Harris v. State

• Decision Date: 07 January 2020
• Docket Number: NO. 2018-CA-01535-COA,2018-CA-01535-COA
• Citation: 303 So.3d 1
• Parties: Antonio Demarao HARRIS a/k/a Antonio Harris, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

303 So.3d 1

Antonio Demarao HARRIS a/k/a Antonio Harris, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CA-01535-COA

Court of Appeals of Mississippi.

January 7, 2020

Rehearing Denied June 30, 2020

ATTORNEY FOR APPELLANT: JAMES A. WILLIAMS

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE, JACKSON

BEFORE BARNES, C.J., McCARTY AND C. WILSON, JJ.

McCARTY, J., FOR THE COURT:

¶1. Antonio Harris filed a petition for postconviction collateral relief (PCR) in the Circuit Court of Lauderdale County. The circuit court dismissed Harris' petition as being time-barred with no applicable exception. We agree and affirm.

FACTS

¶2. One day during summer break, Harris and his half-brother drove to the Bonita Lakes Mall, where they broke into a car in broad daylight. The pair ransacked the car, ultimately absconding with four dollars and a Nintendo Game Boy. The car's owner saw them and called the police. Harris and his half-brother were arrested and charged with burglary of an automobile.

¶3. Four months later, while out on bond for his burglary charge, Harris began a sexual "relationship" with a twelve-year-old girl (herein referred to by the initials "T.C.").¹ He saw T.C. while visiting his aunt at the Eastern Gardens apartment complex—the same apartments where the child lived. Harris drove T.C. from the complex to the Salvation Army, where they had sexual intercourse. Harris maintained that they only had intercourse twice, but T.C. told a judge that it had been seven or eight times. T.C.'s mother discovered the relationship and took her to the hospital for a rape examination; Harris was subsequently arrested.

¶4. Harris was again released on bond, during which time he was charged with yet another automobile burglary. This time, he and his cousin went to the Cedar Bend Apartments around 3:45 a.m. and broke into a car. Witnesses at the apartment complex saw Harris and chased him down the street with stolen speakers in his hands. Harris admitted he was present during the burglary but denied being the person whom witnesses saw running away with the speakers.

¶5. Harris entered into a plea agreement for which he would receive a recommendation for the minimum sentence of twenty years to be served day-for-day on the statutory rape charge. He subsequently withdrew his plea. He later accepted a new plea offer, which stipulated: the State would recommend concurrent sentences for the statutory rape and auto burglaries, and the State would not object or appeal if the circuit court sentenced Harris to a term below the minimum. The plea agreement explicitly provided that the State was not agreeing to any particular sentence and would not remain silent at sentencing.

¶6. Harris agreed to the new plea agreement terms, which the circuit court accepted on September 23, 2004. He was sentenced to twenty years to be served day-for-day for the statutory rape and three years for each of the burglary convictions. The circuit court set the sentences to be served concurrently in the custody of the Mississippi Department of Corrections.

¶7. Over thirteen years later, on December 1, 2017, Harris filed his PCR petition. Affidavits of Harris and his mother, Zelda, were included. Harris insisted in his affidavit that the circuit court "really came down on [him], making it look like [he] was out committing crimes ... then the ‘statutory rape,’ which was really having sex with an under-age girl, who was all wanting me."² Without holding an evidentiary hearing, the circuit court signed an order summarily dismissing Harris' motion as being time-barred.

¶8. Harris now appeals the circuit court's dismissal and argues that his claims were excepted from any procedural bars because his fundamental right to due process was violated. On appeal, Harris challenges his sentence as not only being violative of his plea deal, but also "fundamentally unfair and [a violation of] his right to due process." He maintains he was denied due process at sentencing when the State and the circuit court inquired into his juvenile record.

STANDARD OF REVIEW

¶9. This Court reviews the dismissal of a PCR petition for an abuse of discretion. Williams v. State , 110 So. 3d 840, 842 (¶11) (Miss. Ct. App. 2013). We will not reverse a dismissal absent a finding that the lower court's decision was clearly erroneous; however, we review issues of law under a de novo standard. Salter v. State , 184 So. 3d 944, 948 (¶10) (Miss. Ct. App. 2015). The issue of whether Harris' petition is procedurally barred is a question of law and is therefore reviewed de novo. Shields v. State , 130 So. 3d 160, 162 (¶8) (Miss. Ct. App. 2014).

DISCUSSION

¶10. Harris challenges the circuit court's dismissal of his PCR petition as being time-barred. He argues that the dismissal was erroneous and that his claims were excepted from the procedural time-bar.

¶11. A petitioner has three years after the entry of the judgment of conviction to file a PCR petition challenging a guilty plea. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). "[O]nce a prisoner's claims are time-barred, they must fall into one of the enumerated exceptions to remain viable." Salter , 184 So. 3d at 948 (¶13). "[T]he burden falls on the movant to show he has met a statutory exception." Campbell v. State , 233 So. 3d 904, 906 (¶5) (Miss. Ct. App. 2017).

¶12. The enumerated time-bar exceptions are: (1) an intervening decision of the state or federal Supreme Court that "would have actually adversely affected the outcome of his conviction or sentence"; (2) "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"; (3) biological evidence demonstrating that the petitioner would likely either not have been convicted or received a lesser sentence; and (4) expiration of sentence or unlawful revocation of probation, parole, or conditional release. § 99-39-5(2).

¶13. Also recognized as an exception to the time-bar is a claim of error affecting a "fundamental constitutional right[.]" Rowland v. State , 42 So. 3d 503, 506 (¶9) (Miss. 2010). Our decisions have found at least five fundamental rights to survive the procedural bar: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; (4) the right not to be subject to ex post facto laws; and (5) certain cases of ineffective assistance of counsel. Id. at 506-08 (¶¶10, 14) ; James v. State , 266 So. 3d 1029, 1031 (¶5) (Miss. Ct. App. 2018).

¶14. "Where a petitioner asserts a fundamental right, the courts must address the merits of the PCR petition regardless of procedural bars." Salter , 184 So. 3d at 950 (¶21). "However, mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." Funchess v. State , 283 So. 3d 214, 216 (¶5) (Miss. Ct. App. 2019) (internal quotation mark omitted). The petitioner bears the burden of "alleg[ing] in his motion such facts as are necessary to demonstrate that his claims are not procedurally barred ...." Miss. Code Ann. § 99-39-21(6) (Rev. 2015).

¶15. Harris' motion was filed in 2017—more than thirteen years after the judgment of conviction was entered. As a matter of law, it is time-barred. Harris attempts to circumvent the statute's enumerated exceptions by asserting errors affecting his fundamental rights. Specifically, he alleges that the circuit court erred in (1) denying him an evidentiary hearing, (2) sentencing him to the statutory minimum, and (3) permitting evidence of his juvenile record during sentencing. Of these claims, only one asserts an error affecting a fundamental right—freedom from an illegal sentence.

I. The circuit court was not required to grant Harris an evidentiary hearing.

¶16. Harris argues that he was denied due process of law and fundamental fairness when the circuit court dismissed his post-conviction petition without holding an evidentiary hearing. However, "the right to an evidentiary hearing is not guaranteed. A trial court enjoys wide discretion in determining whether to grant an evidentiary hearing." Pinkney v. State , 192 So. 3d 337, 341 (¶12) (Miss. Ct. App. 2015) (citation and internal quotation marks omitted). "Mississippi law authorizes a trial judge to summarily dismiss a motion for postconviction relief without the benefit of an evidentiary hearing ‘if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’ " Buckhalter v. State , 912 So. 2d 159, 160 (¶6) (Miss. Ct. App. 2005) (quoting Miss. Code Ann. § 99-39-11(2) (Rev. 2000)).

¶17. Harris' motion failed to show that he was entitled to any relief. The circuit court's dismissal of his petition is consistent with the evidence and testimony presented in the record. This issue is without merit.

II. The minimum sentence of twenty years did not violate Harris' fundamental rights.

¶18. Harris submits that "his sentence was fundamentally unfair and violated his right to due process." Harris entered a blind plea of guilt to one count of statutory rape and two counts of burglary of an automobile. Statutory rape carries a sentence of "imprisonment for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years." Miss. Code Ann. § 97-3-65(3)(c) (Rev. 2000). Burglary of an automobile carries a penalty of up to seven years' imprisonment. Miss. Code Ann. § 97-17-33(1) (Rev. 2000). Harris was given the minimum sentence of twenty years for the statutory rape and three years for each of the burglary convictions, with all sentences set to run concurrently.

A. The terms of the plea agreement were not violated.

¶19. Harris alleges that the terms of his plea agreement were violated. He argues that the circuit court violated the plea agreement by giving him the...