Hathorne v. State

376 So.3d 1209

Kelton K. HATHORNE Sr. a/k/a Kelton K. Hathorne

v.STATE of Mississippi

NO. 2021-CT-00306-SCT

Supreme Court of Mississippi.

11/09/2023

FORREST COUNTY CIRCUIT COURT, HON. ROBERT B. HELFRICH, JUDGE

ATTORNEY FOR APPELLANT: SANFORD E. KNOTT, Jackson

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

EN BANC.

ON WRIT OF CERTIORARI

GRIFFIS, JUSTICE, FOR THE COURT:

¶1. In August 2023, this Court granted Kelton K. Hathorne Sr.’s petition for writ of certiorari. Hathorne appealed from an order of the Forrest County Circuit Court that denied his motion for post-conviction collateral relief. On appeal, Hathorne argued his indictment was defective because it failed to charge a crime. The Court of Appeals agreed that the indictment was defective; however, it determined Hathorne’s claim was procedurally barred under the Uniform Post-Conviction Collateral Relief Act and, thus, affirmed the circuit court’s order. We find that the Court of Appeals erred by affirming the judgment of the circuit court and that Hathorne’s claim is not procedurally barred. Accordingly, we reverse the judgments of the Court of Appeals and of the Forrest County Circuit Court, and we grant post-conviction relief.

FACTS AND PROCEDURAL HISTORY

¶2. In November 2015, Kelton K. Hathorne Sr. was arrested in Hattiesburg, Mississippi, after attempting to flee a routine traffic stop. He was charged with possession of a controlled substance—specifically "Ethylone"—under Mississippi Code Section 41-29-139 (Supp. 2014). The Forrest County Grand Jury indicted Hathorne in December 2016 for "knowingly, willfully, unlawfully, and feloniously possess[ing] thirty (30) grams or more of Ethylone, a Schedule 1 Controlled Substance." Hathorne went to trial in May 2017. The jury ultimately found Hathorne guilty, and he was sentenced to thirty years imprisonment, ten suspended and twenty to serve.

¶3. On direct appeal, the Court of Appeals affirmed his conviction and sentence. Hathorne v. State, 267 So. 3d 798 (Miss. Ct. App. 2018). This Court granted Hathorne leave to petition for post-conviction collateral relief based on his claim that his indictment did not sufficiently charge a crime. See Order, Hathorne v. State, No. 2020-M-00451 (Miss. July 21, 2020). After conducting an evidentiary hearing, the trial court denied the petition.

¶4. Hathorne appealed the trial court’s denial of his petition for post-conviction relief. In January 2023, the Court of Appeals affirmed the trial court’s order. See Hathorne v. State, No. 2021-CA-00306-COA, 373 So.3d 555, 557–58 (Miss. Ct. App. Jan. 17, 2023). The Court of Appeals determined that Hathorne’s indictment was defective and did not charge a crime, but it denied him relief, holding that his claim was procedurally barred by the Uniform Post-Conviction Collateral Relief Act, Mississippi Code Section 99-39-21 (Rev. 2020), because he could have raised this issue at trial and/or on direct appeal. Id. at 558–59, 561–62. Following that decision, Hathorne petitioned this Court for a writ of certiorari, which was granted.

STANDARD OF REVIEW

[1] ¶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." Magee v. State, 340 So. 3d 297, 300 (Miss. 2022) (alterations in original) (internal quotation marks omitted) (quoting Williams v. State, 228 So. 3d 844, 846 (Miss. Ct. App. 2017)).

DISCUSSION

¶6. In his petition, Hathorne raises essentially two arguments for our review. First, he posits that the fundamental-rights exception should offer him relief because Section 99-39-21 is a procedural—not substantive—enactment that remains untouched by this Court’s recent pronouncement in Howell v. State, 358 So. 3d 613, 615–16 (Miss. 2023) (holding that the fundamental-rights exception no longer applied to "substantive, constitutional bars codified by the Legislature in the [UPCCRA]"). Second, he urges this Court to find that actual innocence claims survive Howell and constitute an exception to the statutory time bar under the UPCCRA.

¶7. We find that the Court of Appeals erred by concluding that Hathorne’s claim is barred by the UPCCRA. Because we find Hathorne’s claim is not time-barred, we decline to address whether actual innocence claims survive Howell and constitute an exception to the statutory time bar. We begin our analysis by looking at the alleged defective indictment; then, we address the UPCCRA.

I. Hathorne’s indictment was defective.

[2] ¶8. In his PCR motion, Hathorne argued his indictment was defective because it failed to charge a crime—i.e., ethylone is not listed as a Schedule I controlled substance under Mississippi Code Section 41-29-113 (Supp. 2014), and the State failed to connect ethylone to one of the enumerated controlled substances in the statute. At the PCR evidentiary hearing before the trial court, the State attempted to "connect the dots" by providing a more descriptive affidavit by a drug analyst, which was not presented at trial. On appeal, the Court of Appeals determined that "because this affidavit was not presented at trial, it [could not] be used post hoc as evidence that the State met its burden." Hathorne, 373 So.3d at 561. Only the evidence presented at trial is sufficient to "connect the dots" for the jury. Id.

¶9. The Court of Appeals, therefore, found the indictment was defective for three reasons: (1) "[a]t no point was a specific Code subsection ever pointed out to the jury" to tie ethylone to a Schedule I controlled substance; (2) "[t]he State provided no evidence that ethylone was a recognized trade name or that its pseudonym was in widespread use"; and (3) "[t]here was no evidence that ethylone was on any federal schedule." Id.

¶10. In support of its analysis and conclusion, the Court of Appeals relied on and likened Hathorne’s case to Payne v. State, 282 So. 3d 432 (Miss. Ct. App. 2019). Hathorne, 373 So.3d at 558–61. In Payne, the defendant was indicted for possession of "ethylone" as an alleged Schedule I controlled substance. Payne, 282 So. 3d at 435. At trial, "the proof offered by the State failed to connect the dots—i.e., to show that ethylone is, or at least contained, a substance or compound enumerated on the statutory schedule." Id. at 437. Thus, Payne’s indictment failed to charge a crime. Id. at 438. The facts in Payne—in this respect—are identical to the facts here. We agree with the Court of Appeals that, like the defendant in Payne, Hathorne’s indictment failed to charge a crime and was defective for the above quoted reasons. According to Payne, an indictment’s failure to charge a crime renders that indictment void and "requires dismissal of the indictment and reversal of the conviction." Id. (citing Copeland v. State, 423 So. 2d 1333, 1337 (Miss. 1982)). But Hathorne was not granted that relief.

II. Hathorne’s claim is not procedurally barred by the UPCCRA.

¶11. Though the Court of Appeals found Hathorne’s indictment defective, it determined that he was not entitled to relief under the UPCCRA and that the holding in Payne was inconsequential. Hathorne, 373 So.3d at 561–62. The Court of Appeals stated, "[w]hile Hathorne’s case is very similar to the Payne case, there is one important distinction: Payne made his arguments on direct appeal, while Hathorne failed to bring this claim until after his direct appeal." Id. at 561 (citing Payne, 282 So. 3d at 434). Because this issue was raised post-direct appeal, it must be analyzed through the lens of the UPCCRA.

A. The UPCCRA and Fundamental Rights Post-Howell

¶12. PCR motions are subject to limitations set forth in the UPCCRA, which includes the following waiver provision:

(1) Failure by a prisoner to raise objections, defenses, claims, questions, is-sues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

….

(4) The term "cause" as used in this section shall be defined and limited to those cases where the legal foundation upon which the claim for relief is based could not have been discovered with reasonable diligence at the time of trial or direct appeal.

(5) The term "actual prejudice" as used in this section shall be defined and limited to those errors which would have actually adversely affected the ultimate outcome of the conviction or sentence.

Miss. Code Ann. § 99-39-21(1), (4)–(5) (Rev. 2020). The Court of Appeals denied Hathorne relief, arguing that his "challenge to his indictment [was] barred because his claim was ‘capable of determination at trial and/or on direct appeal.’" Hathorne, 373 So.3d at 561 (quoting Miss. Code Ann. § 99-39-21(1)). It posited that Hathorne’s claim fails because "the basis in Payne—the Brewer and Copeland cases—could ‘have been discovered with reasonable diligence at the time of trial or direct appeal.’" Hathorne, 373 So.3d at 561–62 (citing Brewer v. State, 351 So. 2d 535 (Miss. 1977); Copeland, 423 So. 2d 1333). Further, the court found Hathorne could not establish the requisite "cause and actual prejudice" necessary for relief from the waiver. Id. (quoting Forkner v. State, 277 So. 3d 946, 948 (Miss. 2019)).

[3] ¶13. We first note that the Court of Appeals is correct that a defective indictment is not an enumerated exception to the procedural bars of the UPCCRA. Id. The caselaw, pre-Howell, excepted "errors affecting fundamental constitutional rights." Rowland v. State (Rowland I), 42 So. 3d 508, 507 (Miss. 2010), overruled by Howell, 358 So. 3d 613. Such errors included: double jeopardy and illegal sentencing, id., and certain denials of due...