Culberson v. State

• Decision Date: 10 December 1992
• Docket Number: No. 90-KA-0651,90-KA-0651
• Citation: 612 So.2d 342
• Parties: Alvin CULBERSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 342

612 So.2d 342

Alvin CULBERSON v. STATE of Mississippi.

No. 90-KA-0651.

Supreme Court of Mississippi.

Dec. 10, 1992.

Catherine V. Kilgore, Batesville, Robert B. Wiygul, New Orleans, LA, for appellant.

Michael C. Moore, Atty. Gen. and Charlene R. Pierce, Sp. Asst. Atty. Gen., Jackson, for appellee.

En banc.

McRAE, Justice, for the Court:

Presently before the Court is the state's oldest death-row inmate, Alvin Culberson. Here he challenges the trial court's application of the three-year period of limitations in our Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. Sec. 99-39-1, et seq., (Supp.1991) to his request to set aside a 1971 conviction which was used as an aggravating factor justifying the imposition of the death penalty. We are asked to decide whether Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988), is an intervening decision justifying relief from the limitations period. Alternatively, we are implored to find the limitations period unconstitutional in contravention of Culberson's rights under the Due Process Clause of the Constitution of the United States and Article 3, Section 21 of the Mississippi Constitution (1890), which bars suspension of the Writ of Habeas Corpus. We hold that Johnson v. Mississippi is not an intervening decision within the meaning of the statute, and we decline to address Culberson's constitutional argument, having recently ploughed that furrow in the case of Cole v. State, 608 So.2d 1313 (Miss.1992). Finding no fault with the trial court's denial of Culberson's motion for post-conviction relief, we affirm.

FACTS

On November 29, 1971, Alvin Culberson (Culberson), indicted for assault and battery with intent to kill and represented by counsel, entered a plea of guilty to the charge and was sentenced by the Circuit Court of the First Judicial District of Harrison County to serve five (5) years in a Mississippi state penitentiary. After serving his time and completing his sentence without objection, he resumed his criminal habits. In 1977, Culberson was tried and convicted of capital murder while engaged in the commission of a robbery or an attempt to commit such a felony. During the sentencing phase of Culberson's 1977 trial, two prior convictions were submitted as aggravating circumstances. One of the two prior convictions was the 1971 felony of assault and battery with intent to kill. In 1979, the capital murder conviction was affirmed by this court. Culberson v. State, 379 So.2d 499 (Miss.1979).

On March 14, 1989, more than seventeen (17) years after entry of his guilty plea to the assault and battery with intent to kill charge, Culberson filed a motion pursuant to the provisions of our UPCCRA to set aside the plea and conviction alleging:

At the plea hearing, the judge asked Mr. Culberson if he knew what he was charged with, but did not tell him the maximum sentence possible for assault and battery with intent to kill. Neither the judge nor Mr. Harris ¹ explained to Mr. Culberson the elements of assault and battery with intent to kill. Mr. Culberson entered his plea of guilty because his attorney had told him he should, and without an understanding of the nature and consequences of that plea.

On May 11, 1990, the Circuit Court denied Culberson's motion on the ground that it was procedurally barred under Sec. 99-39-5 of our UPCCRA. Culberson appeals contending that:

(a) Johnson II is an intervening decision excepted from the limitations period of the act; and

(b) the limitations period of our UPCCRA violates Article 3, Section 21 of the Mississippi Constitution (1890) by suspending the writ of habeas corpus and also violates the due process clause of the United States Constitution.

I. JOHNSON II IS NOT AN INTERVENING DECISION.

Miss.Code Ann. Sec. 99-39-5(2) (Supp.1991) provides:

A motion for relief under this chapter shall be made within three (3) years after the time in which the prisoner'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. Excepted from this three-year statute of limitations are those cases in which the prisoner can demonstrate either that there has been an intervening decision of the supreme court of either the state of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the prisoner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked.

In Phillips v. State, 421 So.2d 476 (Miss.1982), we held that an assault upon the constitutionality of a prior conviction used for sentence enhancement should be conducted in a proceeding in the court in which such conviction occurred and should be solely concerned with attacking that conviction. We further held that if the challenge to the prior conviction was successful, then relief from the subsequent conviction should be sought in the Mississippi court which used the prior conviction for enhancement purposes.

Culberson's complaint confirms that the alleged constitutional infirmities of his prior conviction submitted to and considered by the court as an aggravated circumstance do not appear on the face of the conviction and have not been vacated via collateral attack. The significance is magnified by our following articulation in Phillips:

An examination of the basic nature of such a constitutionally defective decision is somewhat helpful in determining the role that such a conviction may play in the application of an habitual offender statute. In Santobello v. New York, 404 U.S. 257, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971), (Douglas, J. concurring), Justice Douglas noted:

[A] guilty plea is rendered voidable by threatening physical harm, Waley v. Johnston [316 U.S. 101, 62 S.Ct. 964, 86 L.Ed. 1302 (1942) ], supra, threatening to use false testimony, ibid., threatening to bring additional prosecutions, Machibroda v. United States [368 U.S. 487, 82 S.Ct. 510, 7 L.Ed.2d 473 (1962) ], supra, or by failing to inform a defendant of his right of counsel, Walker v. Johnston [312 U.S. 275, 61 S.Ct. 574, 85 L.Ed. 830 (1941) ], supra.

Id. [404 U.S.] at 266, 92 S.Ct. at 500, 30 L.Ed.2d at 435 (emphasis added).

The nature of constitutionally defective prior convictions as being voidable as opposed to void highlights two different aspects of their application in the instant case. First, unless such constitutional infirmity appears on the face of the conviction, or unless the conviction has been vacated via a collateral attack, the conviction may be used for the enhancement of sentence under an habitual offender statute. Secondly, the nature of a constitutionally defective conviction as being voidable highlights the fact that the proper challenge to such a defective conviction lies in a separate action brought expressly for that purpose.

* * * * * *

The mere fact that the defendant has chosen to collaterally attack a prior conviction has no effect upon the status of that conviction until such time as the conviction is vacated. This is in line with the language previously cited from Justice William O. Douglas indicating that constitutionally defective convictions are voidable. Until such time as they are actually voided, they may be used for habitual offender statute purposes. (emphasis ours)

Perusal of Phillips assures us that the trial court properly permitted the 1977 prior conviction of Culberson to be used as an aggravated circumstance. The time limitations clock prescribed by Sec. 99-39-5(2) began running in October 1977.

It is true that in Johnson v. State, 511 So.2d 1333 (Miss.1987) (Johnson I ), we denied a petition for post conviction collateral relief and held that the reversal by the New York court of appeals of a conviction twenty-three (23) years after its rendition did not invalidate it as an aggravating circumstance to be considered during the sentencing phase of Johnson's trial. Following our denial of the petition in Johnson I, the United States Supreme Court granted certiorari and held that in view of the New York court's action in vacating and dismissing his prior conviction, Johnson's death sentence should be re-examined because it was based partially on a reversed conviction which provided no legitimate support for the imposed sentence. See (Johnson II ) Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d 575 (1988). Johnson II quoted with approval our decision in Phillips.

Although Phillips was not a death penalty case, the same principle applies in the capital context. In Nixon v. State, 533 So.2d 1078 (Miss.1987), we applied the reasoning of Phillips when a defendant in a capital case sought to attack the validity of a prior conviction introduced to support the finding of aggravating circumstances at sentencing. In approving the Phillips procedure, we stated:

Here the Court is asked to render guidelines for determining the admissibility of prior felony records to establish aggravating circumstances under Miss.Code Ann. Sec. 99-19-101(5)(b) (Supp.1986). This Court has announced the following procedure in Phillips v. State, 421 So.2d 476 (Miss.1982).

In Phillips, the prosecution sought to use a prior Kentucky conviction to enhance the defendant's punishment under Miss.Code Ann. Sec. 99-19-81, as amended. The defendant objected to the use of the Kentucky conviction alleging that the conviction was invalid because he had not "knowingly and voluntarily" plead guilty. In...