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Parker v. State


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Docket Number: 2008-KA-00409-SCT

Supreme Court: Opinion Link
Opinion Date: 03-25-2010
Opinion Author: Pierce, J.
Holding: AFFIRMED; REMANDED FOR RESENTENCING AS TO COUNT II

Additional Case Information: Topic: Possession of firearm on educational property, Murder & Aggravated assault - Illegal sentence - Section 97-3-21 - Section 47-7-3 - Double jeopardy - Competency hearing - URCCC 9.06 - Sufficiency of evidence - Ineffective assistance of counsel
Judge(s) Concurring: Waller, C.J., Carlson, P.J., Dickinson, Randolph, Lamar, Kitchens and Chandler, JJ.
Concurs in Result Only: Graves, P.J.
Procedural History: Jury Trial
Nature of the Case: CRIMINAL - FELONY

Trial Court: Date of Trial Judgment: 02-08-2008
Appealed from: Coahoma County Circuit Court
Judge: Kenneth L. Thomas
Disposition: Count I: Conviction of possession of a firearm on campus and sentence of three (3) years in the custody of the Mississippi Department of Corrections. Count II: Conviction of Murder, Affirmed. Sentence of life without parole is vacated and this case is remanded for resentencing as to Count II. Count III: Conviction of aggravated assault and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections. Sentence of life without parole is vacated and this case is remanded for resentencing as to Count II. Count III: Conviction of aggravated assault and sentence of fifteen (15) years in the custody of the Mississippi Department of Corrections. The sentences imposed in Counts I and IIl of this cause shall run concurrently with each other and consecutively to any and all sentences previously imposed.
District Attorney: Laurence Y. Mellen
Case Number: 2004-0101

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Fernando Martinez Parker a/k/a Tal
KELSEY LEVOIL RUSHING
 
  • Brief

  • Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: DEIRDRE McCRORY  
  • Brief

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    Topic: Possession of firearm on educational property, Murder & Aggravated assault - Illegal sentence - Section 97-3-21 - Section 47-7-3 - Double jeopardy - Competency hearing - URCCC 9.06 - Sufficiency of evidence - Ineffective assistance of counsel

    Summary of the Facts: Fernando Parker was convicted of possession of a firearm on educational property, murder and aggravated assault. He was sentenced to life without parole for murder, three years for possession of a firearm on educational property, and fifteen years for aggravated assault. He appeals.

    Summary of Opinion Analysis: Issue 1: Illegal sentence Parker argues that the trial court illegally imposed a sentence of life imprisonment without parole for the murder conviction. Parker was indicted and convicted of deliberate-design murder pursuant to section 97-3-19. Section 97-3-21 permitted the trial court to impose a sentence of only imprisonment for life. The trial court imposed a sentence of life imprisonment without parole, which exceeded the statutory maximum. Therefore, Parker should be resentenced in accordance with section 93-3-21 on his murder conviction only. The State argues that Parkerís sentence was legal under section 47-7-3. Section 47-7-3 applies only to the internal operating procedures of the Department of Corrections and the prisons and does not affect a judgeís sentencing prerogative under the criminal statutes. Issue 2: Double jeopardy Parker argues that the trial court erred by subjecting him to double jeopardy. Parker was charged with and convicted of separate crimes, as evinced by the language in the indictment and the jury instructions. Each charge consists of entirely different elements, requiring different facts. Double jeopardy is not violated where a defendant is convicted of separate crimes. Issue 3: Competency hearing Parker argues that the trial court erred by failing to order a competency hearing at trial. The test for competency to stand trial and thereby whether reasonable grounds exist is whether the defendant has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding and has a rational as well as factual understanding of the proceedings against him. Parker alleges that there were issues surrounding his competency at the time of the crime, and not at the time of trial, as URCCC 9.06 requires. Thus, an insanity defense would have been more appropriate. Parkerís argument also fails because he claims, incorrectly, that the rule required the trial court to bring forth the issue on its own motion. Parker fails to present any facts on appeal that the trial court had reasonable grounds to order Parker to submit to a mental examination; further, the record lacks any evidence to show that Parkerís counsel raised the issue of his competency to stand trial. Issue 4: Sufficiency of evidence Parker argues that the State never presented proof of each of the elements, and that, if anything, it minimally made a prima facie case against him. However, considering the evidence in the light most favorable to the State, the evidence presented was legally sufficient to support the murder conviction. The evidence in the record clearly shows that Parker was in possession of a .380 caliber weapon and cartridges on the night in question, that Parker shot and injured a man, that Parker shot and killed another man whose death resulted from several gunshot wounds originating from a .380 caliber weapon. Parker admitted in his statement that he had possessed the gun at least a week prior to the shooting. He further admitted that, during the shooting, he deliberately aimed at the person who punched him. The evidence supports the finding that Parker had the requisite intent, even if it formed just moments before the act. Issue 5: Ineffective assistance of counsel Parker argues that he was denied his Sixth Amendment right to effective assistance of counsel. Generally, ineffective assistance claims are more appropriately brought during post-conviction proceedings. Even though the trial counselís failure to move for a new trial constituted deficient performance, Parker fails to show how such deficiency prejudiced his case. Specifically, Parker failed to show how the filing of a motion for JNOV or, in the alternative, a new trial would have changed the outcome of the proceedings. There was no reasonable probability that the trial judge would have granted the motion for a new trial had he been afforded a second chance to review the evidence, as two eyewitnesses testified at trial to seeing Parker use a gun on school property.


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