Minchew v. State

• Decision Date: 24 April 2007
• Docket Number: No. 2006-CP-00485-COA.,2006-CP-00485-COA.
• Citation: 967 So.2d 1244
• Parties: Lawrence Wayne MINCHEW, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

967 So.2d 1244

Lawrence Wayne MINCHEW, Appellant v. STATE of Mississippi, Appellee.

No. 2006-CP-00485-COA.

Court of Appeals of Mississippi.

April 24, 2007.

Rehearing Denied November 6, 2007.

Lawrence Wayne Minchew (Pro Se).

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before MYERS, P.J., IRVING, BARNES and CARLTON, JJ.

CARLTON, J., for the Court.

¶ 1. This case comes before this Court from the February 10, 2006 order of the Circuit Court of Harrison County denying a motion for post-conviction relief. Finding no error, we affirm.

FACTS

¶ 2. Lawrence Wayne Minchew was indicted by the grand jury of Harrison County in two causes, both as an habitual offender under the provisions of Mississippi Code Annotated § 99-19-83 (Rev.2000). One indictment, cause number 835(835), charged Minchew with two counts, the first for possession of a controlled substance with intent, the second for possession of a controlled substance. The other indictment, cause number 504(504), charged him with possession of pseudoephedrine. On November 5, 2002, Minchew entered a plea of guilty to the charge under 504 and to the first count of 835. The State agreed to pass to the files four other charges, one being the second count of 835. The trial judge accepted Minchew's pleas and sentenced him to five years under 504 and seventeen years under 835. The sentences were to run concurrently for a total of seventeen years.

¶ 3. On November 3, 2005, Minchew filed a motion for post-conviction relief in the Circuit Court of Harrison County which was denied by order of the court on February 10, 2006. Aggrieved by the denial, Minchew appeals.

DISCUSSION

1. Untimely Appeal

¶ 4. The State asserts that this Court lacks jurisdiction to hear this appeal because Minchew's notice of appeal was untimely filed. Mississippi Rule of Appellate Procedure 4(a) requires that a notice of appeal "[s]hall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." An appeal which is "not timely filed pursuant to Rule 4 or 5" shall be mandatorily dismissed. Rule (2)(a)(1). When challenging an appeal as untimely, the State bears the burden of proving that, under the terms of the prison mailbox rule the prisoner's notice of appeal was not "filed" within the thirty-day window of Rule 4. Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000); Vance v. State, 941 So.2d 225, 227(¶ 5) (Miss.Ct.App.2006) (citation omitted). Under the prison mailbox rule, a pro se prisoner's notice of appeal is effectively "filed" under Rule 4 when the prisoner delivers his notice of appeal to the proper prison authorities for mailing. Sykes, 757 So.2d at 1000-01(¶ 14).

¶ 5. The order denying Minchew's motion for post-conviction relief was entered on February 10, 2006. The thirty-day period for filing would have run on March 12, 2006, a Sunday. Consequently, he had until March 13, 2006 to timely file his appeal. Minchew's notice of appeal was received and filed by the circuit court on March 23, 2006, ten days late. Further, as indicated in his certificate of service, Minchew did not cause his notice of appeal to be mailed until March 20, 2006, seven days after the expiration of his thirty-day deadline. Thus, Minchew's appeal was not timely filed under the prison mailbox rule, because, by his own admission, Minchew did not deliver his appeal to the prison authorities for mailing prior to the expiration of his thirty-day deadline. Consequently, there is no dispute as to whether Minchew's notice was untimely filed.

¶ 6. In his reply brief, Minchew urges this Court to suspend the thirty-day time requirement. This Court has the authority to suspend the thirty-day time requirement "in the interest of expediting decision or for other good cause shown." Rule 2(c); see also Rule 4 cmt. (time requirement may be suspended under Rule 4 in criminal cases, post-conviction cases included). Minchew asserts that the February 10, 2006 order denying his motion for post-conviction relief was not stamped and mailed from the circuit court until February 15, 2006, and that he did not receive it from the clerk until several days later. He claims further that the "law clerk at Marshall County Correctional" told him that the thirty days started to run from the day he received notice of the order. Minchew argues in essence that this constitutes good cause and that his appeal should be heard notwithstanding its untimeliness.

¶ 7. Situations where a defendant receives late notice of the entry of an order are provided for in Rule 4(h). When a notice of appeal is filed more than thirty days after the entry of the order appealed from, the trial court may reopen the time for appeal "if it finds [] that a party entitled to notice of the entry of a judgement or order did not receive such notice from the clerk or any party within 21 days of its entry. . . ." Rule 4(h) (emphasis added). "Reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier." Id. cmt. According to his own statements, Minchew received notice within twenty-one days of the entry of the order, and, in any event, filed no motion to reopen the time for appeal with the trial court. We recognize that Minchew also failed to file a motion for extension under Rule 4(g).

¶ 8. This Court has looked with care at Minchew's situation, taking into consideration that he is a pro se litigant. We find that Minchew failed to utilize the options available to him and additionally conclude that he has not made a showing of good cause. Therefore we decline to exercise our discretion to suspend the time-requirement of Rule 4. Alternatively, should Minchew's appeal not be procedurally barred we further find that it is without merit. We will address the merits of Minchew's individual claims in the interest of explanation with the understanding that "any subsequent review will stand on the bar alone." Walker v. State, 671 So.2d 581, 587 (Miss.1995).

2. Due process

¶ 9. Minchew claims that he was denied due process of law because he was not given a separate recidivism hearing and that, as a result, he was improperly sentenced as an habitual offender. He contends that under Rule 11.03(3) of the Uniform Rules of Circuit and County Court, he was entitled to a hearing, separate and apart from his guilty plea hearing, to determine whether he should be sentenced as an habitual offender.

¶ 10. A separate recidivism hearing is required where the defendant is convicted by jury trial; however, a defendant who enters a plea of guilty is not entitled to a separate hearing. Keyes v. State, 549 So.2d 949, 951 (Miss.1989); Crouch v. State, 826 So.2d 772, 775(¶ 4) (Miss.Ct.App.2002). The requirement of a separate recidivism hearing is a measure protective in nature, whose purpose is to withhold from the jury knowledge of the defendant's prior criminal convictions. Keyes, 549 So.2d at 951. In situations where the defendant enters a guilty plea, the need for a separate hearing does not arise; therefore, no separate hearing is required. Id. A defendant is properly sentenced as an habitual offender if the defendant is sufficiently indicted as an habitual, the prosecution proves the prior convictions with competent evidence, and the defendant has a reasonable opportunity to contest the proof offered by the prosecution. Id.

¶ 11. Minchew filed a petition to enter a plea of guilty in which he acknowledged that he was indicted as an habitual and that the maximum punishment was life. He further acknowledged that he had previously been convicted of "several" felonies. Minchew was properly indicted as an habitual, he had ample opportunity to challenge the validity of his prior convictions yet declined to do so. Minchew was not denied due process as he was not entitled to a separate hearing. The trial court did not err in sentencing Minchew as an habitual.

¶ 12. Even if Minchew's claim had substantive merit, the record does not reflect, nor does Minchew assert, that he requested a separate hearing at the time of sentencing. As a result, he is precluded from now raising the argument for the first time on appeal. Id. (citing Dalgo v. State, 435 So.2d 628, 630 (Miss.1983)).

¶ 13. Minchew's argument also fails because the sentence he received was illegally lenient. A defendant who benefits from the receipt of a sentence more lenient than required by statute may not later be heard to complain that his sentence is illegal. Cook v. State, 910 So.2d 745, 747(¶ 10) (Miss.Ct.App.2005); Sykes v. State, 895 So.2d 191, 196(¶ 20) (Miss.Ct. App.2005). Minchew pled guilty and was sentenced as an habitual offender under Mississippi Code Annotated section 99-19-83, which requires a sentence of life imprisonment. However, the trial judge only sentenced him to seventeen years. Minchew clearly benefitted from the sentence that he now challenges. This issue is without merit.

3. Ineffective Assistance

¶ 14. Minchew claims that his attorney induced him to plead guilty by misrepresentations which led him to believe that, if he pled guilty, the habitual portion of the indictment against him would be dropped and he would only receive a sentence of five years. Minchew also argues that his attorney's performance was ineffective because he failed to subpoena witnesses and evidence.

¶ 15. As a preliminary matter, we note that Minchew offers to this Court only his bare assertions as proof that he was denied adequate representation. He provided no affidavits or proposed testimony of other witnesses to support his contentions. Post-conviction claims of ineffective assistance are properly dismissed where the defendant offers only his affidavit in support of his allegations. Vielee v. State, 653 So.2d 920, 922 (Miss.1995) ("Where a party offers only his affidavit, then his ineffective assistance of counsel claim...