Everett v. State

• Court: Court of Appeals of Mississippi
• Parties: PERVIS L. EVERETT A/K/A PERVIS EVERETT A/K/A PERVIS LAGARREN EVERETT APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Docket Number: 2021-CP-01415-COA
• Decision Date: 28 February 2023

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PERVIS L. EVERETT A/K/A PERVIS EVERETT A/K/A PERVIS LAGARREN EVERETT APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

No. 2021-CP-01415-COA

Court of Appeals of Mississippi

February 28, 2023

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.

EMFINGER, J.

¶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.

FACTS AND PROCEDURAL HISTORY

¶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

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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.

STANDARD OF REVIEW

¶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)).

ANALYSIS

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¶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:

Under the Uniform Post-Conviction Collateral Relief Act Taylor had three years from the entry of his judgment of conviction to timely file a PCR motion. Miss. Code Ann. § 99-39-5(2) (Rev. 2020). Because Taylor filed his PCR motion almost seven years after his 2014 conviction, his

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