Smith v. State
| Decision Date | 28 September 2021 |
| Docket Number | 2020-CA-00580-COA |
| Parties | Dennis Lawrence SMITH, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: TAMARRA AKIEA BOWIE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson
EN BANC.
WILSON, P.J., FOR THE COURT:
¶1. Following a guilty plea, Dennis Lawrence Smith was convicted and sentenced for three counts of selling cocaine as a subsequent drug offender. He later filed a motion for post-conviction relief (PCR). The circuit court denied the motion, and this Court affirmed. Smith v. State , 291 So. 3d 1 (Miss. Ct. App. 2019). Smith then filed a second PCR motion in which he alleged ineffective assistance by his plea counsel. The circuit court dismissed Smith's second motion based on the successive-motions bar and the statute of limitations of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). We affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In August 2013, a Rankin County grand jury returned a seven-count indictment charging Smith with five counts of selling cocaine, one count of selling marijuana, and one count of possession of cocaine with the intent to distribute. He was indicted as a subsequent drug offender under Mississippi Code Annotated section 41-29-147 (Rev. 2018).
¶3. In November 2013, pursuant to a plea agreement, Smith pled guilty to three counts of selling cocaine as a subsequent drug offender (Counts I, III, and IV). The remaining counts of the indictment were nolle prosequied. During his plea hearing, Smith confirmed that he understood the minimum and maximum sentences for his offenses. Pursuant to Smith's plea agreement, the State recommended a sentence of sixty years in the custody of the Department of Corrections on each count, with fifty years to serve on Count I, one day to serve on Count III, one day to serve on Count IV, and five years of post-release supervision. The court imposed the recommended sentence. At the time Smith pled guilty, he was not eligible for parole because he pled guilty to selling a controlled substance other than marijuana and because he pled guilty as a subsequent drug offender.1 However, under current law, Smith will be eligible for parole after he has served ten years of his sentence. See Miss. Code Ann. § 47-7-3(1)(h)(i)(3) ().
¶4. In 2016, Smith obtained new counsel and filed a PCR motion in which he alleged that his sentence was disproportionate to his offenses and amounted to cruel and unusual punishment. The circuit court denied Smith's motion, and this Court affirmed. Smith , 291 So. 3d at 3 (¶1). Following this Court's decision, Smith again hired a new lawyer and filed a "Motion for Leave to Proceed in Trial Court" in which he asked the Mississippi Supreme Court to remand his case to the circuit court so that he could pursue a new claim that his plea counsel provided ineffective assistance. The Supreme Court dismissed Smith's motion without prejudice, explaining that "[b]ecause [Smith] pleaded guilty and did not directly appeal his convictions and sentences, he [had to] file his motion for post-conviction relief as an original civil action in the trial court."
¶5. In March 2020, Smith filed a second PCR motion in the circuit court. In an affidavit, Smith alleged that during a phone call in November 2013, his plea counsel persuaded him to plead guilty by telling him that he would be paroled after serving only seven-and-a-half years of his fifty-year sentence. Smith also submitted an affidavit from his ex-wife, Crystal Perez, in which she stated that she overheard plea counsel make that statement. In addition, Smith alleged in his affidavit that he had told his first PCR attorney about his plea counsel's statement. Smith claimed that his convictions and sentences should be set aside because his plea counsel's erroneous advice constituted ineffective assistance of counsel.
¶6. The circuit court dismissed Smith's second PCR motion without holding a hearing. The court began by stating that the motion was barred by both the UPCCRA's successive-motions bar, Miss. Code Ann. § 99-39-23(6) (Rev. 2020), and the Act's three-year statute of limitations, Miss. Code Ann. § 99-39-5(2) (Rev. 2020). The court acknowledged that a claim alleging ineffective assistance of counsel may be excepted from those bars in some cases. But the court stated that Smith could not overcome those bars because he "merely relie[d] on his affidavit and unsupported allegations in his [motion]." This statement was incorrect because, as noted above, Smith also submitted an affidavit from his ex-wife, Perez. The circuit court either overlooked or did not have a copy of Perez's affidavit. The circuit clerk later discovered that due to a clerical error, Perez's affidavit and the other exhibits to Smith's second PCR motion had not been uploaded to the Mississippi Electronic Courts system when they were filed. We directed the circuit clerk to supplement the record on appeal to include those exhibits. In its order denying Smith's motion, the circuit court also stated that Smith's claim was really "nothing more than an involuntary plea claim," that such claims do not survive the UPCCRA's successive-motions bar or statute of limitations, and that the transcript of Smith's plea hearing showed that he entered his plea voluntarily, intelligently, and knowingly. Smith filed a notice of appeal.
¶7. On appeal, Smith argues that the circuit court (1) erred by dismissing his second PCR motion based on the statute of limitations and successive-motions bar and (2) violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution by dismissing his second PCR motion without holding an evidentiary hearing.
ANALYSIS
¶8. The circuit court properly dismissed Smith's PCR motion pursuant to the successive-motions bar and statute of limitations of the UPCCRA. The Act provides that an order denying relief on a PCR motion "shall be a bar to a second or successive [PCR] motion." Miss. Code Ann. § 99-39-23(6). There are certain statutory exceptions to the successive-motions bar, id. , but none apply in this case. In addition, the Act provides a three-year statute of limitations for PCR motions. Id. § 99-39-5(2). In the case of a conviction following a guilty plea, the limitations period runs from the "entry of the judgment of conviction." Id. There are also statutory exceptions to the statute of limitations, id. , but none apply in this case. Smith's present PCR motion is barred by both the statutory successive-motions bar and the statute of limitations because it is his second such motion and because he filed it more than six years after his judgment of conviction was entered.
¶9. However, our analysis does not end with the language of the applicable statutes because our Supreme Court has declared that "errors affecting fundamental constitutional rights are [also] excepted from the procedural bars of the UPCCRA," including the successive-motions bar and the statute of limitations. Rowland v. State , 42 So. 3d 503, 506 (¶9) (Miss. 2010).2 The scope of this exception has evolved over time, and the Supreme Court has yet to clearly explain the difference between "fundamental constitutional rights" and ordinary constitutional rights. The Court initially stated that the exception applied only to claims alleging a double jeopardy violation, an "illegal sentence," or a "denial of due process at sentencing." Rowland v. State , 98 So. 3d 1032, 1036 (¶6) (Miss. 2012), overruled on other grounds by Carson v. State , 212 So. 3d 22, 33 (¶38) (Miss. 2016). The Court said, "The deprivation of liberty—that unalienable, natural right inherent in all persons since time immemorial—without authority of law distinguishes these three excepted errors from all other post-conviction claims." Id. (footnote omitted) ). However, the Court later held that this exception also applies to ex post facto violations and violations of the right not to be tried or convicted while incompetent. Bell v. State , 123 So. 3d 924, 924-25 (Miss. 2013) (en banc order); Smith v. State , 149 So. 3d 1027, 1031 (¶8) (Miss. 2014), overruled on other grounds by Pitchford v. State , 240 So. 3d 1061, 1070 (¶49) (Miss. 2017). Finally, the Court has stated that "in exceptional circumstances , an ineffective-assistance claim might be excepted from the procedural bars." Conley v. State , No. 2011-M-01006, ––– So. 3d ––––, ––––, 2020 WL 949240, at *1 (Miss. Feb. 26, 2020) (order) (emphasis added) (citing Chapman v. State , 167 So. 3d 1170, 1174-75 (¶¶12-13) (Miss. 2015) ( that the movant's ineffective assistance claim was excepted from the successive-motions bar and the statute of limitations based on a confluence of "extraordinary circumstances"); Bevill v. State , 669 So. 2d 14, 17 (Miss. 1996) ; Brown v. State , 187 So. 3d 667, 671 (Miss. Ct. App. 2016) ).
¶10. Smith argues that his ineffective assistance claim fits within the "fundamental rights" exception to the successive-motions bar and statute of limitations. We disagree.
¶11. Recently, in Kelly v. State , 306 So. 3d 776 (Miss. Ct. App. 2020), cert. denied , 308 So. 3d 440 (Miss. 2020), this Court held that a virtually identical ineffective assistance claim was barred by the UPCCRA's statute of limitations. Id. at 778-79 (¶¶9-12). In his PCR motion, Kelly alleged that he had received ineffective assistance of counsel because his plea counsel erroneously advised him that he would be eligible for parole after he had served ten years of his sentence for armed robbery. Id. at 777 (¶4). In support of his claim, Kelly submitted not only his own affidavit but also an affidavit from his plea counsel in which counsel admitted that...
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