Everett v. State
Decision Date | 28 February 2023 |
Docket Number | 2021-CP-01415-COA |
Parties | PERVIS L. EVERETT A/K/A PERVIS EVERETT A/K/A PERVIS LAGARREN EVERETT APPELLANT v. STATE OF MISSISSIPPI APPELLEE |
Court | Mississippi Court of Appeals |
WAYNE COUNTY CIRCUIT COURT HON. ROBERT THOMAS BAILEY TRIAL JUDGE
ATTORNEY FOR APPELLANT:
PERVIS L. EVERETT (PRO SE)
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY SCOTT STUART
BEFORE CARLTON, P.J., McCARTY AND EMFINGER, JJ.
¶1. On August 20, 2021, Pervis L. Everett filed a motion for post-conviction collateral relief (PCR) in the Circuit Court of Wayne County, Mississippi, seeking relief from what he alleged to be an illegal sentence. On November 30, 2021, the circuit court summarily denied the motion. Everett appealed from this order.
¶2. Everett was indicted by a Wayne County grand jury in January 2012. The indictment charged that around July 19, 2011 Everett and another individual possessed, with the intent to deliver, approximately 6.3 grams of cocaine, a Schedule II controlled substance. The indictment further charged Everett as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2007) and as a subsequent drug offender pursuant to section 41-29-147 (Rev. 2009). On September 19, 2012, Everett appeared in the circuit court with counsel and entered a plea of guilty to possession of cocaine, a Schedule II controlled substance, with the intent to deliver. At the guilty plea hearing, the State agreed not to go forward with the habitual-offender and subsequent-drug-offender enhancements and recommended a sentence of thirty years with all but one day suspended. The court imposed the sentence recommended by the State, and the judgment of conviction and sentencing order was entered on that date.
¶3. On May 31, 2018, Everett appeared before the circuit court again at a revocation hearing. As a result of that hearing, the remainder of Everett's sentence was fully revoked based upon the court's finding that Everett had committed a new felony offense. Subsequently, on August 20, 2021, Everett filed a PCR motion in which he did not challenge his revocation, but instead challenged the legality of his original sentence. The circuit court denied relief, finding that the thirty-year sentence was a legal sentence. Everett appeals.
¶4. "When reviewing a circuit court's denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are clearly erroneous; however, we review the circuit court's legal conclusions under a de novo standard of review." Gunn v. State, 248 So.3d 937, 941 (¶15) (Miss. Ct. App. 2018) (quoting Berry v. State, 230 So.3d 360, 362 (¶3) (Miss. Ct. App. 2017)).
¶5. First we must address the fact that Everett's PCR motion was clearly filed more than three years after his conviction and sentence. Concerning a similar set of facts in Taylor v. State, 348 So.3d 1017, 1019-20 (¶¶5-6) (Miss. Ct. App. 2022), this Court held:
Accordingly, we review the merits of Everett's allegation that his sentence exceeded the statutory maximum sentence.
¶6. In his motion for relief before the circuit court, Everett argued that his sentence of thirty years was illegal because it exceeded the statutory maximum punishment and that he was denied due process at sentencing. His argument was based upon his mistaken belief that the applicable statutory provision for his sentencing was Mississippi Code Annotated section 41-29-139(c)(1)(C) (Supp. 2011). At the time of Everett's offense and sentencing, that statutory provision did provide for a maximum sentence of sixteen years for simple possession of two grams but less than ten grams of cocaine. Miss. Code Ann. § 41-29-139(c)(1)(C). However, Everett was charged, convicted, and sentenced for possession with intent to deliver cocaine pursuant to section 41-29-139(a)(1), with sentencing provided for by section 41-29-139(b)(1), which read, at that time, as follows:
(Emphasis added). Therefore, the maximum sentence for possession with intent to deliver was thirty years at the time of Everett's offense and at the time of his sentencing.
¶7. While a review of the guilty plea petition and the hearing transcript reveals that there was some confusion as to whether the State intended to go forward with the enhancement as a subsequent drug offender, that issue was corrected during the hearing. The State agreed to reduce its recommendation from forty years to thirty years and to not go forward with the enhancement. During the plea hearing, the circuit court properly instructed Everett that the maximum sentence for the offense to which he was pleading guilty was thirty years. Everett acknowledged that he understood and that he wished to go forward with his plea of guilty. As a result, the trial court accepted his plea of guilty and imposed a sentence of thirty...
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