        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CP-00619-COA

TOMMY MEISNER A/K/A TOMMY LABRIE                                            APPELLANT
MEISNER A/K/A TOMMY L. MEISNER

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          04/21/2014
TRIAL JUDGE:                               HON. LISA P. DODSON
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    TOMMY MEISNER (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                   DENIED MOTION FOR POSTCONVICTION
                                           RELIEF
DISPOSITION:                               AFFIRMED - 03/22/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    In April 2010, Tommy Meisner led police on a cross-county chase in Harrison County,

Mississippi. After colliding with a law-enforcement patrol vehicle, Meisner fled on foot

from authorities into a nearby wooded area. Meisner was soon apprehended. After searching

Meisner’s vehicle, authorities discovered the contents of a methamphetamine laboratory. It

was later determined that Meisner was transporting the laboratory from one location to

another. As a result of a plea bargain, Meisner pleaded guilty in the Harrison County Circuit

Court to possession of precursor chemicals or drugs as a habitual offender. The circuit judge
sentenced Meisner to ten years to be served day-for-day in the custody of the Mississippi

Department of Corrections (MDOC). This sentence was less than the maximum sentence of

thirty years. Nonetheless, in a motion for postconviction relief (PCR) filed in the circuit

court in 2014, Meisner challenged the validity of his guilty plea as well as the habitual-

offender portion of his sentence. His PCR motion was denied. On appeal, he claims his

sentence was illegal due to the State’s invalid sentencing recommendation and the circuit

court’s failure to conduct a proper proportionality analysis during sentencing. He also claims

that because the sentencing recommendation was allegedly illegal, he could not have entered

a valid guilty plea since the bargain forming the basis of his plea agreement was invalid.

Finally, Meisner asserts that the circuit court erred by failing to fully analyze the arguments

presented in his PCR motion and by failing to grant him a hearing on his PCR motion.

Finding no error, we affirm the circuit court’s judgment.

                                STATEMENT OF FACTS

¶2.    On September 19, 2011, Meisner pleaded guilty to possession of precursor chemicals

or drugs as a habitual offender. This plea was the product of plea negotiations with the State.

Meisner was originally facing four felony charges in total. The State agreed to nolle prosequi

two of the charges and recommend concurrent ten-year sentences to be served day-for-day

for the other two charges, including the charge in question – possession of precursor

chemicals or drugs as a habitual offender. Meisner agreed.

¶3.    At the sentencing hearing, the circuit judge sentenced Meisner as a habitual offender

to ten years in MDOC custody, to be served day-for-day, for the charge of possession of



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precursor chemicals or drugs. The applicable habitual-offender statute requires that habitual

offenders be sentenced to the maximum sentence available. In this case, the maximum

sentence was thirty years without the possibility of early release. However, rare exceptions

exist wherein the circuit judge may deviate from the maximum sentence when a

proportionality analysis has been completed. The circuit judge mentioned the question of

proportionality in passing on the record in determining that a reduced sentence was in order.

¶4.    In 2014, Meisner filed a PCR motion challenging the habitual-offender enhancement

to his sentence and claiming that a proper proportionality analysis was not completed, such

that the day-for-day language rendered his sentence illegal. Likewise, Meisner essentially

argued that his guilty plea was not validly given because the State’s recommendation that he

serve ten years day-for-day was improper, as it constituted a recommendation for an illegal

sentence. Meisner requested a hearing on his PCR motion. The circuit judge denied

Meisner’s request for a hearing as well as the PCR motion. Aggrieved, Meisner appeals.

                                       DISCUSSION

¶5.    It is well settled that when reviewing judgments regarding PCR motions, “[w]e will

not disturb the trial court’s factual findings unless they are found to be clearly erroneous.”

Mann v. State, 2 So. 3d 743, 745 (¶5) (Miss. Ct. App. 2009) (citation omitted). Question of

law are reviewed de novo. Id.

¶6.    Habitual offenders under Mississippi Code Annotated section 99-19-81 (Rev. 2015)

are sentenced pursuant to a sentencing enhancement, which reads:

       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


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       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 . . . 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.

While the habitual-offender-enhancement statute requires circuit judges to impose the

maximum sentence for habitual offenders under the section, Mississippi law recognizes

limited circumstances in which a circuit judge may impose upon a habitual offender a

reduced sentence. See Pool v. State, 724 So. 2d 1044, 1049-50 (¶¶28-31) (Miss. 1998);

Clowers v. State, 522 So. 2d 762, 764 (Miss. 1988); Triplett v. State, 840 So. 2d 727, 732

(¶18) (Miss. Ct. App. 2002).

¶7.    In Clowers, the Mississippi Supreme Court cited Solem v. Helm, 463 U.S. 277, 290

(1983), for the notion that “a criminal sentence must not be disproportionate to the crime for

which the defendant is being sentenced.” Clowers, 522 So. 2d at 764. We have previously

considered circumstances where a habitual offender was sentenced to less than the maximum

and the petitioner challenged the sentence for lack of a proper proportionality analysis. See

Cook v State, 106 So. 3d 823, 825 (¶8) (Miss. Ct. App. 2012). In Cook, we stated:

       Cook’s term of imprisonment . . . was well below what the trial court was
       authorized to impose. As a general rule, we will not disturb sentences which
       are permissible by statute. Further, there is no requirement that a trial court
       conduct a sua suponte proportionality analysis. Before a proportionality
       analysis is reached, it must be shown that the sentence is grossly
       disproportionate to the crime charged. Unless this preliminary requirement is
       shown, Cook is not entitled to the extended comparison analysis under Solem
       ....

Id.

¶8.    In the present case, Meisner was rendered a habitual offender due to his past crimes.

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As such, he should have been sentenced to the maximum term of imprisonment for

possession of precursor chemicals – thirty years’ imprisonment. Nonetheless, the circuit

judge took into consideration Meisner’s testimony and mitigating evidence. Meisner

admitted to having had severe drug addictions in the past, including the time during which

he committed the instant crime. However, the record reflects that he sought help for his

problems and made efforts to become a better person. The circuit judge heard substantial

testimony and saw documentation regarding Meisner’s attempts to better himself. As such,

the circuit judge stated the following with regard to Meisner’s sentence:

       I am going to[,] in cause number 11-346 [regarding the possession of precursor
       chemicals conviction,] follow [the State’s] recommendation and sentence you
       to ten years. That will be day-to-day [sic]. And I am considering that pursuant
       to the Clowers decision because you were facing thirty years, but you’ve
       accomplished quite a bit and made some attempts to rectify or at least to
       improve yourself and to rectify some of the problems that you appear to have
       been experiencing.

¶9.    It is evident that the circuit judge was vested with authority to issue a reduced

sentence despite Meisner’s habitual-offender status.       Furthermore, the circuit judge

conducted an implied proportionality analysis by citing Clower as support for the sentence

rendered. Nonetheless, it appears that the circuit judge was not under a duty to reach the

extended analysis Meisner seeks.

¶10.   Since the circuit judge was vested with the authority to issue a reduced sentence, the

State did not recommend an illegal sentence during plea bargaining. Following such

reasoning, it is clear that Meisner did not enter an invalid guilty plea based on the State’s

recommendation. Accordingly, Meisner’s claims regarding his conviction and sentence are



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without merit.

¶11.   Meisner next asserts that the circuit judge did not adequately review his PCR motion

and erred in failing to grant a hearing on the motion. It is well settled that “[a]n evidentiary

hearing is not necessary where the allegations in a [PCR motion] are specific and

conclusory.” Russell v. State, 44 So. 3d 431, 434 (¶6) (Miss. Ct. App. 2010) (citing Cole v.

State, 666 So. 2d 767, 777 (Miss. 1995)). “The trial court is not required to grant an

evidentiary hearing on every petition it entertains.” Byrne v. State, 30 So. 3d 1264, 1266 (¶7)

(Miss. Ct. App. 2010) (citation omitted).

¶12.   The circuit judge in the instant case issued an eight-page order denying Meisner’s

PCR motion. In that order, the circuit judge made it clear that she reviewed the record, the

pleadings, and all other evidence before her. After reviewing the record, we find that an

evidentiary hearing was not necessary prior to denying Meisner’s PCR motion. Meisner’s

allegations lacked any disputed information that would necessitate a hearing. All pertinent

information was contained in the record before the circuit judge and in the motions and

supporting documentation surrounding Meisner’s PCR request. Additionally, given our

findings above, there was no error in the circuit judge’s analysis of Meisner’s claims. These

issues are meritless.

¶13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, JAMES, WILSON
AND GREENLEE, JJ., CONCUR. IRVING, P.J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.



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