Conerly v. State

• Decision Date: 26 August 1992
• Docket Number: No. 91-KP-0341,91-KP-0341
• Citation: 607 So.2d 1153
• Parties: Willie Ray CONERLY v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1153

607 So.2d 1153

Willie Ray CONERLY v. STATE of Mississippi.

No. 91-KP-0341.

Supreme Court of Mississippi.

Aug. 26, 1992.

Willie Ray Conerly, pro se.

Michael C. Moore, Atty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and PRATHER and ROBERTSON, JJ.

PRATHER, Justice, for the Court:

I. INTRODUCTION

A.

The questions presented in today's appeal are (1) whether the statute of limitations pertaining to criminal prosecutions is jurisdictional and hence cannot be waived by a guilty plea and, (2) if not jurisdictional, whether the statute of limitations is waived by a voluntary plea of guilty from a counseled defendant. This Court holds the statute of limitations in a criminal case is an affirmative defense, nonjurisdictional in character and waivable. Therefore Conerly, by his voluntary plea of guilty to aggravated assault, waived his right to this defense and forfeited his right to raise the matter in a collateral and post-conviction proceeding.

B.

Willie Ray Conerly, a state prisoner presently incarcerated in the Mississippi State Penitentiary at Parchman, has filed a direct appeal from an order issued on December 14, 1990, by the Circuit Court of Pearl River County summarily dismissing his motion for post-conviction relief.

The specific target of Conerly's post-conviction motion to vacate is his guilty plea to aggravated assault entered on July 31, 1989. The defendant has another conviction for armed robbery which was to run consecutively. Conerly seeks vacation of his plea and the sentence imposed or, in the alternative, an evidentiary hearing at which he will be given an opportunity to prove his claims.

Although Conerly presents eight (8) separate issues in his appellate brief filed in this Court, only two of them were presented to the trial court in his "Motion To Vacate and Set Aside Conviction and Sentence." Of these two issues, only one merits discussion here, namely: Did the two year statute of limitations bar the State of Mississippi from mounting a separate and subsequent prosecution for aggravated assault to which Conerly, with the assistance of two lawyers, agreed to plead guilty?

C.

This case has a rather lengthy history. On March 24, 1986, Conerly was indicted by a Pearl River County Grand Jury for the armed robbery of a Picayune convenience store committed on the 18th day of August, 1985. During the course of the robbery, Conerly held two employees at gun point and obtained over $300.00 in cash. The indictment alleged that Conerly took the money by putting the two employees in fear of some immediate injury to their person by the exhibition of a handgun. A mistrial was declared on August 21, 1986, when the jury was unable to unanimously agree upon a verdict.

Following a retrial which began on January 27, 1987, the jury returned a verdict of guilty of armed robbery and fixed Conerly's sentence at life imprisonment. By virtue of our probation and parole laws, Conerly would not be eligible for parole or supervised release within the first ten (10) years of his incarceration. Miss.Code Ann. Sec. 47-7-3(1)(d). Conerly appealed to this Court, and on May 10, 1989, this Court reversed his conviction and sentence because of a violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). See Conerly v. State, 544 So.2d 1370 (Miss.1989).

On July 24, 1989, the circuit judge appointed two lawyers to represent Conerly. The defense attorneys gained a plea bargain for Conerly to enter guilty pleas to separate charges of simple robbery (as opposed to robbery by the exhibition of a deadly weapon) and aggravated assault. The original indictment for armed robbery would be ordered nolle prosequi. This sentence to simply robbery does not require serving a "flat term" of ten years. Such would eliminate any parole implications.

On July 31, 1989, Conerly, represented by his two attorneys, executed a sworn statement waiving indictment. That same day, July 31, 1989, a two count criminal information was executed and filed by the State of Mississippi.

Count One (robbery) of the information charged that Conerly, in violation of Miss.Code Ann. Sec. 97-3-73, as amended, "did wilfully, feloniously and violently rob, take, steal and carry away" from the person of two convenience store employees the sum of $300.00 against the will of the two store employees "by threat of violence to their person."

Count Two (aggravated assault) of the information charged that "immediately [after] the events which took place in Count 1" Conerly, in violation of Miss.Code Ann. Sec. 97-3-7(2)(a), as amended, committed an aggravated assault against the two employees "... by putting [them] in fear of some immediate injury to their person by the exhibition of a certain deadly weapon, to-wit: a handgun, and thereby did attempt to cause serious bodily injury purposely, knowingly and recklessly under circumstances manifesting extreme indifference to the value of human life ..."

A "Petition To Enter Plea of Guilty" to simple robbery and aggravated assault was also executed by Conerly on July 31, 1989. A certificate of counsel signed by both of Conerly's lawyers reflects in paragraph 4 that "[t]he plea of 'guilty' offered by the defendant in this Petition accords with my understanding of the facts he related to me and is consistent with my advice to the Defendant."

That same day, July 31st, a plea-qualification hearing was conducted before the circuit judge who made certain that Conerly was fully aware of the charges lodged against him in the criminal information and fully aware of both the minimum and maximum punishment therefor. Conerly, who was thirty-two (32) years of age and a high school graduate, was given an opportunity to review the information personally, and he did so.

Relevant colloquy ensuing during the plea-qualification hearing is quoted as follows:

Q. [BY THE COURT]: Okay. Now, Willie, you also understand that on the case that we're discussing, the 5809, that that case would have been ready to be set again for trial. And it's my understanding that you and your attorneys and the State agreed to file this Criminal Information which changes the charge from Armed Robbery, which allegedly was done with a firearm, which could have resulted in some sentence where the first ten years would make you ineligible for parole, to just regular Robbery, which will not have the parole restriction in it, and to Aggravated Assault. And that you waived having this case presented to a Grand Jury and letting the Grand Jury indict you; is that correct?

A. Yes, sir.

Q. And you agreed for them to file this Criminal Information; is that correct?

A. Yes, sir. (emphasis supplied)

The plea-qualification transcript contains the usual acknowledgement by the defendant that he was fully and completely satisfied with the services that his lawyers had provided him. After acknowledging that the facts alleged in Counts One and Two of the information really did happen, Conerly entered his pleas of guilty to the charges contained in both counts.

On August 4, 1989, following a presentence investigation, the lower court sentenced Conerly to serve consecutive sentences of ten (10) years for simple robbery charged in Count One and ten (10) years for aggravated assault charged in Count Two. An order of nolle prosequi was entered for armed robbery the same day.

On May 21, 1990, Conerly filed his "Motion To Vacate and Set Aside Conviction and Sentence" in which he moved to vacate, inter alia, his guilty plea to aggravated assault on the ground of the two year time bar imposed by the statute of limitations. The circuit judge issued a six (6) page order dismissing the motion on December 14, 1990.

II. ANALYSIS

Conerly claims he was improperly convicted of aggravated assault because prosecution did not commence until July 31, 1989, when he was charged with that offense for the first time in a criminal information.

Miss.Code Ann. Sec. 99-1-5 provides, inter alia, that "[a] person shall not be prosecuted for any offense [certain offenses excepted] unless the prosecution for such offense be commenced within two years next after the commission thereof, ..." [emphasis supplied] Since the crime of aggravated assault is not one of the statutory exceptions, a prosecution for that offense is barred if it is not commenced within two years next after the commission thereof.

The crime in this case took place on August 18, 1985. Conerly was indicted for armed robbery on March 24, 1986. Following a mistrial that occurred on August 21, 1986, Conerly was retried and convicted of armed robbery on January 27, 1987. This Court reversed that conviction on May 10, 1989. Conerly's waiver of indictment, the filing of the criminal information charging him with simple robbery and aggravated assault, and Conerly's pleas of guilty to those crimes all took place on July 31, 1989.

The trial judge found "... the defendant agreed to the filing of the criminal information and since the statute of limitations is an affirmative defense which must be raised by the defendant, the Court finds that the defendant did in fact waive the statute of limitations as to being charged with aggravated assault and did agree and concur in the state so charging the defendant ..." The State argues that Conerly waived and forfeited his right to assert the statute of limitations as a defense when he failed to assert it in the lower court and thereafter entered a voluntary and counseled plea of guilty to the charge. This Court concurs.

Generally speaking, "[a] valid guilty plea ... admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment [or information] against a defendant." Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990).

"Outside the constitutional realm, the law is settled that with only two exceptions, the entry of a knowing and voluntary guilty plea...