Edwards v. State, 2011–CP–00368–COA.

• Decision Date: 05 June 2012
• Docket Number: No. 2011–CP–00368–COA.,2011–CP–00368–COA.
• Citation: 90 So.3d 637
• Parties: Billy EDWARDS a/k/a Billy Lee Edwards, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

90 So.3d 637

Billy EDWARDS a/k/a Billy Lee Edwards, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–CP–00368–COA.

Court of Appeals of Mississippi.

June 5, 2012.

Billy Edwards, appellant, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

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

CARLTON, J., for the Court:

¶ 1. Billy Edwards appeals the Alcorn County Circuit Court's order dismissing his motion for post-conviction relief (PCR) as time-barred under Mississippi Code Annotated section 99–39–5(2) (Supp.2011). On appeal, Edwards raises the following assignments of error: whether (1) the sentence imposed by the court was excessive and disproportionate to the offense; (2) he was charged under a faulty indictment; (3) he entered an unknowing, involuntary, and unintelligent guilty plea; (4) he received ineffective assistance of counsel; (5) the acceptance of his guilty plea in the face of a conflict of interest violated his constitutional rights; and (6) he was subjected to a denial of due process when the trial court failed to advise him of the correct law in regard to appealing a sentence rendered upon a guilty plea. Finding no error, we affirm.

FACTS

¶ 2. On May 23, 2003, a grand jury before the Alcorn County Circuit Court indicted Edwards for burglary and larceny of a dwelling in Alcorn County cause number 03–183. The indictment stated, in part, as follows:

Billy Lee Edwards ... in said County and State on the 26th day of February ... 2003, did wilfully, feloniously and burglariously break and enter a certain dwelling owned and occupied by Mike Meteer, with the felonious and burglarious intent to take, steal and carry away the goods, chattels and personal property of the said Mike Meteer, in said dwelling being kept for use, sale or storage, and did then and there wilfully, feloniously and burglariously take, steal and carry away one Century Safe, 50 to 60 Pocket Knives, one Remington 870 12 gauge pump shotgun, one Browning bolt action 7 mm Rifle with [a] Nikon Scope, one Browning pump BPS 12 gauge shotgun with [a] Tentex Scope, one Magellan GPS Tracking System, one Compac Laptop Computer, and two boxes of Remington Heavy Shot 12 gauge shells, all of a value of $250 and more, good and lawful money of the United States, the personal property of Mike Meteer, in said dwelling being kept for use, sale or storage[.]

On February 2, 2004, Edwards pleaded guilty and was sentenced to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC). ¹

¶ 3. On February 10, 2011, Edwards filed a PCR motion, which the trial court denied as time-barred. Edwards now appeals.

STANDARD OF REVIEW

¶ 4. “A trial court's dismissal of a PCR motion will not be reversed absent a finding that the trial court's decision was clearly erroneous.” Evans v. State, 75 So.3d 1119, 1120 (¶ 4) (Miss.Ct.App.2011). However, we employ a de novo standard of review when issues of law are raised. Id.

DISCUSSION

I. TIME BAR

¶ 5. The trial court found that Edwards filed his PCR motion outside of the three-year statute of limitations as provided for in Mississippi Code Annotated section 99–39–5(2); thus, it was time-barred. We agree. According to section 99–39–5(2), a PCR motion following a guilty plea shall be made “within three (3) years after entry of the judgment of conviction.” Here, Edwards pleaded guilty on February 2, 2004. He subsequently filed his PCR motion on February 10, 2011—well past the three-year statute of limitations.

¶ 6. Section 99–39–5(2) provides multiple exceptions to the three-year statute of limitations, including “an intervening state or federal supreme court decision that would adversely affect the outcome of the conviction, new evidence not reasonably available at the time of trial which would cause a different result in conviction, or an expired sentence.” Chandler v. State, 44 So.3d 442, 443 (¶ 6) (Miss.Ct.App.2010). Here, Edwards's claims do not fall within any of the statutory exceptions. Nevertheless, in an attempt to circumvent the time bar, Edwards argues that this Court's decision in Towner v. State, 837 So.2d 221, 227 (Miss.Ct.App.2003), is an intervening decision that, if applied, would cause a different result in his case, more specifically a lesser sentence. However, in contrast to Towner, Edwards was a previously convicted felon, and this Court has previously held that Towner did not satisfy the intervening-decision exception to the time bar. See Robinson v. State, 19 So.3d 140, 142 (¶ 11) (Miss.Ct.App.2009).

¶ 7. In Towner, Defendant Willie Towner was convicted of selling cocaine and was sentenced to thirty years in the custody of the MDOC. Id. at 223 (¶ 1). Towner appealed arguing, among other things, that his case should be remanded because the sentence imposed by the trial court was disproportionate to his crime. Id. at 227 (¶ 19). The trial court agreed. Id. On his own motion, the trial judge asked this Court for authority to review Towner's sentence because of his second thoughts that he may have been too harsh. Id. This Court subsequently granted the motion of the trial judge and remanded the case for a review of the sentence. Id. at (¶ 21).

¶ 8. This Court in Robinson, 19 So.3d at 142 (¶ 11), reviewed the Towner decision and found that Towner did not hold that every criminal defendant must be given a sentence proportionality hearing, as suggested by Edwards. The Robinson court stated as follows:

We find that Robinson's reliance on Towner is misplaced as Towner did not create a new rule of law that requires a different result in Robinson's case. Rather, in Towner, this Court sought guidance from prior supreme court decisions, White v. State, 742 So.2d 1126, 1135–38 (¶¶ 32–48) (Miss.1999) and Davis v. State, 724 So.2d 342, 345 (¶ 15) (Miss.1998), which both preceded Robinson's guilty plea and sentencing hearing. Towner, 837 So.2d at 227 (¶ 21).More importantly though, in Towner, this Court did not hold that every criminal defendant must be given a sentence proportionality hearing. Much to the contrary, we carefully limited Towner's application to the “ uniqueness of [ the ] particular case,” noting that the “ trial judge acknowledge [ d ] he may have been too harsh and the prosecuting district attorney state [ d ] he ha [ d ] no objection to a re-sentencing hearing.” Id.

Robinson, 19 So.3d at 142–43 (¶ 11) (emphasis added). See also Moody v. State, 964 So.2d 564, 568 (¶ 18) (Miss.Ct.App.2007) (acknowledging the limited circumstances and application of Towner ).

¶ 9. In this case, Edwards claims that the trial court imposed a sentence which, as a matter of law, is an excessive sentence. Edwards asks this Court to find that the sentence of twenty-five years imposed upon him for the non-violent offense of burglary constitutes a sentence which was constitutionally impermissible to the gravity of the offense. However, as in Robinson and Moody, in the present case, we are unable to find anything in the record to establish that the trial court had second thoughts about the length of Edwards's sentence like the judge in Towner. Further, there is no evidence in this case that the State agreed to a resentencing. Therefore, even if Towner is considered an intervening decision, its application fails to affect the outcome of Edwards's sentence.²

¶ 10. We have previously found that “a sentence that does not exceed the statutory maximum sentence allowed is not subject to appellate review and will not be disturbed on appeal.” Robinson, 19 So.3d at 143 (¶ 14). Here, Edwards was sentenced to twenty-five years in the custody of the MDOC.³ The maximum sentence for the crime of burglary of a dwelling is twenty-five years. SeeMiss.Code Ann. § 97–17–23 (Supp.2011). Further, the record shows that Edwards's counsel neither objected before the trial court to the sentence imposed nor objected to the court's failure to conduct a proportionality analysis. As such, we find that this issue is without merit.

II. DEFECTIVE INDICTMENT

¶ 11. Edwards argues that his indictment was legally insufficient because the address of the dwelling he burglarized was not given on the indictment. Edwards claims that without an address, there is no proof of whether the building was an inhabited dwelling.

¶ 12. “Claims alleging defective indictment are also 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) (citing Kelly v. State, 797 So.2d 1003, 1005 (¶ 4) (Miss.2001)). Moreover, “[e]ven if the indictment had been defective, [a defendant] waive[s] all technical and non-jurisdictional defects contained in the indictment by pleading guilty.” Clark v. State, 54 So.3d 304, 308 (¶ 9) (Miss.Ct.App.2011). Edwards waived his current claims of legal insufficiency of the indictment charging him with burglary and larceny of a dwelling when he entered his guilty plea to the charge. See alsoURCCC 8.04(A)(4)(c).

III. CONSTITUTIONAL CLAIMS

¶ 13. Edwards argues that his PCR motion should not be procedurally barred because his claims concern fundamental constitutional rights. Specifically, Edwards argues: (1) he was deprived of due process of law because the trial court failed to correctly advise him of the right to appeal his sentence; (2) he was denied due process of law when the trial court failed to conduct a competency hearing which rendered his guilty pleas unknowing, involuntary, and unintelligent; (3) his trial counsel rendered ineffective assistance by advising him to waive any conflict of interest arising from his counsel's joint representation of his co-defendants and himself; and (4) the court's acceptance of his guilty plea in the face of his trial counsel's conflict of interest violated his constitutional rights.

¶ 14. In our consideration of these three claims of constitutional error, we acknowledge that while it is true that the statute of limitations does not apply to ...