IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CP-0755-COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Feb :04: CP COA Pages: 8 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ROY DALE WALLACE APPELLANT VS. NO CP-0755-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LA DONNA C. HOLLAND 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 ISSUE...1 STATEMENT OF FACTS...1 SUMMARY OF ARGUMENT...2 ARGUMENT...2 I. WALLACE S MOTION FOR POST-CONVICTION RELIEF WAS PROPERLY DENIED AS HIS CLAIMS ARE BOTH PROCEDURALLY BARRED AND MERITLESS CONCLUSION...4 CERTIFICATE OF SERVICE...5 i

3 TABLE OF AUTHORITIES STATE CASES Boyd v. State, 113 So. 3d 1252, 1256 (Miss. 2013)...4 Wallace v. State, 88 So. 3d 789, (Miss. Ct. App. 2012) Whitfield v. State, 105 So. 3d 385 (Miss. Ct. App. 2012)...3 STATE STATUTES Miss. Code Ann (2)...2 Miss. Code Ann (3)...3 ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI ROY DALE WALLACE APPELLANT VS. NO CP-0755-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE ISSUE I. WALLACE S MOTION FOR POST-CONVICTION RELIEF WAS PROPERLY DENIED AS HIS CLAIMS ARE BOTH PROCEDURALLY BARRED AND MERITLESS. STATEMENT OF FACTS The facts of this case were recently recited by this Court as follows: On July 30, 2007, Wallace was indicted for robbery in Harrison County, MS. On December 4, 2007, the State filed a motion to amend the indictment to charge him as a habitual offender under section The amended indictment included the following prior convictions: (1) a January 22, 1987 conviction in the Circuit Court of Cabell County, West Virginia of felony aggravated assault in cause number 86-F- 86, for which he was sentenced to a term of not less than one year nor more than ten years in the West Virginia State Penitentiary; (2) a March 15, 2001 conviction in the Circuit Court of Rutherford County, Tennessee on of Count 1, of aggravated robbery in cause number 50219, for which he was sentenced to ten years in the custody of the Tennessee Department of Corrections; and (3) a March 15, 2001 conviction in the Circuit Court of Rutherford County, Tennessee on of Count 2, of aggravated robbery, in cause number 50219, for which he was sentenced to a term of ten years in the custody of the Tennessee Department of Corrections. On December 10, 2007, Wallace pled guilty to robbery as a habitual offender under section On December 11, 2007, the State s motion to amend the indictment was granted. 1 1 As noted by the trial court in its most recent order denying post-conviction relief, the order granting the motion to amend was granted on the same day as the guilty plea, December 10, but was entered on December 11. See C.P

5 Wallace v. State, 88 So. 3d 789, ( 2-3) (Miss. Ct. App. 2012). This Court affirmed the trial court s denial of post-conviction relief, finding that the State offered sufficient proof of Wallace s prior convictions for habitual offender sentencing. Id. On April 21, 2014, Wallace filed a letter in the circuit court again attacking the validity of his sentence. C.P The trial court treated the letter as a motion for post-conviction relief. Supp. C.P. 13. The trial court found that Wallace s motion was both successive writ barred and without merit. Supp. C.P Accordingly, the trial court denied Wallace s request for relief. Aggrieved, Wallace again appeals to this honorable Court. SUMMARY OF ARGUMENT Wallace s motion for post-conviction relief is time barred, successive writ barred, and barred by the doctrine of res judicata. His argument regarding the timing of the entry of the order amending the indictment to charge him as a habitual offender ignores the fact that the motion to amend was filed a week prior to the plea hearing. Further, Wallace admitted on the plea hearing that he was aware that the State s recommendation was that he be sentenced as a habitual offender. ARGUMENT I. WALLACE S MOTION FOR POST-CONVICTION RELIEF WAS PROPERLY DENIED AS HIS CLAIMS ARE BOTH PROCEDURALLY BARRED AND MERITLESS. Wallace s most recent motion for post-conviction relief was filed more than six years after pleading guilty to robbery as a habitual offender. The 2014 motion for post-conviction relief also follows a 2011 order denying post-conviction relief which is a final judgement that is conclusive as it has not been reversed. Accordingly, Wallace s 2014 motion was properly dismissed as both time barred and successive writ barred. Miss. Code Ann (2); (6). Further, as this Court has already found that Wallace was properly sentenced as a habitual offender, his current claim 2

6 challenging the habitual offender portion of his sentence is also barred by the doctrine of res judicata. Miss. Code Ann (3). In addition to being procedurally barred, Wallace s claim is without merit. He suggests that his sentence is illegal because the order granting the State s motion to amend the indictment to include habitual offender status was granted the day after he entered a guilty plea. However, the trial court correctly found that the motion to amend the indictment was filed a week prior to the plea hearing, and the order was entered on the day of the plea. It was, however, filed the next day. C.P This Court rejected a similar claim in Whitfield v. State, 105 So. 3d 385 (Miss. Ct. App. 2012). In Whitfield, the State moved to amend the indictment to charge Whitfield as a habitual offender on the morning of the plea hearing. Id. at 386 ( 3). The trial court accepted the guilty plea, and the order granting the State s motion to amend was not entered until nearly a month later at the sentencing hearing. Id. at 387 ( 5-6). This Court found that no error resulted from the timing of the amendment because Whitfield was not unfairly surprised and he knowingly entered his plea as a habitual offender. Id. at ( 15). The guilty plea transcript was not made part of the record in the present case. This Court, however, may take judicial notice of its own appellate records. The transcript of the plea hearing was made part of the record in Wallace s prior appeal. The plea hearing transcript shows that the State stated on the record that the motion to amend had been filed a week prior to the hearing and that defense counsel had been apprised of the same. T. 5. Wallace also acknowledged on the record that he understood that the State was recommending a sentence of twelve years without parole as a 3

7 2 habitual offender. T. 8. The trial court actually expressed reservation about sentencing Wallace to less than the statutory maximum if he was to plead as a habitual offender. T Further, the trial court advised Wallace on the record that he did not have a whole lot to lose by going to trial on this charge because if found guilty at a jury trial, he could receive a maximum sentence of fifteen years. T Wallace acknowledged that he understood the State s recommendation. T. 8. Under the authority of Whitfield, the timing of the order amending the indictment is not error because Wallace was not unfairly surprised (the motion to amend had been filed a week prior) and he knowingly entered his plea as a habitual offender. See also Boyd v. State, 113 So. 3d 1252, 1256 (Miss. 2013) ( We find that adequate notice is achieved through formal pleadings which include the specific amendment to be offered and which are filed sufficiently in advance of trial to ensure that a defendant will have a fair opportunity to present a defense and will not be unfairly surprised. ) CONCLUSION For the foregoing reasons, the trial court properly denied Wallace s motion for postconviction relief. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ La Donna C. Holland LA DONNA HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO This fact was also referenced by this Court in it s Opinion previously affirming the trial court s first denial of post-conviction relief. Wallace, 88 So.3d at 792 ( 12). 4

8 CERTIFICATE OF SERVICE I, LA DONNA C. HOLLAND, 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 26th day of February, Honorable John C. Gargiulo Circuit Court Judge P.O. Box 1461 Gulfport, MS Honorable Joel Smith District Attorney P.O. Drawer 1180 Gulfport, MS Roy Dale Wallace, Pro Se, # W.G.C.F. 3-Delta, 5312 P.O. Box 389 Walnut Grove, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ La Donna C. Holland LA DONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL 5