Owens v. State, 2013–CP–01447–COA.
| Decision Date | 28 October 2014 |
| Docket Number | No. 2013–CP–01447–COA.,2013–CP–01447–COA. |
| Citation | 150 So.3d 114 |
| Parties | Charles Douglas OWENS, II a/k/a Charles Douglas Owens a/k/a Charles Owens a/k/a Charles D. Owens, II, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Charles Douglas Owens II, appellant, pro se.
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
Before LEE, C.J., ISHEE and JAMES, JJ.
JAMES, J., for the Court:
¶ 1. Charles Douglas Owens II pled guilty in the Harrison County Circuit Court, Second Judicial District, to one count of armed robbery and one count of aggravated assault. Owens was sentenced to serve forty years in the custody of the Mississippi Department of Corrections (MDOC). Owens has had two prior petitions for post-conviction collateral relief (PCR) denied by the trial court. On both occasions, Owens appealed and this Court affirmed. See Owens v. State, 17 So.3d 628 (Miss.Ct.App.2009) ; Owens v. State, 996 So.2d 85 (Miss.Ct.App.2008). Owens has filed a third PCR petition asserting that his conviction and sentence violate the prohibition against double jeopardy. Owens's petition also asserted that issues raised in his previous PCR petitions should be revisited in light of intervening decisions of the United States Supreme Court and the Mississippi Supreme Court. The trial court denied the petition and Owens now appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY 1
¶ 2. On May 20, 2002, a Harrison County grand jury indicted Owens on one count of armed robbery and one count of aggravated assault. Owens entered voluntary pleas of guilty to both counts on February 4, 2003. On March 17, 2003, Owens was sentenced to thirty years for armed robbery and ten years for aggravated assault, with the sentences to run consecutively for a total of forty years in the custody of the MDOC. Owens filed a pro se motion for reconsideration on March 20, 2003. The following week, Owens's attorney-of-record filed a motion for reconsideration or, in the alternative, to withdraw his guilty plea, and on April 4, 2003, Owens filed a pro se motion to withdraw his plea. On February 2, 2006, nearly three years later, Owens's new counsel filed a PCR petition arguing that there were mitigating factors that, if known, would have decreased Owens's sentence; his plea was involuntarily given; and his plea should be withdrawn, as there was an agreement between the circuit court, the State, and Owens as to his sentence. On January 3, 2007, the trial court denied the 2006 PCR petition and Owens appealed. While that decision was pending on appeal, Owens filed a pro se motion for clarification of his sentence stating that the MDOC's position on his parole eligibility contradicted the intent of the trial court. This Court affirmed the trial court's denial of Owens's 2006 PCR petition. See Owens, 996 So.2d at 94 ( ¶ 33). In so doing, we noted that there was no indication in the record that the trial court had ruled on Owens's three post-trial motions. See id. at 89 (¶ 13).
¶ 3. Owens petitioned the Mississippi Supreme Court for a writ of mandamus, attempting to compel the trial court to take action on those motions. On August 11, 2008, while the petition for a writ of mandamus was pending, the trial court denied Owens's pro se motion for reconsideration; his attorney's motion for reconsideration or, in the alternative, to withdraw his plea; and Owens's pro se motion to withdraw his plea. The motion for clarification of Owens's sentence was denied by a separate order entered on August 11, 2008. Upon entry of those orders, the Mississippi Supreme Court, on August 15, 2008, dismissed Owens's petition for a writ of mandamus as moot. Owens then appealed the circuit court's denial of his 2003 motions and the motion for clarification of his sentence, and this Court affirmed.See Owens, 17 So.3d at 635 ( ¶ 20).
¶ 4. Undeterred, on June 7, 2013, Owens filed another petition for PCR, asserting that his conviction violated the prohibition against double jeopardy. Owens also asserted that he received ineffective assistance of counsel, and that his plea was involuntary and it should be revisited. On August 1, 2013, the trial court denied Owens's petition for PCR, finding that Owens's conviction did not violate the prohibition against double jeopardy, and that Owens's remaining claims were procedurally barred. Owens now appeals, raising the following issues: (1) whether the trial court erred in finding that Owens's double-jeopardy claim was without merit; and (2) whether the trial court erred in finding that Owens's prior claims were procedurally barred. We find no error and affirm.
STANDARD OF REVIEW
¶ 5. When reviewing a trial court's denial or dismissal of a PCR petition, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 ( ¶ 4) (Miss.Ct.App.2012).
DISCUSSION
¶ 6. Owens argues that he was subjected to double jeopardy because he was indicted for both aggravated assault and armed robbery based on the same set of facts. Thus, Owens argues that his conviction and sentence for armed robbery and aggravated assault constitute multiple punishments, violating his constitutional protections against double jeopardy. We disagree.
¶ 7. We first note that Owens's present petition is time-barred. Pursuant to the Uniform Post–Conviction Collateral Relief Act (UPCCRA):
A motion for relief under this article shall be made within three (3) years after the time in which the petitioner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction.
Miss.Code Ann. § 99–39–5(2) (Supp.2014). Here, Owens pleaded guilty to armed robbery and aggravated assault, and the judgment of conviction was entered on March 17, 2003. The present PCR petition was filed on June 7, 2013, more than ten years after the entry of the judgment of conviction. Thus, Owens's present petition for PCR is time-barred.
¶ 8. The Mississippi Supreme Court has held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Rowland v. State, 42 So.3d 503, 507 ( ¶ 12) (Miss.2010). Likewise, our supreme court has held that the right to be free from double jeopardy is a fundamental right. Id. at 508 (¶ 14). Therefore, we address the merits of Owens's claim.
¶ 9. “Double jeopardy consists of three separate constitutional protections: (1) protection against a second prosecution for the same offense after acquittal, (2) protection against a second prosecution for the same offense after conviction, and (3) protection against multiple punishments for the same offense.” Rowland v. State,
98 So.3d 1032, 1037 ( ¶ 10) (Miss.2012) (quoting Powell v. State, 806 So.2d 1069, 1074 ( ¶ 8) (Miss.2001)). Here, it is the third protection that is at issue: whether Owens's right to be free from multiple punishments for the same offense was violated when he was convicted of aggravated assault and armed robbery arising from the same criminal act. The Mississippi Supreme Court has held that “[i]n determining whether double-jeopardy protection applies, we apply the test enunciated by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).” Rowland, 98 So.3d at 1037 ( ¶ 10) (citations omitted). The Blockburger Court held:
[T]he applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not.... A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.
Id. (quoting Blockburger, 284 U.S. at 304, 52 S.Ct. 180 ). Thus, “[e]ven though there may be a substantial overlap in the proof supporting the convictions of the different crimes, the Blockburger test is met where each offense requires proof of an element not necessary to the other.” Greenwood v. State, 744 So.2d 767, 771 ( ¶ 14) (Miss.1999) (citing Bannister v. State, 731 So.2d 583, 586 ( ¶ 12) (Miss.1999)). Furthermore, we have held that “[a] criminal defendant may be prosecuted for more than one offense that arises from a single set of facts where each offense requires proof of a different element”. Thomas v. State, 930 So.2d 1264, 1266 ( ¶ 8) (Miss.Ct.App.2005) (citing Davis v. State, 750 So.2d 552, 563 ( ¶ 44) (Miss.Ct.App.1999)).
¶ 10. Here, the grand jury returned a two-count indictment against Owens. Count I charged Owens with armed robbery pursuant to Mississippi Code Annotated section 97–3–79 (Rev. 2001), which defined the crime as: “[F]eloniously tak[ing] or attempt[ing] to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by exhibition of a deadly weapon[.]” Count I of Owens's indictment stated that he “did willfully, unlawfully and feloniously take, steal[,] and carry away from the person and in the presence and against the will of Raleigh Richard Carter, One Thousand Four Hundred Dollars ($1,400.00)[,] ... the personal property of [Carter], by violence to the person of ... [Carter], by the exhibition of a deadly weapon[,] ... a handgun[.]” Likewise, Count II indicted Owens for aggravated assault pursuant to ...
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Owens v. State
...Court. Owens v. State , 996 So.2d 85 (Miss. Ct. App. 2008) ; Owens v. State , 17 So.3d 628 (Miss. Ct. App. 2009) ; Owens v. State , 150 So.3d 114 (Miss. Ct. App. 2014). His current appeal is from the denial by the Harrison County Circuit Court of two separate PCR motions. They are his sixth......