Charles Means v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01117-COA
CHARLES MEANS
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
06/03/2008
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
CHARLES MEANS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 08/11/2009
BEFORE KING, C.J., GRIFFIS AND MAXWELL, JJ.
MAXWELL, J., FOR THE COURT:
¶1.
Charles Means filed a second pro se motion for post-conviction relief (PCR) in the
Circuit Court of Forrest County. Finding that Means’s appeal is both procedurally barred
and without merit, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2.
On November 1, 2005, Means pled guilty in the Circuit Court of Forrest County to
one count of possession of a controlled substance with intent to distribute. He was sentenced
to a term of twenty-five years in the custody of the Mississippi Department of Corrections
(MDOC). His sentence was then suspended by the trial court provided he comply with
several conditions, including that he remain 100 miles away from the Forrest County
Courthouse for the entire period of the suspended sentence.
¶3.
Less than four months later, on February 24, 2006, Means was found in Hattiesburg,
Mississippi, within 100 miles of the Forrest County Courthouse. Means confessed the
violation of his conditions, and on March 13, 2006, the trial court revoked his suspended
sentence and sentenced him to twenty-five years in the custody of the MDOC. On February
7, 2007, Means filed his first PCR motion, alleging his attorney misrepresented the sentence
he would receive. However, Means did not attack the banishment provision, the revocation,
or the imposition of the twenty-five-year sentence. The trial court summarily dismissed his
first PCR motion, and Means did not appeal the dismissal.
¶4.
On March 18, 2008, Means filed another PCR motion with the trial court. In this
second motion, he sought “to vacate the illegal sentence and unauthorized revocation.”
Means claimed the trial court lacked authority to order him to stay 100 miles away from the
Forrest County Courthouse for the period of the suspended sentence and also contended the
trial court was limited to imposing a five-year term of post-release supervision. On June 4,
2008, the trial court summarily dismissed Means’s second PCR motion as being procedurally
barred, pursuant to Mississippi Code Annotated section 99-39-21(1) (Rev. 2007), finding that
Means failed to raise this issue in his first PCR motion. The trial court also found that the
second PCR motion was a successive writ, which was barred pursuant to Mississippi Code
Annotated section 99-39-23(6) (Supp. 2008).
STANDARD OF REVIEW
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¶5.
The trial court may summarily dismiss a PCR motion “[i]f it plainly appears from the
face of the motion, any annexed exhibits and the prior proceedings in the case that the
movant is not entitled to any relief.” Miss. Code Ann. § 99-39-11(2) (Rev. 2007). “On
appeal, this Court will affirm the summary dismissal of a PCR petition if the petitioner has
failed to demonstrate ‘a claim procedurally alive substantially showing the denial of a state
or federal right . . . .’” Flowers v. State, 978 So. 2d 1281, 1283 (¶5) (Miss. Ct. App. 2008)
(citing Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999)). We will not disturb a trial
court’s dismissal of a motion for post-conviction relief unless it was clearly erroneous.
Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). However, we review
questions of law de novo. Johnson v. State, 962 So. 2d 87, 89 (¶8) (Miss. Ct. App. 2007).
ANALYSIS
I.
¶6.
Waiver
Mississippi Code Annotated section 99-39-21(1) makes clear that: “[f]ailure by a
prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law
which were capable of determination at trial and/or on direct appeal . . . shall constitute a
waiver thereof and shall be procedurally barred.” Here, Means failed to raise any issues
about his sentence at his sentencing hearing, so he is prohibited from doing so now on
appeal.
II.
¶7.
Successive Writ
In addition to the procedural bar due to waiver discussed in Issue I, we also find that
the trial court properly dismissed Means’s second PCR motion as a successive writ.
Mississippi Code Annotated section 99-39-23(6) provides that: “any order dismissing the
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prisoner's motion or otherwise denying relief under this article is a final judgment and shall
be conclusive until reversed. It shall be a bar to a second or successive motion under this
article.” The statute provides exceptions for “cases in which the prisoner claims that his
sentence has expired or his probation, parole or conditional release has been unlawfully
revoked.” Id. It is the burden of the defendant to prove by a preponderance of the evidence
that his claim is not barred as a successive writ. Carbin v. State, 942 So. 2d 231, 233 (¶9)
(Miss. Ct. App. 2006), cert. denied, Carbin v. Mississippi, 550 U.S. 971 (2007).
¶8.
Means fails to show that his sentence was unlawfully revoked. Therefore, we find that
the successive-writ bar also applies to Means’s PCR motion.
III.
¶9.
The Banishment Provision and Means’s Sentence
Not only are Means’s claims raised in his second PCR motion procedurally barred for
the reasons discussed in Issues I and II, we also find they are without merit. First, we note
that although the practice of banishing defendants from an entire state has been held to be
improper on public policy grounds, See McCreary v. State, 582 So. 2d 425, 427-28 (Miss.
1991); United States v. Abushaar, 761 F.2d 954, 959-60 (3d. Cir. 1985), Mississippi
appellate courts have previously affirmed orders of banishment from smaller geographical
areas similar in size to the 100 mile area at issue. In Cobb v. State, 437 So. 2d 1218, 1219-21
(Miss. 1983), the supreme court affirmed a sentence requiring a defendant to stay at least 125
miles away from Stone County, Mississippi. See also, Watts v. State, 1 So. 3d 886, 887, 88990 (¶¶2, 10) (Miss. Ct. App. 2008) (on appeal from the dismissal of a post-conviction relief
motion, the banishment provision of the sentence to remain 100 miles from the Forrest
County Courthouse was found to be a legal sentence).
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¶10.
In Cobb, the supreme court examined a banishment provision in connection with
Mississippi Code Annotated section 47-7-35(g) (Supp. 1982), which authorized trial courts
to order a probationer to “[r]emain within a specified area.” Cobb, 437 So. 2d at 1219. In
affirming the banishment provision, the Cobb court found the conditions imposed by the
sentencing court “were reasonably related to Cobb’s circumstances and his intended
rehabilitation.” Id. at 1220. The supreme court also made clear that “probation is not
intended to be without some pain and inconvenience to the probationer. Some amount of
punitive aspects of probation serve the public interest as well as the probationer’s interest.”
Id. at 1221. “Instead of being a matter of right, it is by grace that probation is granted a
defendant, and within his sound judicial discretion the trial judge may fix reasonable
conditions of parole and probation.” Id. (citation omitted).
¶11.
Here, the trial court followed Cobb’s instruction and made findings that Means’s
banishment from Forrest County bore “a reasonable relationship to the purposes of the
suspended sentence or probation, that the ends of justice and the best interest of the public
and the Defendant will be served by such banishment during the period of the suspended
sentence.” Therefore, we cannot find that the trial court erred in fashioning this form of
punishment as part of Means’s sentence.
¶12.
Means’s complaint about the length of the term of his suspended sentence is also
unfounded. The supreme court has held that trial courts have the discretion to impose a
suspended sentence equal to but not more than the term of the original sentence. Johnson
v. State, 925 So. 2d 86, 103 (¶32) (Miss. 2006); see also, Miller v. State, 875 So. 2d 194, 200
(¶11) (Miss. 2004). Means was charged under Mississippi Code Annotated section 41-29-
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139(b)(1) (Rev. 2005), which carries a maximum statutory penalty of thirty years’
imprisonment. Accordingly, the trial court did not err in imposing a twenty-five year
suspended sentence.
¶13.
Finally, Means’s arguments about the legality of his sentence are similar to those we
recently rejected in Mackey and Watts. Mackey v. State, No. 2007-CP-01785-COA (¶8)
(Miss. Ct. App. April 7, 2009); Watts, 1 So. 3d at 887-88 (¶5). In Mackey and Watts, we held
that defendants who were unable to comply with lenient suspended sentences, which
contained banishment provisions requiring them to remain outside of a 100-mile radius of
the Forrest County Courthouse, were prohibited from later attacking the legality of the
lenient suspended sentences. Mackey, No. 2007-CP-01785-COA (¶¶2, 8); Watts, 1 So. 3d
at 889-90 (¶10).1 Because the length of Means’s suspended sentence was less than the
maximum sentence of thirty years’ imprisonment he faced under Mississippi Code Annotated
section 41-29-139, he is now prohibited from turning around and attacking the legality of the
lighter sentence even if we were to find the sentence to be unlawful.
¶14.
For the reasons stated herein, we affirm the trial court’s dismissal of Means’s second
PCR motion.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.
LEE AND MYERS, P.JJ., GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ.,
CONCUR. IRVING, J., CONCURS IN PART AND IN THE RESULT. KING, C.J.,
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Ronnie Mackey and Carl Watts were also caught in Hattiesburg, within 100 miles
of the Forrest County Courthouse, and both defendants’ thirty-year suspended sentences
were revoked. Mackey, No. 2007-CP-01785-COA (¶¶2, 8); Watts, 1 So. 3d at 889-90 (¶10).
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AND BARNES, J., CONCUR IN RESULT ONLY.
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