Williams v. State

4 So.3d 388

Anthony WILLIAMS, Appellant, v. STATE of Mississippi, Appellee.

No. 2007-CP-02143-COA.

Court of Appeals of Mississippi.

March 10, 2009.

Anthony Williams, pro se.

Office of the Attorney General by Deirdre McCrory, attorney for appellee.

Before KING, C.J., GRIFFIS and CARLTON, JJ.

CARLTON, J., for The Court.

¶ 1. This case comes before the Court on appeal from an order dismissing Anthony Williams's motion for post-conviction relief. Aggrieved with the circuit court's judgment, Williams appeals arguing nine errors, which have been combined into the following four issues: (1) whether the circuit court erred in dismissing Williams's post-conviction relief motion without an evidentiary hearing, (2) whether the circuit court erred by revoking Williams's suspended sentence, (3) whether it was plain error and a violation of double jeopardy to impose house arrest upon Williams, and (4) whether it was a violation of Williams's due process rights to fail to afford him a preliminary and final revocation hearing. Finding no error, we affirm.

FACTS

¶ 2. On July 29, 1998, a grand jury in Jefferson Davis County, Mississippi indicted Williams for selling cocaine, a Schedule II controlled substance. On January 26, 1999, Williams was arraigned and pled guilty to the sale of cocaine. During the hearing, Williams was advised of the consequences of his guilty plea. Williams attested that his decision was freely and voluntarily made.

¶ 3. On February 12, 1999, Williams was sentenced to serve a term of fifteen years in the custody of the Mississippi Department of Corrections (MDOC). After seven years were served, the court suspended the remaining eight years and placed Williams on post-release supervision.

¶ 4. Williams violated the terms of his suspended sentence by being charged with domestic violence on September 29, 2005, and again on June 28, 2006. On July 12, 2006, Williams executed a waiver of right to notice and/or waiting period prior to preliminary post-release hearing. On July 24, 2006, Williams signed a waiver of his right to a revocation hearing, which included an admission that he had violated the conditions of his post-release supervision, and he consented to an immediate revocation of his post-release supervision. Also, on July 24, 2006, the circuit court revoked his post-release supervision for a period of eight years with the first three years to be served in the intensive supervision program (house arrest) with the remaining five years to be served on post-release supervision.

¶ 5. Williams filed a motion for post-conviction relief on October 9, 2007, arguing that the State did not afford him a revocation hearing and that his sentence to house arrest was illegal. The circuit court dismissed Williams's motion on October 17, 2007. This appeal followed.

STANDARD OF REVIEW

¶ 6. The standard of review for a dismissal of a post-conviction motion is well stated: "[t]he findings of the trial court must be clearly erroneous in order to overturn a lower court's dismissal of a post-conviction relief motion." Willis v. State, 904 So.2d 200, 201(3) (Miss.Ct.App.2005) (citing McClinton v. State, 799 So.2d 123, 126(4) (Miss.Ct.App.2001)). However, when issues of law are raised, the proper standard of review is de novo. Byrom v. State, 978 So.2d 689, 690(5) (Miss.Ct.App. 2008) (citing Brown v. State, 731 So.2d 595, 598(6) (Miss.1999)).

DISCUSSION

I. Jurisdiction Over Williams's Appeal

¶ 7. This Court's review of the record reveals a question regarding this Court's jurisdiction that was not addressed by either party in their briefs. The trial judge entered his order dismissing Williams's motion for post-conviction relief on October 17, 2007. Then, the trial judge entered an order on November 7, 2007, denying Williams's motion to alter or amend the judgment dismissing his post-conviction relief motion. However, the motion to alter or amend the judgment is not a part of the record on appeal. Thus, we have no indication of when the motion was filed with the trial court. Williams's notice of appeal was filed in the circuit clerk's office on November 30, 2007. The notice of appeal was dated November 28, 2007, but the date the notice of appeal was actually placed in the mail is not indicated in the record. See Sykes v. State, 757 So.2d 997, 1000-01(¶ 14) (Miss.2000) (adopting the prison mailbox rule and holding that "a pro se prisoner's motion for post-conviction relief is delivered for filing . . . when the prisoner delivers the papers to prison authorities for mailing").

¶ 8. Rule 4(a) of the Mississippi Rules of Appellate Procedure provides that "the notice of appeal required by Rule 3 shall be filed with the clerk of the trial court within 30 days after the date of entry of the judgment or order appealed from." This thirty-day period for filing a notice of appeal can be tolled by the filing of a post-trial motion in a civil case. A review of Mississippi Rule of Appellate Procedure 4(d) assists in understanding the procedural history of this case as it came before the trial court. M.R.A.P. 4(d). Rule 4(d) provides, in part, the following:

If any party files a timely motion of a type specified immediately below the time for appeal for all parties runs from the entry of the order disposing of the last such motion outstanding. This provision applies to a timely motion under the Mississippi Rules of Civil Procedure . . ., under Rule 59 to alter or amend the judgment . . . if the motion is filed no later than 10 days after the entry of judgment.

¶ 9. Because Williams's motion to alter or amend the trial court's judgment was not made part of the record on appeal, this Court cannot determine whether it was filed within the ten-day period as required by Rule 4(d) so as to toll the thirty-day limitation set forth in Rule 4(a). If Williams's motion to alter or amend the trial court's judgment was timely filed, then his appeal would also have been timely filed and this court would have jurisdiction over Williams's appeal. In criminal cases, the Court may suspend the time line requirements pursuant to Rule 4 to permit out of time appeals. See DeLoach v. State, 890 So.2d 934, 936(¶ 8) (Miss.Ct.App.2004) (stating that "an appellate court may suspend the appellate rules and grant an out-of-time appeal `where a person is convicted of a crime and through no fault of his own is effectively denied his right to perfect his appeal within the time prescribed by law by the acts of his attorney or the trial court'") (quoting Jones v. State, 355 So.2d 89, 90 (Miss.1978)). Post-conviction relief proceedings are governed by the rules controlling criminal appeals. Miss.Code Ann. § 99-39-25(1) (Rev.2007). Because Williams's motion to alter or amend the trial court's judgment is missing from the record and it, thus, appears that Williams, through no fault of his own, was not able to timely perfect his appeal, we address Williams's issues on the merits.

II. Dismissal of Williams's Post-Conviction Relief Motion Without an Evidentiary Hearing

¶ 10. Williams contends that he should have been granted an evidentiary hearing before the circuit court dismissed his post-conviction relief motion. He argues that an evidentiary hearing was necessary because the court improperly modified his suspended sentence to include house arrest. Further, the revocation was based solely on the fact that Williams violated his post-release supervision, and Williams argues that the court had no cause to revoke or modify his suspended sentence because there were no violations.

¶ 11. A trial court enjoys wide discretion in determining whether to grant an evidentiary hearing. Hebert v. State, 864 So.2d 1041, 1045(11) (Miss.Ct.App. 2004). A post-conviction claim for relief is properly dismissed without the benefit of an evidentiary hearing where it is manifestly without merit. Holland v. State, 956 So.2d 322, 326(7) (Miss.Ct.App.2007) (citations omitted). This means that dismissal is appropriate where it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Culbert v. State, 800 So.2d 546, 550(9) (Miss.Ct.App.2001) (citing Turner v. State, 590 So.2d 871, 874 (Miss.1991)).

¶ 12. The record indicates that Williams's post-conviction claim for relief is without merit. Williams cannot prove any set of facts that would entitle him to relief. Therefore, the circuit court did not err in summarily dismissing Williams's post-conviction relief motion without an evidentiary hearing. This issue is without merit.

III. Revocation of Williams's Suspended Sentence

¶ 13. Williams contends that the circuit court improperly and unlawfully revoked his suspended-sentence term. He alleged that his domestic violence arrests did not violate the terms of his post-release supervision because he pled not guilty and the charges were dismissed. However, in his revocation waiver, he admitted to violating the terms of his post-release supervision. Williams argues that the revocation of his suspended sentence is contrary to law.

¶ 14. Williams's sentence was suspended, and he was placed on post-release supervision in accordance with the provisions of Mississippi Code Annotated section 47-7-34(2) (Rev.2004). The statute states in part that:

The period of post-release supervision shall be conducted in the same manner as a like period of supervised probation, including a requirement that the defendant shall abide by any terms and conditions as the court may establish. Failure to successfully abide by the terms and conditions shall be grounds to terminate the period of post-release supervision and to recommit the defendant to the correctional facility from which he was previously released. Procedures for termination and recommitment shall be conducted in the same manner as procedures for the revocation of probation and imposition of a suspended sentence.

Miss.Code Ann. § 47-7-34(2). The court set out terms and...