Jarvis v. State

• Decision Date: 01 November 2022
• Docket Number: 2021-CP-00930-COA
• Parties: VIRGIL L. JARVIS A/K/A VIRGIL LAMONT JARVIS A/K/A VIRGIL JARVIS APPELLANT v. STATE OF MISSISSIPPI APPELLEE
• Court: Mississippi Court of Appeals

VIRGIL L. JARVIS A/K/A VIRGIL LAMONT JARVIS A/K/A VIRGIL JARVIS APPELLANT v. STATE OF MISSISSIPPI APPELLEE

No. 2021-CP-00930-COA

Court of Appeals of Mississippi

November 1, 2022

DATE OF JUDGMENT: 07/23/2021

PEARL RIVER COUNTY CIRCUIT COURT ATTORNEY, TRIAL JUDGE: HON CLAIBORNE McDONALD

FOR APPELLANT: VIRGIL L. JARVIS (PRO SE) ATTORNEY

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA RODU ROSENBLATT

BEFORE CARLTON, P.J., McCARTY AND SMITH, JJ.

SMITH J.

¶1. Virgil Jarvis appeals from the Pearl River County Circuit Court's judgment denying his motion for post-conviction collateral relief (PCR). Finding no error, we affirm.

FACTS

¶2. Following Jarvis's arrest on February 25, 2016, a Pearl River County grand jury indicted him for attempted murder possession of a weapon by a convicted felon, and possession of a controlled substance in Cause Number 55:16-CR-0056CM. The Pearl River County Circuit Clerk issued the indictment on May 20, 2016. Due to the charges against him, Jarvis's parole was revoked, and he was placed in the custody of the Mississippi Department of Corrections (MDOC). On August 1 2016, the Mississippi Parole Board denied Jarvis's parole for an additional six months. Two days later, Jarvis filed two pro se motions related to the charges in Cause Number 55:16-CR-0056CM. Although Jarvis's indictment had not yet been served on him, the circuit court ordered Jarvis's case to be placed on the active docket to allow Jarvis's motions to be heard. Jarvis and his court-appointed trial attorneys appeared in court on October 19, 2016. At that time, Jarvis was served with the indictment that had been issued on May 20, 2016. The circuit court set Jarvis's pre-trial conference for November 15, 2016, and his trial for May 3, 2017. Because Jarvis's trial attorneys requested additional time to review Jarvis's pro se motions, the circuit court set the motions hearing for the same date as the pre-trial conference.

¶3. Thirteen days before the pre-trial conference, one of Jarvis's court-appointed attorneys resigned as the public defender for Pearl River County. The following day, Jarvis was assigned a new court-appointed attorney. Due to the serious nature of the charges against Jarvis, his trial attorneys and the State requested that the circuit court move the pre-trial conference closer to the May 2017 trial date. Based on the parties' request, the circuit court rescheduled the pre-trial conference for January 20, 2017.

¶4. Because Jarvis's original indictment did not include his status as a habitual offender, a grand jury re-indicted him on December 19, 2016, for the same charges. The new cause number assigned to the matter was Cause Number 55:16-CR-0460CM. Jarvis was served with his indictment in Cause Number 55:16-CR-0460CM on January 5, 2017. ¶5. On January 24, 2017, the circuit court held an arraignment for the new indictment in Cause Number 55:16-CR-0460CM and re-appointed Jarvis's trial attorneys. Due to a lack of available trial dates in May, the circuit court-with the parties' agreement-set Jarvis's new trial date for August 8, 2017. On January 26, 2017, the circuit court dismissed Jarvis's original indictment in Cause Number 55:16-CR-0056CM. On April 6, 2017, Jarvis filed multiple pro se motions, including a motion to dismiss the charges against him for failure to provide a speedy trial. Following a motions hearing on May 12, 2017, the circuit court denied Jarvis's motion to dismiss due to a speedy-trial violation. Jarvis then requested time to file an interlocutory appeal in the Mississippi Supreme Court from the denial of his motion to dismiss. After a hearing on August 1, 2017, the circuit court entered an order on August 2, 2017, granting Jarvis's motion for permission to file an interlocutory appeal.^[1]

¶6. Jarvis's trial proceedings began as scheduled on August 8, 2017. Prior to the State's presentation of its case-in-chief, Jarvis informed the circuit court that he wished to accept the State's sentencing recommendation and plead guilty as a non-habitual offender to Count I and as a habitual offender to Counts II and III. After conducting a hearing, the circuit court found that Jarvis knowingly, intelligently, and voluntarily pled guilty. The circuit court ordered Jarvis to serve the following sentences in MDOC's custody: (1) twenty-seven years in Count I for attempted murder; (2) ten years as a habitual offender without eligibility for parole in Count II for possession of a firearm by a convicted felon; and (3) eight years as a habitual offender without eligibility for parole in Count III for possession of a controlled substance. The circuit court further ordered that all three sentences run concurrently with each other and with a sentence in a separate cause number. In addition, the circuit court fined Jarvis $1,000.

¶7. On April 1, 2020, Jarvis filed his PCR motion and asserted that (1) his indictment was defective; (2) his trial attorneys had rendered ineffective assistance of counsel; and (3) his guilty pleas were involuntary. After an evidentiary hearing on Jarvis's claims, the circuit court entered its judgment on July 23, 2021. The circuit court found that each of Jarvis's claims lacked merit and denied Jarvis's PCR motion. Aggrieved, Jarvis appeals.

STANDARD OF REVIEW

¶8. We review a trial court's "dismissal or denial of a PCR motion for abuse of discretion" and decline to reverse unless "the trial court's factual findings are clearly erroneous." Bevalaque v. State, 337 So.3d 691, 694-95 (¶6) (Miss. Ct. App. 2022). We review questions of law de novo. Id.

DISCUSSION

¶9. In his pro se appellate brief, Jarvis raises fifteen assignments of error. Although he renews his PCR claims regarding a defective indictment and ineffective assistance of counsel, Jarvis also asserts additional errors related to these issues and to the circuit court's denial of his speedy-trial motion. To the extent that these additional alleged errors are procedurally barred because Jarvis never raised them before the circuit court, we decline to address them for the first time on appeal. See Camphor v. State, 339 So.3d 205, 207 (¶6) (Miss. Ct. App. 2022) ("It is well settled that 'an issue is procedurally barred if not first raised in a PCR motion before a circuit court.'" (quoting Taylor v. State, 313 So.3d 1106, 1111 (¶15) (Miss. Ct. App. 2021))). We therefore only address those arguments regarding the indictment and ineffective assistance that Jarvis properly preserved for appeal.

I. Defective Indictment

¶10. As in his PCR motion, Jarvis asserts on appeal that his indictment was defective because (1) there was evidence to suggest that the grand jury foreman's signature and the circuit court clerk's seal were not authentic; and (2) the evidence only established a sufficient basis for aggravated assault rather than for attempted murder.

¶11. We first address Jarvis's contentions regarding the authenticity of his December 2016 indictment. In his PCR motion, Jarvis claimed that "the stamp of the State seal and signature of the grand jury [foreman] are clearly double stamp[ed] and cop[i]ed onto the paper work." As a result, Jarvis argued his indictment was invalid.

¶12. The copy of Jarvis's indictment contained in the appellate record shows the grand jury foreman's signature and the circuit court clerk's seal displayed at the end of the document on the bottom right-hand side of the page. And as Jarvis contends, the reversed outlines of both the grand jury foreman's signature and the circuit court clerk's seal are visible on the left-hand side of the same page. The following page in the record contains the grand jury foreman's affidavit, which states in relevant part:

BEFORE ME, the undersigned authority in and for said County and State shown on reverse side hereof, . . . the undersigned AFFIANT, who, after being by me first duly sworn as the law directs says on oath that at the Term of Court referred to on reverse side hereof, in said County and State aforesaid, the undersigned Affiant was then and there selected to serve as Foreman of the Grand Jury for said County and that Affiant has served in such capacity for the period of the entire Grand Jury.

(Emphasis added). Below the affidavit, the grand jury foreman once again signed his name, and the circuit court clerk notarized the document with her signature and seal.

¶13. Our review of the record indicates that the two pages described above are actually the corresponding front and back pages of the same document, and when viewed as such, the grand jury foreman's signature and the circuit court clerk's seal from the back page of the document align with their reversed outlines on the front page of the document. We therefore find that the record clearly refutes Jarvis's assertions regarding the authenticity of his indictment. As a result, we conclude his defective-indictment claim based on this argument lacks merit.

¶14. Jarvis also alleged that his indictment was defective due to an insufficient factual basis as to Count I for attempted murder. In his PCR motion, Jarvis asserted that the State's evidence presented a factual basis consistent with aggravated assault rather than attempted murder and that the circuit court therefore erred by sentencing him to attempted murder. "[T]he law is settled that with only two exceptions, the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment. A guilty plea does not waive an indictment's failure to charge an essential element of the crime, and it does not waive lack of subject matter jurisdiction . . . ." Joiner v. State, 61 So.3d 156, 159 (¶7) (Miss. 2011) (citations and internal quotation marks omitted) (emphasis omitted). Similarly, our caselaw recognizes that ...