Charles Douglas Owens, II v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01601-COA
CHARLES DOUGLAS OWENS, II
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
8/11/2008
HON. LISA P. DODSON
HARRISON COUNTY CIRCUIT COURT
CHARLES DOUGLAS OWENS, II (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 9/15/2009
BEFORE MYERS, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
In the Circuit Court of Harrison County, Charles Douglas Owens, II pleaded guilty
and was sentenced to thirty years for armed robbery and ten years for aggravated assault,
with the sentences to run consecutively for a total of forty years in the custody of the
Mississippi Department of Corrections (MDOC). After filing an unsuccessful motion for
post-conviction relief with the trial court on February 2, 2006, and while the appeal from that
decision was pending before this Court, Owens filed a motion for clarification of sentence,
which the circuit court subsequently denied as time-barred, treating it as a motion for postconviction relief. By separate order, the circuit court also denied Owens’s three post-trial
motions which were filed prior to his February 2, 2006, motion for post-conviction relief.
Owens now appeals the circuit court’s denial of his four motions. Finding no error, we
affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
The detailed factual history regarding the background of Owens’s arrest and
conviction has already been discussed in our opinion affirming the denial of Owens’s
February 2, 2006, motion for post-conviction relief. See Owens v. State, 996 So. 2d 85
(Miss. Ct. App. 2008). We will not repeat that discussion except as necessary. On February
4, 2003, Owens pleaded guilty to armed robbery and aggravated assault. He was sentenced
on March 17, 2003, to thirty years for armed robbery and ten years for aggravated assault,
with the sentences to run consecutively, for a total of forty years in the custody of the
MDOC.
¶3.
On March 20, 2003, Owens filed a pro se motion for reconsideration. A week later,
Owens’s attorney-of-record filed a “Motion for Reconsideration, or in the Alternative to
Withdraw Plea.” On April 14, 2003, Owens filed a pro se motion to withdraw his guilty plea.
Nearly three years later, on February 2, 2006, Owens’s new counsel filed a motion for postconviction relief, making three arguments: (1) there were mitigating factors which, if known,
would have decreased his sentence; (2) his plea was involuntarily given; and (3) his plea
should be withdrawn as there was an agreement between the circuit court, the State, and
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Owens as to his sentence. On January 3, 2007, the circuit court entered its order denying the
2006 motion for post-conviction relief. On June 27, 2007, while that decision was pending
on appeal, Owens filed a pro se motion for clarification of sentence stating that MDOC’s
position on his eligibility for parole contradicted the intent of the sentencing judge. In
affirming the denial of Owens’s 2006 motion for post-conviction relief, we noted that there
was no indication that Owens’s three 2003 post-trial motions, which were included in the
record, had been ruled upon. See Owens, 996 So. 2d at 89 (¶13). Owens thereafter
reasserted those motions via a petition for writ of mandamus seeking to compel the circuit
court to take action on his 2003 motions. On August 11, 2008, the circuit court issued two
separate orders denying Owens’s various motions. One order (Order No. 1) dealt with
Owens’s three post-trial motions filed in 2003. In that order, the judge stated that: (1) the
motions had never been set for hearing; (2) the order denying Owens’s first motion for postconviction relief addressed the issues set forth in the post-trial motions; and (3) the motions
were without merit. The second order (Order No. 2) stated that Owens’s June 27, 2007,
motion for clarification of his sentence was time-barred as it was filed more than three years
after Owens’s judgment of conviction. Based upon the entry of the orders by the circuit
court, the Mississippi Supreme Court dismissed the petition for writ of mandamus as moot
on August 15, 2008. Owens filed a “Traverse,” requesting a vacation of the circuit court’s
orders, which was subsequently denied by the Mississippi Supreme Court on September 10,
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2008.1 Owens’s notice of appeal was filed on September 12, 2008.
JURISDICTION
¶4.
First, we must determine whether Owens’s notice of appeal was filed timely in order
to confer jurisdiction on this Court. Owens’s notice of appeal was filed on September 12,
2008, thirty-one days after the entry of the circuit court judge’s orders. Rule 4(a) of the
Mississippi Rules of Appellate Procedure states 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.” Therefore, Owens’s notice of appeal was filed one day
late, which would normally bar review of the appeal by this Court. However, since Owens’s
motion for post-conviction relief was pro se and the notice of appeal was filed while he was
incarcerated, the “prison mailbox rule” applies. Craft v. State, 966 So. 2d 856, 858 (¶10)
(Miss. Ct. App. 2007) (citing Sykes v. State, 757 So. 2d 997, 1000-01 (¶14) (Miss. 2000)).
“Under the prison mailbox rule, a pro se prisoner’s notice of appeal is effectively filed under
Rule 4 when the prisoner delivers his notice of appeal to the proper prison authorities for
mailing.” Carroll v. State, 3 So. 3d 767, 769 (¶5) (Miss. Ct. App. 2008) (citation omitted).
¶5.
There is nothing in the record to indicate when Owens delivered his notice of appeal
to prison authorities. When the State moves for dismissal on the issue of timeliness, it has
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Owens thereafter filed a motion for appointment of appellate counsel on October
28, 2008, which this Court denied on November 4, 2008. Then, Owens filed a “Motion for
Reconsideration of Order Denying Appointment of Counsel for the Appellant” on November
13, 2008. This Court denied that motion on November 18, 2008. A “Petition for Writ of
Mandamus” was filed on December 18, 2008, requesting appointment of counsel, which this
Court also denied.
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the burden of proof. Melton v. State, 930 So. 2d 452, 455 (¶8) (Miss. Ct. App. 2006)
(citation omitted). The State, however, has not challenged the timeliness of Owens’s appeal.
This Court has found that where the petitioner’s notice of appeal from his denial of his
motion for post-conviction relief “is stamped filed within a reasonable time after the
expiration of the time allowed by Mississippi Rule of Appellate Procedure 4(a)[,] a rebuttable
presumption exists that it was timely filed.” Lewis v. State, 988 So. 2d 942, 944 (¶5) (Miss.
Ct. App. 2008) (citing Jewell v. State, 946 So. 2d 810, 813 (¶9) (Miss. Ct. App. 2006)). In
order for the State to rebut this presumption, it would have to present proof, such as “a
‘prison mail log of legal mail,’ or some similarly reliable documentation . . . [such as] a selfauthenticating certificate from the records custodian pursuant to Mississippi Rules of
Evidence 803(10), 902(4), or 902(11).” Id. The State has failed to include such evidence in
the record.
¶6.
Therefore, as the notice of appeal was filed only one day after the thirty-day deadline,
there exists a strong presumption that Owens met the requirements of Rule 4(a).
Accordingly, we find that we have jurisdiction to consider Owens’s appeal.
STANDARD OF REVIEW
¶7.
This Court “will not disturb a lower court’s denial of a petition for post-conviction
relief unless it is clearly erroneous.” Long v. State, 982 So. 2d 1042, 1043 (¶5) (Miss. Ct.
App. 2008) (citing Smith v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002)).
“However, when questions of law are raised, the standard of review is de novo.” Id. (citing
Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).
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¶8.
“This Court reviews the terms of a sentence under an abuse of discretion standard.”
Vardaman v. State, 966 So. 2d 885, 891 (¶28) (Miss. Ct. App. 2007). The circuit court judge
has “complete discretion” in sentencing. Id. Unless the sentence is grossly disproportionate
or not within the statutory limits, we will not disturb the sentence on appeal. Hull v. State,
983 So. 2d 331, 335 (¶21) (Miss. Ct. App. 2007) (citing Campbell v. State, 743 So. 2d 1050,
1054 (¶13) (Miss. Ct. App. 1999)).
I.
¶9.
WHETHER THE CIRCUIT COURT ERRED IN DENYING
OWENS’S 2003 POST-TRIAL MOTIONS.
Owens argues that the circuit court erred in Order No. 1 by denying his two motions
for reconsideration and his motion to withdraw his guilty plea. As we find that the two
March 2003 motions for reconsideration and the April 2003 motion to withdraw guilty plea
are procedurally distinct, we will address them separately.
A.
¶10.
Motions for Reconsideration
The circuit court judge stated in Order No. 1 that, as Owens failed to pursue a hearing
on these two post-trial motions and there was no order carrying these motions from term to
term, it appeared that Owens waived the motions and the circuit court’s jurisdiction to
consider them was “questionable.” We agree in part. The circuit court has jurisdiction to
consider a motion regarding sentencing if “it is made within the term of court, the motion is
pending at the end of the term under [Mississippi Code Annotated] section 11-1-16 [(Rev.
2002)], or the trial court retains jurisdiction pursuant to [Mississippi Code Annotated] section
47-7-47 [(Rev. 2004)].” Ducote v. State, 970 So. 2d 1309, 1313 (¶8) (Miss. Ct. App. 2007).
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In this case, the court did not retain jurisdiction pursuant to section 47-7-47. Additionally,
the term of court ended on March 21, 2003;2 therefore, Owens’s March 20, 2003, motion for
reconsideration was filed before the term of court ended, but his March 27, 2003, motion was
not. As such, the circuit court had jurisdiction to consider only Owens’s first motion for
reconsideration; Owens’s March 27, 2003, motion for reconsideration was filed untimely,
as the term of court had already expired. Accordingly, the circuit court was without
jurisdiction to consider that motion.
¶11.
In Order No. 1, the circuit court judge submitted that the issues in Owens’s two
motions for reconsideration had been addressed in Owens’s 2006 motion for post-conviction
relief; therefore, these issues had been ruled upon. We disagree. Although the post-trial
motions for reconsideration and the 2006 motion for post-conviction relief both dealt with
sentencing issues, the issues were, in fact, different. Owens’s March 20, 2003, pro se motion
for reconsideration claimed that his sentence was unreasonable due to the mitigating
circumstances and the fact that he was “a likely candidate for successful rehabilitation in the
custody of MDOC” due to his age. His March 27, 2003, motion for reconsideration of the
sentence or, in the alternative, a motion to withdraw plea contended that Owens’s sentence
was grossly disproportionate. We find that these issues were not specifically addressed in
Owens’s 2006 post-conviction relief motion. However, as we have found no jurisdiction as
to Owens’s March 27, 2003, motion, we do not address the circuit court’s findings on this
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State of Mississippi Judiciary and Court Calendar (2003).
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motion.3 Therefore, we turn now to the circuit court’s review of Owens’s claim in his March
20, 2003, motion to reconsider.
¶12.
Owens argues that his sentence was unreasonable due to his young age and the fact
that he was a good candidate for rehabilitation. However, he does not contend that his
sentence was outside the permissible sentencing range. “[S]entencing is within the sound
discretion of the trial court[.]” Attaberry v. State, 11 So. 3d 166, 171 (¶12) (Miss. Ct. App.
2009) (citation omitted). Although he noted the State’s recommendation of twenty-five
years, the judge found that “in his experience the acts in this case cry out for the upper limits.
. . of this sentence.” The record reflects that the sentencing judge gave great consideration
to numerous factors in his determination of the sentence, including the violent nature of the
crime and the severe, near-fatal injuries that the victim sustained. Accordingly, as Owens’s
sentence was well within the statutory sentencing limits and thoroughly considered by the
court, we find no error by the sentencing court in imposing the sentence and affirm.
B.
¶13.
Motion to Withdraw Guilty Plea
The circuit court found that, as Owens’s April 2003 motion to withdraw his guilty plea
was not filed within ten days after Owens’s sentencing, it lacked jurisdiction as the motion
was not properly before it as a post-trial motion. See URCCC 10.05. Yet, we find that the
3
This motion was also alternatively styled as a motion to withdraw Owens’s plea.
In Ducote, we found that this alternative styling of the motion to be a motion for postconviction relief. Ducote, 970 So. 2d at 1315 (¶13). However, unlike Ducote, Owens never
provided the circuit court with a substantive argument for the withdrawal of his plea.
Therefore, we do not find this claim to be a motion for post-conviction relief.
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April 2003 motion was technically Owens’s first motion for post-conviction relief. We
cannot dismiss it as a “subsequent” motion for post-conviction relief as it was filed prior to
Owens’s 2006 motion for post-conviction relief ruled upon by the circuit court. Accordingly,
we find that the circuit court, out of an abundance of caution, correctly reviewed the merits
of Owens’s April 2003 motion.
¶14.
Owens alleges that there were mitigating factors that his counsel failed to present to
the court and that this failure constituted ineffective assistance of counsel. In order to
succeed on “a claim for ineffective assistance of counsel, the defendant must prove that his
counsel’s performance was deficient, and the deficient performance prejudiced his defense.”
Hunt v. State, 11 So. 3d 764, 768 (¶12) (Miss. Ct. App. 2009) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). Therefore, Owens must demonstrate “that there is
a reasonable probability that but for his counsel’s alleged errors, he would not have entered
a guilty plea, would have gone to trial, and the result would have been different.” Id. We
agree with the circuit court’s finding that Owens’s argument is not supported by the record.
Owens was given an opportunity to present mitigating information to the sentencing court.
Additionally, several witnesses testified on Owens’s behalf at the sentencing hearing.
However, Owens has not provided any new mitigating evidence not available to him at the
hearing, nor has Owens demonstrated that a different result would have occurred had he
presented such evidence. Thus, we find that Owens has not established that his counsel’s
performance was deficient or that his defense was prejudiced by his counsel’s actions.
¶15.
In the motion, Owens also seeks that the victim be present in court so that he may
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rebut the “true impact of the offense.” There is no requirement that the victim be present at
the defendant’s guilty plea hearing, and Owens makes no argument as to how the victim’s
presence would have altered his sentence in any way. We find that this claim is also without
merit.
¶16.
Accordingly, we find no error in the circuit court’s issuance of Order No. 1.
II.
¶17.
WHETHER THE CIRCUIT COURT ERRED IN DENYING
OWENS’S MOTION FOR CLARIFICATION OF SENTENCE.
In his 2007 motion for clarification of his sentence, Owens claims that the sentencing
court’s “expectation” was that Owens was eligible for probation after ten years and that the
State confirmed that belief at the hearing. In Order No. 2, the circuit court judge dismissed
Owens’s motion as time-barred since the motion was filed on June 27, 2007, more than four
years after he was sentenced. In cases where a defendant pleads guilty, the motion for postconviction relief “must be filed within three years after entry of judgment of conviction.”
Dyson v. State, 996 So. 2d 172, 173 (¶4) (Miss. Ct. App. 2008) (citing Miss. Code Ann. § 9939-5(2) (Rev. 2007)). We agree with the circuit court’s finding that the motion was timebarred.
¶18.
Additionally, Owens’s motion for clarification of his sentence would be, in effect, his
third motion for post-conviction relief. Therefore, it is also procedurally barred as a
successive writ. Mississippi Code Annotated section 99-39-23(6) (Supp. 2008) provides that
an order dismissing a petitioner’s motion “or otherwise denying relief under this article is a
final judgment and . . . . shall be a bar to a second or successive motion under this article.”
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Miss. Code Ann. § 99-39-23(6). New issues not raised in a petitioner’s initial motion for
post-conviction relief are barred as a successive writ. Henry v. State, 999 So. 2d 867, 872
(¶15) (Miss. Ct. App. 2008). Exceptions to this bar are cases where “an intervening decision
of the United States Supreme Court or the Mississippi Supreme Court” adversely affects the
outcome of the prisoner’s conviction or sentence, or where new evidence, not reasonably
discoverable at trial, “has surfaced which . . . would have caused a different result in the
conviction or sentence.” Riggs v. State, 967 So. 2d 650, 652 (¶7) (Miss. Ct. App. 2007).
A third “exception requires the prisoner to show that either his sentence has expired or his
parole, probation or conditional release has been unlawfully revoked.” Bowie v. State, 949
So. 2d 60, 62 (¶6) (Miss. Ct. App. 2006) (citing Miss. Code Ann. § 99-39-23(6)). Therefore,
a successive writ is only allowed under section 99-39-23(6) “if the argument presented within
the writ falls under one of the exceptions and has not been previously argued and a decision
rendered on the merits by the trial court.” Lyons v. State, 990 So. 2d 262, 265 (¶13) (Miss.
Ct. App. 2008) (quoting Retherford v. State, 749 So. 2d 269, 273-74 (¶9) (Miss. Ct. App.
1999)).
¶19.
“The burden of proving that no procedural bar exists falls squarely on the petitioner.”
Crawford v. State, 867 So. 2d 196, 202 (¶7) (Miss. 2003) (citing Lockett v. State, 614 So. 2d
888, 893 (Miss. 1992)). Owens has not demonstrated to this Court that his claims fall within
any of the statutory exceptions to section 99-39-23(6). In fact, in his March 20, 2003, pro
se motion for reconsideration, Owens recognized that: “The Defendant’s sentence . . . will
require the Defendant to serve 100% of the same without eligibility for parole or early release
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because Mississippi law prohibits the eligibility of an individual convicted of armed robbery
for parole and/or ERS.” Accordingly, Owens knew from an early date that he was not
eligible for parole. Having failed to include the issue in his earlier motion for postconviction relief, Owens is procedurally barred from doing so now.
¶20. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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