Cummings v. State
| Docket Number: | 2009-KA-00317-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-02-2010 Opinion Author: Lee, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Felony driving under the influence - Disproportionate sentence - Weight of evidence Judge(s) Concurring: King, C.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Procedural History: Jury Trial Nature of the Case: CRIMINAL - FELONY |
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| Trial Court: |
Date of Trial Judgment: 02-18-2009 Appealed from: Choctaw County Circuit Court Judge: Clarence E. Morgan, III Disposition: CONVICTED OF FELONY DRIVING UNDER THE INFLUENCE AND SENTENCED AS A HABITUAL OFFENDER TO LIFE IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS WITHOUT ELIGIBILITY FOR PAROLE OR PROBATION District Attorney: Doug Evans Case Number: 2008-010CR |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | OTTIS J. CUMMINGS, JR. A/K/A OTTIS
JUNIOR CUMMINGS A/K/A OTIS CUMMINGS |
BENJAMIN ALLEN SUBER |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE | ||
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| Topic: | Felony driving under the influence - Disproportionate sentence - Weight of evidence |
| Summary of the Facts: | Ottis Cummings, Jr. was convicted of felony driving under the influence. He was found to be a habitual offender and sentenced to life without eligibility for parole or probation. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Disproportionate sentence Cummings argues that his sentence was disproportionate to the crime and constitutes cruel and unusual punishment. As a general rule, a sentence that does not exceed the maximum period of time allowed by statute will not be disturbed on appeal. Sentences under the habitual-offender statute do not constitute cruel and unusual punishment. The indictment charging Cummings as a habitual offender listed previous convictions of burglary of a dwelling, aggravated assault, and felony DUI. During the sentencing hearing, the trial judge was notified that Cummings had other convictions, including one for a jail escape and two other felony DUIs. In light of the gravity of Cummings’s current offense and his prior offenses, the trial judge’s imposition of a life sentence does not give rise to an inference of gross disproportionality. Issue 2: Weight of evidence Cummings argues that his conviction is against the overwhelming weight of the evidence. Although Cummings refused to take the Intoxilyzer, there was evidence to support the guilty verdict. The officer testified to the following: he witnessed a van speed past his position; the van swerved across the highway; the driver was slumped over the wheel, with his forehead resting on the steering wheel; he immediately smelled alcohol; Cummings’s speech was slurred; Cummings’s pupils were dilated, and his eyes were red; Cummings admitted that he had been drinking; Cummings stumbled while exiting the van; Cummings refused the Intoxilyzer test; and Cummings’s demeanor was uncooperative and argumentative. |
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