David E. Lyons v. State of Mississippi ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-KA-00861-COA
DAVID E. LYONS A/K/A DAVID EARL LYONS APPELLANT
A/K/A DAVID LYONS A/K/A “FOX”
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/03/2014
TRIAL JUDGE: HON. JAMES SETH ANDREW POUNDS
COURT FROM WHICH APPEALED: MONROE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: OFFICE OF STATE PUBLIC DEFENDER
BY: MOLLIE M. MCMILLIN
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
DISTRICT ATTORNEY: J. TRENT KELLY
NATURE OF THE CASE: CRIMINAL - FELONY
TRIAL COURT DISPOSITION: CONVICTED OF DRIVING UNDER THE
INFLUENCE, THIRD OFFENSE, AND
SENTENCED AS A HABITUAL OFFENDER
TO FIVE YEARS DAY-FOR-DAY IN THE
CUSTODY OF THE MISSISSIPPI
DEPARTMENT OF CORRECTIONS
DISPOSITION: AFFIRMED - 07/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., ISHEE AND FAIR, JJ.
ISHEE, J., FOR THE COURT:
¶1. In 2014, after a trial on the merits, David Lyons was convicted in the Monroe County
Circuit Court of felony driving under the influence (DUI). Since the conviction served as
Lyons’s third DUI offense, he was deemed a habitual offender. The circuit judge sentenced
Lyons to five years day-for-day in the custody of the Mississippi Department of Corrections
(MDOC). Lyons filed a motion for a new trial or, in the alternative, a judgment
notwithstanding the verdict (JNOV), which was denied. Aggrieved, Lyons appeals. Finding
no error, we affirm.
STATEMENT OF FACTS
¶2. On June 17, 2012, Lyons was operating a vehicle in Monroe County, Mississippi,
when he was pulled over by Mississippi Highway Patrol Officer Josh Jarvis. Officer Jarvis
initiated the traffic stop after observing Lyons swerving in the road. Officer Jarvis stated that
he detected a strong odor of alcohol emanating from Lyons’s vehicle and person. He also
noted that Lyons’s eyes were bloodshot and his speech was slurred. Based on these
observations, Officer Jarvis arrested Lyons for DUI. A search of Lyons’s vehicle resulted
in the discovery of an unopened beer can. Lyons was then charged with possession of
alcohol in a dry county.
¶3. After arriving at the Monroe County Sheriff’s Department, Officer Jarvis administered
the Intoxilyzer 8000 breath-alcohol test on Lyons. Lyons blew into the machine twice. The
first reading reflected a blood-alcohol content of 0.140. The second reading reflected a
blood-alcohol content of 0.132. A review of Lyons’s criminal record showed two prior DUI
charges stemming from incidents occurring in February and April 2012. Since the instant
DUI charge was Lyons’s third, he was charged with felony DUI as a habitual offender.
¶4. A trial was held in June 2014. Prior to the trial, motions were filed by Lyons and his
counsel seeking to dismiss the charges against him and to exclude his prior DUI convictions
as evidence. In support of the latter argument, Lyons averred that he was not afforded
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counsel for the prior convictions and that the waivers of his right to counsel for the prior
offenses were invalid. The motion was denied, and the case proceeded to trial.
¶5. Officer Jarvis and Lyons testified at the trial. Lyons’s testimony centered around his
assertion that his blood-alcohol content could not have been as high as the Intoxilyzer 8000
indicated. Nonetheless, the jury ultimately returned a verdict of guilty. Lyons was sentenced
to five years day-for-day in the custody of the MDOC. Lyons filed a motion for a new trial
and JNOV, which was denied.
¶6. On appeal, Lyons claims that the circuit court erred in its use of court abstracts of
Lyons’s prior DUI convictions. Lyons also asserts that the circuit court did not have
jurisdiction over his case; the State committed misconduct regarding the court abstracts of
his prior DUIs during trial; and he received ineffective assistance of counsel.
DISCUSSION
I. Use of Prior DUI Convictions
¶7. It is well settled that “in Mississippi[,] prior convictions are necessary elements of the
crime of felony DUI.” Ward v. State, 881 So. 2d 316, 320 (¶18) (Miss. Ct. App. 2004).
Furthermore, “[a]bstracts of court records, when properly certified, are clearly allowed to
prove prior convictions.” Watkins v. State, 910 So. 2d 591, 595 (¶21) (Miss. Ct. App. 2005)
(citing McIlwain v. State, 700 So. 2d 586, 589 (¶14) (Miss. 1997)). Hence, it is not erroneous
for a circuit court to admit abstracts of prior DUI convictions in support of a felony DUI
charge. Id.
¶8. It is uncontested that the abstracts used in the instant case were certified. Since
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establishing prior convictions was necessary in order to charge Lyons with felony DUI, the
circuit court did not err in admitting the abstracts in question.
¶9. Nonetheless, Lyons insists that because he did not have the benefit of counsel for the
prior two DUI convictions, the convictions are invalid and, thus, not a proper basis for his
felony DUI charge. Specifically, Lyons references our prior holding that “an uncounseled
misdemeanor conviction that results in jail time cannot be used to enhance a sentence for a
subsequent conviction.” Watkins, 910 So. 2d at 595 (¶17); see also Nichols v. United States,
511 U.S. 738, 748 (1994); Ghoston v. State, 645 So. 2d 936, 938 (Miss. 1994). Lyons further
asserts that by filing a motion challenging the admissibility of the abstracts, the burden
shifted to the State to prove that his constitutional rights were not violated during the prior
two convictions.
¶10. The Mississippi Supreme Court has clearly stated that a defendant challenging use of
a prior conviction under Lyons’s theory must “put on evidence that his [prior] DUI
conviction was uncounseled and that he spent time in jail as a result of this conviction.”
Watkins, 910 So. 2d at 596 (¶24) (citing Ghoston, 645 So. 2d at 938-39). “[U]nsupported
factual assertions are not sufficient to rebut the presumption of validity . . . .” Id.
¶11. Lyons only offered his pretrial motions in support of his claim that his prior DUI
convictions were invalid. He did not offer any evidence at the pretrial hearing or during the
trial to contest the validity of the abstracts, nor did he object to their admission at trial.
Further, the abstracts reflect that Lyons signed a waiver of counsel for one DUI charge and
then refused to sign a waiver of counsel for the other charge despite being advised of his
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rights. Moreover, no jail time was assessed to Lyons for either of the prior DUI convictions.
As such, Lyons has failed to prove that his prior DUI convictions are invalid. Likewise,
there is no evidence in the record supporting Lyons’s contention that the circuit court
improperly admitted and used the abstracts in its determination that Lyons should be charged
with felony DUI. This issue is without merit.
II. Subject-Matter Jurisdiction
¶12. In his pro se brief, Lyons essentially argues that the circuit court did not have subject-
matter jurisdiction over his felony DUI charge. In sum, Lyons asserts that because his traffic
ticket on the DUI ordered him to appear at an arraignment before the Monroe County Justice
Court, his case was never properly transferred to the circuit court. Lyons’s claims are
misplaced.
¶13. On August 13, 2012, Lyons was indicted by a grand jury for felony DUI. The
indictment vested jurisdiction of the matter solely with the circuit court, not the justice court.
“Justice courts have jurisdiction over misdemeanors, not felonies.” Levario v. State, 90 So.
3d 608, 611 (¶9) (Miss. 2012) (citing Miss. Code Ann. § 99-33-1(2) (Rev. 2015)). Hence,
there is no doubt that the circuit court properly retained subject-matter jurisdiction over this
matter.
¶14. Lyons also asserts that he was improperly denied a preliminary hearing after his
indictment was issued from the grand jury. Nonetheless, the supreme court has clearly stated
that “once a defendant has been indicted by a grand jury, the right to a preliminary hearing
is deemed waived.” Shields v. State, 702 So. 2d 380, 383 (Miss. 1997) (citation omitted).
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As such, Lyons’s arguments are meritless.
III. Prosecutorial Misconduct
¶15. Next, Lyons claims that the State commented untruthfully regarding Lyons’s prior
DUI convictions. Lyons argues that the State lied when it told the circuit court that the
waivers contained in the abstracts reflected that Lyons either properly signed them or refused
to sign them. Specifically, Lyons challenges the following dialogue:
Court: Does the State have waivers that they intend to introduce at
trial?
State: It does, your Honor.
Court: And did [Lyons] either sign off on them or refuse to sign off on
the waivers in prior DUIs?
State: That’s correct, your Honor.
Court: So this part is not correct when [Lyons] makes the statement
there is no valid waiver. Is that the State’s contention?
State: The State would certainly argue that that is an incorrect
statement.
Court: And the evidence will show that it does?
State: Yes, your Honor.
Court: Very well. The motion will be denied as filed by the defendant.
¶16. There is no evidence before us that the State acted deceptively when it informed the
circuit court that the waivers were either validly signed or that Lyons refused to sign them.
Rather, the State’s assertions are adequately supported by the record. The abstracts show that
Lyons signed one waiver of counsel and refused to sign another while simultaneously
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refusing to accept or retain counsel for himself. The two DUI convictions were properly
placed before the circuit court without any indication that either involved an infringement
on Lyons’s rights. This issue is meritless.
IV. Ineffective Assistance of Counsel
¶17. Finally, Lyons claims that his counsel was ineffective. However, it is well settled that
“when a party raises an ineffective[-]assistance[-]of[-]counsel claim on direct appeal, the
proper resolution is to deny relief without prejudice to the defendant’s right to assert the same
claim in a post-conviction-relief proceeding.” Trotter v. State, 9 So. 3d 402, 411 (¶23) (Miss.
Ct. App. 2008) (citation omitted). As such, we decline to address the merits of Lyons’s
ineffective-assistance-of-counsel claim.
¶18. THE JUDGMENT OF THE MONROE COUNTY CIRCUIT COURT OF
CONVICTION OF DRIVING UNDER THE INFLUENCE, THIRD OFFENSE, AND
SENTENCE AS A HABITUAL OFFENDER OF FIVE YEARS, TO BE SERVED
DAY-TO-DAY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF
CORRECTIONS, AND TO PAY A FINE OF $2,000, IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO MONROE COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
JAMES, WILSON AND GREENLEE, JJ., CONCUR.
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