ROWLAND v. State of Miss.

• Decision Date: 10 November 2009
• Docket Number: No. 2008-CP-00731-COA.,2008-CP-00731-COA.
• Citation: 42 So.3d 545
• Parties: Robert Stanley ROWLAND, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

42 So.3d 545

Robert Stanley ROWLAND, Appellant, v. STATE of Mississippi, Appellee.

No. 2008-CP-00731-COA.

Court of Appeals of Mississippi.

June 9, 2009.

Rehearing Denied November 10, 2009.

COPYRIGHT MATERIAL OMITTED.

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Robert Stanley Rowland, pro se.

Office of the Attorney General by John R. Henry, attorney for appellee.

EN BANC.

ROBERTS, J., for the Court.

¶ 1. This is an appeal of the Washington County Circuit Court's decision to dismiss Robert Stanley Rowland's motion for post-conviction relief. We are called upon to determine whether Rowland's claim of a "fundamental" constitutional double jeopardy violation justifies waiver of three different statutory bars to post-conviction relief. For reasons later expressed, we decline the invitation.

¶ 2. More than thirty years ago, Rowland pled guilty to two counts of capital murder and two counts of armed robbery. A central factor in this case is that the two counts of capital murder were elevated to that status because the homicides were committed in the process of armed robberies. Rowland argued that the circuit court should vacate the two armed robbery convictions because the constitutional prohibition against double jeopardy precluded sentencing him for both armed robbery and capital murder. The circuit court found that, having pled guilty in 1979 to the charges at issue, Rowland's motion was time-barred. Accordingly, the circuit court summarily dismissed Rowland's motion without conducting an evidentiary hearing. Aggrieved, Rowland appeals and claims: (1) the trial court erred when it found his motion was time-barred, and (2) his guilty pleas and convictions for the two counts of capital murder and the two underlying counts of armed robbery violate the constitutional prohibitions against double jeopardy and are, therefore, the equivalent of illegal sentences. For reasons that will be elaborated on below, we find no error and affirm the judgment of the circuit court.

FACTS AND PROCEDURAL HISTORY

¶ 3. The record before this Court is scant at best, and must be reconstructed from events that transpired more than thirty years ago. On February 16, 1979, Rowland, Donald Keeton, and Keith Ouzts concealed their identities with masks and armed themselves with shotguns. That night, they went into the Leflore County Country Club where Pat Bolton, James Campbell, Billy Floyd, Joe Floyd, Paul Hughes, Steve McHann, G.W. Putnam, and O.B. Singleton were gathered playing poker men line up against the wall of the building or the room with their backs toward the defendants. And as one of the defendants was reaching across the table where the game had been held to pick up the money, a shotgun that he was holding discharged and shot James Campbell in the back, and [sic] killing James Campbell. The shotgun then discharged again and the shot went into the ceiling of the room. At that time, Paul Hughes, one of the participants in the game, broke and ran to get out of the place and he was shot in the back and killed by one of the individuals in the robbery. They then secured an automobile from one of the participants in the game and made their getaway from the Country Club, which they abandoned a short distance away where they got in their own automobile. They were followed by two of the people involved in the game—discreetly followed—who got enough description to aid the authorities, which led to much hard work in the arrest of these three who all confessed to that crime.

¶ 8. Rowland and his two co-defendants were represented by counsel. They all were offered the same plea bargain. All three pled guilty to the capital murder of Campbell and Hughes. All three pled guilty to the armed robbery of Singleton and Bolton. For the two capital murder charges, the circuit court sentenced all three defendants to two consecutive life sentences.³ The controlling law at that time made all three defendants eligible for parole consideration after they served ten years of each sentence. Miss.Code Ann. § 47-7-3(1) (1972).

¶ 9. For the two armed robbery pleas, the circuit court sentenced all three defendants to two twenty-four-year sentences to run consecutively to the sentences for capital murder and one another. Again, the controlling law at that time made all three defendants eligible for parole consideration on the armed robberies after serving the first ten years of each sentence. See Miss. Code Ann. § 47-7-3(1)(d)(i) (Rev.2004). It should be noted that Rowland and his two co-defendants got exactly the sentences for which they bargained.

¶ 10. On November 13, 2007, Rowland filed his most recent motion for post-conviction relief. Rowland requested that the circuit court vacate his two armed robbery convictions as violations of the constitutional prohibitions against double jeopardy. The circuit court found that Rowland's motion was time-barred and summarily dismissed Rowland's motion with prejudice. Rowland appeals. Importantly, Rowland makes no claim of any error in his two capital murder pleas that were part of his plea agreement with the prosecution. Logically, Rowland could have just as effectively attacked his capital murder sentences under a double jeopardy claim while allowing his armed robbery sentences to remain intact. If Rowland is correct and the armed robbery sentences must be vacated, he would be entitled to immediate parole eligibility.

STANDARD OF REVIEW

¶ 11. The standard of review applied by this Court when considering the appeal of a trial court's decision to dismiss a motion for post-conviction relief is well settled. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). This Court will not disturb the factual findings of the trial court unless they are found to be clearly erroneous. However, where questions of law are raised, this Court reviews them de novo. Id.

ANALYSIS

¶ 12. The Mississippi Uniform Post-Conviction Collateral Relief Act (MUPCCRA) became law in 1984. The Mississippi Supreme Court has held that our state applies the MUPCCRA prospectively from its date of enactment, April 17, 1984. Odom v. State, 483 So.2d 343, 344 (Miss. 1986). "Individuals convicted prior to April 17, 1984, ha[d] three (3) years from April 17, 1984, to file their petition for post[-]conviction relief." Id. Rowland pled guilty in 1979, and he filed his current motion on November 13, 2007. Within his most recent motion for post-conviction relief, Rowland admitted that he had filed prior motions for post-conviction relief attacking his convictions, but he claims that he never attacked his convictions based on a double jeopardy argument. Rowland gives no reason for his failure to raise the double jeopardy issue in his first motion for post-conviction relief, much less his additional ones. Accordingly, Rowland must overcome the time bar as set forth in Mississippi Code Annotated section 99-39-5(2) (Rev.2007), the res judicata bar as set forth in Mississippi Code Annotated section 99-39-21 (Rev.2007), and the successive-writ bar established in Mississippi Code Annotated section 99-39-23(6) (Supp. 2008).

¶ 13. Rowland claims he should not be subject to the time bar or successive-writ bar established in Mississippi Code Annotated sections 99-39-5(2) and 99-39-23(6), respectively, because the right to be free from an illegal sentence is a "fundamental" right. However, Rowland attacks his armed robbery convictions, and we find that a twenty-four-year sentence for armed robbery is not an illegal sentence. The minimum sentence for armed robbery is three years in the custody of the Mississippi Department of Corrections (MDOC), and the maximum sentence is life imprisonment. Miss.Code Ann. § 97-3-79 (Rev. 2006). Rowland's sentences can only be arguably considered "illegal" if one finds that those sentences, in conjunction with the capital murder sentences, are violations of the double jeopardy clause. Be that as it may, even if Rowland's issue was whether he was subjected to an illegal sentence, pursuant to Mississippi Code Annotated section 99-39-21(1), a petitioner may waive such a claim. Payton v. State, 845 So.2d 713, 717 (¶ 14) (Miss.Ct.App.2003) ("Because Payton did not raise [a claim that a sentence of five years of probation was illegal] at the time he was sentenced, he waived its consideration on a motion for post-conviction relief or an appeal from the denial therefrom.")

¶ 14. There are certain codified exceptions to the time bar as provided by Mississippi Code Annotated section 99-39-5(2). The "fundamental rights" exception is not listed as one of those codified exceptions. Be that as it may, supreme court precedent dictates that "[e]rrors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration." Luckett v. State, 582 So.2d 428, 430 (Miss.1991) (emphasis added). The supreme court's discretionary may language implies that this Court has the discretion to consider when an otherwise procedurally barred "fundamental" constitutional right should or should not be considered on appeal.

¶ 15. The appellate courts of this state have spoken with conflicting voices on the issue of whether a possible double jeopardy violation is waived if not asserted at trial or at the plea and whether a possible double jeopardy claim is such a "fundamental" constitutional right to justify waiver of procedural bars on post-conviction proceedings. It is elementary that "[t]he Double Jeopardy Clause of the Fifth Amendment provides that no person shall be `subject for the same offence to be twice put in jeopardy of life or limb.'" Jones v. Thomas, 491 U.S. 376, 380, 109 S.Ct. 2522, 105 L.Ed.2d 322 (1989). The Mississippi Supreme Court has held that "the protection against double jeopardy is a fundamental right." Graves v. State, 969 So.2d 845, 846-47 (¶ 6) (Miss.2007). The supreme court's decision in Graves suggests that Rowland should not be subjected to...