Wess v. State
| Citation | 348 So.3d 333 |
| Decision Date | 27 September 2022 |
| Docket Number | 2020-CP-00704-COA |
| Parties | Marcus L. WESS a/k/a Marcus Lindell Wess, Appellant v. STATE of Mississippi, Appellee |
| Court | Court of Appeals of Mississippi |
ATTORNEY FOR APPELLANT: MARCUS L. WESS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA ROSENBLATT
BEFORE CARLTON, P.J., WESTBROOKS AND SMITH, JJ.
CARLTON, P.J., FOR THE COURT:
¶1. Marcus L. Wess was indicted as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2007) on numerous charges. In January 2013, Wess pleaded guilty to burglary of a dwelling, kidnapping, taking a motor vehicle, possession of a weapon by a felon, and two counts of credit card fraud. Subsequently, his original indictment was amended to reflect a change in the indictment's habitual-offender enhancement from section 99-19-83 to Mississippi Code Annotated section 99-19-81 (Rev. 2007). The trial court sentenced Wess as a habitual offender under section 99-19-81 to serve a total of forty years, day-for-day, in the custody of the Mississippi Department of Corrections (MDOC).
¶2. Over six years later, Wess filed a motion for post-conviction collateral relief (PCR), which the circuit court denied. Wess appeals, asserting that the trial court imposed an "illegal sentence," or he was denied due process during sentencing because his sentence was a result of an unknowing and involuntary guilty plea or a fatally defective indictment, and he was not allowed to withdraw his guilty plea when the trial court "imposed a sentence exceeding the plea agreement." For the reasons addressed below, we find no error in the circuit court's denial of Wess's PCR motion. Accordingly, we affirm.
¶3. In October 2011, a Jackson County grand jury indicted Wess as a habitual offender under section 99-19-83 for burglary of a dwelling, aggravated assault, kidnapping, two counts of sexual battery, taking a motor vehicle, possession of a weapon by a felon, and two counts of credit card fraud. In support of the habitual-offender enhancement, the indictment identified the dates, jurisdictions, cause numbers, offenses, and sentences for six prior convictions.
¶4. On January 18, 2013, Wess pleaded guilty to burglary of a dwelling, kidnapping, taking a motor vehicle, possession of a weapon by a felon, and two counts of credit card fraud. At Wess's guilty plea hearing, his counsel represented to the trial court that Wess was entering an "open plea" in exchange for the State's agreement to amend the habitual-offender enhancement from section 99-19-83 to section 99-19-81 and to dismiss the counts of aggravated assault and sexual battery. This information is also set forth in Wess's petition to plead guilty. At the end of the hearing, the trial court accepted Wess's guilty plea and deferred sentencing for two weeks. Additional details regarding Wess's guilty-plea hearing are discussed below.
¶5. On the same day as the guilty-plea hearing, the trial court's Order Amending Indictment was entered in Number 2011-10,827(2) in the Jackson County Circuit Court,1 which amended the habitual-offender enhancement from section 99-19-83 to section 99-19-81. Orders of nolle prosequi on the charges for aggravated assault and sexual battery were also entered that day.
¶6. The trial court held Wess's sentencing hearing two weeks after his guilty-plea hearing. The State recommended a sentence of twenty-five years for burglary of a dwelling (with five to serve and the remaining on post-release supervision), thirty years for kidnapping, ten years for taking a motor vehicle, ten years for possession of a weapon by a felon, and three years for credit card fraud. The State recommended that all counts run consecutively to the burglary count, with "[t]he intent ... that Mr. Wess serve a total of [thirty-five] years in the custody of [MDOC], day-for-day."
¶7. The trial court did not adopt the State's recommendation. Rather, the trial court sentenced Wess as a habitual offender under section 99-19-81 and divided the charges into two groups for sentencing purposes. In the first group, the court sentenced Wess to serve twenty-five years for the burglary conviction and thirty years for the kidnapping conviction, with the sentences set to run concurrently. For the second group, the court sentenced Wess to serve ten years for taking a motor vehicle, ten years for possession of a weapon by a felon, and three years for each conviction of credit card fraud. The court ordered the second group of sentences to run concurrently with each other but consecutively to the first group, for a total of forty years to serve in the custody of MDOC day for day.
¶8. More than six years later, on October 28, 2019, Wess moved for post-conviction relief on three grounds. First, Wess argued that his initial habitual-offender indictment under section 99-19-83 was "fatally defective" because it did not "charge ... that Wess served at least one ... year on each of the prior convictions used to secure habitual offender status." Second, Wess claimed that the State coerced him to plead guilty by threatening a sentence of life in prison without eligibility for parole. Third, Wess argued that the trial court committed plain error by failing to give Wess an opportunity to withdraw his plea. The circuit court denied Wess's PCR motion.2 Wess appealed.3
¶9. "We review a circuit court's denial or dismissal of a PCR motion for abuse of discretion." Jackson v. State , 323 So. 3d 1166, 1168 (¶8) (Miss. Ct. App. 2021). In this regard, "[w]e ‘will not disturb the [circuit] court's factual findings unless they are clearly erroneous.’ " Id. (quoting Purvis v. State , 240 So. 3d 468, 470 (¶7) (Miss. Ct. App. 2017) ). "Questions of law are reviewed de novo." Id.
¶10. Pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2020), "a defendant who has pleaded guilty and seeks relief under the Mississippi Uniform Post-Conviction Collateral Relief Act must file a PCR motion ‘within three ... years after entry of the judgment of conviction.’ " Hunt v. State , 312 So. 3d 1233, 1234-35 (¶7) (Miss. Ct. App. 2021) (quoting Miss. Code Ann. § 99-39-5(2) ). Wess entered his guilty plea on January 18, 2013; the trial court sentenced Wess on February 1, 2013; and the court's sentencing order was entered on February 4, 2013. Wess filed his PCR motion on October 28, 2019, well over the three-year limitations period. Wess's PCR motion is time-barred unless he meets an exception to section 99-39-5(2).
¶11. Wess does not assert that any statutory exception to the time-bar under section 99-39-5(2)(a)-(b) applies in his case, nor do we find that any do. However, "errors affecting fundamental rights may [also] be excepted from procedural bars," Rowland v. State , 42 So. 3d 503, 505-06 (¶7) (Miss. 2010) (internal quotation marks omitted), overruled on other grounds by Carson v. State , 212 So. 3d 22, 33 (¶38) (Miss. 2016), including "the right to be free from an illegal sentence" and "the right to due process at sentencing[.]" Jackson , 323 So. 3d at 1169 (¶13). Wess asserts that his sentence was "illegal" or resulted in a "denial of due process during ... sentencing" because it was the result of "an unknowing and involuntary guilty plea including coercion" and "a fatally defective indictment." Wess also asserts that his sentence was "illegal" because the trial court did not allow him "an opportunity to withdraw his guilty plea [when] the court imposed a sentence exceeding the plea agreement." Wess, "as the movant, bears the burden of proving that a fundamental rights exception exists." O'Neal v. State , 281 So. 3d 274, 279 (¶16) (Miss. Ct. App. 2019). We find that Wess's assertions regarding this issue are without merit for the reasons we address below.
¶12. As one basis for his "illegal sentence" claim, Wess asserts that his guilty plea was involuntary. " ‘However, involuntary-guilty-plea claims do not fall under the fundamental-rights exception.’ " Hodgin v. State , 328 So. 3d 1279, 1281 (¶8) (Miss. Ct. App. 2021) (quoting Johnson v. State , 313 So. 3d 1104, 1105 (¶5) (Miss. Ct. App. 2021) ). "As this Court explained in Brown v. State , 923 So. 2d 258 (Miss. Ct. App. 2006), "past precedent regarding the fundamental right to be free from an illegal sentence does not provide a back door method for raising an untimely post-conviction relief claim based on a claim of involuntariness of a guilty plea." Id. at 260 (¶4) (citation and internal quotation marks omitted). The same rule applies here. We find that Wess's involuntary-guilty-plea claim is time-barred.
¶13. Procedural bar aside, we also find that Wess's involuntary-guilty-plea claim is without merit. "A guilty plea is binding if entered voluntarily, knowingly, and intelligently," Tanner v. State , 332 So. 3d 382, 387 (¶13) (Miss. Ct. App. 2022), meaning that the defendant is ‘advised concerning the nature of the charge against him and the consequences of the plea.’ " Carr v. State , 291 So. 3d 1132, 1137 (¶18) (Miss. Ct. App. 2020) (quoting Gaulden v. State , 240 So. 3d 503, 507-08 (¶13) (Miss. Ct. App. 2018) ). Wess, "as the movant, has the burden of establishing his involuntary-guilty-plea claim." Id. (internal quotation mark omitted). Upon review of the record, we find that Wess has failed to meet this burden.
¶14. The trial court began Wess's guilty-plea hearing by questioning him about his competency to plead guilty. Wess acknowledged that he was mentally, physically, and emotionally competent to plead guilty and that he was not under the influence of drugs or alcohol or suffering from mental illness or disability. Wess also acknowledged, in open court and under oath, that he had read and understood his indictment and had discussed the charges with his lawyer.
¶15. The State moved to nolle prosequi the charges of aggravated assault and two counts of sexual battery against Wess and acknowledged...
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