Tran v. State

374 So.3d 582

Dung Thank TRAN a/k/a Julio Tran a/k/a Dung Tran a/k/a Dung T. Tran a/k/a Dung Thanh Tran, Appellant

v.STATE of Mississippi, Appellee

NO. 2022-CP-00094-COA

Court of Appeals of Mississippi.

05/30/2023

Rehearing Denied October 3, 2023

GRENADA COUNTY CIRCUIT COURT, HON. JOSEPH H. LOPER JR., JUDGE

ATTORNEY FOR APPELLANT: DUNG THANK TRAN (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: ALLISON ELIZABETH HORNE

BEFORE CARLTON, P.J., WESTBROOKS AND McCARTY, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. On April 26, 2021, Dung Thank Tran petitioned the Grenada County Circuit Court for the expungement of his 1995 felony conviction of possession of cocaine under Mississippi Code Annotated section 41-29-139(c)(1) (Rev. 1993). The circuit court denied Dung’s petition for expungement because five years had not elapsed since Dung completed the terms and conditions of his sentence. Dung had not paid crime lab fees and court costs associated with his 1995 conviction until March 2021, a month before petitioning for expungement. As a result, the circuit court determined that pursuant to Mississippi Code Annotated section 99-19-71 (2)(a) (Rev. 2020), Dung was ineligible for felony expungement.

FACTS AND PROCEDURAL HISTORY

¶2. On October 25, 1994, Dung was arrested and charged for the possession of trace amounts or residue of cocaine. Shortly after, Dung was also charged for aggravated assault, occurring on or about November 10, 1994. A grand jury indicted Dung on January 11, 1995, for the possession of cocaine pursuant to Mississippi Code Annotated section 41-29-139(c)(1). On January 30, 1995, Dung pled guilty to the felony possession of cocaine. Sometime after, Dung separately pled guilty to aggravated assault. Tran v. State (Tran I), 785 So. 2d 1112, 1114 (¶1) (Miss. Ct. App. 2001); Tran v. State (Tran II), 92 So. 3d 1278, 1278 (¶2) (Miss. Ct. App. 2011), overruled, by Howell v. State, 283 So. 3d 1100, 1104 (¶15) (Miss. 2019).

¶3. On January 31, 1995, Circuit Judge Joseph Loper held a plea hearing for Dung on the charges of possession of cocaine and aggravated assault. The State presented the factual bases for both possession of cocaine¹ and aggravated assault.

The circuit court sentenced Dung to a sentence of ten years in the custody of the Mississippi Department of Corrections (MDOC), with six years suspended and four years to serve, for the aggravated assault conviction, As a condition of this sentence, the circuit court ordered Dung to pay half of all jury costs within six months of his release from the MDOC's custody, Additionally, the circuit court sentenced Dung to serve three years in the MDOC's custody for the possession of cocaine conviction, which was ordered to run concurrently with the aggravated assault sentence. The circuit court further ordered, as a condition of his possession-of-cocaine sentence, that Dung "pay lab fees of a hundred and twenty-five dollars ($125.00), all court costs, assessments" within six months of release from the MDOC's custody.

¶4. After serving his sentence, Dung was released from the MDOC's custody. Tran II, 92 So. 3d at 1278 (¶2). On March 25, 1999, however, a confidential informant arranged to buy crack cocaine from Dung. Id. at (¶3). Dung was recorded stating that he would bring "three-sixteenths" to the confidential informant at a Holiday Inn. Id. As soon as Dung handed the crack cocaine to the confidential informant, Grenada Police Department officers rushed in and arrested Dung. Id. at (¶5). A grand jury indicted Dung for the transfer of cocaine in violation of Mississippi Code Annotated section, 41-29-139(a)(1) and (b)(1) (Rev. 1995). Id. The State also charged Dung "as a habitual offender because of [his] prior conviction of possession of cocaine and … aggravated assault." Id. at (¶1). A jury trial was held on January 26, 2000. Id. The jury found Dung guilty of transferring cocaine. Id. Following trial, the circuit court determined that Dung was a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 1994) and sentenced him to life imprisonment without eligibility for parole, probation, or early release. Id.

¶5. Since then, Dung has been in MDOC's custody. Dung directly appealed the jury's guilty verdict, alleging that the evidence to sentence him as a habitual offender was insufficient, that the jury's verdict was against the overwhelming weight of the evidence, and that he had been entrapped. Tran I, 785 So. 2d at 1115 (¶2). This Court affirmed the conviction and sentence. Id. at 1120 (¶26). Then, "[o]n March 2, 2010, Tran filed a motion for post-conviction relief [(PCR)], collaterally attacking his 1995 conviction for possession of cocaine." Tran II, 92 So. 3d at 1278 (¶3). The circuit court dismissed the motion for lack of jurisdiction. Id. We affirmed the dismissal, stating that "Tran’s claim is barred from consideration as he is no longer incarcerated for the 1995 conviction." Id. at 1279 (¶7).²

¶6. In 2014, Dung filed an application for leave in the Mississippi Supreme Court. Tran v. State, 2014-M-00253 (Miss. April 11, 2014) (order):

[H]e sought leave to challenge his present life sentence via a PCR motion in the trial court. Tran claimed that his sentence was "illegal" because of his alleged "actual innocence as a habitual offender." A panel of the Supreme Court denied Tran’s application, finding that it was barred by the statute of limitations, the prohibition against successive applications, and res judicata and also "without merit."

Tran v. State (Tran III), 231 So. 3d 231, 232 (¶4) (Miss. Ct. App. 2017). In 2017, Dung filed another PCR motion, addressing his 1995 conviction of possession of cocaine and, once more, asserting that "his 1995 felony conviction [was] void because his offense was only a misdemeanor. He relie[d] on amendments to the law that took effect more than nineteen years after he was convicted and more than sixteen years after he served his sentence for the conviction." Id. at (¶5). The Mississippi Court of Appeals affirmed the circuit court’s dismissal of Dung’s 2017 PCR motion for lack of jurisdiction because Dung did not receive permission from the Mississippi Supreme Court to file the PCR motion. Id. at 233 (¶7). This Court did not address the merits, i.e., whether Dung’s felony conviction was "void because his offense was only a misdemeanor." Id. at 232 (¶5).

¶7. On August 26, 2019, Dung petitioned for the expungement of this 1995 felony conviction for the possession of cocaine. The circuit court’s order denying the petition stated, "As part of his sentence, [Dung] was ordered to pay a $125.00 lab fee to the North Mississippi Crime Lab, as well as, $186.00 in court costs." The circuit court concluded, "Because [Dung] has not paid all the criminal fines and costs of court imposed as part of his sentence, his conviction is ineligible for expunction under [Mississippi Code Annotated] 99-19-71(2) [(Supp. 2019)]." On February 23, 2021, Dung requested that a total of $311.00 be taken out of his account to pay the crime lab fee and the court costs "to expunge the misdemeanor cocaine possession on cause #6870." The circuit court clerk received the check on March 26, 2021.

¶8. On April 9, 2021, Dung again petitioned for expungement of his 1995 felony conviction for the possession of cocaine. Dung explained that he "understood very little [E]nglish because of [his] being a Vietnamese and a native of Saigon. His father [was] a natural born[ ] citizen in the United States of America, who fought in the Vietnam war that allow[s] [him] [to] enjoy dual citizenship." Dung asserted that because it has been twenty years since he "completed the term and condition of his sentence for possession of cocaine," and because his "conviction for possession of cocaine [was] less than one-tenth (0.1) of a gram," his conviction "qualifies] to be expunged from his public records." Circuit Judge Loper denied Dung's petition for his failure to pay the $150.00 filing fee. On August 26, 2021, Dung signed a check for $150.00 paid to the order of the circuit court clerk in Grenada County. The circuit court received the check on September 9, 2021.

¶9. On October 21, 2021, Dung re-filed his petition for expungement, referring to his conviction as a "misdemeanor." On November 10, 2021, the circuit court ordered the State to respond. On December 8, 2021, the State responded to the petition, arguing that "Five (5) years ha[d] not passed since the completion of all terms and conditions of the sentence." On December 14, 2021, the circuit court denied Dung’s petition for expungement. The circuit court determined, "If [Dung] is entitled to any relief from this court in this cause, the expungement would be of a felony conviction, not a misdemeanor as asserted by [Dung]." Further, the circuit judge agreed with the State and concluded that it had not been five years since Dung completed "all the terms and conditions of his sentence." Dung appeals the December 14, 2021 denial of his expungement.

STANDARD OF REVIEW

¶10. "This Court applies a de novo standard of review when questions of law are to be considered on appeal." Polk v. State, 150 So. 3d 967, 96§ (¶4) (Miss. 2014) (citing Brown v. State, 731 So. 2d 595, 598 (Miss. 1999)).

DISCUSSION

[1–3] ¶11. Dung filed his brief pro se, asserting some errors that are not discernable. "A pro se litigant shall be held to the same standard as an attorney. This Court will not give deference to a person who chooses to represent himself." Bailey v. Wheatley Est. Corp., 829 So. 2d 1278, 1281 (¶11) (Miss. Ct. App. 2002) (citation omitted). Therefore, we will only address the discernable issues below. See id.

I. Jurisdiction

[4] ¶12. We first address Dung's assertions that the circuit court erred by not granting his expungement because (1) the circuit court had jurisdiction over his expungement and (2) he had standing as a petitioner "in custody." This Court takes no issue with these assertions. Pursuant to ...