Carr v. State

291 So.3d 1132

Gregory Paul CARR a/k/a Gregory Carr a/k/a Gregory P. Carr, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CP-00669-COA

Court of Appeals of Mississippi.

March 10, 2020

ATTORNEY FOR APPELLANT: GREGORY PAUL CARR (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART, Jackson

BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. Gregory Carr appeals, pro se, the Washington County Circuit Court's denial of his motion for post-conviction relief (PCR). After considering the issues Carr raises, we find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Carr's PCR appeal stems from three separate indictments. On January 13, 2013, a Washington County grand jury indicted Carr for burglary (Count I), for aggravated assault (Count II), and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007) (Washington County cause no. 2013-0289). On December 18, 2014, Carr was indicted for unlawful possession of a firearm or weapon by a felon and as a habitual offender in accordance with section 99-19-81 (Washington County cause no. 2014-0264). Carr was indicted a third time on June 18, 2015, for two counts of automobile burglary and as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007) (Washington County cause no. 2015-0094).

¶3. Carr was represented by counsel in the circuit court. On December 3, 2015, Carr filed two petitions to enter guilty pleas. In cause number 2013-0289, Carr admitted that he had assaulted Kevin Matthews in July 2013, and Carr agreed to plead guilty to aggravated assault. In exchange for Carr's guilty plea, the State, apparently intending to reference the burglary charge in Count I, agreed to "dismiss Count II and the habitual portion of this indictment" and recommended that Carr be sentenced to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with ten years to serve and five years of post-release supervision.

¶4. Carr also agreed to plead guilty to one count of automobile burglary charged in cause number 2015-0094. In his plea petition, Carr admitted that "on or around July 31, 2014[,] [he] broke into and entered a vehicle with the intent to take the property located therein," and he acknowledged that if the court accepted the State's recommendation, he would be sentenced as a habitual offender to serve seven years in MDOC's custody. Carr stated that he understood that this sentence would be set to run concurrently with the proposed sentence in cause number 2013-0289. In exchange for this guilty plea, the State agreed to dismiss the other automobile-burglary count in cause number 2015-0094 and dismiss cause number 2014-0264 in its entirety.

¶5. A guilty-plea hearing was held the same day. During the hearing, the circuit court outlined the rights that Carr was waiving by pleading guilty, and the court ensured that Carr understood both the factual basis for each charge and the consequences of his guilty pleas. Carr acknowledged his plea petitions, agreeing that he "presented the [c]ourt a petition and guilty plea to one count of automobile burglary in 2015-0094 and one count [of] aggravated assault in 2013-0289." The circuit court informed Carr of the minimum and maximum penalties for automobile burglary and aggravated assault, which Carr stated he understood.

¶6. The prosecutor recited the alleged facts related to the relevant automobile burglary charge in cause number 2015-0094, stating that "on or about [July 31, 2014,] [Carr] did unlawfully, willingly, feloniously and burglariously break into a gray 2005 Chevy Trailblazer, ... with the intent to take, steal and carry away the merchandise and/or personal property located for use therein." Carr admitted these facts as true, and when the court asked how he pled to the charge of automobile burglary, Carr responded, "Guilty." The circuit court accepted Carr's guilty plea to the burglary charge and found it to be "knowingly, willingly, and voluntarily entered."

¶7. The prosecutor then recited the factual basis for Carr's 2013 aggravated-assault charge, namely "that [Carr] did unlawfully, willfully, and feloniously attempt to cause bodily injury to Kevin Matthews by attempting to hit [Matthews] with an automobile ...." The circuit court asked Carr if he accepted the facts as true, and Carr replied, "Yeah." The circuit court continued, "And as to this charge of aggravated assault , how do you plead? Guilty or not guilty?" (Emphasis added). Carr responded, "Guilty." The circuit court accepted Carr's guilty plea to aggravated assault and likewise found it to be "knowingly, willingly, and voluntarily entered."

¶8. Regarding the habitual offender enhancement alleged in cause number 2015-0094, the State made an ore tenus motion during the guilty plea hearing "to amend the indictment to reflect that it is [a section 99-19-81 ] habitual rather than [a section 99-19-83 ] habitual." The State asserted that "[i]f we don't do that and if he pleads as an '83 ... it will tentatively give him life." Amending the indictment thus benefitted Carr by "allow[ing] [the agreed upon] sentence to happen." Carr's counsel did not object to this motion but instead stated that this amendment reflected Carr's "understanding of the offer from the State, and that is the understanding that Mr. Carr has accepted ...." The circuit court accordingly granted the State's motion to amend Carr's indictment in cause number 2015-0094. Carr then pled guilty to the habitual offender allegations in cause number 2015-0094 and acknowledged as true the facts surrounding the enhancement based on three prior convictions: a 1983 conviction for burglary, a 1989 conviction for simple assault on a law enforcement officer, and a 2006 conviction for shoplifting. Again, the circuit court found that Carr entered this plea knowingly, willingly, and voluntarily.

¶9. After the circuit court accepted Carr's guilty pleas and excused Carr from the courtroom, the following exchange took place between the court and the prosecutor:

The Court: ... What is the State's intent on ... 2014-0264?

[Counsel]: The State will nol pros that charge as well and provide the Court with an order.

The Court: Also on Count Two on each one of these cases [ (causes 2013-0289 and 2015-0094) ].

[Counsel]: Yes, sir.

¶10. Based on this exchange, the circuit court entered its sentencing order in cause number 2013-0289 on December 8, 2015. The court's order again expressly found that Carr knowingly, willingly, and voluntarily pled guilty to aggravated assault. As agreed to by the State and Carr, the circuit court sentenced Carr to fifteen years in the MDOC's custody for aggravated assault, with ten years to serve and five years of post-release supervision. The court ordered that "all the time to be served by [Carr] in this cause shall run concurrent to all time served ... in ... cause number 2015-0094." In cause number 2015-0094, the circuit court sentenced Carr as a habitual offender to serve seven years in the MDOC's custody for one count of automobile burglary, also in accordance with his guilty plea petition and agreement with the State.

¶11. The same day, the circuit court entered an "Order for Nolle Prosequi as to Count II Only" in cause number 2013-0289. In that order, the court held "that COUNT II, Burglary of a dwelling, in [cause number 2013-0289] is dismissed, as this defendant has pled guilty in Cause Number 2015-0094 (count one), auto burglary as a 99-19-81 habitual offender and 2013-0289 (count one), aggravated assault, and has been sentenced." The order transposed Counts I and II of the indictment in cause number 2013-0289, as burglary¹ was charged in Count I, not Count II, and aggravated assault was charged in Count II, not Count I. The circuit court's order echoed the exchange between the court and the State during Carr's plea hearing in which the State agreed that it would "nol pros ... Count Two on each one of these cases." This clerical confusion is the genesis of this case.

¶12. On August 21, 2017, Carr filed a "Motion to Vacate, Set Aside, Sentence Order, Sentence, and Conviction." In the motion, Carr asserted that because Count II of the indictment in cause number 2013-0289 charged him with aggravated assault, and because the "Order for Nolle Prosequi as to Count II Only" dismissed Count II, his sentence for aggravated assault is void and invalid. Carr filed a "motion to amend" his motion on August 22, 2017, and filed the same motion to amend again on September 6, 2017. In his motions to amend, Carr sought to be discharged from all charges in cause number 2013-0289 and for that cause to be dismissed with prejudice.

¶13. The Washington County Circuit Court treated Carr's original motion as a PCR motion. On March 27, 2018, the circuit court denied both Carr's original motion and motions to amend, finding as follows:

It is clear from Carr's plea petition and the transcript of the plea hearing that the parties intended for Carr to enter a plea of guilty to the crime of [a]ggravated [a]ssault in [cause number] 2013-0289 and that the remaining count would be dismissed.... Carr knowingly, willingly, and voluntarily pled guilty to the crime of [a]ggravated [a]ssault in [cause number] 2013-0289 and ... he received the sentence that he and the State agreed to for that crime.... [I]t is clear that the parties intended for the remaining charge of [b]urglary of a [d]welling to be dismissed.... [I]t was either a clerical error or a scrivener's error that caused the incongruity between the counts as listed in the indictment and as presented in the subsequent court filing and proceeding.

¶14. The circuit court concluded that the sentencing order properly reflected Carr's sentence and should not be vacated. However, the circuit court found that the "Order for Nolle Prosequi as to Count II Only" in cause number 2013-0289 should be vacated. The court subsequently entered a corrected order...