Morales v. State, 2018-CP-00737-COA

• Decision Date: 06 August 2019
• Docket Number: NO. 2018-CP-00737-COA,2018-CP-00737-COA
• Citation: 291 So.3d 363
• Parties: Juan MORALES a/k/a Juan Luis Morales, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

291 So.3d 363

Juan MORALES a/k/a Juan Luis Morales, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CP-00737-COA

Court of Appeals of Mississippi.

August 6, 2019

Rehearing Denied December 17, 2019

ATTORNEY FOR APPELLANT: JUAN MORALES (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS

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

C. WILSON, J., FOR THE COURT:

¶1. A Lee County Grand Jury indicted Juan Morales ("Morales") on two counts of sexual battery (Counts I & III) and one count of fondling (Count II). At the time of trial in February 2007, Morales failed to appear. The circuit court found that Morales had willfully, voluntarily, and deliberately avoided trial and therefore would be tried in absentia. The jury returned a guilty verdict on all three counts. Regarding Count I, the court sentenced Morales to serve twenty-five years in the custody of the Mississippi Department of Corrections (MDOC) with five years suspended followed by five years of post-release supervision. Regarding Count II, the court sentenced Morales to serve fifteen years in the MDOC's custody, to be served concurrently with Count III. Regarding Count III, the court sentenced Morales to serve twenty years in the MDOC's custody, to be served consecutively to Count I.

¶2. In 2012, the United States Marshals Service found Morales in Mexico and returned him to the United States to be placed in MDOC's custody. In September 2017, Morales filed a petition for post-conviction collateral relief (PCR). In May 2018, the circuit court entered an order granting in part, and denying and dismissing in part, Morales's petition. The court granted relief to amend Morales's sentencing order to correctly reflect the sentences relative to the specific counts in the indictment.

¶3. On appeal, Morales asserts the same issues he raised before the circuit court, namely that (1) the circuit court erred by allowing him to be tried in absentia; (2) he was given an illegal sentence; and (3) he received ineffective assistance of counsel.

After a thorough review of the record, we affirm.

FACTS

¶4. In August 2005, a grand jury indicted Morales on two counts of sexual battery (Counts I & III) and one count of fondling (Count II). The indictment charged that, on June 20, 2005, Morales fondled and penetrated (anally and vaginally) a young girl.¹ Count I charged Morales with sexual battery upon the female victim by performing the sexual act of anal penetration via insertion of an "object and/or device in the victim's rectum." Count II charged Morales with "handl[ing], touch[ing] or rub[bing] with his hands or other parts of his body, the body of [the victim]"—specifically, the victim's vagina—for the purpose of "gratifying his lust or indulging his depraved licentious sexual desires." Count III charged Morales with sexual battery by performing the sexual act of digital penetration via insertion of his finger and/or fingers in the victim's vagina.

¶5. Morales pled not guilty at his arraignment, and the court released him on a $50,000 bond. After several continuances by Morales, the court set the cause for trial on February 7, 2007. When the trial date arrived, Morales failed to appear.

¶6. On the morning of the scheduled trial, the court questioned Morales's attorney, Robert Laher, regarding Morales's whereabouts. Laher responded that he had spoken to Morales several times in the weeks leading up to the trial. In fact, Laher had been in contact with Morales the day before the trial on February 6, 2007. Laher was unaware if Morales had fled.² The court asked Laher if Morales was aware that the trial was scheduled for February 7, 2007, at 9:00 a.m. in the Lee County Justice Center located in Tupelo, Mississippi. Laher confirmed that Morales understood the correct trial date. Based on counsel's representations, the court entered a warrant for Morales's arrest.

¶7. The circuit court also found that Morales had willfully, voluntarily, and deliberately avoided trial and decided to proceed without Morales. Despite Morales's absence, Morales's counsel had the opportunity to cross-examine witnesses and present a defense. The circuit court also instructed the jury that they were not to draw any inference from Morales's absence. On February 9, 2007, the jury returned a guilty verdict on all three counts. In Count I, the court sentenced Morales to twenty-five years with five years suspended followed by five years of post-release supervision. In Count II, the court sentenced Morales to fifteen years to be served concurrent to Count III. In Count III, the court sentenced Morales to twenty years to be served consecutively to Count I.

¶8. In 2012, the United States Marshals Service located Morales living in Mexico and returned him to Mississippi to be placed in the custody of the MDOC to serve his sentence. In September 2017, Morales filed a PCR petition. In May 2018, the circuit court entered an order granting in part, and denying and dismissing in part, the relief requested. Specifically, the circuit court found that (1) Morales willfully, voluntarily, and deliberately avoided trial with no prejudice resulting from his absence; (2) the sentencing order should be amended to align each count with the correct sentence; and (3) Morales's ineffective-assistance-of-counsel claim was barred by the statute of limitations. It is from this order that Morales timely filed his notice of appeal.

¶9. On appeal, Morales asserts that (1) the circuit court erred by allowing trial in absentia; (2) he was given an illegal sentence; and (3) he received ineffective assistance of counsel. We address each issue in turn.

STANDARD OF REVIEW

¶10. When reviewing a trial court's decision to deny or dismiss a petition for PCR, this Court will not disturb that court's factual findings unless they are found to be clearly erroneous. However, when questions of law are raised, the applicable standard of review is de novo. Lambert v. State , 941 So. 2d 804, 807 (¶14) (Miss. 2006).

DISCUSSION

I. Whether trial in absentia was proper and the circuit court was correct in denying relief on that claim.

¶11. Morales first contends that the circuit court erred by allowing him to be tried in absentia, because it prevented him from cross-examining witnesses. We find Morales's PCR petition is time-barred with regard to this assignment of error.

¶12. Under the Uniform Post-Conviction Collateral Relief Act ("UPCCRA"), a motion for relief must be made within three years after the time for taking an appeal from the judgment of conviction or sentence has expired if no appeal is taken, or in case of a guilty plea, within three years after the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Morales filed his petition for PCR on September 11, 2017, more than a decade after his conviction on February 9, 2007. Morales is thus well outside the statutory limitations imposed for filing such a petition.

¶13. Further, Morales has not demonstrated that any of the exceptions to the procedural bar found in section 99-39-5(2) are relevant or applicable.³ "[M]ere 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) ). "[T]he movant[ ] bears the burden of proving an exception applies to the UPCCRA's procedural bars." Gunn v. State , 248 So. 3d 937, 942 (¶19) (Miss. Ct. App. 2018) (citing Brandon v. State , 108 So. 3d 999, 1004 n.3, 1006 (¶12) (Miss. Ct. App. 2013) ). While Morales takes issue with various aspects of his trial, he fails to show how the circuit court's decision to proceed with trial in his absence implicates a fundamental right that would survive the time-bar provided by section 99-39-5(2). As such, we find that the circuit court should have dismissed Morales's PCR petition as to this ground as time-barred.

¶14. Notwithstanding, we find no error in the circuit court's determination that a trial in absentia was proper in this case. In Jefferson v. State , 807 So. 2d 1222, 1224 (¶7) (Miss. 2002), the Mississippi Supreme Court "carved out an exception" to allow felony trials to proceed without the defendant being present. The Mississippi Legislature codified the Jefferson exception in 2005:

In criminal cases the presence of the prisoner may be waived (a) if the defendant is in custody and consenting thereto, or (b) is on recognizance or bail, has been arrested and escaped, or has been notified in writing by the proper officer of the pendency of the indictment against him, and resisted or fled, or refused to be taken, or is in any way in default for nonappearance, the trial may progress at the discretion of the court, and judgment made final and sentence awarded as though such defendant were personally present in court.

Miss. Code Ann. § 99-17-9 (Rev. 2015). Section 99-17-9 permits a court, in its discretion, to allow a trial in absentia when the prisoner has notice of the allegations against him but has nonetheless voluntarily fled. See also Haynes v. State , 208 So. 3d 4, 6 (¶11) (Miss. Ct. App. 2016) (finding a defendant who takes "willful, voluntary, and deliberate actions to avoid trial" has "waived the right to be present at trial and may be tried in absentia").

¶15. In Jefferson , the defendant "was present for his arraignment, though it [had been] waived, at which time his trial was set." 807 So. 2d at 1226 (¶14). The defendant was again present at his omnibus hearing. Id. Following this hearing, the defendant spoke directly with his attorney numerous times—notably just a week prior to his trial date. Id. Beyond that, the most glaring evidence of the defendant's deliberate intent to evade was the unrefuted testimony of his longtime acquaintance, whom the defendant had informed of his plan to run and avoid trial. Id. Thus, the trial court found the defendant "knowingly, willingly, freely, voluntarily...