Crosby v. State

• Decision Date: 18 August 2009
• Docket Number: No. 2007-CP-01950-COA.,2007-CP-01950-COA.
• Citation: 16 So.3d 74
• Parties: Steven Lamont CROSBY a/k/a Steve Salter, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

16 So.3d 74

Steven Lamont CROSBY a/k/a Steve Salter, Appellant v.STATE of Mississippi, Appellee.

No. 2007-CP-01950-COA.

Court of Appeals of Mississippi.

August 18, 2009.

Steven Lamont Crosby, appellant, pro se.

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

Before KING, C.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court.

¶ 1.This matter is before the Court on appeal from an order of the Circuit Court of Hinds County dismissing Steven Lamont Crosby's motion for post-conviction relief.Finding that Crosby's motion is time-barred, we affirm the circuit court's judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2.Crosby was indicted for aggravated assault on May 22, 1995.Although initially pleading "not guilty," Crosby later withdrew that plea and pleaded guilty to the charge.On October 9, 1995, an amended judgment of conviction and sentence was entered convicting Crosby and sentencing him to serve five years in the custody of the Mississippi Department of Corrections(MDOC), with the remainder of the sentence, except the seventy-three days already served, to be suspended conditioned upon future good behavior and compliance with the terms of probation.¹Therefore, Crosby was immediately released from custody to serve his probationary term.

¶ 3.On March 3, 1997, Crosby shot and killed Larry Wallace during an argument.Crosby was arrested in California on June 1, 1997, on a fugitive warrant, and was extradited to Mississippi.He was indicted for murder on December 9, 1997.Crosby pleaded "not guilty" at his arraignment hearing.The trial was originally set for May 1998; however, continuances were granted which delayed the trial.²On December 15, 1999, Crosby withdrew his previous "not guilty" plea and pleaded guilty to manslaughter.Crosby was sentenced to two years and five months in the custody of the MDOC, with three years of post-release supervision, to run concurrently with his previous sentence.Crosby received credit for time served and was immediately released.³A petition for termination of probation on Crosby's manslaughter charge was filed by the MDOC on August 28, 2000.Crosby is now serving a life sentence as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83.⁴The identity of Crosby's other crimes are not contained in the record before this Court.However, Crosby's motion informs us that the manslaughter charge was used as the enhancement to his life sentence; hence, his desire to overturn the manslaughter conviction.

¶ 4.On May 23, 2006, Crosby filed a motion for post-conviction relief with the circuit court.The court dismissed the motion on April 24, 2007, on the basis that it was time-barred.⁵It is from this dismissal that Crosby now appeals.

STANDARD OF REVIEW

¶ 5.A trial court's dismissal of a motion for post-conviction relief is reviewed by this Court under an abuse of discretion standard and will only be disturbed in cases"where the trial court's decision was clearly erroneous."Moore v. State,985 So.2d 365, 368(¶ 9)(Miss.Ct.App. 2008)(citation omitted).The appropriate standard of review for questions of law, however, is de novo.Id.

I.Whether the circuit court erred in dismissing Crosby's motion for post-conviction relief as time-barred.

¶ 6.In cases where a defendant pleads guilty, "a motion for post-conviction relief must be made within three years after the entry of the judgment of conviction."Campbell v. State,993 So.2d 413, 415(¶ 6)(Miss.Ct.App.2008)(citingMiss.Code Ann. § 99-39-5(2)(Rev.2000)).Crosby pleaded guilty to manslaughter on December 15, 1999.Therefore, any motion for post-conviction relief had to be filed no later than December 16, 2002.Crosby's motion was not filed until May 2006; therefore, on its face, the motion was untimely and barred from review.

¶ 7.However, if a defendant's claim in his motion for post-conviction relief falls within one of the statutory exceptions, it may survive the time bar.Smith v. State,964 So.2d 1215, 1217(¶ 9)(Miss.Ct. App.2007)(citingBevill v. State,669 So.2d 14, 17(Miss.1996)).The exceptions are:

(1)cases where the Supreme Court of Mississippi or the United States has rendered an intervening decision that would actually adversely affect the outcome of the conviction or sentence, (2)cases where the defendant presents evidence, not reasonably discoverable at the time of trial, that would have been practically conclusive at trial to cause a different result in the conviction or sentence, and (3)cases where the defendant's sentence has expired, or his probation, parole or conditional release has been unlawfully revoked.

Id.(citingMiss.Code Ann. § 99-39-5(2)).Crosby asserts the following assignments of error: (1) his indictment for murder was facially and fatally defective; (2) his sentence for the manslaughter conviction, which ran concurrently with his previous sentence, violated Mississippi Code Annotated section 99-19-21(Rev.2007);(3) that his constitutional right to a speedy trial was violated; and (4) that he was denied effective assistance of counsel.A claim "alleging a defective indictment [is] barred when a motion for post-conviction relief is not filed within the three-year time limitation."Barnes v. State,949 So.2d 879, 881(¶ 8)(Miss.Ct.App.2007).It is also well established that "a guilty plea waives the right to a speedy trial, whether that right is of constitutional or statutory origin."Hardin v. State,966 So.2d 844, 847(¶ 11)(Miss.Ct.App.2007)(citingRowe v. State,735 So.2d 399, 400(¶ 3)(Miss.1999)).Therefore, we find that Crosby's claims regarding his indictment and his right to a speedy trial are statutorily barred.

¶ 8.Regarding Crosby's argument of ineffective assistance of counsel, "the Mississippi Supreme Court has consistently held that the time bar of Mississippi Code Annotated section 99-39-5(2) applies to ... post-conviction relief claims based on ineffective assistance of counsel."Chancy v. State,938 So.2d 267, 270(¶ 11)(Miss.Ct.App.2005).This Court has held that:

[While] it is conceivable that under the facts of a particular case, this Court might find that a lawyer's performance was so deficient, and so prejudicial to the defendant that the defendant's fundamental constitutional rights were violated ... [we have] never held that merely raising a claim of ineffective assistance of counsel is sufficient to surmount the procedural bar.

McBride v. State,914 So.2d 260, 264(¶ 12)(Miss.Ct.App.2005)(quotingBevill,669 So.2d at 17).In order to make a successful claim of ineffective assistance of counsel, "a defendant must prove that his counsel's performance was deficient, and that the deficiency prejudiced his defense."Thomas v. State,933 So.2d 995, 997(¶ 6)(Miss.Ct.App.2006)(citingStrickland v. Washington,466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984)).

¶ 9.Crosby specifically alleges that defense counsel failed to obtain a mental evaluation of Crosby, knowing that he was not mentally competent to sign his petition to enter a guilty plea.Although an order for continuance in the record reflects that defense counsel intended to obtain a mental evaluation of Crosby, no further information is contained in the record as to whether that evaluation was ever conducted.There exists a "strong presumption that the attorney's conduct falls within the wide range of reasonable professional conduct and .... that all decisions made during the course of trial were strategic."Jones v. State,970 So.2d 1316, 1318(¶ 6)(Miss.Ct.App.2007)(citations omitted).Crosby has failed to provide any evidence to support his claim other than his assertions in the motion."It is the responsibility of the appellant to insure the availability of an appellate record sufficient to support his claims."Griffis v. State,797 So.2d 299, 302-03(¶ 6)(Miss.Ct.App. 2001)(citingSmith v. State,572 So.2d 847, 849(Miss.1990)).Additionally, paragraph seven of Crosby's petition to enter a guilty plea asserted that he was not "suffering from any mental disease" and that he fully understood all the matters set forth in his indictment and petition.Crosby's other claims of ineffective assistance concern defense counsel's alleged conspiracy with the State against Crosby.However, these allegations only refer to counsel's negotiations with the State in order that Crosby would receive a more lenient conviction and sentence.Therefore, we find that Crosby has stated no deprivation of a fundamental right as a result of defense counsel's plea negotiations and that his assertion of ineffective assistance of counsel is statutorily barred from review.

¶ 10.However, Crosby's claims regarding his alleged illegal sentence may be considered an exception to the statutory bar."[T]he supreme court has carved out an exception to procedural bars when necessary to protect a fundamental right such as the right to a legal sentence."Campbell,993 So.2d at 415(¶ 6)(citations omitted).Consequently, a petition for post-conviction relief which alleges an illegal sentence is exempt from a time bar.Id.at 416(¶ 6)(citingJackson v. State,965 So.2d 686, 690(¶ 11)(Miss.2007)).However, merely asserting "a constitutional right violation is not sufficient to overcome the time bar."Stovall v. State,873 So.2d 1056, 1058(¶ 7)(Miss.Ct.App.2004)."There must at least appear to be some basis for the truth of the claim before the limitation period will be waived."Id.Therefore, we must review the merit of the issue in order to determine whether Crosby's illegal sentence claim survives the statutory time limitation.

II.Whether Crosby's sentence violated Mississippi Code Annotated section 99-19-21.

¶ 11.Crosby argues that his sentence for his manslaughter conviction, which ran concurrently with his previous sentence, violated Mississippi Code Annotated section 99-19-21(2)(Rev.2007) which states:

When a person is sentenced to...