Westbrook v. State
| Docket Number: | 2006-CP-01207-COA Linked Case(s): 2006-CT-01207-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-03-2007 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Excessive sentence - Constitutionality of statute - Defective indictment Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Roberts and Carlton, JJ. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 08-08-2006 Appealed from: MONROE COUNTY CIRCUIT COURT Judge: Sharion R. Aycock Disposition: POST-CONVICTION RELIEF - DENIED Case Number: CV06-003(A)M |
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| Party Name: | Attorney Name: | |||
| Appellant: | LARRY WESTBROOK |
LARRY D. WESTBROOK (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Excessive sentence - Constitutionality of statute - Defective indictment |
| Summary of the Facts: | Larry Westbrook entered a plea of guilty to the sale of cocaine. He was sentenced to twenty years with ten years suspended and five years’ post-release supervision. Westbrook filed a motion for post-conviction relief, which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Excessive sentence Westbrook argues that his sentence exceeds the statutorily prescribed penalty. Westbrook faced a possible thirty year sentence for the sale of cocaine. His sentence of twenty years with ten suspended and five years post-release supervision was within the zero to thirty year limits of the statute. A sentence that is within the statutory limits is within the complete discretion of the trial court and is not subject to review. Issue 2: Constitutionality of statute Westbrook argues that the statute under which he was convicted is unconstitutionally ambiguous. Westbrook argues the statute is ambiguous because he believes section 41-29-139(b) conflicts with section 41-29-139(c), which looks at the amount of the controlled substance and provides for shorter sentences. What Westbrook fails to realize is that he was convicted under the subsection that criminalizes the sale of a controlled substance, while section 41-29-139(c) proscribes possession of a controlled substance. These are two different provisions dealing with two different situations. They are not ambiguous, as they each clearly state their purpose. Issue 3: Defective indictment Westbrook argues that the court lacked jurisdiction because of defects in the indictment. A valid guilty plea waives all non-jurisdictional defects in an indictment. Westbrook also claims that his counsel was ineffective because he failed to object to the alleged defects in the indictment. The claims Westbrook argues to be defects in the indictment are insufficient to show deficiency in his counsel’s performance or prejudice to his case. |
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