Lanier v. State

For the Court:

Lanier appeals the August 1991 denial of his petition for post-conviction relief by the Lauderdale County Circuit Court. Although Lanier entered into an agreement with the State whereby he agreed to waive any right to parole, he now challenges the propriety of his sentence — life imprisonment without the possibility of parole. Because the contract by which Lanier waived any present and futüre rights to parole is void and unenforceable on public policy grounds, this Court remands for resentencing within the strictures of Miss.Code Ann. § 99-19-101 (Supp. 1993).

I.PROCEDURAL HISTORY

Johnny Rufus Lanier was indicted for capital murder in the December 28,1985 murder, kidnapping, and aggravated assault of Alma Walters, a Meridian police officer. Venue was changed from Lauderdale County to Covington County, where Lanier was tried, convicted, and sentenced to death. On appeal, this Court affirmed the guilty verdict but, based on a confrontation clause violation by the State, reversed and remanded for a new sentencing hearing. See Lanier v. State, 533 So.2d 473 (Miss.1988).

On remand, the State agreed to forego a sentencing hearing, thus forfeiting the right to seek the death penalty, in exchange for Lanier’s waiver of any future right to apply for parole on the capital murder charge. At a hearing before the circuit court on October 27, 1989, the judge accepted Lanier’s waiver. Lanier was represented by five attorneys , all of whom were in favor of Lanier’s agreement with the State and felt it was in Lanier’s best interest. All five attorneys assured the court that Lanier understood the terms and implications of the agreement.

The circuit judge questioned Lanier extensively about his agreement -with the State and the rights he waived by signing it. Lanier acknowledged that he had discussed the agreement with his attorneys and that he understood he was giving up all present and future rights to parole on the capital murder charge. Lanier further understood that his sentences for the three offenses (murder, kidnapping, aggravated assault) were to run consecutively, beginning with his life sentence for the murder.

In response to questions from the court, Lanier responded that he had not been threatened or coerced to accept the agreement with the State. Lanier and his attorneys then signed the agreement, which provided Lanier was “sentenced to serve a life sentence with the Mississippi Department of Corrections without eligibility for parole.” Accordingly, the circuit judge sentenced La-nier to life without parole.

On April 11, 1991, Lanier offered a motion to “Reduce, Modify and/or Correct Sentence,” which was ultimately filed by the Circuit Clerk of Lauderdale County on April 30, 1991. Lanier alleged the following three grounds for post-conviction relief:

1. His sentence violated the constitutions of the United States and the State of Mississippi;

2. His sentence exceeded that allowed by law; and

3. He received ineffective assistance of counsel at the sentencing phase.

On May 3, 1991, the circuit judge entered an order directing the State to answer Lanier’s petition and requiring answers from two of the attorneys who had represented Lanier at trial. The circuit judge stated explicitly in his order that he was expanding the record pursuant to Miss.Code Ann. § 99-39-17.

Lanier’s motion was denied by the circuit judge on August 20, 1991. The judge noted Lanier challenged only the validity of the sentence agreed to for capital murder, yet did not seek to withdraw or breach his “Waiver of Parole Rights” agreement. Consequently, the trial court found only one question needed to be addressed: Is the “no parole” provision in the sentence imposed upon Lanier for his capital murder conviction valid? The trial judge further concluded that this was a question of law; therefore, no evidentiary hearing was necessary. The court then found that, as a matter of law, the “no parole” provision of Lanier’s sentence was “a valid part of the sentence imposed on the Petitioner.”

Lanier now appeals the denial of his petition for post-conviction relief, alleging two errors by the trial court. Only the first issue warrants discussion:

Whether the trial court erred in its holdings that the waiver of Lanier’s future right to apply for parole was valid and the “no parole” provision was a valid part of the sentence.

II. VALIDITY OF WAIVER

While the agreement between the State and Lanier, as embodied in the document labeled “WAIVER OF PAROLE RIGHTS,” has all the indicia of a valid contract, it is nonetheless void as against public policy. As thoroughly discussed by Presiding Justice Lee in his dissent, all essential elements of a contract are present; the right to parole was anticipatorily waived by Lanier voluntarily, knowingly, and on the advice of five attorneys; and the State fulfilled its promise to not seek the death penalty. Moreover, the dissent asserts, deletion of the “without parole” provision of Lanier’s sentence does not affect the agreement between Lanier and the State. Nonetheless, this Court holds that the “contract” is invalid.

III. ENFORCEABILITY OF CONTRACT

Enforcement of the contract between Johnny Rufus Lanier and the State would result in a sentence which is not authorized by law. Pursuant to Miss.Code Ann. § 99-19-101(1) (Supp.1993), the sentencing options available to one convicted of capital murder are life imprisonment or death. Life imprisonment without the possibility of parole is not an option unless the convict is adjudged an habitual offender. Miss.Code Ann. §§ 99-19-81, 99-19-83 (Supp.1993). Lanier was not indicted as, and apparently was not, an habitual offender; therefore a life sentence qualified by the preclusion of parole is not available to Lanier.

Enforcement of the contract would also yield a result beyond the power of this Court to produce. The legislature has established our parole system and the extent of possible sentences for crimes. See Miss. Code Ann. Title 47, Chapter 7 (Probation and Parole) and Titles 97 and 99 (Crimes, Criminal Procedure). The judiciary is responsible for trying those accused of crimes and for imposing sentences authorized by the legislature. But it is the executive branch, via the parole board, that implements the legislature’s parole policies and determines the actual time served by those convicted of crimes. Miss.Code Ann. § 47-7-5(3) (1972). It follows that enforcement of the contract by this Court would effect judicial encroachment on an executive function. In other words, enforcement would bind the parole board, which took no part in the negotiations with Lanier.

Although the right to contract is fundamental, contracts contrary to public policy are unenforceable. Hertz Commercial Leasing v. Morrison, 567 So.2d 832, 834 (Miss.1990); First Nat Bank of Vicksburg v. Caruthers, 443 So.2d 861, 864 n. 3 (Miss. 1983). Our statutes are enactments of the public policy of this state. Grisham v. Hinton, 490 So.2d 1201, 1209 (Miss.1986) (Robertson, J., concurring). Indeed, regarding invalidation of contracts on public policy grounds, this Court has said that the public policy of this state is “found in its constitution and statutes, ‘and when they have not directly spoken, then in the decisions of the courts and the constant practice of the government officials.’ ” Cappaert v. Junker, 413 So.2d 378, 380 (Miss.1982), quoting State ex rel Knox v. Hines Lbr. Co., 150 Miss. 1, 48, 115 So. 598, 605 (1928).

The contract between Lanier and the State relates not merely to the parties’ private business, but to matters of public concern. Both Miss.Code Ann. § 99-19-101 and this Court’s interpretation of this statute have consistently allowed only two sentencing options for one convicted of capital murder: death or life imprisonment, not qualified by preclusion of parole. The contract at issue is an attempt to circumvent § 99-19-101, and as such, this contract is void ab initio on the ground that it violates the public policy of this state. As a result, both parties are placed back in the positions which they occupied prior to entering into the agreement. Sullivan v. Pouncey, 469 So.2d 1233, 1234 (Miss.1985). Lanier once again has the right to be sentenced by a jury and the State once again has the right to seek the death penalty.

IV. DOUBLE JEOPARDY

In Bullington v. Missouri, 451 U.S. 430, 446,101 S.Ct. 1852,1862, 68 L.Ed.2d 270 (1981), the United States Supreme Court held that because the sentencing proceeding under Missouri law is similar to a trial, the double jeopardy protection afforded to one acquitted of a crime after a trial is also afforded to one “acquitted” of the death penalty at his initial sentencing proceeding. Mississippi’s sentencing proceeding, like that of Missouri, consists of a hearing separate from the guilt/innocenee phase of the trial, where the jury has a choice between life and death and is presented with standards to guide that choice. Moreover, the State has the burden of establishing certain facts beyond a reasonable doubt at the sentencing hearing in order to have the death penalty imposed. Since our capital sentencing procedure requires the jury to determine whether the State has proved its case for the death penalty, just as the Missouri sentencing procedure does, the double jeopardy clause will protect a defendant from any subsequent attempt to subject him to the death penalty after a jury has impliedly acquitted him of the death penalty by determining that only a life sentence is warranted.

However, Lanier has not yet been acquitted of the death penalty. At his initial sen-fencing proceeding, the jury found that the prosecution had indeed proved its ease and sentenced Lanier to death. On appeal, this Court reversed, yet did not find that the State had failed to prove its case for the death penalty. On remand the State did not fail to prove its case for the death penalty — it refrained from putting on its case in exchange for Lanier’s agreement to be sentenced to life without parole. It follows that the judge’s imposition of a life sentence was not an acquittal of the death penalty for Lanier: no adjudication on the merits was necessary or possible in light of the agreement between Lanier and the State. In sum, neither Lanier’s initial sentencing proceeding, which resulted in the death penalty, nor his subsequent agreement with the State, which resulted in a life sentence, affords him the protection of the double jeopardy clause to prevent the State from seeking the death penalty on resentencing.

While the double jeopardy clause prevents a state from sentencing a convicted defendant to death after an initial life sentence is set aside on appeal, Arizona v. Rumsey, 467 U.S. 203, 205, 104 S.Ct. 2305, 2306, 81 L.Ed.2d 164 (1984), this protection avails Lanier nothing because his initial sentence which was set aside on appeal was death. The reasoning in Rumsey, as in Bullington, is that initial imposition of a life sentence is equivalent to “an on the merits acquittal of the death penalty and bars any subsequent attempt to seek the death penalty. Rumsey, 467 U.S. at 211, 104 S.Ct. at 2310.

More instructive for today’s case is Poland v. Arizona, 476 U.S. 147, 106 S.Ct. 1749, 90 L.Ed.2d 123 (1986). When asked to determine whether the double jeopardy clause prevents further capital sentencing proceedings when, on appeal from a death sentence, the appellate court found the evidence insufficient to support the only aggravating factor found by the sentencing judge, but did not find the evidence insufficient to support the death penalty, the United States Supreme Court answered in the negative. See generally Poland v. Arizona, 476 U.S. 147, 106 5.Ct. 1749, 90 L.Ed.2d 123 (1986). In Poland, the initial sentencing by a judge resulted in imposition of the death penalty. On appeal, the Arizona Supreme Court found that the sentencing judge erred, but it did not find that the State had failed to prove its case for the death penalty. “[Bjecause the reviewing court did not find the evidence legally insufficient to. justify imposition of the death penalty, there was no death penalty ‘acquittal’ by that court” and double jeopardy would not prohibit the State from seeking the death penalty at a subsequent sentencing hearing. Poland, 476 U.S. at 157, 106 S.Ct. at 1756.

Similarly, in the instant case, Lanier was initially sentenced to death by a jury. On appeal, this Court found that a confrontation clause problem required reversal of Lanier’s death sentence, but did not find that the State had failed to prove its case for the death penalty. Restated, there was no death penalty acquittal by this Court; consequently, the double jeopardy clause would not prohibit the State from seeking the death penalty at a subsequent sentencing hearing.

However, no sentencing hearing was held on remand. Instead, Lanier and the State entered into a sentencing agreement which this Court now finds void ab initio — a legal nullity — affording neither of the parties any legally enforceable rights. It follows that this legal nullity could have had no effect on jeopardy, therefore the double jeopardy clause still would not prohibit the State from seeking the death penalty. Even if not treated as a nullity, the imposition of a life sentence pursuant to the agreement was in no way an acquittal of the death penalty, therefore double jeopardy does not provide an obstacle to a subsequent sentence of death. The judge could not have decided that the State failed to prove its case for the death penalty because the State did not present its case for the death penalty and the judge made no determination on the merits.

The double jeopardy clause provides protection against reprosecution for the same offense after an acquittal as well as after a conviction. It also protects against multiple punishments for the same offense. Jones v. Thomas, 491 U.S. 376, 381,109 S.Ct. 2522, 2525, 105 L.Ed.2d 322 (1989), citing North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969). This third ambit of protection prevents punishments which in combination exceed that authorized by the legislature. Jones, 491 U.S. at 381, 109 S.Ct. at 2525. Where credit for time served under the original sentence is applied toward fulfillment of the sentence imposed at a second trial after appeal, and the convicted defendant is not thereby made to serve more than that authorized by the legislature, there is no double jeopardy violation. Jones, 491 U.S. at 378-81, 109 S.Ct. at 2523-26.

The double jeopardy clause affords Lanier no protection against further capital sentencing procedures. If Lanier is subsequently sentenced to life imprisonment, he must be credited with the time already served. If, on the other hand, Lanier is resentenced to death, it will be impossible to credit the time already served. This does not, however, violate double jeopardy.

The double jeopardy clause prevents the prosecution from obtaining a conviction or an increased penalty by virtue of sheer perseverance, i.e., repeated prosecutions. BulMng-ton, 451 U.S. at 445, 101 S.Ct. at 1861. In this case, Lanier has voluntarily shouldered the burden and concomitant risk of resen-tencing.

V. EFFECT OF AMENDMENT OF SENTENCE

Assuming arguendo the contract at issue were valid, should this Court simply amend Lanier’s sentence to life imprisonment by deleting the “without parole” provision as suggested by Lanier, the effect would be to hold the State to the contract while allowing Lanier to shirk his contractual duty. The State has already carried out its end of the bargain by not pursuing the death penalty for Lanier. Now that Lanier has obtained this benefit, he seeks to be excused from his promise to forego any right to parole. By granting Lanier the relief he requests, this Court would be aiding him in manipulation of the criminal justice system. However, the contract is void, affording neither party any legally enforceable rights.

By merely deleting the “without parole” provision from Lanier’s sentence, this Court would bring Lanier’s sentence within the parameters of § 99-19-101. However, since the sentencing agreement between Lanier and the State is void as against public policy, the sentence imposed pursuant to such agreement is invalid and void. Consequently, it is not subject to amendment.

VI. CONCLUSION

Unless and until the people, through the legislature, see fit to add a third sentencing option to the two which already exist for capital murder, this Court will not engage in judicial legislating in order to circumvent the statutory scheme. It is for the legislature, rather than for this Court, to discover and implement the public policy of this state. Furthermore, even if the contract were valid, this Court should not infringe upon the province of the executive branch, but instead should trust the parole board to perform its duties in a competent and responsible manner.

To be true to our capital murder statutory sentencing scheme, only one option is available: this Court must find the contract between Lanier and the State is void as against public policy and remand for resentencing within the strictures of Miss.Code Ann. § 99-19-101. No other result is just and in full compliance with the public policy of this state as reflected by Miss.Code Ann. § 99-19-101 and this Court’s consistent interpretation of this statute. Although resentencing by a jury will likely be more favorable to Lanier than to the State, due to the decreased likelihood of a jury’s imposing the death penalty when so much time has passed, it is the law which must guide this Court to the result, rather than vice versa. Nothing in this opinion is intended to, nor does it, prevent Lanier and the State from entering into a new sentencing agreement which does not violate Miss.Code Ann. § 99-19-101.

As the agreement between Lanier and the State is void as against public policy, this Court remands this cause to the circuit court of Lauderdale County for resentencing within the strictures of Miss.Code Ann. § 99-19-101.

DENIAL OF PETITION FOR POST-CONVICTION RELIEF REVERSED AND REMANDED FOR RESENTENC-ING.

PITTMAN, BANKS and SMITH, JJ. concur.

HAWKINS, C.J., concurs with separate written opinion joined by SULLIVAN, J.

DAN M. LEE, P.J., dissents with separate written opinion joined by McRAE and JAMES L. ROBERTS, Jr., JJ.

McRAE, J., dissents with separate written opinion joined by DAN M. LEE, P.J., and JAMES L. ROBERTS, Jr., J.

. Earl Jordan, Jr. and David Stephenson of Meridian, Mississippi; Clyde Stafford Smith of Atlanta, Georgia; and Raymond L. Falls, Jr. and John Hutchinson, both of New York, New York.

. Even had the prosecutor allowed the judge to sentence Lanier to life imprisonment, while intending to abide by a contradictory contract with Lanier (life without parole), "[i]t would be tantamount to defrauding the court ... [and] clearly against public policy.” Gregg v. Montgomery, 587 So.2d 928, 933 (Miss.1991).

. This initial sentencing distinguishes the case sub judice from Trotter v. State, 554 So.2d 313 (Miss.1989). Resentencing of Lanier at this point constitutes no violation of his right to a speedy trial.

. In Rumsey the Court found the Arizona capital sentencing hearing resembles a trial for double jeopardy purposes. The sentence imposed as a result of such hearing is a judgment "like the sentence at issue in Bullington v. Missouri, which this Court held triggers the protections of the Double Jeopardy Clause.” Rumsey, 467 U.S. at 210, 104 S.Ct. at 2309.

. The Rumsey Court noted that even if based on a legal error, an acquittal "on the merits" would prevent retrial wherein the State could seek the death penalty. Rumsey, 467 U.S. at 211, 104 S.Ct. at 2310.

. The Arizona sentencing procedure at issue in Poland was the same as that at issue in Rumsey. Poland, 476 U.S. at 153, 106 S.Ct. at 1754.

. As previously discussed, Lanier has never been acquitted of the death penalty. Remand for re-sentencing will not subject Lanier to reprosecution on the question of his guilt on the charge of capital murder.

.We note that the instant case differs from In re Bradley, 318 U.S. 50, 63 S.Ct. 470, 87 L.Ed. 608 (1943), in that Lanier has not already satisfied one of two alternate sentences, which would require that he be free from any further punishment.