Steven Lamont Crosby v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01950-COA
STEVEN LAMONT CROSBY A/K/A STEVE
SALTER
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
4/24/2007
HON. WINSTON L. KIDD
HINDS COUNTY CIRCUIT COURT
STEVEN LAMONT CROSBY (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL – POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED – 8/18/2009
BEFORE KING, C.J., BARNES AND ISHEE, JJ.
BARNES, J., FOR THE COURT:
¶1.
This matter is before the Court on appeal from an order of the Circuit Court of Hinds
County dismissing Steven Lamont Crosby’s motion for post-conviction relief. Finding that
Crosby’s motion is time-barred, we affirm the circuit court’s judgment.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
Crosby was indicted for aggravated assault on May 22, 1995. Although initially
pleading “not guilty,” Crosby later withdrew that plea and pleaded guilty to the charge. On
October 9, 1995, an amended judgment of conviction and sentence was entered convicting
Crosby and sentencing him to serve five years in the custody of the Mississippi Department
of Corrections (MDOC), with the remainder of the sentence, except the seventy-three days
already served, to be suspended conditioned upon future good behavior and compliance with
the terms of probation.1 Therefore, Crosby was immediately released from custody to serve
his probationary term.
¶3.
On March 3, 1997, Crosby shot and killed Larry Wallace during an argument. Crosby
was arrested in California on June 1, 1997, on a fugitive warrant, and was extradited to
Mississippi. He was indicted for murder on December 9, 1997. Crosby pleaded “not guilty”
at his arraignment hearing. The trial was originally set for May 1998; however, continuances
were granted which delayed the trial.2 On December 15, 1999, Crosby withdrew his previous
“not guilty” plea and pleaded guilty to manslaughter. Crosby was sentenced to two years and
five months in the custody of the MDOC, with three years of post-release supervision, to run
concurrently with his previous sentence. Crosby received credit for time served and was
immediately released.3 A petition for termination of probation on Crosby’s manslaughter
1
The original judgment, filed on September 25, 1995, erroneously stated that the last
four years, six months, and fifteen days were to be stayed and suspended.
2
A continuance was granted on May 6, 1998, to allow defense counsel more time for
investigation and negotiation, and to have a mental evaluation performed on Crosby. The
court also granted a continuance on August 24, 1999, due to a scheduling conflict within the
court. Finally, on October 5, 1999, the court granted a continuance to allow defense counsel
more time to prepare for trial.
3
Crosby’s probation for his aggravated assault conviction was revoked on April 25,
2000, for failure to report to his field officer and his failure to pay court costs and fees as
ordered by the court; he was remanded into custody.
2
charge was filed by the MDOC on August 28, 2000. Crosby is now serving a life sentence
as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83.4 The
identity of Crosby’s other crimes are not contained in the record before this Court. However,
Crosby’s motion informs us that the manslaughter charge was used as the enhancement to
his life sentence; hence, his desire to overturn the manslaughter conviction.
¶4.
On May 23, 2006, Crosby filed a motion for post-conviction relief with the circuit
court. The court dismissed the motion on April 24, 2007, on the basis that it was timebarred.5 It is from this dismissal that Crosby now appeals.
STANDARD OF REVIEW
¶5.
A trial court’s dismissal of a motion for post-conviction relief is reviewed by this
Court under an abuse of discretion standard and will only be disturbed in cases “where the
trial court’s decision was clearly erroneous.” Moore v. State, 985 So. 2d 365, 368 (¶9) (Miss.
Ct. App. 2008) (citation omitted). The appropriate standard of review for questions of law,
however, is de novo. Id.
4
Mississippi Code Annotated section 99-19-83 (Rev. 2007) states that:
Every person convicted in this state of a felony who shall have been convicted
twice previously of any felony or federal crime upon charges separately
brought and arising out of separate incidents at different times and who shall
have been sentenced to and served separate terms of one (1) year or more in
any state and/or federal penal institution, whether in this state or elsewhere,
and where any one (1) of such felonies shall have been a crime of violence
shall be sentenced to life imprisonment, and such sentence shall not be
reduced or suspended nor shall such person be eligible for parole or probation.
5
Crosby filed a petition for writ of mandamus with the Mississippi Supreme Court
on November 29, 2006, which sought to compel the circuit court to rule on his motion for
post-conviction relief. On May 1, 2007, the supreme court dismissed Crosby’s petition as
moot as the order had already been entered by the circuit court.
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I.
¶6.
Whether the circuit court erred in dismissing Crosby’s motion for
post-conviction relief as time-barred.
In cases where a defendant pleads guilty, “a motion for post-conviction relief must be
made within three years after the entry of the judgment of conviction.” Campbell v. State,
993 So. 2d 413, 415 (¶6) (Miss. Ct. App. 2008) (citing Miss. Code Ann. § 99-39-5(2) (Rev.
2000)). Crosby pleaded guilty to manslaughter on December 15, 1999. Therefore, any
motion for post-conviction relief had to be filed no later than December 16, 2002. Crosby’s
motion was not filed until May 2006; therefore, on its face, the motion was untimely and
barred from review.
¶7.
However, if a defendant’s claim in his motion for post-conviction relief falls within
one of the statutory exceptions, it may survive the time bar. Smith v. State, 964 So. 2d 1215,
1217 (¶9) (Miss. Ct. App. 2007) (citing Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996)). The
exceptions are:
(1) cases where the Supreme Court of Mississippi or the United States has
rendered an intervening decision that would actually adversely affect the
outcome of the conviction or sentence, (2) cases where the defendant presents
evidence, not reasonably discoverable at the time of trial, that would have been
practically conclusive at trial to cause a different result in the conviction or
sentence, and (3) cases where the defendant’s sentence has expired, or his
probation, parole or conditional release has been unlawfully revoked.
Id. (citing Miss. Code Ann. § 99-39-5(2)). Crosby asserts the following assignments of
error: (1) his indictment for murder was facially and fatally defective; (2) his sentence for the
manslaughter conviction, which ran concurrently with his previous sentence, violated
Mississippi Code Annotated section 99-19-21 (Rev. 2007); (3) that his constitutional right
to a speedy trial was violated; and (4) that he was denied effective assistance of counsel. A
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claim “alleging a defective indictment [is] barred when a motion for post-conviction relief
is not filed within the three-year time limitation.” Barnes v. State, 949 So. 2d 879, 881 (¶8)
(Miss. Ct. App. 2007). It is also well established that “a guilty plea waives the right to a
speedy trial, whether that right is of constitutional or statutory origin.” Hardin v. State, 966
So. 2d 844, 847 (¶11) (Miss. Ct. App. 2007) (citing Rowe v. State, 735 So. 2d 399, 400 (¶3)
(Miss. 1999)). Therefore, we find that Crosby’s claims regarding his indictment and his right
to a speedy trial are statutorily barred.
¶8.
Regarding Crosby’s argument of ineffective assistance of counsel, “the Mississippi
Supreme Court has consistently held that the time bar of Mississippi Code Annotated section
99-39-5(2) applies to . . . post-conviction relief claims based on ineffective assistance of
counsel.” Chancy v. State, 938 So. 2d 267, 270 (¶11) (Miss. Ct. App. 2005). This Court has
held that:
[While] it is conceivable that under the facts of a particular case, this Court
might find that a lawyer’s performance was so deficient, and so prejudicial to
the defendant that the defendant’s fundamental constitutional rights were
violated . . . [we have] never held that merely raising a claim of ineffective
assistance of counsel is sufficient to surmount the procedural bar.
McBride v. State, 914 So. 2d 260, 264 (¶12) (Miss. Ct. App. 2005) (quoting Bevill, 669 So.
2d at 17). In order to make a successful claim of ineffective assistance of counsel, “a
defendant must prove that his counsel’s performance was deficient, and that the deficiency
prejudiced his defense.” Thomas v. State, 933 So. 2d 995, 997 (¶6) (Miss. Ct. App. 2006)
(citing Strickland v. Washington, 466 U.S. 668, 688 (1984)).
¶9.
Crosby specifically alleges that defense counsel failed to obtain a mental evaluation
of Crosby, knowing that he was not mentally competent to sign his petition to enter a guilty
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plea. Although an order for continuance in the record reflects that defense counsel intended
to obtain a mental evaluation of Crosby, no further information is contained in the record as
to whether that evaluation was ever conducted. There exists a “strong presumption that the
attorney’s conduct falls within the wide range of reasonable professional conduct and . . .
. that all decisions made during the course of trial were strategic.” Jones v. State, 970 So. 2d
1316, 1318 (¶6) (Miss. Ct. App. 2007) (citations omitted). Crosby has failed to provide any
evidence to support his claim other than his assertions in the motion. “It is the responsibility
of the appellant to insure the availability of an appellate record sufficient to support his
claims.” Griffis v. State, 797 So. 2d 299, 302-03 (¶6) (Miss. Ct. App. 2001) (citing Smith v.
State, 572 So. 2d 847, 849 (Miss. 1990)). Additionally, paragraph seven of Crosby’s petition
to enter a guilty plea asserted that he was not “suffering from any mental disease” and that
he fully understood all the matters set forth in his indictment and petition. Crosby’s other
claims of ineffective assistance concern defense counsel’s alleged conspiracy with the State
against Crosby. However, these allegations only refer to counsel’s negotiations with the
State in order that Crosby would receive a more lenient conviction and sentence. Therefore,
we find that Crosby has stated no deprivation of a fundamental right as a result of defense
counsel’s plea negotiations and that his assertion of ineffective assistance of counsel is
statutorily barred from review.
¶10.
However, Crosby’s claims regarding his alleged illegal sentence may be considered
an exception to the statutory bar. “[T]he supreme court has carved out an exception to
procedural bars when necessary to protect a fundamental right such as the right to a legal
sentence.” Campbell, 993 So. 2d at 415 (¶6) (citations omitted). Consequently, a petition
6
for post-conviction relief which alleges an illegal sentence is exempt from a time bar. Id. at
416 (¶6) (citing Jackson v. State, 965 So. 2d 686, 690 (¶11) (Miss. 2007)). However, merely
asserting “a constitutional right violation is not sufficient to overcome the time bar.” Stovall
v. State, 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004). “There must at least appear to
be some basis for the truth of the claim before the limitation period will be waived.” Id.
Therefore, we must review the merit of the issue in order to determine whether Crosby’s
illegal sentence claim survives the statutory time limitation.
II.
¶11.
Whether Crosby’s sentence violated Mississippi Code Annotated
section 99-19-21.
Crosby argues that his sentence for his manslaughter conviction, which ran
concurrently with his previous sentence, violated Mississippi Code Annotated section 99-1921(2) (Rev. 2007) which states:
When a person is sentenced to imprisonment for a felony committed while the
person was on parole, probation, earned-released supervision, post-release
supervision or suspended sentence, the imprisonment shall commence at the
termination of the imprisonment for the preceding conviction. The term of
imprisonment for a felony committed during parole, probation, earned-release
supervision, post-release supervision or suspended sentence shall not run
concurrently with any preceding term of imprisonment. If the person is not
imprisoned in a penitentiary for the preceding conviction, he shall be placed
immediately in the custody of the Department of Corrections to serve the term
of imprisonment for the felony committed while on parole, probation, earnedrelease supervision, post-release supervision or suspended sentence.
(Emphasis added). Therefore, if “a convicted felon is sentenced for a crime he committed
while he was on supervised release for committing a previous crime, the two sentences
cannot run concurrently, they must run consecutively.” Judge v. State, 933 So. 2d 1012,
1014 (¶6) (Miss. Ct. App. 2006). The circuit judge stated in the order that Crosby’s sentence
7
for manslaughter was to run concurrently with his previous sentence for aggravated assault.
Thus, we agree with Crosby’s contention that his sentence for the manslaughter conviction
violated section 99-19-21.
¶12.
“[G]enerally, where a convicted defendant receives an illegal sentence, the sentence
must be vacated and the case remanded to the trial court for resentencing because the
defendant suffered prejudice.” Sweat v. State, 912 So. 2d 458, 461 (¶9) (Miss. 2005).
However, when a defendant receives a illegally lenient sentence, it is considered harmless
error as the defendant suffered no prejudice from the imposition of the sentence. Id. The
concurrent sentence that Crosby received did not cause him to suffer incarceration for a
period of time longer than he was legally obligated. “A convicted felon may not quietly
enjoy the benefits of an illegally lenient sentence, and later attack the sentence when
suddenly it is in his interest to do so.” Thomas v. State, 861 So. 2d 371, 374 (¶9) (Miss. Ct.
App. 2003) (quoting Pruitt v. State, 846 So. 2d 271, 274 (¶10) (Miss. Ct. App. 2002)).
Accordingly, we find that Crosby’s claim is not an exception to the statutory bar as his
sentence was illegally lenient and, therefore, did not violate a fundamental right.6
CONCLUSION
¶13.
As none of Crosby’s assertions of error fall within an exception to the three-year
statute of limitations, we find no error in the circuit court’s dismissal of Crosby’s motion for
6
While not raised by the State, we note that Crosby is not currently serving sentence
for his manslaughter conviction. This is an additional reason to bar Crosby’s complaint as
he lacks standing to bring his motion. See Wilson v. State, 990 So. 2d 828, 830 (¶6) (Miss.
Ct. App. 2008) (for a prisoner to have standing to bring a motion for post-conviction relief,
he must be serving time under the sentence complained of in his motion).
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post-conviction relief.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO HINDS COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
9
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