IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CP-01137-COA
WENDELL HAYES A/K/A WENDELL WAYNE APPELLANT
HAYES A/K/A WENDELL W. HAYES
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/18/2015
TRIAL JUDGE: HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: WENDELL HAYES (PRO SE)
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
JASON L. DAVIS
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DENIED
DISPOSITION: AFFIRMED - 11/15/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Wendell Hayes appeals pro se the circuit court’s denial of his motion for post-
conviction relief (PCR). Hayes argues that the twenty-five-year sentence he received
following his guilty plea for the crime of child endangerment is unduly harsh and illegal
because it likely exceeds his life expectancy. Because his sentence is within the maximum
permitted by law, we find his argument to be without merit and affirm the circuit court’s
denial of relief.
FACTS AND PROCEEDINGS BELOW
¶2. On December 10, 2012, Hayes pleaded guilty to one count of exploitation of a child
under Mississippi Code Annotated section 97-5-33(3) (Rev. 2014). He was sentenced to
serve twenty-five-years, day for day, on January 7, 2013. In his PCR motion, Hayes argued
that the twenty-five-year sentence is illegal because it exceeds his life expectancy. The trial
court denied his motion, and Hayes appeals.1
DISCUSSION
¶3. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only
disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s
legal conclusions under a de novo standard of review.” Carson v. State, 161 So. 3d 153, 155
(¶2) (Miss. Ct. App. 2014). Sentencing upon a criminal conviction is within the discretion
of the trial court, including sentences based on guilty pleas. Burrough v. State, 9 So. 3d 368,
372 (¶10) (Miss. Ct. App. 2009).
¶4. Hayes argues that he received an unduly harsh and illegal sentence because twenty-
five years exceeds his life expectancy.2 A defendant has a fundamental right to be free from
an illegal sentence. Williams v. State, 24 So. 3d 360, 364 (¶10) (Miss. Ct. App. 2009). A
1
Hayes has filed additional PCR motions before the trial court arguing that his plea
was involuntary because neither his counsel nor the trial court informed him that his
sentence as a sex offender would be without the possibility of parole. See Miss. Code Ann.
§ 47-7-3(1)(b) (Supp. 2016). While Hayes argues that issue in his pro se appellate brief, the
issue was not raised or decided before the trial court in the particular PCR motion before us
on appeal now, and therefore the issue is improper for us to consider. Hayes concedes in his
brief that the trial court did inform him of the minimum and maximum sentences. The
transcript of the plea hearing is not a part of the record on this appeal.
2
Hayes was sixty-six years old at the time of sentencing.
2
sentence is illegal when it exceeds the maximum authorized by law. Foreman v. State, 51 So.
3d 957, 962 (¶11) (Miss. 2011).
¶5. Hayes was convicted of child endangerment under Mississippi Code Annotated
section 97-5-33(3) (Rev. 2014), and sentenced under section 97-5-35, which permits a
sentencing range from five to forty years. “In general, a sentence which falls within the
permissible range designated by statute will not be disturbed on appeal.” McCline v. State,
856 So. 2d 556, 560 (¶18) (Miss. Ct. App. 2003). “[W]hen the Legislature has affixed a set
term of years as the maximum sentence and has allowed that sentence to be imposed by a
trial judge, . . . the trial judge is not required to apply a term less than life in accordance with
actuarial tables.” Long v. State, 982 So. 2d 1042, 1045 (¶14) (Miss. Ct. App. 2008); see also
Hampton v. State, 148 So. 3d 992, 996 (¶8) (Miss. 2014). Here, Hayes’s twenty-five-year
sentence was well within the forty-year maximum permitted by statute.
¶6. Hayes cites repeatedly to Stewart v. State, 372 So. 2d 257 (Miss. 1979), to support his
argument that the trial court should have considered his life expectancy in sentencing so as
to not impose what amounts to a life sentence. The rule announced in Lee v. State, 322 So.
2d 751 (Miss. 1975), and expanded on in Stewart requiring trial judges to impose a term-of-
years sentence reasonably expected to be less than life applied exclusively to the sentencing
schemes for armed robbery and forcible rape: where a jury failed to impose life, a trial court
had to impose a term-of-years sentence reasonably expected to be less than life. Lee, 322 So.
2d at 753; Stewart, 372 So. 2d at 259.
¶7. Lee and its progeny were recently overruled by the Mississippi Supreme Court in
3
Bester v. State, 188 So. 3d 526 (Miss. 2016) (holding that trial judge has statutory authority
to sentence defendant to life where jury fails to fix life sentence). Even when Stewart and Lee
were good law, the supreme court made clear that Stewart’s requirement to consider life
expectancy did not apply to sentencing statutes that designate a specific maximum term of
years. Cannon v. State, 919 So. 2d 913, 915 (¶8) (Miss. 2005) (reversing the Mississippi
Court of Appeals’ remand of a sixty-year drug sentence as excessive). The Stewart
requirement to consider life expectancy hinged on the position that the maximum sentence
permitted by law (for the crimes of armed robbery and forcible rape) was a term of years less
than life; a term-of-years sentence tantamount to life would have been illegal because it
would have exceeded the maximum permitted by law. But here, the sentencing scheme for
child endangerment explicitly defines the maximum sentence as forty years. While trial
courts are free to consider various factors including life expectancy within their general
sentencing discretion, the fact that Hayes’s twenty-five-year sentence exceeds his life
expectancy does not operate to make his sentence illegal.3
CONCLUSION
¶8. We affirm the trial court’s denial of Hayes’s PCR motion. Hayes’s sentence was
within the maximum permitted by law and is not illegal. Hayes has not demonstrated that his
sentence is unconstitutionally disproportionate.
3
Hayes’s sentence of fifteen years less than the maximum is also not
unconstitutionally excessive or disproportionate to the crime committed. See Moody v. State,
964 So. 2d 564, 567 (¶13) (Miss. Ct. App. 2007).
4
¶9. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY,
SECOND JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-
CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
JAMES AND WILSON, JJ., CONCUR.
5