Wingo v. State, 011921 MSCA, 2020-CP-00117-COA

Docket Nº:2020-CP-00117-COA
Opinion Judge:WESTBROOKS, J.
Party Name:CURTIS WINGO A/K/A CURTIS LEE WINGO APPELLANT v. STATE OF MISSISSIPPI APPELLEE
Attorney:ATTORNEY FOR APPELLANT: CURTIS WINGO (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL
Judge Panel:BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ. BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR. SMITH, J., NOT PARTICIPATING.
Case Date:January 19, 2021
Court:Court of Appeals of Mississippi

CURTIS WINGO A/K/A CURTIS LEE WINGO APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

No. 2020-CP-00117-COA

Court of Appeals of Mississippi

January 19, 2021

DATE OF JUDGMENT: 01/13/2020

WINSTON COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER JR. TRIAL JUDGE.

ATTORNEY FOR APPELLANT: CURTIS WINGO (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAUREN GABRIELLE CANTRELL

BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.

WESTBROOKS, J.

¶1. Curtis Wingo appeals from the Winston County Circuit Court's denial of his motion for post-conviction collateral relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. In 1999, Wingo was indicted as a habitual offender for felony driving under the influence. He pled guilty on May 12, 1999. Wingo subsequently backed out of the plea agreement. He was convicted and sentenced to life in prison without eligibility for parole.

¶3. On May 27, 2019, Wingo filed his sixth motion for post-conviction relief (PCR). He claimed that he was entitled to post-conviction relief because (1) the portion of the indictment charging him as a habitual offender was defective; (2) the circuit court incorrectly advised him that he could not appeal his sentence; and (3) a witness's name (Tammy Thigpen) was not provided to his attorney in discovery. The circuit court held that the claims in Wingo's PCR motion were barred by the statute of limitations and as successive. In addition to the procedural bars, the circuit court found that Wingo's claims failed on the merits.

¶4. Aggrieved, Wingo now appeals. He makes two clear allegations of error by the circuit court in denying his motion for post-conviction relief: (1) that his sentence was illegal due to a defect in the habitual offender portion of the indictment; and (2) that allowing Tammy Thigpen to testify at his sentencing hearing was improper because her name was not disclosed in discovery in violation of his due process rights, and she was not subpoenaed for the hearing. Wingo also suggests that he received ineffective assistance of counsel.

STANDARD OF REVIEW

¶5. "When reviewing a [circuit] court's denial or dismissal of a PCR motion, we will only disturb the [circuit] court's decision if it is clearly erroneous; however, we review the [circuit] court's legal conclusions under a de novo standard of review." Williams v. State, 228 So.3d 844, 846 (¶5) (Miss. Ct. App. 2017) (quoting Thinnes v. State, 196 So.3d 204, 207-08 (¶10) (Miss. Ct. App. 2016)).

DISCUSSION

¶6. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) provides that parties have only three years from the date of judgment on a conviction to file a PCR motion. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). On September 29, 2000, Wingo filed his first, and only timely, PCR motion. Over the next 18 years, he filed four other PCR motions (excluding this one)-all of which have been held to be time barred. Although not present in this PCR motion, there are instances in which this Court has "found errors affecting fundamental rights to be excepted from the time-bar." Campbell v. State, 233 So.3d 904, 906 (¶7) (Miss. Ct. App. 2017). Wingo has made vague allegations of due process violations as discussed more fully below, "[b]ut mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar.'" Id. (quoting White v. State, 59 So.3d 633, 635 (¶11) (Miss. Ct. App. 2011)). This PCR motion was filed eighteen years after the expiration of the limitations period. We find...

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