IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Jul :52: CP COA Pages: 8 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MICHAEL BRIAN BALLE APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JOSEPH HEMLEBEN SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES ii STATEMENT OF THE CASE STATEMENT OF FACTS SUMMARY OF THE ARGUMENT ARGUMENT CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES STATE CASES Lindsay v. State, 720 So.2d 182 (Miss. 1998) Rowland v. State, 42 So.3d 503 (Miss. 2010)... 3 Scott v. State, 791 So.2d 313 (Miss. Ct. App. 2001) Vielee v. State, 653 So.2d 920 (Miss. 1995) Vitela v. State, 183 So.3d 104 (Miss. Ct. App. 2015)... 3 STATE STATUTES Miss. Code Ann Miss. Code Ann (2)(a)-(b)... 3 Miss. Code Ann (1)(e)... 3 Miss. Code Ann (6) ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI MICHAEL BRIAN BALLE APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE Michael Brian Balle was convicted by jury of capital murder in No direct appeal was filed. On February 20, 2015, Balle filed a motion for post-conviction collateral relief, which the trial court dismissed. Balle appealed. STATEMENT OF FACTS On June 1, 2000, Balle was indicted, by a Jackson County grand jury, on one count of Capital Murder. (C.P. 2). The indictment stated, in pertinent part: Michael Brian Balle... did... willfully, unlawfully[,] and feloniously... murder Rachel Kathleen Bellman... while in the commission of the crime and felony of Sexual Battery... [.] Following a jury trial, in the Circuit Court of Jackson County, Mississippi, Balle was convicted of capital murder on July 31, (C.P. 4). On August 4, 2002, Balle was sentenced to life in the custody of the Mississippi Department of Corrections without the possibility of parole. (C.P. 4). On February 20, 2015, Balle filed a motion in the trial court styled Habeas Corpus Motion to Correct Sentence, Vacate and/or Set Aside. (C.P. 5). In his motion, Balle claims that he received ineffective assistance of counsel because his trial counsel never filed any motions on his behalf after 1

5 the trial... [and] no direct appeal was filed. (C.P. 8). Balle also claims that his eighth and fourteenth amendment rights are being violated due to the fact that he is innocent of the crime for which he was convicted. (C.P. 10). On July 1, 2015, the trial court, treating Balle s motion as a motion for post-conviction collateral relief (PCR) pursuant to the Uniform Post-Conviction Collateral Relief Act (UPCCRA), dismissed Balle s motion as time-barred. Balle appealed. SUMMARY OF THE ARGUMENT The trial court did not abuse its discretion when it dismissed Balle s motion for PCR as timebarred. Balle s claims do not fall within any of the statutorily prescribed exceptions to the three year time-bar; thus, Balle s motion, filed nearly twelve and one-half years after the time for taking his appeal expired, is clearly time-barred pursuant to Mississippi Code Annotated Section ARGUMENT Balle s motion for PCR, filed twelve and a half years after his conviction, is time-barred pursuant to the provisions of the UPCCRA; accordingly, the trial court did not err in summarily dismissing Balle s motion. Pursuant to Mississippi Code Annotated Section : A motion for relief under this article shall be made within three (3) years after the time in which the petitioner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. There are three exemptions to the time bar: (1) an intervening decision of the United States Supreme Court or the Mississippi Supreme Court adversely affecting the outcome of a conviction or sentence; (2) new evidence, not reasonably discoverable at trial, which would have caused a different result in the conviction or sentence; or (3) that either petitioner s sentence has expired or petitioner s parole, probation, or conditional release has been unlawfully revoked. Miss. Code Ann. 2

6 (2)(a)-(b) & (6). Balle has failed to demonstrate that one of the exceptions apply here. The Mississippi Supreme Court has held that errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA Rowland v. State, 42 So.3d 503, 507 ( 12) (Miss. 2010). However, Balle has failed to demonstrate an error affecting a fundamental right. Balle merely claims that his eighth and fourteenth amendment rights are being violated due to the fact that he is innocent of the crime for which he was convicted. The State submits that this baseless claim is insufficient to warrant further review. Likewise, Balle s claim that he received ineffective assistance of counsel because his trial counsel allegedly failed to file post trial motions or perfect an appeal is also insufficient to warrant further review, as this claim is not supported in the record before this Court. Indeed, there is nothing in the record to support Balle s claim apart from his own allegations. The Mississippi Supreme Court has long held that [i]n a case involving Post[-] Conviction Relief, this Court has held, that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit. Lindsay v. State, 720 So.2d 182, 184 ( 6) (Miss. 1998) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss. 1995)). See also Vitela v. State, 183 So.3d 104, 108 ( 14) (Miss. Ct. App. 2015) (held where a PCCR movant offers only his own affidavit in support of an ineffective-assistance-of-counsel claim, such evidence is insufficient to meet the pleadings requirements of Mississippi Code Annotated section (1)(e) ). Furthermore, this Court has held that a mere claim of ineffective assistance of counsel is not enough to overcome the statute of limitations for filing a post conviction relief petition. Scott v. State, 791 So.2d 313, 314 ( 4) (Miss. Ct. App. 2001). Here, nothing precluded Balle from raising this issue in a timely filed motion for PCR and including the required documentation to support his claim. Instead, Balle waited over twelve years 3

7 to bring these claims, none of which survive the procedural bar. Accordingly, the trial court s dismissal of Balle s motion should be affirmed. CONCLUSION The State of Mississippi submits that the trial court did not err in dismissing Michael Brian Balle s motion for Post-Conviction Collateral Relief. Based upon the arguments presented herein, as supported by the record on appeal, the State would ask this Court to affirm the trial court s dismissal of Balle s motion for relief. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Joseph Hemleben JOSEPH HEMLEBEN SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

8 CERTIFICATE OF SERVICE I, JOSEPH HEMLEBEN, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 6th day of July, Honorable Kathy King Jackson Circuit Court Judge P.O. Box 998 Pascagoula, MS Honorable Anthony Lawrence, III District Attorney P.O. Box 1756 Pascagoula, MS Michael Brian Balle, Pro Se, #L2262 SMCI P.O. Box 1419 Leaksville, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Joseph Hemleben JOSEPH HEMLEBEN SPECIAL ASSISTANT ATTORNEY GENERAL 5