Hays v. State

• Decision Date: 13 August 2019
• Docket Number: NO. 2018-CP-00593-COA,2018-CP-00593-COA
• Citation: 282 So.3d 714
• Parties: Howard HAYS a/k/a Howard Thurman Hays Jr. a/k/a Howard Hayes Jr., Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

282 So.3d 714

Howard HAYS a/k/a Howard Thurman Hays Jr. a/k/a Howard Hayes Jr., Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CP-00593-COA

Court of Appeals of Mississippi.

August 13, 2019

ATTORNEY FOR APPELLANT: HOWARD HAYS (PRO SE)

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

BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. Howard Hays appeals from the dismissal of his second motion for post-conviction relief (PCR). Agreeing with the circuit court that Hays's second PCR motion is barred as successive, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 2015, Howard Hays pled guilty to one count of commercial burglary (Count I) and one count of auto theft (Count II). The circuit court sentenced Hays to serve seven years, day for day, as a non-violent habitual offender for Count I and five years, day for day, as a non-violent habitual offender for Count II. The circuit court also ordered that Hays's sentences run consecutively.

¶3. In March 2016, Hays filed his first PCR motion in the circuit court, asserting (1) ineffective assistance of counsel, (2) failure to provide a timely initial appearance, (3) that the State unlawfully detained him for more than 180 days without a formal charge, and (4) that the State charged him with grand larceny based upon an affidavit for petit larceny.¹ In July 2017, the circuit court summarily denied Hays's PCR motion, finding it was not well taken. Hays did not file a timely notice of appeal.²

¶4. Nonetheless, in September 2017, Hays filed a second PCR motion, making the same and additional assertions. The circuit court summarily dismissed Hays's second PCR motion, finding it was barred as an impermissible successive writ. Hays now appeals.

STANDARD OF REVIEW

¶5. "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) ).

DISCUSSION

¶6. "Under Mississippi's Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion." Evans v. State , 115 So. 3d 879, 880 (¶2) (Miss. Ct. App. 2013) ; see also Miss. Code Ann. § 99-39-23(6) (Rev. 2015). On appeal, Hays does not dispute that his claim is procedurally barred. Instead, Hays raises a number of issues regarding his constitutional rights. Hays asserts that (1) he was denied a timely initial appearance; (2) he received ineffective assistance of counsel; (3) he was denied his right to cross-examine witnesses; (4) he was prosecuted on a defective indictment; (5) he was convicted under an unconstitutional statute; (6) he was ordered to serve an illegal sentence; (7) his Fourth Amendment rights were violated; (8) the State used fraudulent warrants for his arrest; (9) his Fourteenth Amendment rights were violated; and (10) his sentence must be vacated.

¶7. Errors affecting certain fundamental rights are excepted from PCR procedural bars. Carter v. State , 203 So. 3d 730, 731 (¶7) (Miss. Ct. App. 2016). "[F]our types of ‘fundamental rights’ have been expressly found to survive PCR procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Green v. State , 235 So. 3d 1438, 1440 (¶9) (Miss. Ct. App. 2017) (quoting Salter v. State , 184 So. 3d 944, 950 (¶22) (Miss. Ct. App. 2015) ). But "mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." White v. State , 59 So. 3d 633, 636 (¶11) (Miss. Ct. App. 2011) (citing Chandler v. State , 44 So. 3d 442, 444 (¶8) (Miss. Ct. App. 2010) ). "There must at least appear to be some basis for the truth of the claim before the procedural bar will be waived." Id. Further, "the movant[ ] bears the burden of proving an exception applies to the UPCCRA's procedural bars." Gunn , 248 So. 3d at 942 (¶19) (citing Brandon v. State , 108 So. 3d 999, 1004 n.3, 1006 (¶¶12, 23) (Miss. Ct. App. 2013)).

¶8. We address each of Hays's contentions in turn. Ultimately, we affirm the circuit court's dismissal of Hays's second PCR motion because Hays has failed to demonstrate that an exception to the successive-writ bar applies.

I. Right to a Timely Initial Appearance

¶9. Hays first contends that he was denied a timely initial appearance.³ However, Hays previously asserted that he was denied a timely initial appearance in his first PCR motion, and he cannot relitigate an issue that was already decided. Lyons v. State , 990 So. 2d 262, 265 (¶13) (Miss. Ct. App. 2008).

¶10. In denying his previous PCR motion, the circuit court found that Hays's assertion lacked merit because Hays waived his timely initial appearance claim by pleading guilty. We agree. "The Mississippi Supreme Court has ‘recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.’ " Davis v. State , 954 So. 2d 530, 532 (¶8) (Miss. Ct. App. 2007) (quoting Rowe v. State , 735 So. 2d 399, 400 (¶4) (Miss. 1999) ); see also Reeves v. State , 256 So. 3d 632, 635 (¶10) (Miss. Ct. App. 2018) ("[T]he entry of a valid guilty plea waives the right to an initial appearance and a preliminary hearing."). The record reflects that Hays made a knowing and voluntary guilty plea. This issue is presented in a successive motion that is barred and lacks merit.

II. Ineffective Assistance of Counsel

¶11. Hays next contends that he received ineffective assistance of counsel. Under "extraordinary circumstances," ineffective assistance of counsel can constitute an exception to the statutory time-bar. Brown v. State , 187 So. 3d 667, 670-71 (¶7) (Miss. Ct. App. 2016) (quoting Chapman v. State , 167 So. 3d 1170, 1173-74 (¶¶10-13) (Miss. 2015) ). But here, Hays has "failed to establish a basis for his claims of ineffective assistance of counsel" that would constitute such an exception. Id. at 671 (¶8). Hays also asserted ineffective assistance of counsel in his first PCR motion, which was denied. Accordingly, Hays cannot relitigate this issue; his request was presented in a successive motion that is barred. Lyons , 990 So. 2d at 265 (¶13).

III. Right to Cross-Examine

¶12. Hays asserts that he was denied his right to cross-examine witnesses. The right to cross-examine witnesses is not a fundamental right that survives PCR procedural bars. See Williams v. State , 228 So. 3d 844, 848 (¶11) (Miss. Ct. App. 2017) (finding trial court's failure to specifically enumerate the defendant's right to cross-examine adverse witnesses is not a violation of a fundamental right that would survive PCR procedural bars). Further, "a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial." Davis , 954 So. 2d at 532 (¶8) (quoting Rowe , 735 So. 2d at 400 (¶4) ). This includes "one's rights related to a speedy trial, refusal of self-incrimination, confrontation of accusers, cross-examination of witnesses , a jury trial, and the State's obligation to prove guilt beyond a reasonable doubt." Knight v. State , 192 So. 3d 360, 364 (¶12) (Miss. Ct. App. 2016) (emphasis added).

¶13. The record reflects that Hays was aware that he was waiving his right to cross-examine witnesses when he made his guilty plea. Hays's petition to enter a plea of guilty, signed by Hays on October 9, 2015, specifically states:

By pleading guilty to the charges against me, I give up the following rights guaranteed to me by the Constitution of the United States of America and the Constitution of the State of Mississippi:

(a) the right to a speedy and public trial by jury;

(b) the right to see, hear and face in open court all witnesses called to testify against me, and the right to cross examine those witnesses ....

I present this petition of my own free will and accord.

Accordingly, the record reflects that Hays voluntarily and knowingly waived his right to cross-examine witnesses. Hays's assertion that he was denied the right to cross-examine witnesses thus lacks merit, and the argument was presented in a successive motion that is barred.

IV. Defective Indictment

¶14. Hays's fourth assertion, that he was prosecuted on a defective indictment, is likewise procedurally barred. Claims alleging defective indictment are subject to the UPCCRA's procedural bars. Stokes , 199 So. 3d at 749 (¶13). However, "if [the] indictment failed to allege an essential element of the crime ..., [Hays] would not be precluded from raising that issue now." Wilson v. State , 203 So. 3d 762, 765 (¶9) (Miss. Ct. App. 2016). This is not the case here.

¶15. Hays's indictment included one count of commercial burglary and one count of auto theft. The indictment listed the sections of the statutes under which Hays was charged and tracked the language of the statutes.⁴ "Generally, if an indictment tracks the language of a criminal statute, it is sufficient to inform the defendant of the charged crime." Randall v. State , 148 So. 3d 686, 688-89 (¶10) (Miss. Ct. App. 2014). We find Hays's indictment sufficiently informed Hays of the charges against him, and Hays's defective indictment claim does not otherwise survive the UPCCRA's procedural bars.

V. Unconstitutional Statute

¶16. In contending that he was convicted under an unconstitutional statute, Hays asserts the State erred by charging him with grand larceny rather than petit larceny because "the property value is at $500 in the [arresting officer's affidavit]." This assertion does not raise any constitutional infirmity regarding the larceny statutes. Moreover, Hays asserted that the State charged him with grand larceny based upon an...