Joe Louis Amerson, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-00389-COA
JOE LOUIS AMERSON, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
02/12/2009
HON. LESTER F. WILLIAMSON JR.
LAUDERDALE COUNTY CIRCUIT COURT
JOE LOUIS AMERSON JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED – 02/16/2010
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
IRVING, J., FOR THE COURT:
¶1.
Joe Louis Amerson Jr., pro se, appeals the denial of his motion for post-conviction
relief (PCR). Amerson asserts that the Circuit Court of Lauderdale County erred in finding
his allegation of an illegal sentence to be time-barred pursuant to Mississippi Code Annotated
section 99-39-5(2) (Supp. 2009). Finding that Amerson untimely filed his PCR motion, we
affirm the judgment of the circuit court.
STATEMENT OF THE CASE
¶2.
On August 6, 2004, Amerson pleaded guilty to robbery and was sentenced to fifteen
years’ imprisonment as a habitual offender. Amerson had two prior felony convictions and
sentences of over one year’s imprisonment in Mississippi and five such prior convictions and
sentences in Florida. In addition to the robbery count to which Amerson pleaded guilty, he
was also charged with three additional counts of robbery, as well as one count of armed
robbery. As a result of his guilty plea to the single count of robbery, the State agreed to
dismiss the three additional robbery counts, as well as the one armed robbery count.
¶3.
On January 16, 2009, Amerson filed a PCR motion in the Lauderdale County Circuit
Court. In his PCR motion, Amerson alleged that one of his previous felony convictions in
Mississippi had occurred in 1975, which was two years prior to the effective date of
Mississippi Code Annotated section 99-19-81 (Rev. 2007) (one of two habitual-offender
statutes), which mandates enhanced sentencing for a person convicted of a third felony.1
Amerson contended that reliance on the 1975 conviction as a prior offense for habitualoffender status constituted an illegal, ex post facto, sentence. Additionally, Amerson
contended that his plea was involuntary because: (1) he was not informed that the sentence
violated the prohibition against ex post facto laws, (2) he was not informed that the State had
failed to prove that he had an underlying felony involving a crime of violence, and (3) he
was threatened with a sentence of life imprisonment and was given no choice but to plead
1
This section mandates that the sentence shall be the maximum term of imprisonment
prescribed for such felony and requires that the two previous felony convictions must have
emanated from charges separately brought and arising out of separate incidents at different
times and resulting in separate sentences of one year or more in any state and/or federal
penal institution. Mississippi’s other habitual-offender statute, Mississippi Code Annotated
section 99-19-83 (Rev. 2007), provides that a person convicted of a third felony shall be
sentenced to life imprisonment if one of the two prior felony convictions was for a crime of
violence.
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guilty.2 Amerson contended that because his sentence was illegal, his PCR claim implicated
a fundamental constitutional right, exempting it from the three-year time bar of Mississippi
Code Annotated section 99-39-5(2).
¶4.
The circuit court found that Amerson’s PCR motion was untimely, as well as without
merit. The circuit court noted that nothing evidenced that the Mississippi Legislature
intended that convictions entered prior to the enactment of our habitual-offender statutes
should not be considered as previous convictions for habitual-offender status. The circuit
court also noted that Amerson had five previous convictions in Florida which post-dated the
enactment of our habitual-offender statutes, one of which was for robbery with a deadly
weapon. The circuit court further noted that the plea colloquy left no doubt that Amerson’s
plea was knowingly and intelligently made.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶5.
Amerson contends that his PCR motion is not time-barred because the sentence given
to him is illegal, thus implicating a fundamental right. Our supreme court has found that an
illegal sentence may implicate a fundamental right and that a claim implicating a
fundamental right may be excepted from the three-year time bar of section 99-39-5. Sneed
v. State, 722 So. 2d 1255, 1257 (¶11) (Miss. 1998). However, “the mere assertion of a
constitutional violation is not sufficient to overcome the time bar. There must at least appear
to be some basis for the truth of the claim before the limitation period will be waived.”
2
He described his predicament as a “do or die” situation.
3
Cochran v. State, 969 So. 2d 119, 121 (¶4) (Miss. Ct. App. 2007) (quoting Stovall v. State,
873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004)).
¶6.
In this case, the record shows that, in 1980, Amerson was convicted of armed robbery
and, in 1975, of jail escape, with both convictions having occurred in the Lauderdale County
Circuit Court. Amerson contends that the 1975 conviction could not serve as a previous
felony conviction for habitual-offender status, because the conviction predated the effective
date of Mississippi’s habitual-offender statute. Section 99-19-81 became effective on
January 1, 1977. A plain reading of this law does not require underlying felony convictions
to have occurred after the statute’s effective date. Moreover, Amerson fails to site any legal
authority for this proposition. “When a party on appeal assigns an error without any citation
to authority, [appellate courts] will deem this failure to cite any authority as a procedural
bar.” Givens v. State, 967 So. 2d 1, 8 (¶20) (Miss. 2007) (citing Turner v. State, 721 So. 2d
642, 649 (¶27) (Miss. 1998)). Therefore, Amerson’s failure to cite legal authority is reason
alone to find no merit to his contentions. However, even if this Court were to consider
whether Amerson asserted a colorable claim that his 1975 conviction of jail escape should
not be considered in determining his habitual-offender status, the record shows that he had
been convicted of five felonies in Florida, four in 1988 and one 1986. Therefore, the circuit
court did not err in finding that not only is Amerson’s claim of an illegal sentence timebarred, but also that Amerson was correctly indicted as a habitual offender and subject to the
provisions of section 99-19-81.
¶7.
Amerson contends that his sentence is illegal because his plea was entered
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unknowingly and involuntarily. Amerson again contends that because his sentence is illegal,
his PCR motion implicates a fundamental constitutional right that exempts his claim from
the three-year time bar of section 99-39-5(2). The record shows that Amerson was advised
by the circuit court that if he did not take the plea, the State could try him upon the charge
that he ultimately pleaded guilty to, as well as the other four felony charges that were
pending in Lauderdale County, and if he was convicted upon any of those charges, he would
be sentenced to life imprisonment without the possibility of parole. Amerson contemplated
his choices. The record shows that the circuit court gave him time to consult privately with
his attorney. He told the circuit court that he had considered that—because he was fortyeight years old—a fifteen-year sentence would be “almost [his] whole life,” he wished to
accept the State’s offer, as there was a possibility that he would not spend the rest of his life
in prison. There was no coercion involved in Amerson’s entry of his guilty plea. Amerson’s
claim that his guilty plea was involuntary lacks even a scintilla of merit and, therefore, cannot
be found to escape the three-year time bar. See, e.g., Cochran, 969 So. 2d at 121 (¶4).
¶8.
Amerson’s contentions that his sentence is illegal are without merit; therefore, no
fundamental right can be implicated. The circuit court did not err in denying Amerson’s
PCR motion as both time-barred and without merit.
¶9.
THE JUDGMENT OF THE CIRCUIT COURT OF LAUDERDALE COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., GRIFFIS, BARNES, ISHEE, CARLTON
AND MAXWELL, JJ., CONCUR. ROBERTS, J., NOT PARTICIPATING.
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