John C. Laushaw, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-00701-COA
JOHN C. LAUSHAW, JR.
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF JUDGMENT:
04/07/2000
TRIAL JUDGE:
HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED: AMITE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
JOHN C. LAUSHAW, JR., PRO SE
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
DISTRICT ATTORNEY:
RONNIE L. HARPER
NATURE OF THE CASE:
CRIMINAL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:
POST-CONVICTION COLLATERAL RELIEF DENIED
AND PETITION DISMISSED
DISPOSITION:
AFFIRMED - 6/5/01
MOTION FOR REHEARING FILED: 6/25/2001; denied 8/7/2001
CERTIORARI FILED:
MANDATE ISSUED:
8/28/2001
BEFORE KING, P.J., PAYNE, AND MYERS, JJ.
KING, P.J., FOR THE COURT:
¶1. John C. Laushaw, Jr. (Laushaw) perfected this appeal from an order denying post-conviction collateral
relief entered by the Circuit Court of Amite County, Mississippi. On May 24, 1990, Laushaw pled guilty to
armed robbery, kidnapping, and capital murder. Laushaw was sentenced to serve a term of thirty years on
the armed robbery charge. On the kidnapping, he was sentenced to ten years to run concurrently to the
armed robbery charge. On the capital murder, Laushaw was sentenced to a term of life to run consecutively
to the armed robbery sentence.
¶2. Laushaw, pro se, filed a petition for post-conviction collateral relief in April 1993. He filed an amended
petition for post-conviction collateral relief in November 1999. Both petitions were dismissed by the trial
court. On appeal, Laushaw raises the following issues:
I. Whether the trial court erred in denying Laushaw's petition for post-conviction collateral
relief as barred by the statute of limitations?
II. Whether the trial court erred by denying Laushaw's amended motion for post-conviction
collateral relief?
FACTS
¶3. On October 16, 1989, Laushaw was indicted for capital murder, armed robbery, and kidnapping.
Laushaw was represented by Alvin Binder and Randall Harris on the capital murder charge. On the armed
robbery and kidnapping charges, Laushaw was represented by Samuel Tumey. Initially, Laushaw entered
pleas of not guilty during arraignment on the respective charges.
¶4. On May 24, 1990, in open court, Laushaw withdrew his previously entered not guilty pleas, and
entered pleas of guilty on all charges. During the hearings on Laushaw's petitions to enter guilty pleas, the
trial judge questioned Laushaw extensively to determine whether his pleas to the charges of armed robbery
and kidnapping were knowingly and voluntarily made. The charges were read, and Laushaw testified that he
understood the nature of the charges and stated that he was in fact guilty of the crimes.
¶5. The trial judge also questioned Laushaw to determine if his attorney had advised him of the maximum
and minimum penalties allowable for each charge. Laushaw acknowledged that his attorney had advised
him of the penalties in each case. The trial judge informed Laushaw that the guilty pleas would waive his
right to a jury trial and other constitutional rights including the right to have a trial and to testify on his own
behalf, or not to testify, as he chose. Laushaw acknowledged that he understood his rights and affirmed his
pleas of guilty.
¶6. Upon inquiry by the court, the State recommended that Laushaw be sentenced on the armed robbery
charge to thirty years in the custody of the Mississippi State Department of Corrections. The State also
recommended that Laushaw be sentenced on the kidnapping charge to ten years in the custody of the
Mississippi Department of Corrections. The court accepted the recommendations of the State, and allowed
those sentences to run concurrently.
¶7. Likewise, Laushaw entered a guilty plea to the capital murder charge. The trial judge questioned
Laushaw again to determine whether his plea to this charge was knowingly, voluntarily, and intelligently
made. In addition to some of the same questions previously asked, the trial judge questioned Laushaw
about his educational background to determine if he understood the nature of the charge. Again, Laushaw
acknowledged his understanding, and affirmed his plea of guilty. The trial judge also asked Laushaw if
anyone threatened him or intimidated him in any manner in regard to his charge. Laushaw testified that he
had not been threatened. The court accepted his plea and asked the State if it had a recommendation on
this charge. The State recommended that Laushaw be sentenced to a term of life in the custody of the
Mississippi State Department of Corrections, and further requested that the court order the life sentence to
run consecutively to the thirty year sentence imposed on the armed robbery charge. The court accepted and
imposed the State's recommendation. Laushaw petitioned the Amite County Circuit Court for postconviction relief in forma pauperis on April 27, 1993. No action was taken on this petition by either
Laushaw or the court.
¶8. In November 1999, Laushaw filed an amended petition for post-conviction collateral relief. By an order
dated August 7, 2000, the court dismissed this petition as being time barred and by order dated August 8,
2000, ruled that the petition filed in April 1993 was abandoned by Laushaw's failure to pursue the petition
or to pursue a ruling on the petition, by way of motion, mandamus or other action. The court, in its August
8, 2000 order, also stated that notwithstanding the abandonment of the previous petition, that Laushaw was
entitled to no relief on the merits of either petition. From that denial of relief, Laushaw has perfected this
appeal.
ISSUES AND ANALYSIS
I.
Whether the trial court erred in denying Laushaw's petition for post-conviction collateral
relief as barred by the statute of limitations?
¶9. Mississippi Code Annotated section 99-39-5(2) (Rev. 2000) requires that requests for post-conviction
relief be filed within three years after entry of judgment of conviction. The exceptions to this three year
limitation are: (1) cases in which the prisoner can show that there has been an intervening decision of the
Mississippi or United States Supreme Court which would adversely affect the outcome of his conviction,
(2) cases in which he has new evidence, not discoverable at trial, that would have caused a different result
in conviction or sentence, or (3) cases in which the prisoner claims his sentence has expired or his
probation, parole or conditional release has unlawfully been revoked.
¶10. The record reflects that Laushaw had indeed filed his original request for post-conviction relief within
the three year period of limitation. However, the trial court found that Laushaw had failed to timely pursue
his petition, resulting in its abandonment.
¶11. Pursuant to Berryman v. State, 734 So. 2d 292 (¶ 8) (Miss. Ct. App. 1999), a motion for postconviction relief is not a "motion" in the traditional sense, but rather is the commencement of a new civil
action. A plaintiff is entitled to notice prior to its unilateral dismissal, as motions that lapse due to inaction do
not include motions that commence post-conviction relief actions. Id.
¶12. There was no notice of any intent to act upon Laushaw's motion given by the trial court, nor was there
any notice of any action taken upon Laushaw's motion given by the trial court. Indeed, the trial court took
no steps to dismiss this action. Therefore, Laushaw's original motion of April 1993 was pending and viable,
when his amended motion for post-conviction relief was filed in November 1999. He was, accordingly,
entitled to a decision on that motion.
¶13. "When reviewing a lower court's decision to deny a petition for post-conviction relief this Court will
not disturb the trial court's factual findings unless they are found to be clearly erroneous. However, where
questions of law are raised the applicable standard of review is de novo." Pace v. State, 770 So. 2d 1052
(¶ 4) (Miss. Ct. App. 2000).
¶14. Having reviewed the record in this matter, we note that Laushaw's petition of April 1993 does not fully
satisfy the requirements of Mississippi Code Annotated section 99-39-9, which provides that motions for
post-conviction relief should contain affidavits which include facts and state how or by whom these facts will
be proven. Robertson v. State, 669 So. 2d 11, 12-13 (Miss. 1996). Laushaw's April 1993 motion for
post-conviction relief did not include an affidavit, or the names of anticipated witnesses, or the substance of
their testimony. Therefore, this Court agrees that this petition was without merit.
II.
Whether the trial court erred by denying Laushaw's amended motion for post-conviction
collateral relief?
¶15. Laushaw suggests that the trial court committed manifest injustice by denying his amended motion for
post-conviction collateral relief which was filed in November 1999.
¶16. On May 24, 1990, Laushaw entered a plea of guilty on all charges. As noted in the first issue,
Mississippi Code Annotated section 99-39-5(2) (Rev. 2000) requires that requests for post-conviction
relief from guilty pleas be filed within three years after entry of judgment of conviction. Laushaw's deadline
for timely filing under the statute was May 24, 1993. Laushaw had the right to amend his petition to clarify
those issues first raised in the 1993 petition. However, any new matters were still subject to the three year
limitation of Mississippi Code Annotated section 99-39-5(2) (Rev. 2000). The matters included in
Laushaw's 1999 petition were all new matters, filed beyond the three year period of limitation, which met
none of the exceptions of Mississippi Code Annotated section 99-39-5(2) (Rev. 2000).
¶17. Despite these discrepancies, the lower court, in considering Laushaw's amended motion for postconviction collateral relief of November 1999, reviewed the entire record consisting of the indictments,
pleas and sentencing transcripts, and other matters related to the three underlying criminal cases. The court
also considered the motion for post-conviction relief filed in April 1993. Upon consideration of all of the
above matters, the court issued a second order dated and filed on August 8, 2000, which found Laushaw's
substantive petition to be without merit and the November 1999 petition to be time barred.
¶18. Having reviewed the information in the record, this Court agrees with the lower court and also finds
that Laushaw's amended petition is time barred.
¶19. THE JUDGMENT OF THE AMITE COUNTY CIRCUIT COURT DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
AMITE COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., PAYNE, BRIDGES, THOMAS, LEE, IRVING,
MYERS AND CHANDLER, JJ., CONCUR.
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