Whatley v. State, 2011–CP–01548–COA.

• Decision Date: 10 October 2013
• Docket Number: No. 2011–CP–01548–COA.,2011–CP–01548–COA.
• Citation: 123 So.3d 461
• Parties: Wallace Wayne WHATLEY a/k/a Wallace Whatley a/k/a Wallace W. Whatley, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

123 So.3d 461

Wallace Wayne WHATLEY a/k/a Wallace Whatley a/k/a Wallace W. Whatley, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–CP–01548–COA.

Court of Appeals of Mississippi.

Jan. 22, 2013.

Rehearing Denied June 25, 2013.

Certiorari Denied Oct. 10, 2013.

Wallace Wayne Whatley, appellant, pro se.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before LEE, C.J., BARNES and MAXWELL, JJ.

BARNES, J., for the Court:

¶ 1. Wallace Whatley, appearing pro se, appeals the Rankin County Circuit Court's dismissal of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

¶ 2. In November 2008, a Rankin County grand jury returned a three-count indictment against Whatley for sale of Dilaudid, a schedule II controlled substance, possession of more than forty dosage units of Dilaudid, and possession of a firearm by a felon, respectively. He was also indicted as a habitual offender under Mississippi Code Annotated section 99–19–81 (Rev.2007).¹ In September 2009, Whatley fired his first lawyer, Richard Rehfeldt, and hired Cynthia Stewart to represent him. He also entered the first of two plea petitions. In it, he pleaded guilty to all three counts of the indictment. Whatley listed his “physical and mental health” as “uncertain” and stated that he was not under the influence of any drugs “except methadone.” This plea petition was signed on September 28, 2009 (the date of the plea hearing), and a judgment of conviction for the three counts was signed as well, and entered on October 7, 2009. However, at the plea hearing, at some point Whatley ran out of the courtroom and did not return. A bench warrant was issued for Whatley's arrest when he failed to appear at his sentencing hearing, set for January 2010. Whatley later explained that he fled the courtroom because before the hearing he had received a letter from his methadone clinic stating that if he was imprisoned, and thereby suddenly taken off his methadone treatments, he could have a stroke. Whatley “stayed gone” for one and one-half months, and turned himself in after “detoxing.”

¶ 3. In October 2010, Whatley changed lawyers yet again, substituting Stewart with Percy Stanfield and Beverly Poole. In December 2010, another plea hearing was held where Whatley entered a second plea of guilty for Count I's charge of sale of Dilaudid as a subsequent drug offender under Mississippi Code Annotated section 41–29–147 (Rev.2009),² but not as a habitual offender. The trial court entered an order to nolle prosequi the second and third counts. The trial judge sentenced Whatley as a subsequent drug offender to sixty years in the custody of the Mississippi Department of Corrections (MDOC), with release after serving twenty of the sixty years, followed by five years of post-release supervision. He was also ordered to pay a fine of $5,000 and various court costs and fees.

¶ 4. In August 2011, Whatley filed a PCR motion alleging his indictment was improper; his plea, involuntary; his sentence, illegal; the judge, biased; and his counsel, ineffective. Attached to his motion were affidavits, dated March 2011, from Stewart, Stanfield,³ and a paralegal, recounting his plea negotiations. Further, Whatley attached several letters, including an October 2010 letter from his counsel, Poole, to the district attorney about factors to consider for Whatley's plea recommendation (his health, fleeing the courtroom during his first plea hearing, and forfeiture of certain casino winnings), as well as several letters from Poole to Whatley about the plea negotiations. Whatley also attached a drug store print-out of his pharmacy prescriptions from January 2008 to June 2010, including prescriptions for Oxycontin, methadone, and Dilaudid.

¶ 5. The trial court dismissed Whatley's motion. He now appeals,⁴ raising three issues: he was entitled to a competency hearing before his plea hearing; his guilty plea was involuntary; and his counsel was ineffective. Whatley also discusses, within these issues, the validity of his indictment and sentence; so, we shall discuss these matters as well.

STANDARD OF REVIEW

¶ 6. In reviewing the trial court's dismissal of a motion for post-conviction relief, this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous. Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Id.

ANALYSIS

1. Jurisdiction

¶ 7. Whatley's notice of appeal was not entered by the trial court within thirty days of entry of the trial court's judgment. The appellate rules require that the notice of appeal “shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from.” M.R.A.P. 4(a). The trial court dismissed Whatley's PCR motion on September 13, 2011. Whatley's notice of appeal was stamped “filed” by the circuit court clerk on October 18, 2011, but the notice was otherwise without a date.⁵ Generally, an appeal shall be dismissed unless the notice of appeal is timely filed under Mississippi Rule of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1). However, appeals of PCR motions are governed by Mississippi Rule of Appellate Procedure 2(c), which allows this Court to suspend the requirements of the appellate rules in the interest of justice. Therefore, this Court may suspend Rule 4(a) to allow an out-of-time appeal in criminal cases and “civil” PCR actions. SeeM.R.A.P. 4 cmt.

¶ 8. Even though the State has not challenged appellate jurisdiction here, we must determine whether jurisdiction exists. The 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 authorities for mailing. Sykes v. State, 757 So.2d 997, 1000–01 (¶ 14) (Miss.2000). The State bears the burden of proving the prisoner's notice of appeal is untimely filed. Melton v. State, 930 So.2d 452, 455 (¶ 8) (Miss.Ct.App.2006).

¶ 9. The record does not indicate when Whatley delivered his documents to prison authorities for mailing. However, since his notice of appeal was received by the Court only five days late, it is possible that the documents were delivered to prison authorities within the time frame allowed by Rule 4(a). Accordingly, we exercise our discretion under Rule 2(c) to suspend the thirty-day requirement to the extent Whatley's filing may have been untimely. We therefore find jurisdiction proper and address Whatley's appeal on the merits.

2. Indictment

¶ 10. Whatley discusses, in relation to his other issues, that his indictment was defective because Count I did not specify the amount of Dilaudid he sold, but only stated “a quantity.” ⁶ Whatley maintains that he only sold one dosage unit of Dilaudid, but there is no evidence in the record of this fact.

¶ 11. Indictments must contain “a plain, concise and definite written statement of essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” URCCC 7.06. “The purpose of the indictment is to provide the accused reasonable notice of the charges against him so that he may prepare an adequate defense.” Brawner v. State, 947 So.2d 254, 265 (¶ 31) (Miss.2006) (citing Brown v. State, 890 So.2d 901, 918 (¶ 61) (Miss.2004)). The ultimate test for the validity of an indictment is whether the defendant was prejudiced in preparing his defense. Medina v. State, 688 So.2d 727, 730 (Miss.1996).

¶ 12. There is no requirement that Whatley's indictment contain the amount of Dilaudid he sold. SeeMiss.Code Ann. § 41–29–139(b)(1) (Supp.2012). As written, the indictment gave Whatley reasonable notice of the charges against him; and he was not prejudiced in preparing his defense.

¶ 13. Whatley also complains that there was no subsection cited in his indictment for the charge. Whatley was charged for Count I under Mississippi Code Annotated section 41–29–139 (Supp.2012). There is no requirement under Rule 7.06, however, that an indictment contain the statutory subsection. Further, Whatley makes no claim that he was misinformed about the true nature of the crime charged because of this omission. The indictment includes the essential facts concerning the offense charged and adequately informed Whatley of the nature of the charges against him, without the subsection.

¶ 14. Additionally, Whatley entered a valid guilty plea, which operates as a waiver of any possible non-jurisdictional defects in his indictment. See Garner v. State, 944 So.2d 934, 939 (¶ 14) (Miss.Ct.App.2006) (citing Brooks v. State, 573 So.2d 1350, 1355 (Miss.1990)). The only exceptions to this waiver are if the indictment fails to charge an essential element of the crime or the court lacks subject-matter jurisdiction. Kincaid v. State, 711 So.2d 873, 877 (¶ 20) (Miss.1998) (citing Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989)). Neither of these exceptions are present here. Accordingly, we find Whatley's indictment was not defective.

3. Legality of Sentence

¶ 15. Relatedly, Whatley claims that his sentence was inconsistent with the charge in his indictment and thereby illegal. Whatley was indicted under section 41–29–139. Subsection (b)(1) of this code section provides that offenders may be sentenced to not more than thirty years' imprisonment for sale of a schedule II substance, such as Dilaudid. The statute also provides that for possession of one dosage unit, a person “may” be charged for a misdemeanor “or” felony, and sentencedto one to four years' imprisonment, under section 41–29–139(c)(1)(A). Whatley argues that he should have been sentenced under subsection (c)(1)(A) because he only sold one dosage unit of Dilaudid.

¶ 16. This argument is without merit. It is well established that sentencing is “within the discretion of the trial court” and not subject to appellate review “if it is...