under

Mississippi Code Annotated section 41-29-147 (Rev. 2013) for a prior conviction of

“Possession of Marijuana in a Vehicle” on November 25, 2014, and another as a habitual

offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007) for “Business

Burglary and Automobile Burglary.” After entering a plea agreement with the prosecution,

Crump pled guilty to all three charges on January 11, 2016. Crump’s understanding of his

plea agreement with the prosecution, as documented in his plea petition, would sentence him

to the following: 20 years in the custody of the Mississippi Department of Custody (MDOC)

for Cause No. 2015-047, 8 years in MDOC custody for Cause No. 2015-048, and 8 years in

MDOC custody for Cause No. 2015-049. In exchange for Crump’s guilty plea, the

prosecution would dismiss the habitual offender and subsequent offender enhancements.

Crump would also be eligible for parole. The circuit court accepted Crump’s guilty plea and

allowed him to remain free on bail until his sentencing hearing on February 1, 2016.

¶3.    Crump accepted his guilty plea but then fled from Mississippi to Alaska and did not

appear for his sentencing hearing. Crump’s bail was revoked, and after a warrant was issued

for his arrest, Crump was extradited from Alaska. He finally appeared before the circuit

court on June 7, 2016, for his sentencing hearing, and the circuit court sentenced Crump with

the second or subsequent offender and habitual offender enhancements. As such, Crump was

sentenced to 40 years in MDOC’s custody for Cause No. 2015-047, 16 years in MDOC’s



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custody for Cause No. 2015-048, and 16 years in MDOC’s custody for Cause No. 2015-049.

¶4.    Crump’s new sentence no longer made him eligible for parole. Following his

sentencing, Crump filed a PCR petition with the circuit court for all three convictions on

November 22, 2017. The circuit court denied his motion on December 13, 2017, and Crump

now appeals this decision.

                                STANDARD OF REVIEW

¶5.    This Court reviews the dismissal or denial of a PCR motion for abuse of discretion,

and we will only disturb the circuit court’s decision if it is clearly erroneous. West v. State,

226 So. 3d 1238, 1239 (¶3) (Miss. Ct. App. 2017). Where the circuit court’s decision is

based upon questions of law, our standard is de novo. Hughes v. State, 106 So. 3d 836, 838

(¶4) (Miss. Ct. App. 2012).

                                         ANALYSIS

       I.     Breach of the Plea Agreement

¶6.    Crump first contends that the prosecution breached its plea agreement by introducing

evidence of Crump’s second or subsequent offender and habitual offender status and

requesting that the circuit court sentence Crump accordingly, after agreeing to dismiss all

enhancements in exchange for Crump’s guilty plea. Because of this alleged prosecutorial

breach, Crump argues that the circuit court erred by refusing to grant his PCR petition to set

aside his current sentence with enhancements and re-sentence him pursuant to the original

plea agreement. But the contention of both the circuit court and the prosecution is that

Crump breached the plea agreement by absconding before sentencing, thereby allowing the



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State of Mississippi to pursue the second or subsequent and habitual offender enhancements

at the sentencing hearing.

¶7.      “A plea agreement is contractual in nature.” Moore v. State, 938 So. 2d 1254, 1258

(¶9) (Miss. Ct. App. 2006). The agreement involves two parties—the State and the

defendant. The prosecution can be bound by its plea agreement with a defendant, particularly

in cases where the defendant detrimentally relied upon the agreement. Evans v. State, 899

So. 2d 890, 894 (¶15) (Miss. Ct. App. 2004). A criminal defendant is bound by the plea

agreement in such a way that a breach of the agreement terminates the agreement as if it

never existed, giving the State all of its powers of prosecution. Moore, 938 So. 2d at 1258

(¶9). The circuit court, however, has no obligation to comply with an agreement of the

parties and retains full discretion to sentence a defendant according to the applicable law

regardless of a plea agreement. Morris v. State, 917 So. 2d 799, 800 (¶4) (Miss. Ct. App.

2005).

¶8.      Crump primarily cites to the cases of State v. Adams County Circuit Court, 735 So.

2d 201 (Miss. 1999), and Santobello v. New York, 404 U.S. 257 (1971), in support of his

position that the State breached the plea agreement. In State v. Adams County Circuit Court,

735 So. 2d at 202 (¶1), two defendants entered into a plea agreement with the State, wherein

the State agreed to dismiss one set of charges against the defendants in exchange for their

guilty plea for a separate set of charges. The defendants pled guilty before one circuit court

judge, but another circuit court judge heard the State’s motion to dismiss and refused to

dismiss the charges since she was not previously aware of the parties’ plea agreement. Id.



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at 202-03 (¶¶2-3). The Mississippi Supreme Court disagreed, holding that because the

defendants detrimentally relied upon the terms of their plea agreement with the State when

they pled guilty, the circuit court judge erred by refusing to grant the dismissal. Id. at (¶11).

¶9.    In Santobello v. New York, 404 U.S. at 258, the defendant entered into a plea

agreement with the State of New York, wherein the defendant would plead to a

lesser-included offense and the State agreed not to make a sentence recommendation. Before

the sentencing hearing, a new prosecutor took over the defendant’s case and recommended

the maximum one-year sentence, which the trial court imposed. Id. at 259-60. The case

ultimately came before the United States Supreme Court, which held that the “petitioner

‘bargained’ and negotiated for a particular plea in order to secure dismissal of more serious

charges, but also on condition that no sentence recommendation would be made by the

prosecutor.” Id. at 262. The Supreme Court reversed and remanded the case to the state

court, noting that the fault rested upon the prosecutor for failing to uphold his obligations of

the plea agreement, and not the sentencing judge. Id. at 263.

¶10.   Crump’s case, however, includes one important factor missing from both Adams

County and Santobello. Crump fled the state to Alaska and did not appear before the circuit

court for sentencing until almost five months after negotiating this plea agreement with the

State. We have held that this very conduct constitutes a breach of the agreement by the

defendant, not the prosecution. Rhone v. State, 957 So. 2d 1018, 1022 (¶14) (Miss. Ct. App.

2006). As the circuit court here articulated, however, Crump’s conduct was much more

egregious than that in Rhone. Rhone negotiated with the State for a one and one-half year



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sentence and appeared at the courthouse for sentencing, but he fled before the hearing began.

Id. at 1020-21 (¶5). Rhone ultimately received a thirty-year sentence. Id. This Court

affirmed Rhone’s sentence, finding that Rhone was made aware of the importance of

appearing at his sentencing hearing, and as such, he could not “use his own conduct as a

basis for prosecutorial misconduct.” Id. at 1022 (¶14).

¶11.   Here, Crump negotiated with the State to receive a reduced sentence and then fled the

state entirely. “[I]mplicit in every such plea agreement is the defendant’s obligation to

appear for sentencing[,]” and failure to do so acts as the defendant’s breach of the agreement,

ending any obligation on the part of the State. United States v. David, 58 F.3d 113, 115 (4th

Cir. 1995). We agree with the circuit court that, by failing to appear for sentencing, Crump,

not the State, breached the plea agreement. Accordingly, we affirm the circuit court’s denial

of Crump’s PCR petition on this issue.

       II.    Habitual Offender Enhancement

¶12.   Crump also contends that the circuit court erred in denying his PCR petition after he

was illegally sentenced as a habitual offender pursuant to Mississippi Code Annotated

section 99-19-81 (Rev. 2015). When a defendant is indicted as a habitual offender, “the

circuit court judge is to serve as the finder of fact in determining whether the habitual-

offender part of the indictment is established by the requisite degree of proof.” Conner v.

State, 138 So. 3d 143, 151 (¶20) (Miss. 2014). The State bears the burden of proving the

defendant’s habitual offender status beyond a reasonable doubt. Short v. State, 929 So. 2d

420, 426 (¶16) (Miss. Ct. App. 2006). Specifically, the State must produce “sufficient



                                              6
evidence the defendant was ‘convicted twice previously of any felony or federal crime upon

charges separately brought and arising out of separate incidents at different times’ and for

which the defendant was sentenced to separate terms of at least one year’s imprisonment.”

Id. (quoting Vince v. State, 844 So. 2d 510, 517 (¶22) (Miss. Ct. App. 2003)).

¶13.   At the sentencing hearing, the State presented Crump’s judgments of conviction for

both counts, wherein he was sentenced to five years for each count to serve concurrently.

The State also presented Crump’s indictment of the two counts, which read as follows:

                                          COUNT I:

                 MALCOLM CRUMP AND JAMERSON HARDIMAN

       on or about April 3, 2008, in Grenada County, Mississippi, and within the
       jurisdiction of this Court, while acting in concert and/or aiding, abetting,
       assisting or encouraging each other did wilfully, unlawfully, feloniously and
       burglariously break and enter a building known as Auto Advantage,
       located at 23460 Highway 8 East, Grenada, Mississippi, the property of
       Bradley Neatherly, with the wilful, unlawful, and felonious intent to take,
       steal and carry away the goods, merchandise, equipment or valuable things
       kept there for use, sale, deposit, or transportation, constituting a related series
       of acts or transactions or a common scheme or plan, in violation of Section 97-
       17-33 of the Mississippi Code of 1972, as amended, and against the peace and
       dignity of the State of Mississippi,

                                          COUNT II:

                 MALCOLM CRUMP AND JAMERSON HARDIMAN

       on or about April 3, 2008, in Grenada County, Mississippi, and within the
       jurisdiction of this Court, while acting in concert and/or aiding, abetting,
       assisting or encouraging each other did wilfully, unlawfully, feloniously and
       burglariously break and enter a 1992 Buick Roadmaster (Tag Number 675
       LRW), the property of Kedrick Anderson, while the property was located
       at Auto Advantage, 23460 Highway 8 East, Grenada, Mississippi, with the
       wilful, unlawful, and felonious intent to take, steal and carry away the goods,
       merchandise, equipment or valuable things kept there for use, sale, deposit, or

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       transportation, constituting a related series of acts or transactions or a common
       scheme or plan, in violation of Section 97-17-33 of the Mississippi Code of
       1972, as amended, and against the peace and dignity of the State of
       Mississippi.

¶14.   The circuit court considered both the judgments of conviction and the pertinent

indictment language listed above and found that Crump’s two prior convictions occurred at

different times during the same day and involved separate and distinct sets of facts and

circumstances.

¶15.   Crump argues that the State failed to establish beyond a reasonable doubt that the two

prior charges arose out of separate incidents occurring at different times. Crump further

argues that the only evidence presented to establish his habitual offender status actually

supports his contention that the two prior felonies of business burglary and automobile

burglary occurred at the same address on the same day at the same time and that he was

sentenced concurrently for both counts. Mississippi Code Annotated section 99-19-81

provides that a habitual offender’s prior felonies must be considered “separate incidents”

occurring at “different times.” But as the Mississippi Supreme Court recognized in Pittman

v. State, 570 So. 2d 1205, 1206 (Miss. 1990), the statute’s language offers no bright-line rule

as to “how distant in time the prior criminal acts must be.” Prior felonies can be considered

separate and distinct crimes even if the incidents occurred on the same date. Id. at 1207. In

order for an offender’s criminal activity to be labeled habitual, “the events should be

sufficiently separate that the offender’s criminal passions may have cooled so that he has

time to reflect, and if after such an interval the individual forms and actualizes a new

criminal design.” Id. at 1206. Prior felonies can also be considered separate and distinct

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regardless of their similar locales. Id.

¶16.   In Bergeron v. State, 60 So. 3d 212, 216 (¶11) (Miss. Ct. App. 2011), the defendant’s

prior felonies were burglary and theft, both occurring at the same car dealership on the same

day. Because the defendant “broke into the car dealer’s office, stole a set of keys, and used

the keys to take the car from the [same] dealer,” we held that “[t]here was only one victim

and one intent, to steal a car.” Id. Accordingly, we held that the defendant could not be

considered a habitual offender under these circumstances. Id.

¶17.   In Riddle v. State, 413 So. 2d 737, 738 (Miss. 1982), the defendant was sentenced as

a habitual offender after he was charged with the kidnap and rape of a child and for burglary

of the same child’s home. The Supreme Court found that because the defendant broke into

the child’s home, immediately went and took the child from her room and raped her, this

constituted one single incident, which precluded the application of the habitual offender

statute. Id.

¶18.   But in Pittman, the defendant burglarized one school and then, on the same day,

burglarized a second school located in close proximity to the first school. Pittman, 570 So.

2d at 1206. The Supreme Court noted:

       [I]f Pittman broke and entered one room in the Wilson Elementary School, and
       finding nothing of value, then moved to another room in the same school and
       thereafter stole the three televisions sets from that room, we would consider
       the union of these acts sufficient that they would constitute but a lone incident
       under the statute.

Id. at 1207. Because Pittman broke into one school, found nothing of value, and then broke

into a different school, even “as quickly as one could physically accomplish these acts,” the



                                              9
crimes were still separate incidents occurring at different times. Id.

¶19.   Similarly, in Burt v. State, 493 So. 2d 1325, 1329 (Miss. 1986), the defendant was

sentenced as a habitual offender on a forgery conviction after evidence was presented that

he had been convicted twice before of burglary. The facts established that Burt broke into

and entered two separate dwellings located at the same address but belonging to two separate

individuals. Id. Both burglaries occurred on the same day. Id. The Supreme Court found,

however, that even though the burglaries occurred at the same location on the same day, the

facts proved beyond a reasonable doubt that two separate and unrelated crimes had occurred,

thereby allowing Burt to be sentenced as a habitual offender. Id at 1329-30.

¶20.   Each of the above-referenced cases involved prior crimes which occurred on the same

day and in close proximity to each other. But there are important distinctions that separate

the facts in Bergeron and Riddle from Pittman and Burt. Bergeron and Riddle both involved

two crimes committed against one victim and on one piece of property. Riddle, 413 So. 2d

at 738; Bergeron, 60 So. 3d at 216 (¶11). Bergeron’s burglary of the car dealership was used

to facilitate the theft of the dealership’s car. Bergeron, 60 So. 3d at 216 (¶11). Riddle broke

into his victim’s home, thereby facilitating the kidnapping and rape of the child in the home.

Riddle, 413 So. 2d at 738. Because of the singularity of the actions in both cases, it could

not be said that the defendants’ criminal passions had subsided, thereby allowing time to

form a new criminal design. Riddle, 413 So. 2d at 738; Bergeron, 60 So. 3d at 216 (¶11).

In both Bergeron and Riddle, the appellate courts found the habitual offender status

inapplicable. Riddle, 413 So. 2d at 738; Bergeron, 60 So. 3d at 216 (¶11).



                                              10
¶21.   In both Pittman and Burt, however, the defendants broke into two separate buildings

belonging to two separate victims and committed two separate crimes therein. Burt, 493 So.

2d at 1329-30; Pittman, 570 So. 2d at 1206. Pittman’s burglary of one school was not used

to further any crimes committed in the neighboring school, regardless of the timing or locale.

Pittman, 570 So. 2d at 1206. Likewise, Burt separately broke into and entered two dwellings

occupied by two separate individuals, and neither crime was necessary to facilitate the other.

Burt, 493 So. 2d 1329. The fact that Pittman and Burt committed two very distinct crimes

allowed for application of the habitual offender statute in their respective sentences. Burt,

493 So. 2d at 1330; Pittman, 570 So. 2d at 1207.

¶22.   In the present case, Crump first broke into Auto Advantage, the property of Bradley

Netherly. Crump then discovered a 1992 Buick Roadmaster, belonging not to Auto

Advantage or Netherly, but to Kedrick Anderson. Crump then broke into the Buick with the

intent to steal it. Crump’s prior crimes occurred in close proximity to each other and on the

same day, but they involved two separate pieces of property belonging to two different

individuals. Had Crump broken into Auto Advantage and stolen one of the business’s cars

or broken into Anderson’s home and stolen the Buick, these facts would be more analogous

to that of Bergeron and Riddle. But Crump’s burglary of Auto Advantage was not necessary

to facilitate his burglary of Anderson’s Buick. Although both crimes occurred on the same

day, the evidence suggests that after breaking into and entering Auto Advantage, Crump’s

criminal passions could have “cooled off,” thereby allowing him to discover Anderson’s

vehicle and form a new criminal design to burglarize it. The circuit court found the

commercial burglary of Auto Advantage and the automobile burglary of Anderson’s Buick

                                             11
constituted two separate incidents occurring at different times, thereby solidifying Crump’s

habitual offender status. We find no error with the circuit court’s decision.

                                     CONCLUSION

¶23.   Crump negotiated a plea agreement with the State, wherein the State would dismiss

all enhancements in exchange for Crump’s plea of guilty. Implicit in that agreement was

Crump’s obligation to appear for his sentencing hearing. Because he failed to do so, Crump

breached his plea agreement, and the State was no longer bound by its agreement to dismiss

the enhancements. We find no error in the circuit court’s denial of Crump’s petition for this

reason.

¶24.   Further, Crump broke into and entered two separate pieces of property belonging to

two separate individuals without using one crime to facilitate the other. The circuit court

found that the facts of Crump’s prior felonies showed beyond a reasonable doubt that Crump

committed two separate incidents at two different times, thereby allowing Crump to be

sentenced as a habitual offender. We agree with the circuit court and find that the circuit

court did not abuse its discretion in denying Crump’s petition on this issue. We therefore

affirm the judgment of the circuit court.

¶25.   AFFIRMED.

     BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD,
LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR. J. WILSON, P.J.,
CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.




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