Small v. State

• Decision Date: 24 June 2014
• Docket Number: No. 2013–CP–00989–COA.,2013–CP–00989–COA.
• Parties: Frederick D. SMALL a/k/a Frederick Deaine Small a/k/a Frederick Dewaine Small a/k/a Frederick Small, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

141 So.3d 61

Frederick D. SMALL a/k/a Frederick Deaine Small a/k/a Frederick Dewaine Small a/k/a Frederick Small, Appellant

v.STATE of Mississippi, Appellee.

No. 2013–CP–00989–COA.

Court of Appeals of Mississippi.

June 24, 2014.

Frederick D. Small, appellant, pro se.

Office of the Attorney General by Elliott George Flaggs, attorney for appellee.

Before GRIFFIS, P.J., BARNES and JAMES, JJ.

BARNES, J., for the Court:

¶ 1. Frederick Small was convicted in DeSoto County Circuit Court on his guilty plea to burglary of a dwelling and was sentenced on February 2, 2010, as a habitual offender. The judgment was filed on February 11, 2010. Small's motion for post-conviction relief (PCR), dated February 12, 2013, was filed of record on February 13, 2013. The circuit court dismissed the motion, both as time-barred under Mississippi Code Annotated section 99–39–5(2) (Supp.2013), and as substantively without merit.

¶ 2. Small has appealed the circuit court's order of dismissal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. Small was indicted on November 14, 2008, for conspiracy to commit burglary of a dwelling in violation of Mississippi Code Annotated section 97–1–1(a) (Rev.2006), burglary of a dwelling in violation of Mississippi Code Annotated section 97–17–23 (Rev.2006), and attempted larceny in violation of Mississippi Code Annotated section 97–1–7 (Rev.2006).

¶ 4. On April 29, 2009, the State filed a motion to amend the indictment to reflect Small's habitual-offender status under Mississippi Code Annotated section 99–19–81 (Rev.2007). Although defense counsel objected to the motion's timeliness, no objection was made to the proof of the prior convictions. The circuit court granted the motion after a hearing on June 3, 2009, and the indictment was amended to reflect Small's prior convictions for: (1) burglary of a dwelling in cause number CR 2001–35BT in the Circuit Court of Tate County, Mississippi, with a sentence imposed on June 6, 2001, of twelve years to serve, and five years of post-release supervision, and (2) burglary of a dwelling in cause number CR 2001–25BP1 in the Circuit Court of Panola County, Mississippi, with a sentence imposed on September 10, 2001, of twelve years to serve, and five years of post-release supervision.¹

¶ 5. As a result of a plea bargain, Small pleaded guilty to the burglary charge as a habitual offender on August 5, 2009, in exchange for a recommendation of a sentence with a cap of eighteen years.² In the petition to enter a guilty plea, signed by Small, he admitted to the two prior convictions and that they subjected him to sentencing as a habitual offender. He further attested at the guilty-plea hearing that everything in his petition was true and correct. The circuit judge asked Small if he understood that he was “pleading as a 99–19–81 habitual offender”; Small said that he understood. The judge then asked if Small had any objection, and Small said, “No, sir.”

¶ 6. However, on September 28, 2009, Small filed a pro se motion to withdraw his guilty plea and to discharge his counsel. On January 27, 2010, Small filed a pro se motion to discontinue sentencing, dismiss counsel, and dismiss the pending charges. The circuit court took up the motions at the beginning of Small's sentencing hearing on February 2, 2010, and denied them. Prior to the circuit court's imposition of Small's sentence, the State moved to incorporate into the record the documents from the hearing on the motion to amend the indictment concerning the two prior felony convictions. The circuit court asked if the defense had any objections, and there were none. After making the prior convictions part of the record, the circuit court sentenced Small, consistently with the plea agreement, to eighteen years in the custody of the Mississippi Department of Corrections as a habitual offender, to be followed by seven years of post-release supervision with four years of non-reporting supervision. The judgment was filed on February 11, 2010.³

STANDARD OF REVIEW

¶ 7. A circuit court's dismissal of a PCR motion will not be disturbed on appeal “unless it is clearly erroneous.” Holder v. State, 69 So.3d 54, 55 (¶ 4) (Miss.Ct.App.2011) (citing Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004)). We review issues of law de novo. Id. To be successful on appeal, the movant must: “(1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive.” Buckley v. State, 119 So.3d 1171, 1173 (¶ 3) (Miss.Ct.App.2013) (citing Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999)).

JURISDICTION

¶ 8. We first must consider our jurisdiction over this appeal. Small filed a PCR motion on February 13, 2013. The circuit court dismissed the motion on May 10, 2013. However, Small did not file his notice of appeal until June 14, 2013. Consequently, Small's appeal may not have been timely, as it was not filed within thirty days of the circuit court's judgment, as required by Mississippi Rule of Appellate Procedure 4(a). However, “[t]he prison-mailbox rule states that in pro se post-conviction relief proceedings, the prisoner's motion is considered delivered for filing when the prisoner gives the documents to prison officials for mailing.” Lott v. State, 115 So.3d 903, 907 (¶ 10) (Miss.Ct.App.2013) (citing Sykes v. State, 757 So.2d 997, 1000–01 (¶ 14) (Miss.2000)).

¶ 9. Small's notice-of-appeal form is not dated, except for the circuit court's file stamp of June 14, 2013. His contemporaneously filed affidavit of poverty and certificate of compliance, however, were both dated June 6, 2013, within the thirty-day deadline. Although the record does not indicate when Small delivered his documents to prison officials for mailing, his notice of appeal was received by the circuit court only four days late. Therefore, since it is not unlikely that the documents were delivered to prison authorities within the time frame allowed by Rule 4(a), we exercise our discretion under Mississippi Rule of Appellate Procedure 2(c) to suspend the thirty-day requirement to the extent Small's filing may have been untimely.⁴See Whatley v. State, 123 So.3d 461, 466 (¶ 9) (Miss.Ct.App.2013) (applying Rule 2(c) to excuse possible late filing where stamp-filed notice of appeal was five days late but contemporaneously filed documents were dated within the deadline); Campbell v. State, 126 So.3d 61, 64 (¶ 7) (Miss.Ct.App.2013) (possibly one day late filing excused under Rule 2(c)). Accordingly, we find jurisdiction proper and address the appeal on the merits.

DISCUSSION

¶ 10. In this appeal, Small argues: (1) his motion is not time-barred because procedural bars do not apply to illegal sentences; (2) his habitual-offender sentence was illegal because there was no bifurcated hearing and the amended indictment listed only dates of sentence and not dates of conviction for his prior convictions; (3) he was denied the right to confront the authors of the indictments and judgments of conviction contained in his prison file (pen-pack); and (4) the cumulative effect of the errors constituted a constitutional deprivation.

I. Procedural Bar to the PCR Motion

¶ 11. Under the Mississippi Uniform Post–Conviction Collateral Relief Act (UPCCRA), where a petitioner has pleaded guilty, a PCR motion must be filed within three years after entry of the judgment of conviction. Miss.Code Ann. § 99–39–5(2).

¶ 12. Small acknowledges that his PCR motion, dated February 12, 2013, and filed February 13, 2013, was filed more than three years after his sentencing and the court's judgment.⁵ Small does not claim that the prison-mailbox rule applies, since the motion itself is dated after the three-year deadline. Rather, citing Rowland v. State, 42 So.3d 503, 506–08 (¶¶ 7–12) (Miss.2010), he claims that the procedural bar is inapplicable, as his claim involves a violation affecting his fundamental constitutional rights.

¶ 13. The right to be free from an illegal sentence is probably the most frequently recognized of these exceptions. See Jones v. State, 119 So.3d 323, 326 (¶ 6) (Miss.2013). Ordinarily an illegal sentence in this context is one that “does not conform to the applicable penalty statute.” Foreman v. State, 51 So.3d 957, 962 n. 22 (Miss.2011) (internal quotations omitted).

¶ 14. If Small's habitual-offender sentence was illegal, then the circuit court would have improperly applied the three-year procedural time-bar. As we discuss hereafter, however, the sentence was not illegal, and the bar was properly applied in this case.⁶

II. Illegal Habitual–Offender Sentence

¶ 15. Small claims that his habitual-offender sentence is illegal because he was not given a separate hearing as required by Uniform Rule of Circuit and County Court 11.03 to challenge his prior convictions and because there was proof only of the dates he was sentenced and not the dates he was convicted.

A. Lack of Bifurcated Hearing

¶ 16. Rule 11.03(3) provides: “If the defendant ... enters a plea of guilty on the principal charge, a hearing before the court without a jury will then be conducted on the previous convictions.” Small claims that his constitutional rights were violated because he was not given a separate bifurcated hearing to establish his status as a habitual offender.

¶ 17. The Legislature, in enacting section 99–19–81, has determined that enhanced punishment is appropriate for repeat offenders. The purpose of Rule 11.03 is to ensure that a jury, before decidinga defendant's guilt or innocence, is not informed of the defendant's prior criminal record so as not to be improperly influenced in its verdict. See Edwards v. State, 75 So.3d 73, 76 (¶ 7) (Miss.Ct.App.2011). Only after guilt is established does the prior criminal record become relevant. The purpose of Rule 11.03(3) is to give the defendant an opportunity to challenge the fact of his prior convictions in a setting separate from the guilt-determination phase. Where a defendant...