Karl Hunt v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00493-COA
KARL HUNT
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
2/1/2008
HON. JAMES LAMAR ROBERTS, JR.
LEE COUNTY CIRCUIT COURT
KARL HUNT (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 6/16/2009
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
Karl Hunt, appearing pro se, appeals the Circuit Court of Lee County’s denial of his
motion for post-conviction relief. We find no error and affirm the circuit court’s decision.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2.
On June 5, 2007, Hunt pleaded guilty in the Lee County Circuit Court to the sale of
cocaine to two individuals in violation of Mississippi Code Annotated section 41-29-139(a)
(Rev. 2005). This case involves two causes. For cause number CR06-798, the trial court
judge sentenced Hunt to twenty years in the custody of the Mississippi Department of
Corrections (MDOC), with twelve years suspended, followed by five years of post-release
supervision and ordered him to pay court costs and a fine. For cause number CR06-799,
Hunt was sentenced to thirty years in the custody of the MDOC, with thirty years suspended,
conditioned upon his committing no other offense and his compliance with the terms of his
post-release supervision in cause number CR06-798. The sentence in CR06-799 was ordered
to run consecutively to the sentence in CR06-798.
¶3.
In January 2008, Hunt filed a timely motion for post-conviction relief in the Lee
County Circuit Court. On February 1, 2008, the trial court denied Hunt’s motion.1 His
notice of appeal, seeking review of the February 1 order, was stamped “filed” by the circuit
court clerk on March 26, 2008. On appeal, Hunt makes the same arguments as in his initial
January 2008 motion before the trial court: his indictments and capias were defective, and
he received ineffective assistance of counsel.
STANDARD OF REVIEW
¶4.
Factual findings by the trial court regarding the denial of post-conviction relief will
not be altered unless they are found to be clearly erroneous. Brown v. State, 731 So. 2d 595,
598 (¶6) (Miss. 1999). Questions of law are reviewed de novo. Id.
ANALYSIS
1.
Jurisdiction
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In March 2008, Hunt filed a second motion for post-conviction relief, which was
signed by Hunt on March 7, 2008, and filed with the trial court on March 18, 2008. The trial
court denied this second motion on March 26, 2008, deeming it procedurally barred as a
successive motion. The appeal of this second motion is not currently before the Court.
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¶5.
We note that Hunt’s notice of appeal was not received by the trial court for filing
within thirty days of entry of the trial court’s judgment. The trial court denied Hunt’s initial
post-conviction relief motion on February 1, 2008, and Hunt’s notice of appeal was stamped
“filed” by the circuit court clerk on March 26, 2008, but the notice is otherwise without a
date.2 Mississippi Rule of Appellate Procedure 4(a) requires 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.” Generally, an appeal shall be dismissed
unless the notice of appeal is timely filed pursuant to Rule 4 or 5. M.R.A.P. 2(a)(1).
However, post-conviction relief petitions are governed by Mississippi Rule of Appellate
Procedure 2(c), whereby this Court in a particular case may suspend the requirements of the
appellate rules in the interest of justice. Specifically, this Court may suspend Rule 4(a) to
allow an out-of-time appeal in criminal cases. 3 While the State has not challenged appellate
jurisdiction, we must determine whether jurisdiction exists. The prison mailbox rule states,
in pro se post-conviction relief proceedings, the prisoner’s motion is considered delivered
for filing when the prisoner gives the documents to prison officials for mailing. Sykes v.
State, 757 So. 2d 997, 1000-01 (¶14) (Miss. 2000). The State bears the burden of proving
the prisoner’s notice of appeal was untimely filed. Melton v. State, 930 So. 2d 452, 455 (¶8)
(Miss. Ct. App. 2006).
2
We note that other documents in the record associated with Hunt’s appeal, such as
his designation of records and affidavit of poverty, are all signed and dated March 21, 2008.
3
While post-conviction relief motions are technically “civil” actions, they are
governed by the rules of criminal appeals; therefore, they are considered criminal actions for
purposes of this rule. See M.R.A.P. 4 cmt.
3
¶6.
The State has not attempted to meet this burden, and there is no indication in the
record when Hunt delivered his documents to prison officials. As discussed, this Court may
suspend the appellate rules in the interest of justice. M.R.A.P. 2(c). Because we do not
know when Hunt delivered his notice of appeal to prison officials for mailing, nor do we
know when Hunt received notice of the trial court’s ruling on his motion for post-conviction
relief, we exercise our discretion under Rule 2(c) to suspend the thirty-day requirement to
the extent Hunt’s filing may have been untimely filed under the prison mailbox rule.
Accordingly, we find jurisdiction proper and shall address Hunt’s appeal on the merits.
2.
¶7.
Indictments
Hunt contends the indictments for cause numbers CR06-798 and CR06-799 are
defective in that they violate the requirements for validity under Mississippi Code Annotated
section 99-7-9 (Rev. 2007) and Mississippi Uniform Rule of Circuit and County Court 7.06.
Specifically, he claims that the indictments upon which he was convicted are not reflected
in the record as the ones returned by the grand jury because: they were not signed by the
grand jury foreman prior to the adjournment of the court and were not marked “filed and
recorded”; the record does not contain the minutes of the grand jury; there is no proof of the
number of grand jurors present; and there was no affidavit by the grand jury foreman. Hunt
also claims he was thereby prejudiced in his ability to enter a voluntary and knowing guilty
plea. He concludes that the trial court lacked jurisdiction to accept his guilty plea; so his
conviction and sentence should be withdrawn.
¶8.
Regarding the presentment of indictments, section 99-7-9 states:
All indictments and the report of the grand jury must be presented to the clerk
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of the circuit court by the foreman of the grand jury or by a member of such
jury designated by the foreman, with the foreman’s name endorsed thereon,
accompanied by his affidavit that all indictments were concurred in by twelve
(12) or more members of the jury and that at least fifteen (15) were present
during all deliberations, and must be marked “filed,” and such entry be dated
and signed by the clerk. It shall not be required that the body of the grand jury
be present and the roll called. An entry on the minutes of the court of the
finding or presenting of an indictment shall not be necessary or made, but the
endorsement by the foreman, together with the marking, dating, and signing
by the clerk shall be the legal evidence of the finding and presenting to the
court of the indictment.
(Emphasis added). The Mississippi Supreme Court has held that the “legal evidence of the
concurrence of twelve or more of the grand jurors in finding and presenting the indictment
is fully established by the signing thereof on the part of the foreman and the marking of it
‘filed’ by the clerk of the court.” McCormick v. State, 377 So. 2d 1070, 1074 (Miss. 1979)
(quoting Temple v. State, 165 Miss. 798, 805-06, 145 So. 749, 751 (1933)). Hunt attached
to his motion for post-conviction relief copies of the two indictments which, on the second
page, are not signed by the foreman of the grand jury, dated by the clerk, or designated when
filed. However, the record does contain copies of both indictments that are complete with
signatures by the grand jury foreman and the signature and date “filed and recorded” of
October 20, 2006, by the court clerk, thereby fulfilling the statutory requirements for
presentment of an indictment.
¶9.
Regarding the form of an indictment, Rule 7.06 requires an indictment to have:
1.
The name of the accused;
2.
The date on which the indictment was filed in court;
3.
A statement that the prosecution is brought in the name and by the
authority of the State of Mississippi;
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4.
The county and judicial district in which the indictment is brought;
5.
The date and, if applicable, the time at which the offense was alleged
to have been committed. Failure to state the correct date will not render
the indictment insufficient;
6.
The signature of the foreman of the grand jury issuing it; and
7.
The words “against the peace and dignity of the state.”
All of the above requirements are present in the two indictments contained in the record.
¶10.
Additionally, Hunt entered a valid guilty plea, which operates as a waiver of all
non-jurisdictional defects contained in an indictment, or information, against a defendant.
Reeder v. State, 783 So. 2d 711, 720 (¶36) (Miss. 2001) (citing Brooks v. State, 573 So. 2d
1350, 1352 (Miss. 1990)). Other than constitutional issues, there are two exceptions where
a voluntary guilty plea does not waive a defect: (1) if an indictment fails to charge an
essential element of the crime, or (2) the court has no subject matter jurisdiction. Kincaid
v. State, 711 So. 2d 873, 877 (¶20) (Miss. 1998) (citing Jefferson v. State, 556 So. 2d 1016,
1019 (Miss. 1989)). Here, the alleged errors in Hunt’s indictment are non-jurisdictional, and
none of the exceptions apply. Thus, the alleged errors are waived. Furthermore, the record
contains copies of properly signed and dated indictments for both causes, wherein all
requirements of section 99-7-9 and Rule 7.06 are met. Accordingly, we find that Hunt’s
indictments are not defective.
3.
¶11.
Capias
Hunt also claims that his capias was defective as it was not signed by the court clerk
or the sheriff. Attached to Hunt’s motion for post-conviction relief is a capias that is neither
signed nor dated by the court clerk or the sheriff. Further, we find no copy of the original
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capias in the record. Regardless, as stated above, the entry of a valid guilty plea operates as
a waiver of all non-jurisdictional defects contained in an indictment or information against
the defendant. Reeder, 783 So. 2d at 720 (¶36) (citing Brooks, 573 So. 2d at 1352). In Roby
v. State, 861 So. 2d 368, 371 (¶¶10-11) (Miss. Ct. App. 2003), this Court held that an
unsigned arrest warrant, general affidavit, and indictment which lacked signatures of a judge
were “non-jurisdictional defects at best.” Thus, an unsigned capias is a non-jurisdictional
defect. We find this issue without merit.
4.
¶12.
Ineffective Assistance of Counsel
Hunt argues that because his counsel failed to object to the allegedly defective
indictment, his counsel was ineffective. To be successful in 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. Strickland v. Washington, 466 U.S. 668, 687
(1984). The first prong of the Strickland analysis remains the same when the case involves
a guilty plea. Hannah v. State, 943 So. 2d 20, 24 (¶7) (Miss. 2006). Regarding the second
prong, Hunt must show 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 base our decision on whether counsel’s actions were effective
in the totality of the circumstances surrounding each case. Swington v. State, 742 So. 2d
1106, 1114 (¶22) (Miss. 1999) (citation omitted).
¶13.
Hunt’s argument centers around the failure of his attorney to object to the indictments,
which Hunt claims are “fatally defective.” As discussed above, Hunt’s indictments were not
defective; so there was no reason for defense counsel to object. Since Hunt has failed to
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advance any other argument that his counsel’s performance was ineffective, his contention
is without merit.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO LEE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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