Joseph L. Johnson v. State of Mississippi , 2015 Miss. App. LEXIS 576 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CP-01156-COA
JOSEPH L. JOHNSON A/K/A JOSEPH APPELLANT
JOHNSON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/16/2014
TRIAL JUDGE: HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOSEPH L. JOHNSON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION DISMISSED
DISPOSITION: AFFIRMED: 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. Joseph Johnson pled guilty to gratification of lust in 2009. He attempted to appeal his
guilty plea, but his appeal was dismissed as untimely. He then filed a motion for post-
conviction relief, which was denied in 2010. In 2012, Johnson sought to file a late appeal
from the denial of his PCR motion, which was ultimately denied, and that denial was
affirmed by this Court on appeal. Johnson v. State, 137 So. 3d 336 (Miss. Ct. App. 2014).
¶2. In March 2014, while Johnson’s appeal from the denial of his motion to file a late
appeal of his PCR motion was pending, Johnson filed in the circuit court a “Motion for
House Arrest” during the pendency of that appeal.1 The circuit court did not rule on this
motion until September 2014, by which time Johnson’s appeal had been finally decided
against him, and the motion to release him pending its resolution was, by all appearances,
moot.
¶3. Johnson nonetheless appealed from that decision, and that appeal is before this Court
today. In his brief on appeal, Johnson does not argue that the circuit court should have
granted his motion for house arrest. Instead, he tells his side of the story of the underlying
crime – he claims that he had an alibi at the time of the offense and that the prosecutrix
accused him because he would not give her money to buy drugs. He also alleges that his
defense attorney convinced him to enter an open plea with the promise of a lenient sentence.
Beyond that narrative, Johnson enumerates four issues – the sufficiency of the evidence
supporting his guilt for the underlying offense, whether the circuit court improperly
considered his post-Miranda silence in sentencing, the legality of his sentence, and whether
the circuit court properly considered a prior offense in his sentencing.
¶4. In other words, Johnson is apparently attempting to transform his motion to be
released on house arrest into a motion for post-conviction relief, following the denial of an
out-of-time appeal from his actual PCR motion. But because none of these issues were
raised in the motion in the circuit court from which Johnson appeals, they are procedurally
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Johnson claimed in the motion that it was a direct appeal of his conviction and
sentence, but he referred to the cause number of the appeal from the denial of his motion to
file a late appeal of his PCR motion.
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barred on appeal. Ross v. State, 603 So. 2d 857, 861 (Miss. 1992).
¶5. It is true “that errors affecting fundamental rights are exceptions to the rule that
questions not raised in the trial court cannot be raised for the first time on appeal.” Rowland
v. State, 42 So. 3d 503, 506 (¶11) (Miss. 2010) (citation omitted). But Johnson has not
alleged the violation of any constitutional rights recognized as fundamental by the
Mississippi Supreme Court.
¶6. The right to be free from an illegal sentence – meaning specifically a sentence that
does not conform to the applicable penalty statute – has been recognized as a fundamental
constitutional right not subject to the procedural bars. But while Johnson does make certain
arguments relating to how he was sentenced, he never argues that his sentence did not
conform to the relevant statute. See Small v. State, 141 So. 3d 61, 66 (¶13) (Miss. Ct. App.
2014). Also, while Johnson does enumerate as his fourth issue a claim to have been
“illegally” sentenced, it not actually argued; his brief abruptly ends after the third issue.
“[T]he mere assertion of a constitutional right violation does not trigger the exception.”
Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013).
¶7. Johnson’s asserted issues are clearly barred on appeal because they were not raised
in the trial court, and as he does not challenge the trial court’s denial of his motion for house
arrest, we affirm it.
¶8. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON
COUNTY.
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LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, CARLTON, MAXWELL, JAMES
AND WILSON, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
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