Wheeler v. State

Decision Date05 May 2015
Docket NumberNo. 2014–CP–00294–COA.,2014–CP–00294–COA.
Citation164 So.3d 501
PartiesJohnnie WHEELER a/k/a Johnnie E. Wheeler a/k/a Johnnie Earl Wheeler, Appellant v. STATE of Mississippi, Appellee.
CourtMississippi Court of Appeals

Johnnie Wheeler, appellant, pro se.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before IRVING, P.J., ISHEE and CARLTON, JJ.

Opinion

CARLTON, J., for the Court:

¶ 1. Johnnie Wheeler appeals the Lincoln County Circuit Court's denial of his motion for post-conviction relief (PCR) that he filed upon the revocation of his parole. In his PCR motion, Wheeler claims that his parole was unlawfully revoked.

¶ 2. The relevant procedural history in this case reflects that, while on parole for a 1970 murder conviction, Wheeler pled guilty on January 15, 2013, to felony shoplifting, and this felony-shoplifting conviction resulted in the revocation of his parole.1 Wheeler argues that he failed to receive the due process owed him when the parole board revoked his parole. In support of his appeal, Wheeler raises the three following assignments of error, arguing that: (1) his due process was violated because a clerical error existed regarding his name and birth date; (2) the parole board denied him a preliminary revocation hearing; and (3) the trial court failed to provide him notice of the date of his evidentiary hearing on his PCR motion.

¶ 3. Wheeler fails to present any evidence of the violation of any constitutional right, whether State or federal, upon which post-conviction relief could be granted. See Miss.Code Ann. § 99–39–5(1) (Supp.2014). We find that section 99–39–5(1)(h) and (2)(b) establishes the trial court's jurisdiction to consider Wheeler's post-conviction claim that his parole was unlawfully revoked. See Walters v. State, 21 So.3d 1166, 1168–69 (¶ 9) (Miss.2009) ; Ragland v. State, 586 So.2d 170, 173 (Miss.1991) (petition challenging legality of parole revocation was direct attack upon administrative board's order on which there had been no court review; such challenge was not a collateral attack upon a terminated court case).2 Upon review of this appeal and Wheeler's assignments of error, we affirm the trial court's denial of Wheeler's PCR motion, and in so doing, we find no abuse of discretion in the trial court's determination that Wheeler failed to show a violation of a federal or state right. See Walters, 21 So.3d at 1169–70 (¶ 11) ; Morgan v. State, 995 So.2d 787, 790–91 (¶¶ 8–10) (Miss.Ct.App.2008).

FACTS

¶ 4. In September 1970, a Lincoln County jury convicted Wheeler of murder, and the trial court sentenced Wheeler to life in the custody of the Mississippi Department of Corrections (MDOC).3 While still on parole for the 1970 murder, Wheeler was indicted for third-offense shoplifting, a felony, and while in jail awaiting trial on this felony-shoplifting charge, Wheeler's parole officer filed a warrant for a parole violation on January 11, 2013. Wheeler then pleaded guilty to the felony of third-offense shoplifting, and on January 15, 2013, the trial court sentenced Wheeler for this conviction to serve five years in the custody of the MDOC, with the balance suspended for time served, and with four years of post-release supervision.

¶ 5. The procedural history reflects that Wheeler's shoplifting conviction constituted the basis upon which his parole was revoked. See Miss.Code Ann. § 47–7–27 (Supp.2014)4 (establishing the parole board's authority to immediately revoke parole upon presentation of a certified copy of the commitment order for an offender convicted of a felony while serving parole). See also Williams v. State, 158 So.3d 309, 311–12 (¶ 7) (Miss.2015) (no leave from supreme court required to file an appeal where petitioner is challenging a conviction that has not been appealed). Wheeler argues, however, that his parole officer unlawfully placed the hold on him by filing the warrant for a probable parole violation upon his indictment for felony shoplifting and that his parole was also unlawfully revoked by the parole board on April 4, 2013.

¶ 6. The record reflects that Wheeler's parole officer issued the warrant for a parole violation upon Wheeler's confinement in the Lincoln County jail and that Wheeler was convicted only a few days later upon his plea of guilty. After a hearing on the matter, the parole board found that pursuant to section 47–7–27, Wheeler violated the terms and conditions of his parole by being convicted of a felony, and therefore revoked his parole on April 4, 2013.

¶ 7. On January 31, 2013, Wheeler filed a petition for a writ of habeas corpus,5 asserting that his right to due process was violated because he did not participate in a preliminary hearing before the parole board. Wheeler also claimed that he was convicted for felony shoplifting under the wrong name. The trial court stated that “the claims raised are properly raised as post-conviction relief, and for that reason, the court will construe the pleading as a motion for post-conviction relief.”6 The trial court held an evidentiary hearing on Wheeler's PCR motion on September 23, 2013, and heard oral argument from Wheeler and from the State. Wheeler's former attorney on the felony-shoplifting charge was also present. The trial court denied Wheeler's request for relief. Wheeler now appeals the trial court's denial of his PCR motion.

STANDARD OF REVIEW

¶ 8. “A [trial] court's denial of post-conviction relief will not be reversed absent a finding that the court's decision was clearly erroneous. However, when issues of law are raised, the proper standard of review is de novo.” Morris v. State, 66 So.3d 716, 719 (¶ 13) (Miss.Ct.App.2011) (footnote and citations omitted).

DISCUSSION

I. Clerical Error

¶ 9. Wheeler's first assignment of error pertains to clerical errors concerning the indictment for felony shoplifting that violated his previously imposed parole. The trial court convicted and sentenced him in January 2013 for felony shoplifting upon his plea of guilty. We acknowledge that, in so doing, Wheeler waived the non-jurisdictional clerical errors in his indictment and other motions upon his pleading guilty to the offense.7 With respect to his claim of a lack of sufficient due process in the revocation of his parole, section 47–7–27 provides that any offender convicted of a felony while on parole shall immediately have his parole revoked upon presentment of a certified copy of the commitment order to the board. As determined by the trial judge, Wheeler does not claim to be wrongfully convicted or misidentified but merely raises clerical errors in his attempt to establish a due-process violation regarding the revocation of his parole.8

¶ 10. Wheeler does not claim he lacked notice of the charges against him or that the State indicted the wrong person. He also raises no challenge to the felony-shoplifting conviction resulting from his guilty plea. Our review of the record also reflects that the motion to amend the indictment to charge Wheeler as a habitual offender identified Wheeler as Johnnie Wheeler a/k/a Johnny H. Wheeler.” Furthermore, because Wheeler entered a guilty plea, he waived any, and all, potential non-jurisdictional defects. Therefore, this assignment of error lacks merit. See Brooks, 573 So.2d at 1352 ; McClurg v. State, 758 So.2d 473, 479 (¶ 17) (Miss.Ct.App.2000).

¶ 11. Wheeler's claim that his parole officer unlawfully placed a hold on him while he awaited trial in Lincoln County also lacks merit since section 47–7–27 authorizes the parole board to issue warrants for the return of any paroled offender upon a showing of probable cause, and the section further provides that the offender, pending hearing, shall remain incarcerated. See Williams v. Castilla, 585 So.2d 761, 764 (Miss.1991) (citing Moore v. Ruth, 556 So.2d 1059, 1061–62 (Miss.1990), in explaining that parole board is not required to await trial of the defendant on the principal charge before initiating revocation proceedings). A few days after the warrant for the parole violation issued for Wheeler's felony-shoplifting charge, Wheeler pled guilty to that charge on January 15, 2013, and upon conviction, the parole violation was established. See Miss.Code Ann. § 47–7–27.

II. Preliminary Hearing

¶ 12. Next, Wheeler argues that the trial court denied him a preliminary hearing for his parole revocation. Wheeler contends that a parole officer held Wheeler in jail after he was sentenced for his felony-shoplifting conviction, and then transported Wheeler to the penitentiary without a preliminary hearing. A preliminary hearing is required when a warrant is issued for a probable parole violation. Miss.Code Ann. § 47–7–27.9 Regarding Wheeler's claim that he was deprived unlawfully of a preliminary parole-revocation hearing, as discussed above, upon Wheeler's felony-shoplifting conviction on January 15, 2013, the parole violation was then established. See Miss.Code Ann. § 47–7–27. As previously discussed, the parole board was not required to await his conviction on the felony-shoplifting conviction to initiate revocation proceedings. See Williams, 585 So.2d at 765 ; Moore, 556 So.2d at 1061–62. Hence, in this case, no error occurred and no federal or state right was violated by the revocation of Wheeler's parole upon Wheeler's conviction for felony shoplifting.

¶ 13. The trial court's order denying Wheeler's PCR motion reflects that Wheeler provided the trial court with a report from his April 4, 2013 parole hearing, which reflected the parole board's findings and decision to revoke Wheeler's parole. In its order denying Wheeler's PCR motion, the trial court held:

Having reviewed the file and record, and conferred with the parole board, by and through its employee Kay Washington, the court finds that [Wheeler] has not met his burden to demonstrate that this court has jurisdiction over the matter.[Wheeler] provided the court with a report from his parole hearing held April 4, 2013, in which the parole board found that [Wheeler] had violated the
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