Wells v. State


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Docket Number: 2009-KP-00842-COA

Court of Appeals: Opinion Link
Opinion Date: 03-01-2011
Opinion Author: King, C.J.
Holding: Affirmed.

Additional Case Information: Topic: Possession of cocaine with intent to transfer - Sufficiency of evidence - Amendment of indictment - URCCC 11.03(1) - Section 41-29-147 - URCCC 7.09 - Right to speedy trial - Cruel and unusual punishment - Motion to suppress - Ineffective assistance of counsel
Judge(s) Concurring: Lee, P.J., Myers, P.J., Griffis, Barnes, Ishee, Carlton and Maxwell, JJ.
Concur in Part, Concur in Result 1: Irving and Roberts, JJ., Without Separate Written Opinion
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 04-30-2009
Appealed from: Harrison County Chancery Court
Judge: Jerry O. Terry, Sr.
Disposition: Convicted of Possession of Cocaine with Intent to Transfer and Sentenced to as a Habitual Offender to Sixty Years in the Custody of the Mississippi Department of Corrections Without Eligibility for Probation or Parole
District Attorney: Cono A. Caranna II
Case Number: B2401-07-00774

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Larry Press Wells




PRO SE



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: JOHN R. HENRY JR.  

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    Topic: Possession of cocaine with intent to transfer - Sufficiency of evidence - Amendment of indictment - URCCC 11.03(1) - Section 41-29-147 - URCCC 7.09 - Right to speedy trial - Cruel and unusual punishment - Motion to suppress - Ineffective assistance of counsel

    Summary of the Facts: Larry Wells was convicted of possession of cocaine with intent to transfer and was sentenced as a habitual offender to sixty years without eligibility for probation or parole. Wells appeals.

    Summary of Opinion Analysis: Issue 1: Sufficiency of evidence Wells argues that there was no evidence that he intended to transfer the cocaine to the officer. Although Wells did not physically transfer any cocaine to the officer, a defendant can commit the crime of possession with intent to transfer without having actually transferred any cocaine. Wells assured the officer that he could obtain $40 worth of cocaine for him and directed the officer to a location where Wells got out of the car. Wells returned to the car with cocaine, put the cocaine in a crack pipe, and offered it to the officer to smoke. Viewing this evidence in the light most favorable to the State, a reasonable juror could have found beyond a reasonable doubt that Wells intended to transfer/deliver cocaine to the officer. Issue 2: Amendment of indictment Wells argues that the circuit court erred by allowing the State to amend his indictment to charge him as a habitual offender. In Wells’s indictment, the principal offense was listed as possession of cocaine with intent to transfer. The amendment also listed Wells’s two previous convictions. In accordance with URCCC 11.03(1), the habitual portion of Wells’s indictment included the nature of his convictions, the dates of judgment, and the state jurisdiction of those previous convictions. The rule does not require the State to indicate whether the convictions were obtained in the First or the Second Judicial District of Harrison County, and Wells has failed to provide the Court with any authority in support of his argument. Wells also argues that the circuit court erred by allowing the State to amend his indictment to charge him as a prior drug offender under section 41-29-147. Wells argues that the circuit court did not make an on-the-record finding that he was a habitual offender and a prior drug offender. However, the record belies his assertion. During Wells’s sentencing hearing, the State presented the circuit court with certified copies of Wells’s pen pack from the MDOC. The pen pack evidenced that Wells had four prior felony convictions – one for uttering a forgery and three for the sale of a controlled substance. The circuit court noted that Wells had been previously convicted of two felony crimes, had served at least one year for each crime, and had been previously convicted of a drug related crime; thus, Wells was eligible for a sentence enhancement. Wells also argues that the State’s amendment to charge him as a prior drug offender was tardy and that the State should have sought this amendment at the same time that it sought to charge him as a habitual offender. In accordance with URCCC 7.09, an amendment requested on the day of the trial to add an enhanced penalty is proper where the defendant was apprised of the charge pending against him, was not unfairly surprised, and was afforded a fair opportunity to present his defense. Before the State sought to enhance his penalty for being a prior drug offender, Wells was aware that he was being charged as a habitual offender. In addition, Wells was aware that one of his previous offenses was a drug-related offense. Thus, the amendment to the indictment did not affect Wells’s opportunity to present his defense. Issue 3: Right to speedy trial Wells argues that he was denied his constitutional right to a speedy trial. Factors the court considers are length of delay, reason for delay, defendant’s assertion of his right to speedy trial, and prejudice to the defendant. Wells’s right to a speedy trial began on the date of his arrest – May 24, 2007. His trial did not begin until April 29, 2009; thus, the delay is presumptively prejudicial. There is no evidence in the record of deliberate delay on behalf of the State, and Wells makes no claim of deliberate delay. The delay from February 2008 to April 2009, when the trial commenced, is fully explained. Aside from the circuit court’s motion for a continuance, Wells filed the remaining motions, and he waived his right to a speedy trial in those motions. Wells made a demand for a speedy trial on October 25, 2007, approximately five months after his arrest. On the same day, though somewhat premature, Wells filed a motion to dismiss for a speedy-trial violation. Besides Wells’s bare assertions, there is no evidence that Wells suffered great prejudice due to his pretrial incarceration or from anxiety. Considering the totality of the circumstances surrounding Wells’s speedy-trial claim, his constitutional right to a speedy trial was not violated. Issue 4: Cruel and unusual punishment Wells argues that the circuit court should have conducted a proportionality analysis because his enhanced sentence of sixty years as a habitual offender and a prior drug offender constitutes cruel and unusual punishment and is clearly disproportionate to the offense. By law, the circuit court was authorized to double Wells’s sentence from thirty years in prison to sixty years in prison. Because Wells’s sentence does not exceed the statutory limits, his sentence is affirmed and a proportionately analysis is not required. Issue 5: Motion to suppress Wells argues that the circuit court erred by denying his motion to suppress the videotape documenting his alleged crime because the officer did not read Wells his Miranda warnings, and the State did not provide him a transcript of the videotaped conversation. Miranda warnings are required whenever a suspect is actually under arrest. This appeal involves an undercover drug bust conducted by the police. When Wells returned to the car with the cocaine, he was not under arrest at that time. With regard to the transcript of the recording, Wells has failed to provide any authority to support his argument. Issue 6: Ineffective assistance of counsel Wells argues that his indictment was defective because the State failed to state in which judicial district of Harrison County his previous convictions were obtained, and the State was allowed to amend his indictment twice and that his trial counsel was ineffective for failing to object. The record does not affirmatively show ineffective assistance of counsel of constitutional dimensions, and the parties have not stipulated that the record is adequate to allow consideration of the issue. Thus, the issue will not be considered on direct appeal.


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