Fulgham v. State
| Docket Number: | 2009-CA-00971-SCT | |
| Supreme Court: | Opinion Link Opinion Date: 11-05-2010 Opinion Author: Lamar, J. Holding: Reversed and remanded. |
|
| Additional Case Information: |
Topic: Post-conviction relief - Vague statute - Section 47-5-193 - Procedural bar - Unauthorized electronic device Judge(s) Concurring: Waller, C.J., Carlson, P.J., and Dickinson, J. Dissenting Author : Graves, P.J., Dissents With Separate Written Opinion Dissent Joined By : Randolph, Chandler and Pierce, JJ. Concur in Part, Dissent in Part 1: Kitchens, J., Concurs in Part and Dissents in Part with Separate Written Opinion Procedural History: PCR Nature of the Case: CIVIL - POST CONVICTION RELIEF |
|
| Trial Court: |
Date of Trial Judgment: 05-07-2009 Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT Judge: James T. Kitchens, Jr. Disposition: While incarcerated, Kristi Fulgham had access to a cell phone and charger, which she provided to an inmate in the Oktibbeha County Jail. Fulgham subsequently pleaded guilty under a statute that prohibits “any . . . person” from “furnish[ing], attempt[ing] to furnish, or assist[ing] in furnishing to any offender . . . an unauthorized electronic device.”1 She now contends that she pleaded guilty to an unconstitutionally vague statute. District Attorney: FORREST ALLGOOD Case Number: 2008-0547-CV |
|
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kristi Fulgham |
R. GREGG MAYER, JAMES W. CRAIG |
|
|
| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE | ||
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. |
|
| Topic: | Post-conviction relief - Vague statute - Section 47-5-193 - Procedural bar - Unauthorized electronic device |
| Summary of the Facts: | While incarcerated, Kristi Fulgham had access to a cell phone and charger, which she provided to an inmate in the Oktibbeha County Jail. Fulgham subsequently pleaded guilty under a statute that prohibits “any . . . person” from “furnish[ing], attempt[ing] to furnish, or assist[ing] in furnishing to any offender . . . an unauthorized electronic device.” Fulgham timely filed a petition for post-conviction relief in the trial court and challenged her guilty plea. Fulgham argued that the statute is unconstitutionally vague, and that she had pleaded guilty to a crime for which she cannot be convicted. She also argued that her counsel was ineffective for failing to challenge the constitutionality of the statute. The court denied her petition, and Fulgham appeals. |
| Summary of Opinion Analysis: | Under the PCR Act, failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which are capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver. This procedural bar cannot be applied in the face of errors affecting fundamental rights, because such a violation is too significant a deprivation of liberty to be subjected to a procedural bar. And a conviction under an unconstitutionally vague statute violates the Due Process Clause which is an error affecting a fundamental constitutional right. If the phrase “unauthorized electronic device” is vague under the Due Process Clause, then the State had no power to bring an indictment charging a violation of section 47-5-193. Therefore, Fulgham’s claim is excepted from the procedural bar. Fulgham argues that the version of section 47-5-193 in force at the time of her guilty plea was facially vague, that is, the vagueness was apparent from the words of the statute. The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. The test is whether the language conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. In a vagueness challenge, the Fifth Circuit requires the following: the court must consider whether the statute affects a constitutional right; if the statute implicates no constitutionally protected right, the court should consider whether the statute is impermissibly vague in all of its applications, applying the statute to the complainant’s conduct before considering any hypothetical scenarios. In applying the statute to the facts at hand, the court must consider whether the complainant had notice of what conduct is prohibited and whether law enforcement had definite standards to avoid arbitrary enforcement. At the time of Fulgham’s offense, section 47-5-193 provided that it is unlawful for any officer or employee of the department, or any county sheriff’s department, of any private correctional facility in this state in which offenders are confined or for any other person to furnish, attempt to furnish, or assist in furnishing to any offender confined in this state any weapon, deadly weapon, unauthorized electronic device or contraband item. The statute in effect in 2004 contained no definition for “unauthorized electronic device.” Fulgham does not argue that the statute affects any constitutional right and in fact, it does not. Therefore, the statute is applied to Fulgham’s conduct to determine whether she had notice of what conduct was prohibited and whether law enforcement had definite standards to avoid arbitrary enforcement. This inquiry involves a factual determination for the trial court, which did not hold a hearing on Fulgham’s petition for post-conviction relief. The record is silent as to what was or was not “authorized” and what, if any, notice was given to Fulgham. Therefore, the case is remanded for an evidentiary hearing for the court to determine whether Fulgham had notice that a cell phone and charger constituted an “electronic device,”and if so, whether she had notice that they were “unauthorized,” and whether law enforcement had definite standards to avoid arbitrary enforcement. |
Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court
