                               IN THE COURT OF APPEALS
                                        OF THE
                                 STATE OF MISSISSIPPI
                                        NO. 96-KA-00287 COA
CALVIN WINSTON A/K/A JAMES CALVIN WINSTON                                                  APPELLANT
v.
STATE OF MISSISSIPPI                                                                         APPELLEE

DATE OF JUDGMENT:           FEBRUARY 12, 1996
TRIAL JUDGE:                HONORABLE JANNIE M. LEWIS
COURT FROM WHICH APPEALED: YAZOO COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:    LYNDA CAROL ROBINSON (WITHDRAWN)
                            MARK T. FOWLER
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: JEFFREY A. KLINGFUSS
DISTRICT ATTORNEY:          NOEL D. CROOK
NATURE OF THE CASE:         CRIMINAL - FELONY
TRIAL COURT DISPOSITION:    CAPITAL RAPE: SENTENCED TO SERVE A TERM OF 6
                            YRS IN THE CUSTODY OF THE MDOC WITH 1 YR
                            SUSPENDED & THE REMAINING 5 YRS TO BE SERVED
                            WITHOUT BENEFIT OF PAROLE
DISPOSITION:                AFFIRMED IN PART; REVERSED AND REMANDED IN
                            PART - 12/18/1998
MOTION FOR REHEARING FILED: 1/4/99
CERTIORARI FILED:           5/11/99
MANDATE ISSUED:




EN BANC.

HERRING, J., FOR THE COURT:




¶1. Calvin Winston was convicted of rape by the carnal knowledge of a female under the age of fourteen
years in the Circuit Court of Yazoo County, Mississippi, and was sentenced to a term of six years in the
custody of the Mississippi Department of Corrections, with one year suspended and the remaining five
years to be served without the benefit of parole. Winston now appeals to this Court alleging (1) the
evidence was insufficient to support the judgment and the verdict was against the overwhelming weight of
the evidence; (2) the trial court erred in its instructions to the jury concerning the uncorroborated testimony
of the child and alleged victim in this case; and (3) the attorneys for the Appellant did not render effective
assistance of counsel to him. After a review of the record and applicable law, we affirm Winston's
conviction but remand to the trial court for proper sentencing.

                                               A. THE FACTS

¶2. Calvin Winston, age sixty-seven, was indicted by the Yazoo County Grand Jury on November 30,
1994, for the crime of rape by the carnal knowledge of a female under the age of fourteen years, in
violation of Mississippi Code Annotated Section 97-3-65 (Rev. 1994). The alleged victim was thirteen
years old on June 17, 1994, the date when the incident occurred that resulted in the charges against
Winston.

¶3. According to the record, the minor child was supposed to be baby-sitting on June 17 for her sister but
left her sister's child with a friend and went to Winston's home to eat pizza. All witnesses agree that Winston
had been a friend of the victim's family for a number of years and at one time had been their next-door
neighbor. The evidence is also undisputed that the victim and other children in the area would frequently visit
with Winston, who would often give them something to eat and occasionally lend them money. The minor
child testified that, on the day in question, she went to Winston's home because he was supposed to get her
a pizza. When she arrived at approximately 12:00 p.m., she found Benita Cage, a twenty-six-year-old
beautician from across the street already there. After the three of them engaged in conversation for a little
while, Benita Cage left to go home but the child remained. Winston then proceeded to cook spaghetti,
which they both ate.

¶4. The child testified that after eating the spaghetti, Winston came over and began touching her breasts.
When she tried to leave, he grabbed her and took her to a bedroom, took off her clothes, had oral sex with
her, and then had intercourse with her as well. At some point, the victim's mother, sister, and brother-in-law
came to Winston's home looking for the child. Winston went to the front door and first denied that the child
was still at the home. A short while later, after hearing the child's low voice from the back of the house,
Winston returned to the door with the child, who was crying. Her clothes were in disarray. After first
denying that she had been molested, the child then admitted that Winston had "messed" with her and was
ultimately taken to a local hospital for an examination. The child also testified that Winston locked her in a
bedroom when he first went to the front door of his house to see the child's mother. The child's mother
testified that she slapped the child when she came to door with Winston.

¶5. Officer Tim Jones of the Yazoo City Police Department came to Winston's home after being called by
the victim's family. He confirmed that the child's clothing was in disarray, that her shirt and short pants were
open and her breasts were exposed. She was not wearing a bra. Officer Jones took the child to the hospital
and was accompanied in the vehicle by the child's mother. His description of the child's condition and the
disarray of her clothing was corroborated by the testimony of the child's brother-in-law, who accompanied
his wife to Winston's home on June 17.

¶6. Dr. Patrick McCain, the emergency room physician at the hospital, saw the child at approximately 2:00
p.m. on the day in question and performed what he called a "typical rape examination." He was of the
opinion that the child had engaged in intercourse within a period of approximately two hours prior to his
examination because of (1) the condition of the child's perineal area and (2) a small amount of seminal fluid
was taken from the child's vagina, which is a self cleaning organ. However, the doctor observed no bruises,
lacerations, or other obvious trauma in his examination of the child. The doctor based his opinion in this
case, not only upon his objective findings, but also on his thirty-five years of experience as an emergency
room physician.

¶7. Calvin Winston testified in his own behalf and categorically denied engaging in any sexual or other
improper activity with the child. He did state that the child came to his home and was with him alone prior
to the child's mother coming to the door looking for her daughter. However, he testified that the child had
been at his home with him on numerous occasions and came on this occasion wanting to eat pizza.
According to Winston, the child wanted to hide from her mother when she learned that her mother was at
the front door of the house. Moreover, he said that he was just joking with the mother when he denied that
the child was present in his home, that he had been a neighbor and friend of the family for years, and had
lent the family money to pay utility bills in the past. He further denied that he had locked the child in a back
room of the house and stated that she could easily have gone out a back door or window if she had truly
believed herself to be a captive.

¶8. As stated, the jury found Winston guilty as charged.

                                               B. THE ISSUES

¶9. On appeal, Winston raises the following issues, which are taken verbatim from his brief:

I. THE EVIDENCE WAS INSUFFICIENT TO SUPPORT THE VERDICT AND THE
VERDICT WAS AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE.

II. THE COURT ERRED IN REFUSING TO GRANT DEFENDANT'S INSTRUCTION D-11
REGARDING THE UNCORROBORATED TESTIMONY OF A CHILD.

III. THE ATTORNEYS FOR DEFENDANT AT TRIAL DID NOT RENDER EFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE THEY APPARENTLY DID NOT UNDERSTAND
THE ELEMENTS OF THE CHARGE AGAINST THE DEFENDANT.




                                                C. ANALYSIS

I. WAS THE EVIDENCE INSUFFICIENT TO SUPPORT THE VERDICT AND WAS THE
VERDICT AGAINST THE OVERWHELMING WEIGHT OF THE EVIDENCE?

¶10. Our standard of review in cases involving an objection to a jury verdict based on the argument that the
verdict was against the overwhelming weight of the evidence has most recently been explained by the
Mississippi Supreme Court in Herrington v. Spell, 692 So. 2d 93, 103-04 (Miss. 1997), wherein the
court stated:

      In determining whether a jury verdict is against the overwhelming weight of the evidence, this Court
      must accept as true the evidence which supports the verdict and will reverse only when convinced that
      the circuit court has abused its discretion in failing to grant a new trial. Only when the verdict is so
      contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an
      unconscionable injustice will this Court disturb it on appeal.

(citations omitted). Although Herrington was a civil case, the standard of review is the same in criminal
cases. See Thornhill v. State, 561 So. 2d 1025, 1030 (Miss. 1989); Benson v. State, 551 So. 2d 188,
193 (Miss. 1989) (citing McFee v. State, 511 So. 2d 130, 133-34 (Miss. 1987)).

¶11. Winston also challenges the legal sufficiency of the evidence presented against him. This standard of
review is somewhat different from that found in a challenge to the weight of the evidence. As our
Mississippi Supreme Court has recently held:

      When on appeal one convicted of a criminal offense challenges the legal sufficiency of the evidence,
      our authority to interfere with the jury's verdict is quite limited. We proceed by considering all of the
      evidence--not just that supporting the case for the prosecution--in the light most consistent with the
      verdict. We give the prosecution the benefit of all inferences that may reasonably be drawn from the
      evidence. If the facts and inferences so considered points in favor of the accused with sufficient force
      that reasonable men could not have found beyond a reasonable doubt that he was guilty, reversal and
      discharge are required. On the other hand, if there is in the record substantial evidence of such quality
      and weight that, having in mind the beyond a reasonable doubt burden of proof standard, reasonable
      and fair minded jurors in the exercise of impartial judgment might have reached different conclusions,
      the verdict of guilty is beyond our authority to disturb.

Brooks v. State, 695 So. 2d 593, 594 (Miss. 1997).

¶12. Winston first calls our attention to the fact that the State offered no physical evidence to prove that he
committed the crime in question. To the contrary, Dr. McClain examined the victim and determined that she
had participated in sexual intercourse within the past few hours. Dr. McClain also obtained a small amount
of what he determined to be seminal fluid. This substance was later linked to Winston through blood-type
matching. Furthermore, the victim testified that Winston raped her, and witnesses testified that immediately
after the incident Winston denied that the victim was in his home although the victim later exited the house in
a state of undress. Winston also charges that the victim's mother coerced the victim, through physical
violence, into admitting that Winston had sexual relations with her, and that information obtained from the
victim in such a manner is necessarily insufficient to convict him. We rule that whether or not the child's
statement implicating Winston was voluntarily given was a fact question for the jury to decide, after making
an assessment of the credibility of the witnesses. It is true that a confession made to law enforcement
personnel as a result of threats is inadmissible. Morgan v. State, 681 So. 2d 82, 86 (Miss. 1996).
However, this rule simply does not apply in a case such as this, where the statement in question is not a
confession but is a statement made by the victim of an alleged crime. The purpose of the above-stated rule
excluding coerced confessions is to protect the defendant's Fifth Amendment right against self-incrimination.
The situation in this case presents no risks of self-incrimination and therefore involves no constitutional
concerns.

¶13. In regard to Winston's contention that the verdict was against the overwhelming weight of the
evidence, a review of the record in the case sub judice reveals no unconscionable injustice resulting from
the jury's findings. While it is true that the defendant's version of the events that took place in this case was
totally different from the version as shown in the testimony of the State's witnesses, the determination as to
who was telling the truth was made in the proper manner by the jury as the finder of fact. One of the basic
tenets of our judicial system is that any questions regarding the weight and worth of witness testimony or
witness credibility are for the jury to resolve. Eakes v. State, 665 So. 2d 852, 872 (Miss. 1995). In this
case, the jury rejected Winston's explanation of the events that took place on June 17, 1994, and believed
the testimony of the victim and the other State's witnesses. We will not overturn the findings of the jury
acting in the capacity of a fact finder unless those findings are clearly erroneous. Herrington, 692 So. 2d at
104. We cannot say in this case that the jury's verdict was clearly erroneous. Thus, we hold that the jury's
verdict was not against the overwhelming weight of the evidence.

¶14. Furthermore, in reviewing the record under the sufficiency of the evidence standard, we find that there
was sufficient evidence so that a reasonable and fair-minded jury could have found Winston guilty beyond a
reasonable doubt. Therefore, we rule that this issue has no merit.

II. DID THE COURT ERR IN REFUSING TO GRANT DEFENDANT'S INSTRUCTION D-11
REGARDING THE UNCORROBORATED TESTIMONY OF A CHILD?

¶15. A jury instruction, to be proper, must correctly state the law. Fairley v. State, 467 So. 2d 894, 901
(Miss. 1985). In the case sub judice, Winston argues that the trial court erred in failing to instruct the jury
that the uncorroborated testimony of a person who is allegedly raped should be scrutinized with caution,
citing Killingsworth v. State, 374 So. 2d 221, 223 (Miss. 1979). At trial, the court refused to grant jury
instruction D-11 which states as follows:

      The testimony of an infant or child must be corroborate [sic] by other testimony before you can find
      the Defendant guilty. This corroborative testimony, to be sufficient, must of itself tend to connect the
      Defendant with the commission of the crime in such a way as reasonably satisfies you that the child is
      telling the truth.

      Regarding the testimony of the child, the jury is instructed that their testimony must be carefully
      scrutinized and cautiously examined. This does not mean, however, that such testimony shall be
      received and given the same weight as a jury weighing it cautiously would give it, taking into
      consideration a child's power of observation, susceptibility and suggestibility.

      It is the duty of the jury to weigh the testimony of children, taking into account - upon the question of
      their credibility - their age and intelligence, and their aptitude for perception and observation.

      You are cautioned that children are more suceptible [sic] to influence and suggestion and are more
      prone to imagination than are adults.

¶16. Winston now concedes in his appellate brief that "[t]he instruction as written was not a correct
statement of the law, but the Court should have instructed the jury to scrutinize the uncorroborated
testimony of a rape victim." The State argues that even if the trial court is under a duty to modify jury
instructions that contain incorrect statements of law, the evidence in this case simply does not support the
proposed instruction because the testimony of the victim was corroborated. We agree. As stated, the
physical evidence together with the testimony of the State's witnesses corroborate the victim's version of the
events. Specifically, the emergency room physician stated that intercourse had recently occurred. State's
witnesses testified of Winston's suspicious behavior and the victim's presence at Winston's home in a state
of undress immediately prior to the victim being taken to a local hospital for examination. Where an
instruction is unsupported by the evidence, it must not be given. Clark v. State, 693 So. 2d 927, 933
(Miss. 1997). However, we rule that the jury was properly instructed and that there was adequate evidence
in the record to support the court's instructions. This issue has no merit

III. DID THE ATTORNEYS FOR DEFENDANT AT TRIAL PROVIDE INEFFECTIVE
ASSISTANCE OF COUNSEL BECAUSE THEY DID NOT UNDERSTAND THE ELEMENTS
OF THE CHARGE AGAINST THE DEFENDANT?

¶17. This claim by Winston must be considered by applying the standard of review set forth in Strickland
v. Washington, 466 U.S. 668 (1984). In Leatherwood v. State, 473 So. 2d 964 (Miss. 1985) the
Mississippi Supreme Court applied the standards of review set forth in Strickland and stated:

      [T]he legal test as to effective assistance of counsel is 'whether counsel's conduct so undermined the
      proper functioning of the adversarial process that the trial court cannot be relied on as having
      produced a just result . . . .' The burden of proving ineffective assistance of counsel is on the
      defendant to show that the counsel's performance was (1) deficient, and (2) the deficient performance
      prejudiced the defense. If the defendant fails to prove either component, then reversal of a conviction
      or sentence is not warranted.

      The defendant must show that there is a reasonable probability that, but for counsel's unprofessional
      errors, the result of the proceedings would have been different . . . .

Id. at 968-69 (citations omitted).

¶18. There is a strong presumption that counsel's conduct is reasonable and professional and that decisions
made are strategic. Murray v. Maggio, 736 F.2d 279, 292 (5th Cir. 1984). Nevertheless, an attorney has
certain "basic" duties when representing a criminal defendant, including the duties to "assist the defendant, to
advocate the defendant's cause, to consult the defendant on important decisions and to keep the defendant
informed on important developments." Dufour v. State, 483 So. 2d 307, 310 (Miss. 1985). See Payton
v. State, 708 So. 2d 559 (Miss. 1998) for a recent discussion of Mississippi's law on ineffective assistance
of counsel.

¶19. In the case before us, Winston claims that his trial counsel was ineffective because she did not
understand the nature of the crime for which he was charged, as evidenced by the fact that his counsel
argued several times that there was no showing of a violent act or that Winston used force in subduing the
victim. Winston calls our attention to the fact that violence or the use of force is not an element of the crime
for which he was indicted and that proof beyond a reasonable doubt that the defendant had carnal
knowledge of a child under the age of fourteen was all that was required to prove the charge against him.
Therefore, Winston argues that he was deprived a fair trial because of the deficient performance of his
counsel.

¶20. While it is true that violence or force is not a required element of the crime charged, in this case, we
are unable to say that Appellant's counsel was ineffective under the standard of review set forth in
Strickland v. Washington. The record reveals that defense counsel adequately cross-examined the State's
witnesses in regard to the correct elements of the crime. Specifically, the defense attacked the State's
assertion that Winston engaged in sexual intercourse with the victim. Further, defense counsel called
witnesses, including Winston himself who denied having committed the alleged crime. When viewed in its
entirety, the defense strategy did not depend upon whether or not violence or force was used by Winston to
have intercourse with the victim. Arguably, defense counsel was attempting to convince the jury that
because there was no evidence that Winston forced himself on the child, then no intercourse occurred at all.
Moreover, we cannot say that the trial in this case would have ended in a different manner had the
references by defense counsel to the lack of evidence of violent sexual assault not been made. Furthermore,
the decision by trial counsel to discuss violence or force, although not an element of the crime, could also be
viewed as a strategic decision to attack the credibility of the victim. Regardless of the merit of this strategy,
it was the prerogative of defense counsel to use it, and not for us to question unless the strategy was so
prejudicially deficient that a reasonable probability arises that a different result in the outcome of the trial
would have occurred but for the use of the strategy employed by defense counsel. We rule that this issue
has no merit.

                                             D. CONCLUSION

¶21. We take note, sua sponte, of the length of the sentence imposed upon Winston. The crime of rape by
carnal knowledge of a child under fourteen years of age is codified in Section 97-3-65 of the Mississippi
Code Annotated (Rev. 1994). The statute, in pertinent part, states the following: "[E]very person eighteen
(18) years of age or older who shall be convicted of rape by carnally and unlawfully knowing a child under
the age of fourteen (14) years, upon conviction, shall be sentenced to death or imprisonment for life in the
State Penitentiary." (emphasis added). Thus, because Winston was a man well over the age of eighteen at
the time of the incident in question, and because the victim was thirteen years of age, his sentence of
imprisonment for six years, with five years to serve, was improper. The question we must now consider is
whether an appellate court may remand a case to the lower court for imposition of a proper sentence when
the original sentence ordered by the trial court was not authorized by statute. As stated by the text writer:

      Sentencing provisions outside the authority of the court are illegal or invalid. An illegal sentence is
      void. An illegal sentence does not affect the underlying conviction, although it has also been held that
      when the punishment assessed is less than the minimum provided by law the judgment of conviction is
      a nullity and that where the punishment is illegal the judgment of conviction is invalid.

24 C.J.S. Criminal Law, § 1504 (1989) (emphasis added). Furthermore, two appellate courts that
considered cases similar to the case sub judice, where the defendants appealed their convictions but did
not raise as an issue on appeal the illegality of the sentences, declared the illegal sentences which did not
conform to the statutory requirements to be void and remanded the cases to the trial court for resentencing.
See Harry v. State, 710 So. 2d 520 (Ct. App. Ala. 1997); People v. Arna, 658 N.E.2d 445, 448 (Ill.
1995). As stated in Arna, "[a] sentence which does not conform to a statutory requirement is void" and "the
appellate court has the authority to correct it at any time." Id. at 448. See also Bozza v. United States, 330
U.S. 160, 166 (1947) ("It is well established that a sentence which does not comply with the letter of the
criminal statute which authorizes it is so erroneous that it may be set aside on appeal or in habeas corpus
proceedings." (citations omitted)); De Benque v. United States, 85 F.2d 202, 206 (D.C. Cir. 1936)
(finding a sentence in a federal criminal case not imposed in strict accordance with penalty statute is void);
State v. Hess, 533 N.W.2d 525, 527 (Iowa 1995) (stating that when a court imposes a sentence which
statutory law does not permit, the sentence is illegal and void, and the supreme court will vacate it); Wilson
v. State, 677 S.W.2d 518, 524 (Tex. 1984) (stating that when the punishment assessed is less than the
minimum provided by law, this renders the judgment of conviction a nullity); Powers v. Boles, 138 S.E.2d
159, 161 (W.Va. 1964) (sentencing not in conformity with or authorized by statute is void).
¶22. Moreover, in Lanier v. State, 635 So. 2d 813, 816 (Miss. 1994), the Mississippi Supreme Court
ruled that a plea bargain contract between a criminal defendant and the State which resulted in a sentence
not authorized by law was void as against public policy. The supreme court in Lanier specifically held that
the "[e]nforcement of the contract would also yield a result beyond the power of this Court to produce." Id.
at 816. Thus, although the dissent takes the position that the supreme court only found that the plea
bargain contract was void as opposed to the sentence itself, we believe that the supreme court also found
the sentence itself to be void in Lanier when it ruled that the sentence was "beyond the power of this court
to produce."

¶23. Writing for the dissent in Barnett v State, 95-KA-00353-SCT (Miss. June 11, 1998), Justice
McRae stated the following: "This Court, in Lanier v. State . . . recognized that a sentence that is not
authorized by law, even if agreed to by the parties, is void ab initio." Id. at 7. In Barnett, the supreme court
reversed and remanded a murder conviction for further proceedings because of the erroneous admission of
Barnett's statement into evidence which he gave pursuant to settlement negotiations. However, the court
rejected Barnett's claim that his sentence to life imprisonment without parole violated ex post facto laws.
At the time of trial under the applicable statute, a jury could have sentenced Barnett to either death or life in
prison. Miss. Code Ann. § 97-3-21 (Rev. 1994). However, the jury sentenced Barnett instead to life
without parole in accordance with an amendment to the statute that had taken place after the crime was
committed and as an option mentioned in jury instructions that were accepted without objection by the
defendant. The supreme court ruled that although it was reversing the conviction on other grounds, Barnett
waived his ex post facto claim when he failed to object at trial to the jury instruction allowing such a
sentence.

¶24. In the case sub judice, we have no ex post facto claim and no agreement between the parties before
us as to sentencing. Instead, we have a situation where the trial court failed to follow the statute and
imposed a sentence not authorized by law.

¶25. While the concerns of my colleagues as expressed in the dissenting opinion are well-founded, the
conclusion reached by the dissent on this issue would give trial court judges, prosecutors, and criminal
defendants unbridled discretion to arrive at sentences for various crimes that they can agree on without
regard to the mandates of a statute imposing minimum and maximum sentences so long as the defendant
does not appeal.

¶26. It is the duty of the legislature to set the maximum and minimum sentences to be imposed upon
convicted criminals, and it is the duty of the judiciary to carry out the imposition of statutorily mandated
sentences. The trial court judges of this State must follow the laws enacted by the legislature and sentence
those who offend the laws in a uniform manner when called upon to do so by statute. The legislature of the
State of Mississippi recognized the severity of the crime of capital rape when they assigned to it a sentence
of death or life in prison. The trial court judge does not have discretion to give a lesser sentence than the
minimum enacted by the legislature. The State never sought the death sentence in this case, and thus, the
trial court should have imposed a life sentence. Accordingly, we remand this case to the Circuit Court of
Yazoo County for the imposition of a sentence of life imprisonment in accordance with Section 97-3-65 (1)
of the Mississippi Code Annotated (Rev. 1994).(1)

¶27. THE JUDGMENT OF THE CIRCUIT COURT OF YAZOO COUNTY OF CONVICTION
OF RAPE BY CARNAL KNOWLEDGE OF A CHILD UNDER THE AGE OF FOURTEEN IS
AFFIRMED AND SENTENCE IS REMANDED FOR RESENTENCING CONSISTENT
WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO YAZOO
COUNTY.

BRIDGES, C.J., THOMAS, P.J., DIAZ, HINKEBEIN, AND PAYNE, JJ., CONCUR.
SOUTHWICK, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
McMILLIN, P.J., AND COLEMAN AND KING, JJ.




SOUTHWICK, J., dissenting

¶28. The majority asserts that Winston's six-year sentence was void. It remands for imposition of a
sentence of life imprisonment, as capital rape is punishable by either life imprisonment or death. The
majority concedes that the death sentence was never sought and is not a possibility.

¶29. The rape of a child under the age fourteen by a person over the age of eighteen is punishable by death
or by life imprisonment, and by no other sentence. Miss. Code Ann. § 97-3-65(1) (Rev. 1994). The six
year sentence here was both erroneous and inexplicable. Giving this improper sentence for capital rape
affects the integrity and public reputation of judicial proceedings. Judges and prosecutors have the statutory
and ethical obligation to apply statutory sentencing requirements, not occasionally or usually, but always.

¶30. Where the majority and the dissent diverge is on whether the sentence can be increased at this stage.
The majority concludes that the sentence was void ab initio. That means that Winston has not yet been
sentenced at all. Had the majority not noted the issue, presumably Winston still would have no sentence but
there is no apparent method by which that ever could be corrected. Relied upon is a case in which a
convicted felon raised during post-conviction relief proceedings that the sentence that he had agreed to in
plea bargaining was illegal. Lanier v. State, 635 So. 2d 813 (Miss. 1994). Lanier had agreed to plead
guilty and receive a sentence of life without parole, but that sentence was not authorized by the statute in
effect at the time of the crime that Lanier committed. The court held that Lanier could not agree to an illegal
sentence and allowed him to challenge it. The court held that the plea bargain "contract is 'void ab initio'"
because it violated public policy. Id. at 816-17. If the plea agreement had not been void, Lanier would have
remained bound and the erroneous sentence could not have been corrected by post-conviction relief. Id.;
Miss. Code Ann. § 99-39-5 (1)(a) (Rev. 1994). Lanier found that there is no waiver of a post conviction
relief challenge since a plea bargain agreement to an illegal sentence is void. The agreement, not the
sentence, was void.

¶31. More recently the court has found that a defendant waived his constitutional right not to be given an ex
post facto sentence when he failed to object at trial. Barnett v. State, 95-KA-00353-SCT ¶ 22 (Miss.
June 11, 1998). That defendant was sentenced to life without parole, but unlike Lanier he had not agreed to
the sentence in a plea bargain. If a sentence is "void ab initio," then the court could not find it valid just
because of the defendant's waiver of the issue. An erroneous sentence is not necessarily void and the
defendant in Barnett waived the issue.

¶32. A much older precedent contrasted erroneous and void sentences and did so in a way that continues
to make logical sense. Ex Parte Burden, 92 Miss. 14, 45 So. 1 (1907). An erroneous sentence is of the
kind permitted by statute but exceeds the maximum, while a void sentence is of a different kind than is
statutorily permitted. Id., 92 Miss. at 26. A thirty-year term in the penitentiary when a twenty year term is
the maximum would be erroneous; sending someone to the penitentiary at all when the offense is a
misdemeanor would be void. Id. at 27. Another Burden example of a void sentence is death for a non-
capital crime. Id. We find that an illegally lenient sentence is not void just as an illegally excessive one is not,
so long as the sentence itself is of the kind appropriate to the offense. The term of Winston's sentence to the
penitentiary was too short. Thus it was erroneous.

¶33. Since Winston's improper sentence was not void, whether it can be corrected now should be our next
question. Logically, for this Court to reverse in favor of the State on an issue that no one raises would
require that the State have the right to appeal or cross-appeal and have the correct sentence entered. Then,
since the State did not appeal, the principles underlying the plain error doctrine must be applicable. An
alternative means to reach the error is if it is one that invokes an inherent power of an appellate court. That
power would be the reviewing of certain fundamental details of all convictions and sentences regardless of
the issues directly raised on appeal.

¶34. The State does in limited circumstances have the right to appeal:

      The state . . . may prosecute an appeal from a judgment of the circuit court in a criminal cause in the
      following cases:

      (a) [if indictment quashed];

      (b) [question of law in case that ended in acquittal; the legal question is to be answered but
      reprosecution is not permitted]; and

      (c) From a ruling adverse to the state or municipality in every case in which the defendant is convicted
      and prosecutes an appeal; and the case shall be treated as if a cross appeal had been formally
      presented by the state. All questions of law thus presented shall be decided by the Supreme Court.

Miss. Code Ann. § 99-35-103 (Rev. 1994).

¶35. This statute enumerates no right to appeal an improper sentence. However, the statute has been
interpreted to permit the State to argue in a cross-appeal that a defendant had improperly been given a life
sentence by the trial court when the jury had returned a death sentence. Abram v. State, 606 So. 2d 1015,
1038 (Miss. 1992). The supreme court reversed the conviction because of an evidentiary error, but also
declared that the judge erred as to the sentence of life imprisonment. Whether the court would have
reversed solely for resentencing was not factually at issue. The Abram court cited approvingly a precedent
in which the conviction was affirmed on direct appeal, but "unfortunately for the appellant, we are
compelled to decide the question of law presented by the exception of the state to the action of the court
below in setting aside the first sentence." Thomas v. State, 73 Miss. 46, 49, 19 So. 195 (1895) (cited in
Abram, 606 So. 2d at 1038). The court interpreted the predecessor to section 99-35-103(c) to require the
supreme court to decide all legal questions raised by the State which were properly preserved in the record.
The "purpose of the statute was to provide an inexpensive, summary, simple method of cross appeal for the
state" in appropriate cases. Thomas, 73 Miss. at 49. In Thomas, the court found that the defendant had
improperly been sentenced for a misdemeanor and the case was remanded for sentencing for a felony. Id.
at 50.
¶36. Since the State may cross-appeal the sentencing error, may the proper sentence be entered either on
appeal or on a remand for that purpose? There is no per se constitutional infirmity to altering a criminal
sentence in a way detrimental to a defendant. A defendant may properly receive a higher sentence at a
retrial following an appellate reversal. North Carolina v. Pearce, 395 U.S. 711, 719-20 (1969). The
"Constitution does not require that sentencing should be a game in which a wrong move by the judge means
immunity for the prisoner." Bozza v. United States, 330 U.S. 160, 166-67 (1947). In other words, there is
no double jeopardy or other constitutionally-created entitlement for a defendant never to receive a higher
sentence than the first one imposed. However, the higher sentence must not be the result of the State's
attempt to penalize a defendant for appealing. Pearce, 395 U.S. at 725-26. Absent vindictiveness, the
higher sentence is one of the possible results of the defendant's receiving what he requested: a new trial.

¶37. There may be a problem if the defendant's conviction is affirmed but nonetheless the sentence is
increased. Even though the first sentence imposed is not the equivalent of an acquittal of a longer sentence,
a defendant must still be on notice that a sentence may not be final. United States v. DiFrancesco, 449
U.S. 117, 136-38 (1980). If a defendant has appealed but did not have notice that his initial sentence could
be changed even if he lost the appeal, then he had an "expectation of finality" to the sentence that cannot be
stymied. Id. at 137.

¶38. Winston had no notice that the sentence was being contested on appeal. As was held in a case after
DiFrancesco, if a State's statutes did not allow for review of sentences, then a defendant's expectation of
finality in his sentence could not be thwarted by increasing the severity due to an error discovered on
appeal. Pennsylvania v. Goldhammer, 474 U.S. 28, 30-31 (1985). The Supreme Court has stated that
there is no "expectation of finality in his sentence until the appeal is concluded or the time to appeal has
expired." DiFrancesco, 449 U.S. at 136. The "time to appeal has expired" as to the sentence issue when
the State did not cross-appeal.

¶39. The double jeopardy concept that is applicable is that there is "a bar against repeated attempts to
convict, with consequent subjection of the defendant to embarrassment, expense, anxiety, and insecurity,
and the possibility that he may be found guilty even though innocent." Id. at 136. There is no invalid
extension of the period of anxiety and uncertainty when the State is exercising its statutory appellate rights to
contest a sentence. Id. Section 99-35-103(c) as interpreted in Abram is a statutory appellate procedure for
review of a sentence. Thus Winston would have been on notice of the State's right to seek review, except,
of course, the State did not exercise that right.

¶40. That failure gets us to the final question, whether "plain error" can be used to correct improperly low
sentences. Two court rules discuss the plain error principle. An evidentiary rule permits a court to take
"notice of plain errors affecting substantial rights although they were not brought to the attention of the
court." M.R.E. 103(d). An appellate rule prohibits the court from considering issues not raised in briefs,
with the exception of noticing "a plain error not identified or distinctly specified." M.R.A.P. 28 (a)(3). A
definition of "plain error" has been difficult, because much like other difficult concepts, it is more easily
recognized when seen than it is described in the abstract. The Mississippi Supreme Court has said that error
is "plain"only if it "affects substantial rights of the defendants." Grubb v. State, 584 So. 2d 786, 789 (Miss.
1991). Though that language refers to rights of defendants and not the State, the cases have only involved
defendants' rights. Thus the court's language need not be read to have rejected an issue that was not even
raised, namely, plain error that benefits the State.
¶41. Case law has developed under the federal version of M.R.E. 103(d) and the analogous wording of
Federal Criminal Rule 52(b) ("Plain errors or defects affecting substantial rights may be noticed. . . ."). At its
broadest the rule has been interpreted to include anything that "seriously affects the fairness, integrity, or
public reputation of judicial proceedings." United States v. Olano, 507 U.S. 725, 732 (1993) (quoting
United States v. Atkinson, 297 U.S. 157, 160 (1936)). Letting mandatory sentencing statutes be ignored
does affect the integrity and reputation of judicial proceedings.

¶42. Even if the reputation of the courts is affected by an illegally lenient sentence, there still must be a
constitutional or statutory provision or an inherent power that allows the sentence to be corrected at this
stage. I cannot find any. For example, after the term of a circuit court has passed, the trial judge no longer
has authority to amend a sentence. Harrigill v. State, 403 So. 2d 867, 869 (Miss. 1981). Once a case is
appealed and affirmed, no court "has power to simply review a case and decide whether or not the original
sentence should be amended in any way. Any attempt to do so is a nullity." Id. These principles have
recently been reiterated. Mississippi Comm'n on Judicial Performance v. Russell, 691 So. 2d 929, 937
(Miss. 1997). Other than on direct appeal in which the issue is raised, we find no means by which an
illegally low sentence can be corrected.

¶43. An illegally high sentence may be challenged by an inmate even after an appeal under the Post-
Conviction Relief Act, but the Act grants the State no converse privileges. Miss. Code Ann. § 99-39-1 et
seq. (Rev. 1994). The supreme court has recently noted that a felon's "right to be free from an illegal
sentence has been found to be fundamental" and the court has "carved an exception to these procedural
bars" under the post-conviction relief statutes to permit a correction at any time. Sneed v. State, No. 97-
CP-00531-SCT. ¶ 11 (Miss. Sept. 17, 1998); see also Smith v. State, 477 So.2d 191, 195-96 (Miss.
1985). The fundamental rights concept has never to my knowledge been extended to interests of the State
and society. Those interests are fundamental to a well-ordered society. Their protection during criminal
prosecutions has always been through the vigilance of the State's officials in seeking review in the normal
procedural course. The normal procedural course, which only permits the State to cross-appeal this
sentencing error, would have allowed Winston to control the risk of subjecting himself to the possibility of a
life sentence by deciding whether to dismiss his appeal once the State raised the issue in its responsive
papers.

¶44. Other states have faced this issue of whether plain error can address an improperly low sentence.
Louisiana has answered in the negative. After discussing statutes and court rules for reviewing both assigned
and plain errors (called "patent" in Louisiana), the supreme court held that it could "correct a patent error
when the matter is otherwise properly before the court on appeal, but there is no codal or statutory
authority for an appellate court to search the record for patent sentencing errors to the detriment of the only
party who sought review by the appellate court." State v. Fraser, 484 So. 2d 122, 124 (La. 1986).
Among the reasons for the conclusion were these:

      1) Correcting patent error "when the error is favorable to the appellant, is contrary to the basic
      precepts of appellate practice and procedure, because a sole appellant's position should not be
      worsened by having appealed." Id. at 125.

      2) The appellate court should maintain both the appearance and even more importantly the reality of
      impartiality, which is lost when the court "supplies an objection to the prosecutor who has not
      complained" of the error. Id.
      3) The due process implications of "chilling" the exercise of appellate rights were not considered
      because the decision was reached on different grounds. Id. at 124 n.6.

¶45. The Arizona Supreme Court arrived at the same conclusion in State v. Dawson, 792 P.2d 741 (Ariz.
1990). It first held that it is only through statutory or constitutional provisions that an appellate court has
jurisdiction over any case or part of a case. Id. at 743. A jurisdictional prerequisite for a party to raise an
issue is to file a notice of appeal or cross-appeal. Id. If neither party appeals, a criminal judgment becomes
final except to the extent reviewable by post-judgment procedures. Id. at 746. Absent a notice of cross-
appeal attacking the sentence, correcting errors benefitting the defendant in the sentence is procedurally
barred. Id. "Obviously, a judgment not appealed from cannot be corrected by an appellate court no matter
how blatantly and publicly the error appears on the face of the record." Id. There is, in other words, no
inherent power to correct a too-lenient sentence unless the leniency has been appealed.

¶46. I find no mechanism by which the sentence error would be correctable had Winston not appealed, at
least not after the term of circuit court expired. As the supreme court said in another capital rape conviction,
defense counsel "would not appeal this case and assign as error [the sentencing issue] if he was aware that
the case might be reversed and remanded for consideration of imposing the death penalty." Williams v.
State, 427 So. 2d 100, 105 n. 1 (Miss. 1983). Since the sentence issue was not raised on appeal, Winston
had a reasonable expectation that unless the conviction was reversed, the sentence was final.

¶47. I summarize these points. "Plain error" in the normal criminal appeal recognizes an issue beneficial to
the appellant or cross-appellant that was not preserved properly at trial and may even not have been
raised here. Yet it is still an issue beneficial to a party who has appealed. When an appellee does not cross-
appeal, that party is accepting the judgment with all its flaws. The State must "prosecute an appeal" under
Section 99-35-103 (c), which requires the State formally to present its issue. We cannot raise an unraised
issue to assist a party not seeking assistance.

¶48. Criminal cases are not a game, and the rules must not be weighted unfairly in favor of the defense or
the State. The serious business of determining guilt and sentence is controlled by rules that contemplate
reasonableness and predictability. For an appellate court on its own motion to inject an issue adverse to the
defense that was not raised by the State, when earlier knowledge of the point would have allowed the
defense to weigh its impact and avoid it altogether if desired, tends to make the court a participant and not
just an impartial arbiter.

¶49. Notice to the defendant of what is at stake in proceedings is important for double jeopardy purposes.
There is an "expectation of finality in his sentence . . . [once] the time to appeal has expired." DiFrancesco,
449 U.S. at 136. Whatever else an "expectation of finality" might mean, it covers Winston's belief that since
the State did not cross-appeal and since he has served almost half his sentence (apparently Winston has
been in custody and was not released on appeal bond), that his sentence was a settled issue. We do not
have the power to undermine that finality.

MCMILLIN, P.J., COLEMAN, AND KING, JJ., JOIN THIS SEPARATE OPINION.


      1. We recognize that an amendment, effective July 1, 1998, rewrote this section.
