Hampton v. State

¶1ON WRIT OF CERTIORARI

¶2for the Court:

¶3¶ 1. Tommy Hampton was sentenced to twenty years after his conviction of armed robbery as a habitual offender. Hampton appeals his sentence. Finding no error, we affirm.

¶4FACTS AND PROCEEDINGS BELOW

¶5¶ 2. Hampton was indicted for the “... tak[ing] of ... $2,190.00 ... by violence to [the victim’s] person by the exhibition of a deadly weapon ...” and “having been previously convicted of at least two (2) felony offenses ..., and having been sentenced to serve at least one (1) year with a state or federal penal institution....”1 The jury found the defendant guilty of robbery by use of a deadly weapon and was not instructed to recommend a sentence.

¶6¶ 3. At his sentencing hearing, the State presented evidence that Hampton previously had been convicted of possession of cocaine and of burglary of a dwelling (twice) and the State had sought an enhanced sentence.2 The defendant offered evidence that he was sixty-three years old and an alcoholic. No actuarial, mortality, or life-expectancy tables were offered by Hampton.

¶7¶ 4. The trial judge sentenced Hampton to twenty years as a habitual offender per Section 99-19-81 of the Mississippi Code, absent objection, and credited him with 199 days for time served.3 Hampton filed a motion for a new trial and/or judgment notwithstanding the verdict (JNOV) arguing, inter alia, that “the sentence ... is unreasonable, harsh and not in conformity with the applicable facts and law, and is inequitable and unjust to this Defendant.” Once again, Hampton presented no actuarial, mortality, or life-expectancy tables to the trial judge and offered no argument that the failure of the trial court to consid*995er same was error. The motion was denied.

¶8¶ 5. On appeal to the Court of Appeals,4 Hampton raised, for the first time, that his sentence exceeded his life expectancy. The Court of Appeals held that Hampton’s claim was procedurally barred, based on his failure to raise the issue before the trial court. Notwithstanding the bar, the Court of Appeals found that his sentence did not amount to a life sentence. We granted Hampton’s petition for certiorari and limit our review to the issue presented on appeal, verbatim et literatim:

Whether the trial court erred in sentencing Hampton to a sentence of twenty (20) years when such a length equates to a life sentence, which could have only been imposed by the jury.

¶9ANALYSIS

¶10¶ 6. Despite making no objection before the trial court and presenting no tables of estimates, publications, or argument related to life expectancy, Hampton belatedly argues that his sentence should be vacated because his sentence equates to a life sentence. Hampton asks this Court to consider life-expectancy estimates, studies, and argument never presented at the trial level. Hampton urges this Court to consider matters outside the record. The State responds that Hampton’s claim is barred, as no objection was presented to the trial court.

¶11¶ 7. This Court declines to consider matters which were never presented or argued in the trial court and are not part of the record before us today.

This Court will not consider matters that do not appear in the record, and it must confine its review to what appears in the record. Robinson v. State, 662 So.2d 1100, 1104 (Miss.1995) (citing Dillon v. State, 641 So.2d 1223, 1226 (Miss.1994)). Issues cannot be decided based on assertions from the briefs alone. The issues must be supported and proved by the record. Robinson, 662 So.2d at 1104 (citing Ross v. State, 603 So.2d 857, 861 (Miss.1992)).

¶12Pulphus v. State, 782 So.2d 1220, 1224 (Miss.2001). “This Court has long held that it cannot consider that which is not in the record.” Stone v. State, 94 So.3d 1078, 1082 (Miss.2012) (citing State v. Cummings, 203 Miss. 583, 591, 35 So.2d 636, 639 (Miss.1948) (citations omitted) (“[b]e-ing an appellate court, we take the record as it comes to us, and receive no new evidence here.”), reh’g denied (Aug. 23, 2012); Pratt v. Sessums, 989 So.2d 308, 309-10 (Miss.2008) (citation omitted) (“[w]e cannot consider evidence that is not in the record.”)). As recently as September 18, 2014, a unanimous Court refused to consider an order which was not part of the record, stating that it would not consider as part of its analysis any information outside the record, even though it appeared that the Court of Appeals considered the order. Shumake v. Shumake, 147 So.3d 352, 355 ¶8, n. 1 (Miss.2014) (citing Hardy v. Brock, 826 So.2d 71, 76 (Miss.2002) (“Mississippi appellate courts may not consider information that is outside the record.”)). In arguing that his sentence exceeds his estimated life expectancy, Hampton has unequivocally gone outside the record. Considering “evidence” not presented to the trial court, the dissent relies on matters outside the record. Neither of the reports or studies referred to by Hampton in his brief, nor the arguments first presented on appeal, will be considered, as neither was presented to the trial court below, and any analy*996sis of these new issues comes solely from matters not in the record before us.

¶13¶ 8. “A contemporaneous objection must be made at trial in order to preserve an issue for appeal.” Cox v. State, 793 So.2d 591, 599 (Miss.2001) (citing Smith v. State, 530 So.2d 155, 162 (Miss.1988)). “Errors related to improper sentencing are procedurally barred if no objection is made at trial.” Hughes v. State, 983 So.2d 270, 282 (Miss.2008) (citations omitted); Hobgood v. State, 926 So.2d 847, 857 (Miss.2006); Cox, 793 So.2d at 599. In Cox, this Court held that when the defendant failed to object before the trial court that his thirty-year sentence for armed robbery “amount[ed] to” a life sentence, he was barred from doing so on appeal. Cox, 793 So.2d at 598-599. Additionally, “[a] trial judge will not be found in error on a matter not presented to him for decision.” Ballenger v. State, 667 So.2d 1242, 1256 (Miss.1995); see also Jones v. State, 606 So.2d 1051, 1058 (Miss.1992); Crenshaw v. State, 520 So.2d 131, 134 (Miss.1988); Ponder v. State, 335 So.2d 885, 886 (Miss.1976). The Court of Appeals recognized the bar in Long v. State, 982 So.2d 1042, 1045 (Miss.Ct.App. 2008), holding that a sixty-four-year-old defendant who had failed to object before the trial court that his sentence “amounted to” a life sentence was procedurally barred from raising the issue at the appellate level.

¶14¶ 9. The trial judge was never afforded the opportunity to consider the merits vel non of that issue. Faithful application of our precedent mandates that Hampton’s claim of error be denied, not having been preserved for appeal.

¶15¶ 10. This Court does recognize that there are exceptions to a procedural bar for errors affecting certain constitutional rights. Rowland v. State, 98 So.3d 1032, 1036 (Miss.2012) (“we recognized that the State has neither the authority nor the right to subject a person to double jeopardy. We also have recognized exceptions to procedural bars for claims asserting illegal sentence and denial of due process at sentencing”). But Hampton offers no argument or authority that his sentence was illegal based on a constitutional violation. Hampton is trying to convert a nonpre-served claim of improper sentence into a claim of illegal sentence. Hampton’s vague complaint is that his sentence is unreasonable, inequitable, and unjust, not unconstitutional. He offers no basis for a constitutional exception to the procedural bar.

¶16¶ 11. This Court consistently has held that “[sentencing is within the complete discretion of the trial court and not subject to appellate review if it is within the limits prescribed by statute.” Cox, 793 So.2d at 599 (quoting Hoops v. State, 681 So.2d 521, 533 (Miss.1996)). See also Ellis v. State, 326 So.2d 466, 468 (Miss.1976); Ainsworth v. State, 304 So.2d 656 (Miss.1974); and Boone v. State, 291 So.2d 182 (Miss.1974). Furthermore, we have held that a “sentence within the limits of the statute is not cruel or unusual.” Clanton v. State, 279 So.2d 599, 602 (Miss.1973); Green v. State, 270 So.2d 695 (Miss.1972).

¶17¶ 12. “[A] sentence is not illegal unless it exceeds the maximum statutory penalty for the crime.” Grayer, 120 So.3d at 969 (emphasis added). Hampton’s sentence does not exceed the maximum statutory penalty. Section 97-3-79 of the Mississippi Code requires a court to sentence a defendant convicted of armed robbery to a term less than life but not less than three years, if the jury does not return a life sentence. Miss.Code Ann. § 97-3-79 (Rev. 2014).

¶18¶ 13. Hampton cites Stewart v. State (Stewart I), 372 So.2d 257 (Miss.1979), for *997the proposition that he received a life sentence. As is stated in Justice Coleman’s special concurrence, no “statutory maximum” is provided in Section 97-8-79. In Stewart I, the Court added the language that a sentence must be “reasonably expected to be less than life.” This language is not found in the statute. Additionally, Stewart I must be read with Stewart v. State (Stewart II), 394 So.2d 1337, 1339 (Miss.1981), to appreciate the Court’s holdings and clear distinctions from today’s case. In Stewart I, the Court found that a seventy-five-year sentence was excessive and remanded the case for resentencing. Stewart I, 372 So.2d at 259. In Stewart II, the Court found that a seventy-five-year sentence “amounted to” a sentence twenty-five years longer than Stewart’s cohorts’ estimated life expectancy. Stewart II, 394 So.2d at 1338-39. In Stewart II, the trial court, unlike the trial court in today’s case, was presented with evidence of Stewart’s life expectancy through testimony and a mortality table based on the general population.5 Stewart appealed once again, and this Court affirmed his sentence of thirty-five years, holding that trial courts “may take judicial notice of mortality tables.” Id. at 1339.

¶19¶ 14. We have addressed the use of life-expectancy tables numerous times and have consistently held these tables can be used as aids in determining sentences, if presented to the trial court. As early as 1937, this Court held that mortality tables can be used as aids to assist the trier of fact. See Tucker v. Gurley, 179 Miss. 412, 176 So. 279, 279 (1937). We are not the trier of fact in today’s case. Recently, we held that life-expectancy charts are of “limited utility” in defining whether a sentence amounts to a life sentence. Johnson v. State, 29 So.3d 738, 745 (Miss.2009). In Johnson, Justice Lamar wrote:

[Attempts to define precisely at what point a term of years becomes a life sentence ... [are] of limited utility. Estimated life expectancy is just that-an estimate. The reality is that some persons live beyond their life expectancies while others do not. To hold that a defendant’s sentence must be a certain number of years or months less than his life expectancy would place unwarranted emphasis on a number that is itself only a rough approximation.

¶20Johnson, 29 So.3d at 744-45 (citing U.S. v. Martin, 115 F.3d 454, 455 (7th Cir.1997)). Not a single justice disagreed. See also Lindsay v. State, 720 So.2d 182,186 (Miss.1998), and Henderson v. State, 402 So.2d 325 (Miss.1980).

¶21¶ 15. Where Hampton’s argument fails is that none of the cases he cites stands for the proposition that a defendant may stand mute, present no evidence to the trial court, and then claim error on appeal that the trial court did not consider what he did not offer as evidence. Hampton offers no excuse for the failure to present such evidence and argument to the trial court to support a claim of error.

¶22¶ 16. In Rogers v. State, 928 So.2d 831 (Miss.2006), this Court held:

As a general rule, this Court cannot disturb a sentence on appeal if that sentence is within the boundaries allowed by the statute. Hoops v. State, 681 So.2d 521, 537 (Miss.1996). Here, the sentence imposed by the trial court was acceptable as it did not exceed the statutory limits provided in Miss.Code Ann. § 97-3-65(2). See Wilkerson v. State, 731 So.2d 1173, 1183 (Miss.1999); see also Freshwater v. State, 794 So.2d 274, 277 (Miss.Ct.App.2001); Shabazz v. State, 729 So.2d 813, 822 (Miss.Ct.App.*9981998). Therefore, Rogers’[s] argument that he was sentenced to more time than was applicable at the time of his offense is without merit.

¶23Rogers, 928 So.2d at 835. Hampton, a recidivist, was convicted of yet another armed robbery, as a habitual offender, and was sentenced to a term of twenty years by the trial court.6 This sentence conforms to the statute, i.e., the trial court did not sentence him to life and the term was more than three years. The trial court did not deviate from the statute when imposing the sentence upon this habitual offender convicted of armed robbery. We find no abuse of discretion by the trial court.

¶24¶ 17. This case is akin to Lindsay v. State, 720 So.2d 182 (Miss.1998), in which this Court upheld a sentence that likely “amounted to” a life sentence. Lindsay, 720 So.2d at 182-83. In Lindsay, the defendant was convicted of armed robbery and sentenced to fifteen years, ten of which were mandatory. Id. at 183. Lindsay appealed on the grounds that the sentence “amounted to” a life sentence because of his HIV status. Id. at 185. Like Hampton, Lindsay did not present any evidence of life expectancy. Id. at 186. This Court upheld the sentence, emphasizing that the defendant’s repeated criminal history and failure to present any evidence as it related to life expectancy outweighed the potential that the sentence “amounted to” a life sentence. Id.This Court also noted that the defendant could not argue life expectancy when he failed to submit any proof from medical journals or any other sources. Id.

¶25¶ 18. This Court repeatedly has upheld sentences that likely “amount to” life sentences. In Tate v. State, 912 So.2d 919, 932-934 (Miss.2005), this Court upheld a sixty-year sentence that “for all practical purposes [amounted to a] life sentence” since the defendant would not be eligible for parole until the age of ninety-nine. The Court held “[t]he Legislature has made its decisions, and we may not impose our own opinion on the issue, absent a constitutional violation which we do not find.” Id. at 934 (emphasis added). In Cannon v. State, 919 So.2d 913, 915 (Miss.2005), this Court upheld a 120-year sentence that “amounted to” a life sentence, even though the trial court made no “on-the-record finding and consideration of his age, health, or life expectancy.” Other sentences that “amount to” a life sentence also have been upheld. Mosley v. State, 104 So.3d 839, 843 (Miss.2012) (upholding a 126-year sentence); Williams v. State, 794 So.2d 181 (Miss.2001), overruled on other grounds by Brown v. State, 995 So.2d 698, 703 (Miss.2008).

¶26¶ 19. “This Court employs the plain-error rule only “when a defendant’s substantive or fundamental rights are affected.’ ” Grayer v. State, 120 So.3d 964, 969 (Miss.2013) (citation omitted). To find plain error, this Court first must determine “ ‘if the trial court has deviated from a legal rule, whether that error is plain, clear[,] or obvious, and whether that error has prejudiced the outcome of the trial.’ ” Id.(citation omitted). Under the plain-error doctrine, “there has to be a finding of error, and that error must have resulted in a manifest miscarriage of justice for reversal to occur.” Williams v. State, 134 So.3d 732, 736 (Miss.2014) (citing Gray v. State, 549 So.2d 1316, 1321 (Miss.1989)). Hampton has failed to show any error, much less plain error, or that a miscar*999riage of justice has been visited upon this six-time convicted felon.

¶27¶ 20. The trial court articulated and followed the correct standard. The trial judge received evidence related to Hampton’s age, general health, alcohol abuse, prior convictions, and incarcerations. Drawing on the wealth of his experience as a trial judge, Judge Bailey utilized his discretion and imposed a twenty-year sentence, effectively sentencing Hampton to 19.5 years by giving credit for time served. After receiving all evidence offered at the sentencing hearing, the trial court found that twenty years was a proper and legal sentence. The trial court’s holding does not reveal a “manifest miscarriage of justice.” We affirm.

¶28¶ 21. The trial court properly considered all facts presented when sentencing Hampton. The learned trial judge weighed evidence before him and meted out a fair and reasonable term (not life) sentence. He considered Hampton’s prior convictions, degree of guilt, need for deterrence, public safety, and the unlikelihood of rehabilitation for Hampton. A trial judge has the discretion to consider all relevant and pertinent factors when fixing a sentence. It is incumbent on the defendant to introduce evidence of mitigating factors or circumstances to seek reduction of the term within the statutory scheme.

¶29CONCLUSION

¶30¶ 22. “Our law has long provided that the imposition of sentence following a criminal conviction is a matter within the discretion of the Circuit Court, subject only to statutory and constitutional limitations.” Jackson v. State, 551 So.2d 132, 149 (Miss.1989) (emphasis added). The sentence received by Hampton, a multiple recidivist of violent crimes sentenced as a habitual offender, is not constitutionally infirm, nor does it exceed the trial court’s sentencing authority. Given that the sentence is permissible under the Mississippi Code and our state and federal Constitutions, there exists no basis to accept Hampton’s argument that his sentence is illegal. As the sentence imposed by the learned trial judge and affirmed by the Court of Appeals was and is a legal sentence, we affirm Hampton’s sentence for armed robbery.

¶31¶ 23. CONVICTION OF ROBBERY BY USE OF A DEADLY WEAPON AND SENTENCE OF TWENTY (20) YEARS, AS A HABITUAL OFFENDER, IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, AFFIRMED. SENTENCE SHALL NOT BE REDUCED OR SUSPENDED; NOR SHALL APPELLANT BE ELIGIBLE FOR PROBATION, PAROLE, EARNED TIME OR GOOD-TIME CREDIT. APPELLANT SHALL RECEIVE CREDIT FOR 172 DAYS FOR TIME PREVIOUSLY SERVED IN THIS CAUSE. APPELLANT SHALL PAY COURT COSTS IN THE AMOUNT OF $411.50, RESTITUTION IN THE AMOUNT OF $2,000, AB FEE IN THE AMOUNT OF $1,500, AND VBF IN THE AMOUNT OF $10.00.

¶32*1000[[Image here]]

¶39specially concurring:

¶40¶ 24. In a legal world where Stewart v. State, 372 So.2d 257 (Miss.1979), is good law, I am of the opinion that the majority is correct, and I concur with the opinion authored by Presiding Justice Randolph. I write separately because, in my opinion, the Mississippi Supreme Court exceeded the boundaries of its constitutional authority when, in Stewart v. State, 372 So.2d 257 (Miss.1979), it amended Mississippi Code Section 97-3-79 to prohibit a judge from sentencing one convicted of armed robbery to any term of years greater than the defendant’s life expectancy; I am of the opinion that Stewartmust be overruled.

¶41*1001¶25. We many times have noted, but perhaps fewer times followed, the principle that our role in the constitutional framework of our state government “should not place [the Court] in the position of changing the substantive law enacted by the Legislature.” Little v. Miss. Dep’t of Transp., 129 So.3d 132, 138 (¶ 12) (Miss.2013) (citing Stockstill v. State, 854 So.2d 1017, 1022-23 (¶ 13) (Miss.2003) (“It is not the duty of this Court to add language where we see fit.”)). Stated differently, we have a “constitutional mandate to faithfully apply the provisions of constitutionally enacted legislation.” Tallahatchie Gen. Hosp. v. Howe, 49 So.3d 86, 92 (¶ 17) (Miss.2010). The Legislature “alone has the power to create and modify statutes. It is not the province of the Court to insert requirements where the Legislature did not do so.” Finn v. State, 978 So.2d 1270, 1272-1273 (¶ 9) (Miss.2008) (emphasis added); see also Zambroni v. State, 217 Miss. 418, 424, 64 So.2d 335, 337 (1953) (“It is not our province to write the statutes, but only to construe them as written.”); Harris v. State, 179 Miss. 38, 175 So. 342, 344 (1937) (“In construing this statute, we are admonished and have clearly in mind that penal statutes must be strictly construed, and that the court can neither add to nor take from them, and we cannot by judicial construction, or considerations of expediency, supply what is palpably omitted from a statute.”). Despite such limits on our power, the StewartCourt did indeed insert a requirement into Section 97-3-79 that the Legislature did not — the requirement that a judge-imposed sentence be for less than the defendant’s reasonable life expectancy.

¶42¶ 26. Section 97-3-79 provides as follows:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

¶43Miss.Code Ann. § 97-3-79 (Rev. 2014). The statute as enacted by the Legislature provides two, and. only two, sentencing possibilities. First, a jury may choose to sentence the offender to a life sentence. If not, the judge may impose a “penalty of imprisonment ... for any term not less than three (3) years.” Id. (emphasis added). The requirement that the latter option, a judicially-imposed sentence, be for less than the life expectancy of the defendant is not in the statute. It was created by the Court.

¶44¶ 27. The StewartCourt explained its creation of the requirement by comparing Section 97-3-79 to the death penalty statute which places the death sentence “within the sole province of the jury.” Stewart, 372 So.2d at 258 (quoting Bullock v. Harpole, 233 Miss. 486, 494, 102 So.2d 687, 690 (1958)). However, the statute at issue in Bullock, the then-existing Section 2536, Code of 1942, provided by its very terms that only the jury could impart the death penalty. In fact, the way it was worded, Section 2536, Code of 1942, left all sentencing options in the sole province of the jury.7Bullock, 233 Miss, at 494, 102 So.2d *1002at 690. Nothing at all in the wording of Section 97-3-79 prohibits the trial judge from setting a penalty of years greater than the life expectancy of the one convicted. To achieve such a result, the StewartCourt had to add to the language chosen by the Legislature.

¶45¶28. Even if the StewartCourt was correct, that, in its wisdom, Section 97-3-79 made better sense and better policy with the added requirement, under our State’s Constitution and the strict separation of powers it explicitly imposes in Article 1, Section 2, we lack the power to substitute our judgment for that of the Legislature and to judicially amend its statutes. The prohibition exists for good reason. As we elsewhere noted,

The objectives desired to be accomplished and the evils sought to be prevented by separation of governmental powers were articulated by the authors of The Federalist. In that work James Madison stated:

... It is agreed on all sides, that the powers properly belonging to one of the departments ought not to be directly and completely administered by either of the other departments. It is equally evident, that none of them ought to possess, directly or indirectly, an overruling influence over the others in the administration of their respective powers. It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.

¶46The Federalist, No. 48 (J. Madison) (J. Cooke ed. 1961).

¶47Thomas Jefferson also wrote of the necessity of internal restraints on the powers of government:

... An elective despotism was not the government we fought for, but one which should not only be founded on free principles, but in which the powers of government should be so divided and balanced among several bodies of magistracy, as that no one could transcend their legal limits, without being effectually checked and restrained by the others. For this reason that convention which passed the ordinance of government, laid its foundation on this basis, that the legislative, executive, and judiciary departments should be separate and distinct, so that no person should exercise the powers of more than one of them at the same time. Jefferson, “Notes on the State of Virginia,” 1781-1785, ch. 13, as reprinted in “the Complete Jefferson” by Padover, Ch. XIV, pp. 648, 649.

¶48Book v. State Office Building Commission, 238 Ind. 120, 149 N.E.2d 273, 294 (1958).

¶49In his farewell address George Washington observed,

The spirit of encroachment tends to consolidate the powers of all the departments in one, and thus to create, whatever the form of government, a real despotism. A just estimate of the love of power, and proneness to abuse it, which predominates in the human *1003heart, is sufficient to satisfy us of the truth of this position.

Book v. State Office Building Commission, 149 N.E.2d at 294.

¶50Alexander v. State By and Through Atllain, 441 So.2d 1329, 1336 (Miss.1983).

¶51¶ 29. Our trial courts are perfectly capable of enforcing Section 97-3-79 as written and without the extra requirement added by the StewartCourt. See Franklin Collection Serv., Inc. v. Kyle, 955 So.2d 284, 288-289 (¶ 13) (Miss.2007) (“[T]his Court has no right, prerogative, or duty to bend a statute to make it say what it does not say. No citation of authority is necessary for the proposition that courts, judges, and justices sit to apply the law as it is, not make the law as they think it should be.”). As we wrote in McAdory v. State, 354 So.2d 263 (Miss.1978), overruled by Stewart, 372 So.2d at 257, the statute as written simply means that, if a jury chooses a life sentence, the trial judge has no discretion and must impart a life sentence. Id. at 266. If the jury did not so choose, the trial judge has discretion to impart any sentence greater than three years. Id.A sentence of one hundred years imposed after a jury declines to mandate a life sentence violates no part of the statute as crafted by the Legislature. It violates only the StewartCourt’s language.

¶52¶ 30. The Stewartrequirement is nothing but the unconstitutional imposition of judicial power over a political question. See Monaghan v. Reliance Mfg. Co., 236 Miss. 462, 470 111 So.2d 225 (1959) (“The function of the court is to construe the legislative act and not to add to it or deduct from it that which the legislature itself did not enact into the statute”). We must guard against such overreaching, even if doing so means revisiting an old decision which has shaped how criminals have been sentenced for decades. When it comes to any movement, no matter how slight, toward consolidation of power in one, rather than three, branches of government, we must exercise the utmost caution. “Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident, and must be discerned by a careful and perceptive analysis.” Morrison v. Olson, 487 U.S. 654, 699, 108 S.Ct. 2597, 101 L.Ed.2d 569 (1988) (Scalia, J., dissenting).

¶53¶ 31. Justice Chandler, in his dissent, would apply the doctrine of stare decisis to Stewart. Cries of stare decisis are the inevitable effect caused by a call to overturn a decades-old case such as Stewart, and the Court should take care to adhere to the doctrine where appropriate. However, I discern no reason to dogmatically cling to it here. As Justice Chandler points out, we apply stare decisis when the Legislature ratifies by re-enacting or amending the statute without directly addressing or contradicting a holding of ours from an earlier case. See Caves v. Yarbrough, 991 So.2d 142, 153 (¶ 41) (Miss.2008). However, the Legislature has not amended or changed Section 97-3-79 since before Stewart, and we have flatly rejected that “the Legislature’s mere silence is enough .... ” absent an amendment, to invoke stare decisis. Caves, 991 So.2d at 153.

¶54¶ 32. More generally, we have written as follows:

In stare decisis generally, we look for error, but, finding that, we look for more and we look largely in the area of public or widespread disadvantage. Ordinarily, we do not overrule erroneous precedent unless it is “pernicious,” Stone v. Reichman-Crosby Co., 43 So.2d 184,190 (Miss.1949); “impractical,” Robinson v. State, 434 So.2d 206, 210 (Miss.1983) *1004(Hawkins, J., concurring); or is “mischievous in its effect, and resulting in detriment to the public.” Childress v. State, 188 Miss. 573, 577, 195 So. 583, 584 (1940). We look for “evils attendant upon a continuation of the old rule.” Tideway Oil Programs, Inc. v. Serio, 431 So.2d 454, 467 (Miss.1983).

¶55Caves, 991 So.2d at 151-52 (¶ 36) (quoting State ex rel. Moore v. Molpus, 578 So.2d 624, 635 (Miss.1991)). Above, I attempted to go into some detail of the importance of the separation of powers and explain that even a small encroachment of the Court into the legislative sphere should be prevented. For the reasons discussed, I have no difficulty in labeling the StewartCourt’s amendment of Section 97-3-79 pernicious and mischievous in its effect. See Gwin, White & Prince, Inc. v. Henneford, 305 U.S. 434, 454-55, 59 S.Ct. 325, 83 L.Ed. 272 (1939) (Black, J., dissenting) (“[T]he rule of stare decisis cannot confer powers upon the courts which the inexorable command of the Constitution says they shall not have.”); Robinson v. City of Detroit, 462 Mich. 439, 473, 613 N.W.2d 307, 324 (2000) (Corrigan, J., concurring) (“If a prior decision of this Court reflects an abuse of judicial power at the expense of legislative authority, a failure to recognize and correct that excess, even if done in the name of stare decisis, would perpetuate an unacceptable abuse of judicial power”).

¶56¶ 33. On a final stare decisis note, I acknowledge that Mississippi Code Section 97-3-65(4)(a), which sets the penalty for forcible rape, provides as follows:

Every person who shall have forcible sexual intercourse with any person, or who shall have sexual intercourse not constituting forcible sexual intercourse or statutory rape with any person without that person’s consent by administering to such person any substance or liquid which shall produce such stupor or such imbecility of mind or weakness of body as to prevent effectual resistance, upon conviction, shall be imprisoned for life in the State Penitentiary if the jury by its verdict so prescribes; and in cases where the jury fails to fix the penalty at life imprisonment, the court shall fix the penalty at imprisonment in the State Penitentiary for any term as the court, in its discretion, may determine.

¶57Miss.Code Ann. § 97-3-65(4)(a) (Rev. 2014). Without question, the above-quoted sentencing directive mirrors that of the armed robbery sentencing statute at issue, and in Lee v. State, 322 So.2d 751, 753 (1975), we added the same amendment to Section 97-3-65(4)(a) that the StewartCourt would later add to Section 97-3-79. Unlike Section 97-3-79, the Legislature amended the forcible rape statute, Section 97-3-65(4)(a), since Leewas decided and has never spoken to the Leeholding. Accordingly, the doctrine of stare decisis via subsequent legislative amendment arguably would apply to Leeand Section 97-3-65(4)(a). On the other hand, while Section 97-3-79 is worded similarly to the forcible rape statute, I see no reason to apply the Legislature’s amendment of a different statute to the question of whether stare decisis applies to Stewart.

¶58¶ 34. Even if the Legislature had amended Section 97-3-79, I would not agree that stare decisis saves the StewartCourt’s amendment of it. I simply cannot agree that our assumption that the Legislature reads our opinions and ratifies our holdings by their silence is enough to ratify an unconstitutional encroachment upon its authority. While, as I concede above, we have held that the Legislature ratifies via its silence our interpretation of a statute by re-enacting or amending the statute without directly addressing or contradicting a holding of ours from an earlier case, *1005see Caves, 991 So.2d at 153 (¶ 41), the combination of legislative action with legislative silence can itself be a pernicious thing for a court trying to discern the meaning of statutory pronouncements.

The last string to respondents’ and the Government’s bow is their argument that two amendments to Title VI “ratified” this Court’s decisions finding an implied private right of action to enforce the disparate-impact regulations.... Respondents point to Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. [353] at 381-382, 102 S.Ct. 1825 [72 L.Ed.2d 182 (1982) ], which inferred congressional intent to ratify lower court decisions regarding a particular statutory provision when Congress comprehensively revised the statutory scheme but did not amend that provision. But we recently criticized Curran’s reliance on congressional inaction, saying that “[a]s a general matter ... [the] argumen[t] deserve[s] little weight in the interpretive process.” Central Bank of Denver, N.A. v. First Interstate Bank of Denver, N.A., 511 U.S., [164] at 187, 114 S.Ct. 1439 [128 L.Ed.2d 119 (1994)]. And when, as here, Congress has not comprehensively revised a statutory scheme but has made only isolated amendments, we have spoken more bluntly: “It is ‘impossible to assert with any degree of assurance that congressional failure to act represents’ affirmative congressional approval of the Court’s statutory interpretation.” Patterson v. McLean Credit Union, 491 U.S. 164, 175, n. 1, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989) (quoting Johnson v. Transportation Agency, Santa Clara Cty., 480 U.S. 616, 671-672, 107 S.Ct. 1442, 94 L.Ed.2d 615 (1987) (Scalia, J., dissenting)).

¶59Alexander v. Sandoval, 532 U.S. 275, 291-92, 121 S.Ct. 1511, 149 L.Ed.2d 517 (2001). I find persuasive the warning, “It will not be denied, that power is of an encroaching nature, and that it ought to be effectually restrained from passing the limits assigned to it.” J. Madison, The Federalist, No. 48 (J. Cooke ed. 1961). Accordingly I consider the United State Supreme Court’s concerns to be compelling, especially in the context of ratifying an unconstitutional encroachment by the Court into the power of the Legislative branch.

¶60¶ 35. Justice Chandler correctly raises concerns about the retroactive application of any holding overruling Stewartto Hampton. See Rogers v. Tennessee, 532 U.S. 451, 457, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001). Were the majority to overrule Stewart, we would have to analyze whether or not the overruling of it would be retroactive and effective as to Hampton’s sentence. For example, the Supreme Court of the United States has written,

Deprivation of the right to fair warning, we continued, can result both from vague statutory language and from an unforeseeable and retroactive judicial expansion of statutory language that appears narrow and precise on its face. For that reason, we concluded that if a judicial construction of a criminal statute is unexpected and indefensible by reference to the law which had been expressed prior to the conduct in issue, the construction must not be given retroactive effect.

¶61Rogers, 532 U.S. at 457, 121 S.Ct. 1693 (internal quotations and citations omitted). However, in light of the fact that a majority of the Court disagrees and wishes to uphold Stewart, I will forego the analysis as moot.

¶62¶ 36. For the foregoing reasons, I would overrule Stewart.

¶63DICKINSON AND RANDOLPH, P. JJ., AND PIERCE, J., JOIN THIS OPINION IN PART.