Brown v. State

Decision Date20 March 2012
Docket NumberNo. 2010–CP–01305–COA.,2010–CP–01305–COA.
PartiesWill Robertson BROWN, Appellant v. STATE of Mississippi, Appellee.
CourtMississippi Court of Appeals

OPINION TEXT STARTS HERE

Will Robertson Brown, pro se.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before IRVING, P.J., BARNES and ROBERTS, JJ.

IRVING, P.J., for the Court:

¶ 1. On July 19, 2010, Will Robertson Brown filed, in the Circuit Court of Jackson County, a motion for post-conviction relief (PCR), a seeking to set aside several guilty pleas that he had entered more than fifteen years earlier. The circuit court dismissed Brown's PCR motion as being time-barred pursuant to Mississippi Code Annotated section 99–39–5(2) (Supp.2011). Feeling aggrieved, Brown appeals, asserting that his trial counsel was ineffective, his guilty pleas were involuntary, and the circuit court erred by accepting his guilty pleas without a factual basis and without informing him of the elements of the offenses to which he pleaded guilty.

¶ 2. We hold that the circuit court correctly found that Brown's PCR motion was time-barred. Therefore, we affirm the judgment of the circuit court dismissing Brown's PCR motion.

FACTS

¶ 3. On April 18, 1995, Brown pleaded guilty to two counts of aggravated assault (one on a law-enforcement officer) and third-degree arson. The circuit court accepted his guilty pleas and sentenced him to serve seventeen years for aggravated assault, seventeen years for arson, and three years for aggravated assault on a law-enforcement officer, all to be served in the custody of the Mississippi Department of Corrections (MDOC). The circuit court ordered the sentences to run concurrently to one another and concurrently with the federal sentence that Brown was presently serving.

¶ 4. Over fifteen years later, on July 19, 2010, Brown filed a PCR motion attacking the voluntariness of his guilty pleas entered on April 19, 1995. He also alleged that his lawyer was ineffective and that the circuit court failed to inform him of the elements of the offenses. He further alleges that the circuit court had no factual basis to accept his guilty pleas. The circuit court “reviewed the pleadings and the court files and determined that no evidentiary hearing was necessary.” As stated, the court held that Brown's PCR motion was time-barred because it was filed more than three years after the entry of the judgment of conviction, and Brown did not demonstrate that any of the enumerated exceptions to the time bar were applicable. Therefore, the circuit court entered an order on July 27, 2010, summarily dismissing Brown's PCR motion.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. An appellate court will not reverse the circuit court's dismissal of a PCR motion absent a finding that the decision was clearly erroneous. Jackson v. State, 67 So.3d 725, 730 (¶ 16) (Miss.2011). Questions of law are reviewed de novo. Id.

¶ 6. The circuit court correctly found that Brown's PCR motion was time-barred. Brown entered his guilty plea on April 18, 1995, but he did not file his PCR motion until over fifteen years later. Section 99–39–5(2) provides that PCR motions “shall be made ... within three (3) years after entry of the judgment of conviction” in cases involving guilty pleas. This section also provides certain exceptions to the time bar, such as intervening decisions of the United States Supreme Court or the Mississippi Supreme Court, newly discovered evidence, DNA evidence subject to testing, claims that the sentence has expired, and claims that parole or conditional release has been unlawfully revoked. Miss.Code. Ann. § 99–39–5(2)(a)(b). Additionally, “errors affecting fundamental constitutional rights are excepted from the procedural bars....” Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010).

¶ 7. Brown has failed to prove that one of the exceptions to the time bar applies or that the circuit court committed any error affecting any of his fundamental rights when it accepted his guilty pleas. The record contains no guilty-plea transcript and no affidavits to support any of the issues that Brown has raised on appeal. Brown has only provided mere assertions in his brief and no authority to support his assertions. On review, we limit our inquiry to those facts ‘contained strictly in the record, and not upon mere assertions in the briefs.’ Ross v. State, 16 So.3d 47, 60 (¶ 35) (Miss.Ct.App.2009) (quoting Ward v. State, 935 So.2d 1047, 1057 (¶ 29) (Miss.Ct.App.2005)). Pursuant to Rule 28(a)(6) of the Mississippi Rules of Appellate Procedure, an appellant must support his contentions regarding the issues presented with “citations to authorities, statutes, and parts of the record relied on. (Emphasis added). Therefore, we hold that the circuit court properly dismissed Brown's PCR motion.

¶ 8. THE JUDGMENT OF THE JACKSON COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST–CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO JACKSON COUNTY.

LEE, C.J., RUSSELL AND FAIR, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. ISHEE, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. ROBERTS, J., CONCURS IN RESULT ONLY WITH SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, P.J., MAXWELL AND FAIR, JJ. BARNES, J., SPECIALLY CONCURS WITH

SEPARATE WRITTEN OPINION JOINED BY ISHEE, J. CARLTON, J., NOT PARTICIPATING.

ROBERTS, J., Concurring in result only:

¶ 9. I concur with the majority's analysis that Brown is time barred from pursuing his post-conviction relief (PCR) petition under Mississippi Code Annotated section 99–39–5 (Supp.2011) with no applicable exceptions; however, I write separately to address an unspoken concern fundamental to this Court's authority to even address Brown's PCR petition on appeal. My concern lies in the determination that Brown has standing to bring his PCR petition at all. Circuit Court Judge Kathy King Jackson summarily dismissed Brown's PCR petition because it was filed more than “three (3) years after the time in which the petitioner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.” Miss.Code Ann. § 99–39–5(2). The circuit judge found that none of the exceptions found in Mississippi Code Annotated section 99–39–5(2)(a)(i–ii) or Mississippi Code Annotated section 99–39–5(2)(b) permitted Brown to bring his out-of-time PCR petition. The circuit judge was imminently correct in her findings.

¶ 10. From its enactment in 1984 until its March 16, 2009, amendment, the Mississippi Uniform Post–Conviction Collateral Relief Act required any convicted offender who filed a PCR petition be “in custody under sentence of a court of record of the State of Mississippi.” If not, he would have no standing to even file a PCR motion attempting to collaterally attack his conviction. This Court has articulated this notion on numerous occasions. See Gates v. State, 904 So.2d 216, 218 (¶ 7) (Miss.Ct.App.2005), Torns v. State, 866 So.2d 486, 489 (¶ 11) (Miss.Ct.App.2004), Weaver v. State, 852 So.2d 82, 85 (¶ 7) (Miss.Ct.App.2003). However, on March 16, 2009, the Mississippi Legislature passed S.B. 2709 amending the above-quoted language and replacing it with the following language: Any person sentenced by a court of record of the State of Mississippi, including a person currently incarcerated, civilly committed, on parole or probation or subject to sex offender registration for the period of the registration or for the first five (5) years of the registration, whichever is the shorter period....” Miss.Code Ann. § 99–39–5(1)(emphasis added). Recently, we hinted at the Legislature's expansion of the standing requirement in Parker v. State, 47 So.3d 732, 734 (¶ 8) (Miss.Ct.App.2010) (quoting Mississippi Code Annotated section 99–39–5 (Rev.2007)), when we stated [p]rior to March 16, 2009, to be eligible to seek post-conviction relief under section 99–39–5, a prisoner had to be ‘in custody under sentence of a court of record of the State of Mississippi. After March 16, 2009, the Legislature “expand[ed] the availability of post-conviction relief to a broader range of previously convicted individuals.” Id. In that case, Charles Lee Parker filed his PCR petition prior to the amendment's effective date, and the amendment was not retroactive; therefore, he did not have standing to file. Id. at (¶¶ 9–12).

¶ 11. It is my judgment the new statute's language [a]ny person sentenced by a court of record in the State of Mississippi is clear and unambiguous. It is not the duty of this Court to determine the wisdom of the Legislature's actions in amending the statute's language. Instead, it is our duty to interpret and apply the statute as written. See Russell Inv. Corp. v. Russell, 182 Miss. 385, 419, 182 So. 102, 107 (1938); Clark v. State, 169 Miss. 369, 384–85, 152 So. 820, 824 (1934). Further, the supreme court has stated that [w]hen the words of a statute are plain and unambiguous there is no room for interpretation or construction, and we apply the statute according to the meaning of those words.” Coleman v. State, 947 So.2d 878, 881 (¶ 10) (Miss.2006) (citing Harrison v. State, 800 So.2d 1134, 1137 (¶ 12) (Miss.2001)). It is patently obvious that any convicted offender presently on parole, probation or subject to sex offender registration is not a “prisoner in custody” as the previous statute required; yet, such offenders now have standing to file a PCR petition under the amended language of the statute. Also rather obvious to me is the fact that the Legislature chose, through its amendment, to expand the scope of standing to permit those rare individuals, such as those with newly discovered evidence (i.e., DNA), an opportunity to prove innocence even though at the time...

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7 cases
  • Coleman v. State
    • United States
    • Mississippi Court of Appeals
    • May 12, 2020
    ...errors affecting certain fundamental constitutional rights are also excepted from the procedural bars of a PCR motion. Brown v. State , 83 So. 3d 459, 461 (¶6) (Miss. Ct. App. 2012). Ineffective assistance of counsel can constitute a violation of the defendant's fundamental constitutional r......
  • Brown v. State, 2010–CP–01757–COA.
    • United States
    • Mississippi Court of Appeals
    • June 12, 2012
    ...a sentence imposed by a Mississippi court are eligible to file a PCR motion. However, as stated in my opinion in Brown v. State, 83 So.3d 459 (Miss.Ct.App.2012) (Brown II), I would overrule Brown I and Wilson v. State, 76 So.3d 733 (Miss.Ct.App.2011), for the exact proposition that the majo......
  • Howell v. State
    • United States
    • Mississippi Supreme Court
    • November 21, 2019
    ...person sentenced by a court of record of the State of Mississippi[.]" Miss. Code Ann. § 99-39-5(1) (Rev. 2015); see also Brown v. State , 83 So. 3d 459, 462-64 (¶¶ 9-15) (Miss. Ct. App. 2012) (Roberts J., concurring in result only). ¶17. Howell argues that the amended statute contains langu......
  • Jackson v. State
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    • Mississippi Court of Appeals
    • August 20, 2019
    ...to "any person sentenced by a court of record of the State of Mississippi." Miss. Code Ann. § 99-39-5(1) (Rev. 2015); see alsoBrown v. State , 83 So. 3d 459, 462-64 (¶¶9-15) (Miss. Ct. App. 2012) (Roberts J., concurring in result only). Howell , ––– So.3d at ––––, 2019 WL 6208366, at *4 (¶¶......
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