                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2018-KA-01587-SCT

WILLIE NASH a/k/a WILLIE COLE NASH

v.

STATE OF MISSISSIPPI


DATE OF JUDGMENT:           08/23/2018
TRIAL JUDGE:                HON. MARK SHELDON DUNCAN
TRIAL COURT ATTORNEYS:      BRIAN KENNEDY BURNS
                            BRITTANY WHITE BROWN
                            MITCHELL DEE THOMAS
COURT FROM WHICH APPEALED: NEWTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:     WILLIAM B. BARDWELL
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: MATTHEW WYATT WALTON
DISTRICT ATTORNEY:          STEVEN SIMEON KILGORE
NATURE OF THE CASE:         CRIMINAL - FELONY
DISPOSITION:                AFFIRMED - 01/09/2020
MOTION FOR REHEARING FILED: 01/23/2020; DENIED AND OPINION
                            MODIFIED ON PAGE 1 AND AT ¶ 13 -
                            04/09/2020
MANDATE ISSUED:



       BEFORE KING, P.J., MAXWELL AND GRIFFIS, JJ.

       MAXWELL, JUSTICE, FOR THE COURT:

¶1.    A jury found Willie Nash guilty of possession of a cell phone in a correctional facility.

Nash does not appeal the jury’s verdict. He only challenges his sentence, twelve years in

prison. He claims the twelve-year sentence is grossly disproportionate to the crime and thus

violates the Eighth Amendment.
¶2.    Though harsh, Nash’s sentence falls within the statutory range of three to fifteen

years. And the judge based his sentencing decision on the seriousness of Nash’s crime and

evidence of Nash’s criminal history. Because Nash has not shown that a threshold

comparison of the crime committed to the sentence imposed leads to an inference of gross

disproportionality, no further analysis is mandated. We affirm Nash’s conviction and

sentence.

                       Background Facts and Procedural History

¶3.    While confined at the Newton County Jail on a misdemeanor charge, Nash asked a

jailer for “some juice.” At first, the jailer thought Nash was asking for something to drink.

But then Nash slid across a cell phone that he had on his person. The jailer took the phone

and gave it to the sheriff’s deputy in charge. Nash later denied the phone was his. But when

the deputy sheriff unlocked the phone—using the code Nash had given the jailer—he found

photos of Nash, as well as a text-message exchange from the day Nash had handed over the

phone in jail. The incoming message asked, “WYA” (short for “where you at”), and the

outgoing message responded, “in jail.”

¶4.    A jury convicted Nash of possessing a cell phone in a correctional facility in violation

of Mississippi Code Section 47-5-193 (Rev. 2015). Any person who violates Section 47-5-

193 “shall be guilty of a felony and upon conviction shall be punished by confinement in the

Penitentiary for not less than three (3) years nor more than fifteen (15) years . . . .”1 Miss.

Code Ann. § 47-5-195 (Rev. 2015). At Nash’s sentencing hearing, the trial judge informed

       1
        Nash’s conviction also carried a potential fine of up to $25,000. Miss. Code Ann.
§ 47-5-195. Nash was fined $5,000.

                                              2
Nash that, while his crime may have seemed insignificant to him, there was a reason

possessing a cell phone in a correctional facility “is such a serious charge.” The judge also

told Nash to “consider yourself fortunate.” Based on Nash’s prior burglary convictions, he

could have been indicted as a habitual offender. This would have subjected him to a fifteen-

year sentence to be served day for day. Miss. Code Ann. § 99-19-81 (Supp. 2019). The trial

court sentenced Nash below the statutory maximum to a term of twelve years in the custody

of the Mississippi Department of Corrections.2

¶5.      Nash filed a motion for new trial challenging the sufficiency of the State’s evidence

and the trial court’s evidentiary rulings. The trial court denied this motion, and Nash

appealed.

                                          Discussion

¶6.      On appeal, Nash challenges his sentence only. He argues his twelve-year sentence

violates the Eighth Amendment of the United States Constitution because it is grossly

disproportionate to his crime of possessing a cell phone in jail.

¶7.      The State argues Nash failed to preserve his claim because he did not challenge his

sentence’s proportionality before the trial court either at sentencing or in his motion for a new

trial.       Despite the State’s assertion,3 we address the merits of Nash’s sentence-


         2
       Nash will become parole eligible after serving a quarter of his sentence. Miss.
Code Ann. § 47-7-3(1) (Supp. 2019).
         3
         As was the case in Portis v. State, 245 So. 3d 457, 474 n.15 (Miss. 2018), we have
serious doubts concerning Nash’s reasonable opportunity to raise this issue at trial. It would
have been difficult for Nash to have teed up the proportionality issue at his sentencing
hearing without yet knowing where in the three-to-fifteen-year range his sentence would fall.
And the new Mississippi Rules of Criminal Procedure do not provide a clear vehicle for a

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based claim. As we recently noted, Eighth Amendment challenges assert an important

constitutional right, and this Court “will indulge in every reasonable presumption against the

waiver of a constitutional right.” Portis v. State, 245 So. 3d 457, 474 n.15 (Miss. 2018)

(quoting Brooks v. State, 903 So. 2d 691, 695 (Miss. 2005)); see also Edwards v. State, 800

So. 2d 454, 468-69 (Miss. 2001) (addressing the merits of the defendant’s sentence

proportionality, despite being “not bound” to consider statistical evidence that was not first

presented to the trial court).4

       I.      Severity of Crime

¶8.    Nash begins his proportionality challenge by asking this Court to recognize “differing

degrees of transgression” under Section 47-5-193. Section 47-5-193 prohibits any offender

confined to a correctional facility from possessing “any weapon, deadly weapon,

unauthorized electronic device, contraband item, or cell phone or any of its components or

accessories to include, but not limited to, Subscriber Information Module (SIM) cards or

chargers.” Nash argues this statute creates “three categories . . . of a descending order in



post-trial challenge to a sentence only. Rule 25.1 permits a trial court to vacate a judgment
and grant a new trial. MRCrP 25.1. But that is not what Nash is seeking with his
proportionality claim. He does not ask to set aside his judgment of conviction and have a
new trial. Rather, he seeks a new, lesser sentence. The same is true of a Rule 25.2 motion
to vacate judgment. The rule permits a trial court to vacate a judgment “if the indictment
or charging affidavit did not charge an offense, or if the trial court was without jurisdiction.”
MRCrP 25.2(a). It does not permit a defendant to move to vacate a sentence only based on
alleged constitutional deficiencies.
       4
        But see Horne v. State, 825 So. 2d 627, 641 (Miss. 2002) (refusing to engage in
proportionality analysis for the first time on appeal, because life in prison was the only
sentencing option, and the defendant “never asked the circuit court to perform a
proportionality review”).

                                               4
severity.” As Nash sees it, possession of weapons is the most serious offense, possession of

contraband is less serious, and possession of a cell phone—if not used in criminal

activity—is the least serious.

¶9.    But the statute’s language does not support his three-tiered argument. Nothing in the

language of Section 47-5-193 suggests the Legislature intended to assign different levels of

severity or punishment depending on whether one possessed a weapon, contraband, or a cell

phone. Rather, Section 47-5-195 explicitly treats all violations of Section 47-5-193 equally.

“Any person who violates any provision of Section 47-5-193 . . . shall be guilty of a felony

and upon conviction shall be punished by confinement in the Penitentiary for not less than

three (3) years nor more than fifteen (15) years . . . .” Miss. Code Ann. § 47-5-195 (emphasis

added).

¶10.   What Nash dubs as the “mere possession of a cell phone” is a specified violation of

Section 47-5-193. And the statute subjected him to the same potential punishment as any

other violation of Section 47-5-193—imprisonment for not less than three years and not more

than fifteen years. Miss. Code Ann. § 47-5-195.

¶11.   Nash’s twelve-year sentence fell within this statutory range. And “the general rule

in this state is that a sentence cannot be disturbed on appeal so long as it does not exceed the

maximum term allowed by statute.” Fleming v. State, 604 So. 2d 280, 302 (Miss. 1992).

       II.    Proportionality of Sentence

¶12.   There is, however, a very limited and rarely imposed exception to the general rule.

Id. “The Eighth Amendment, which forbids cruel and unusual punishments, contains a



                                               5
‘narrow proportionality principle’ that ‘applies to noncapital sentences.’”5 Ewing v.

California, 538 U.S. 11, 20, 123 S. Ct. 1179, 1185, 155 L. Ed. 2d 108 (2003) (quoting

Harmelin v. Michigan, 501 U.S. 957, 996-97, 111 S. Ct. 2680, 115 L. Ed. 2d 836 (1991)

(Kennedy, J., concurring in part and concurring in judgment)).

¶13.   In years past, this Court reviewed proportionality using the three-part test from Solem

v. Helm, 463 U.S. 277, 292, 103 S. Ct. 3001, 3010, 77 L. Ed. 2d 637 (1983). Hoops v. State,

681 So. 2d 521, 538 (Miss. 1996).6 But “Solem must now be viewed in the light of

Harmelin v. Michigan, 501 U.S. 957 . . . .” McGruder, 954 F.2d at 315. “Harmelin

provoked a host of minority opinions” from the Supreme Court. Id. On rehearing, we

acknowledge that in 1996 this Court in Hoops erroneously characterized Harmelin as

overruling Solem “to the extent that it found a guarantee of proportionality in the Eighth

Amendment.” Hoops, 681 So. 2d at 538 (citing Smallwood v. Johnson, 73 F.3d 1343, 1346

n.4 (5th Cir. 1996)). The genesis of this erroneous statement of law came from a quote from

the Fifth Circuit Court of Appeals, which promoted that the Eighth Amendment contained

no proportionality principle, a suggestion found in Justice Scalia’s opinion in Harmelin—an



       5
        In recognizing this narrow principle, the United States Supreme Court cautioned
that “federal courts should be reluctant to review legislatively mandated terms of
imprisonment, and that successful challenges to the proportionality of particular sentences
should be exceedingly rare.” Ewing, 538 U.S. at 22 (quoting Hutto v. Davis, 454 U.S. 370,
374, 102 S. Ct. 703, 70 L. Ed. 2d 556 (1982) (per curiam)).
       6
         In Solem, the United States Supreme Court “adopted a framework of objective
factors that may be used in proportionality analysis: (1) the gravity of the offense relative to
the harshness of the penalty, (2) the sentences imposed for other crimes in the jurisdiction,
and (3) the sentences imposed for the same crime in other jurisdictions.” McGruder v.
Puckett, 954 F.2d 313, 315 (5th Cir. 1992) (citing Solem, 463 U.S. at 292).

                                               6
opinion that ultimately did not fully carry the day. Instead, “[t]he controlling opinion [in

Harmelin] concluded that the Eighth Amendment contains a ‘narrow proportionality

principle,’ that ‘does not require strict proportionality between a crime and sentence’ but

rather ‘forbids only extreme sentences that are “grossly disproportionate” to the crime.’”

Graham v. Florida, 560 U.S. 48, 59-60, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010) (quoting

Harmelin, 501 U.S. at 997, 1000-01 (Kennedy, J., concurring in part and concurring in

judgment)). Thus, to determine if a particular sentence is grossly disproportionate, a court

must first compare the gravity of the offense to the severity of the sentence. Id. Only in the

exceedingly “‘rare case in which this threshold comparison leads to an inference of gross

disproportionality’” should the court “then compare the defendant’s sentence with the

sentences received by other offenders in the same jurisdiction and with sentences imposed

for the same crime in other jurisdictions.” Id. at 60 (quoting Harmelin, 501 U.S. at 1005

(Kennedy, J., concurring in part and concurring in judgment)).

¶14.   In arguing gross disproportionality, Nash invokes Davis v. State, 724 So. 2d 342, 344

(Miss. 1998). In that case, Melissa Davis received the maximum available sentence of sixty

years in prison for selling two rocks of cocaine within 1,500 feet of a church. But on appeal,

this Court found no record justification for the trial court’s imposing the most severe

punishment available.     Id.   So this Court remanded for the trial judge to conduct

proportionality review under Solem. Id.

¶15.   In Ford v. State, this Court later explained its reasoning in Davis. Ford v. State, 975

So. 2d 859, 870 (Miss. 2008). The Ford Court noted that Davis, a first-time offender, was



                                              7
given the maximum sentence without any seeming justification. Id. “Because the trial judge

did not use discretion in and simply opted for the maximum penalty, this Court remanded the

cases for reconsideration.” Id. (citing Davis, 724 So. 2d at 344). By contrast, the sentence

in Ford, while severe, did not raise the same proportionality concerns. Though Ford was also

a first-time offender, she was not given the maximum penalty of twenty years for aggravated

assault. Id. And before imposing a seventeen-year sentence, the trial judge “expressed

concerns about the severity of the crime.” Id.

¶16.   Here, in contrast to Davis, the trial judge did not simply opt for the maximum penalty

without justification. Instead, the judge exercised his discretion after reviewing a

presentence-investigation report. Similar to Ford, the judge emphasized that possession of

a cell phone in a correctional facility was a serious charge. And unlike Davis and Ford, Nash

was a documented repeat offender. The judge noted that Nash’s prior felony convictions

subjected him to fifteen years’ imprisonment, to be served day for day, had the State charged

him as a habitual offender.

¶17.   While obviously harsh, Nash’s twelve-year sentence for possessing a cell phone in a

correctional facility is not grossly disproportionate. Cf. Tate v. State, 912 So. 2d 919, 934

(Miss. 2005) (holding a sixty-year sentence for drug distribution, while “certainly harsh,” was

not grossly disproportionate). The sentence is within the statutory limits. See Mosley v.

State, 104 So. 3d 839, 842 (Miss. 2012) (holding that sentences totaling 126 years for three

drug-possession charges, though severe, did not lead to an inference of gross

disproportionality, because the sentences “clearly fall within the statutory limits”). It is also



                                               8
commensurate with other sentences imposed for the same crime. E.g., Smith v. State, 275

So. 3d 100, 103 (Miss. Ct. App. 2019) (defendant sentenced as a habitual offender to serve

fifteen years, day for day, for possession of a cell phone in a county jail); Houston v. State,

150 So. 3d 157 (Miss. Ct. App. 2014) (defendant sentenced to fifteen years, with five

suspended, for possession of a SIM card in a correctional facility). For these reasons, no

Solem analysis is required.

¶18.   We affirm Nash’s conviction and sentence.

¶19.   AFFIRMED.

     RANDOLPH, C.J., KITCHENS, P.J., COLEMAN, BEAM, CHAMBERLIN
AND GRIFFIS, JJ., CONCUR. KING, P.J., SPECIALLY CONCURS WITH
SEPARATE WRITTEN OPINION JOINED BY KITCHENS, P.J.; ISHEE, J., JOINS
IN PART. ISHEE, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE
WRITTEN OPINION.

       KING, PRESIDING JUSTICE, SPECIALLY CONCURRING:

¶20.   I agree that, with regard to Nash’s sentence, this Court has reached the correct result

under our caselaw. However, I write separately to voice my concern over this case as a

whole—it seems to demonstrate a failure of our criminal justice system on multiple levels.

¶21.   First, it is highly probable that the Newton County Jail’s booking procedure was not

followed in Nash’s case. An officer at the jail testified that all inmates were strip-searched

when booked, although that officer did not book Nash. Yet Nash went into the jail with a

large smartphone that would have likely been impossible to hide during a strip search. That

officer also testified that all inmates were told during booking that they could not bring




                                              9
phones into the jail. But Nash’s behavior was that of a person who did not know this, as he

voluntarily showed the officer his phone and asked the officer to charge it for him.

¶22.      Second, the officer who booked Nash the night before the cell phone incident did not

testify at trial. It is consequently unknown whether booking procedures were actually

followed in Nash’s case. Furthermore, had this officer testified that booking procedures were

followed for Nash, he could have been questioned on cross-examination about how he

possibly missed a large smartphone during a strip search. It seems problematic to potentially

allow someone into the jail with a cell phone, and then to prosecute that person for such

action.

¶23.      Third, I note that Nash’s criminal history evinces a change in behavior. Both his

previous convictions were for burglary. His last conviction was in 2001, and he was

sentenced to serve seven years. So, for approximately eight to ten years,7 Nash has stayed

out of trouble with the law. He has a wife and three children who depend on him.

Combining this fact with the seemingly innocuous, victimless nature of his crime,8 it seems

it would have been prudent for the prosecutor to exercise prosecutorial discretion and decline

to prosecute or to seek a plea deal. In that same vein, it would have been prudent for the



          7
       The record does not indicate the date on which Nash was released from jail after
serving this sentence.
          8
        I do not suggest that possessing a cell phone in a correctional facility is always an
innocuous crime. Indeed, those who are serving sentences and have contraband cell phones
snuck into jail for them are not committing innocuous acts. However, the facts of this case
indicate that Nash’s cell phone was simply missed during booking and that he was not
secreting it from law enforcement or using it for any nefarious means. He used it simply to
communicate to his wife where he was.

                                               10
judge to use his judicial discretion in sentencing to sentence Nash to a lesser sentence than

that of twelve years.

¶24.   Cases like Nash’s are exactly why prosecutors and judges are given wide discretion.

Nash served his time for his previous convictions and stayed out of trouble with the law for

many years. He has a wife and three children who rely on him. His crime was victimless,

and the facts of the case lend themselves to an interpretation that his crime was accidental

and likely caused by a failure in booking procedures. Nash did not do anything nefarious

with his phone, and he certainly did not hide his phone from law enforcement. While I do

not think this Court can find under the law that the trial court abused its discretion in

sentencing, it is a case in which, in my opinion, both the prosecutor and the trial court should

have taken a more rehabilitative, rather than punitive, stance.

     KITCHENS, P.J., JOINS THIS OPINION. ISHEE, J., JOINS THIS OPINION
IN PART.




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