Rosa Wallace v. State of Mississippi , 2016 Miss. App. LEXIS 100 ( 2016 )


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  •         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
    NO. 2014-CP-00806-COA
    ROSA WALLACE                                                             APPELLANT
    v.
    STATE OF MISSISSIPPI                                                       APPELLEE
    DATE OF JUDGMENT:                        05/20/2014
    TRIAL JUDGE:                             HON. ROBERT P. CHAMBERLIN
    COURT FROM WHICH APPEALED:               DESOTO COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                  ROSA WALLACE (PRO SE)
    ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
    BY: BARBARA WAKELAND BYRD
    NATURE OF THE CASE:                      CIVIL - POST-CONVICTION RELIEF
    TRIAL COURT DISPOSITION:                 MOTION FOR POST-CONVICTION RELIEF
    DENIED
    DISPOSITION:                             AFFIRMED - 02/23/2016
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE IRVING, P.J., BARNES AND ISHEE, JJ.
    BARNES, J., FOR THE COURT:
    ¶1.   Rosa Wallace was indicted on January 19, 2006, for possession of cocaine, more than
    thirty grams, in violation of Mississippi Code Annotated section 41-29-139 (Rev. 2005). On
    June 10, 2008, the State moved to amend Wallace’s indictment to charge her as a habitual
    offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007) and a drug
    recidivist under Mississippi Code Annotated section 41-29-147 (Rev. 2005). After a hearing
    on August 18, 2008, the trial court entered an order amending the indictment.
    ¶2.   On September 8, 2008, Wallace pleaded guilty to the charge and was sentenced as a
    habitual offender to thirty years, with twenty years to be served in the custody of the
    Mississippi Department of Corrections (MDOC) without the possibility for parole or
    probation, followed by ten years of supervised post-release supervision with five years of
    nonreporting supervision. She was also ordered to pay a $5,000 fine, along with other fees
    and court costs.
    ¶3.    On May 2, 2014, Wallace filed a motion for post-conviction relief (PCR) with the
    DeSoto County Circuit Court, alleging: (1) that she was denied her constitutional right to
    confront witnesses, as the person who certified the records of her prior convictions did not
    testify at the hearing; (2) that her indictment was defective because it failed to specify the
    dates of judgment for her prior convictions; and (3) that her sentence was illegal and
    subjected her to double jeopardy. While the trial court noted that her motion was time-barred
    under Mississippi Code Annotated section 99-39-5(2) (Supp. 2014), it nevertheless addressed
    the merits of Wallace’s claims and denied the motion on May 20, 2014.1
    ¶4.    On appeal, we find no error and affirm the trial court’s denial of Wallace’s PCR
    motion.
    STANDARD OF REVIEW
    1
    Section 99-39-5(2) provides that in the case of guilty plea, a motion for relief must
    be made within three years after the entry of the judgment of conviction. However, “cases
    in which the defendant can demonstrate new evidence not available at trial, an intervening
    higher-court decision, or that the defendant is being detained on an expired sentence” are
    exempted from the statute’s time-bar. Mason v. State, 
    176 So. 3d 130
    , 132 (¶5) (Miss. Ct.
    App. 2015) (quoting Blount v. State, 
    126 So. 3d 927
    , 931 (¶13) (Miss. Ct. App. 2013)). “In
    addition, the Mississippi Supreme Court has . . . held that the time-bar does not apply to
    ‘errors affecting fundamental constitutional rights.’” 
    Id. (quoting Rowland
    v. State, 
    42 So. 3d
    503, 507 (¶12) (Miss. 2010)).
    2
    ¶5.    A trial court’s dismissal or denial of a PCR motion is reviewed for abuse of discretion
    and will only be reversed if the decision is “clearly erroneous.” Hughes v. State, 
    106 So. 3d 836
    , 838 (¶4) (Miss. Ct. App. 2012) (citing Crosby v. State, 
    16 So. 3d 74
    , 77 (¶5) (Miss. Ct.
    App. 2009)). “When reviewing questions of law, our standard is de novo.” 
    Id. (citing Williams
    v. State, 
    872 So. 2d 711
    , 712 (¶2) (Miss. Ct. App. 2004)).
    DISCUSSION
    I.     Whether Wallace’s constitutional right to confront witnesses was
    violated by the introduction of certified copies of her prior
    convictions.
    ¶6.    In her PCR motion, Wallace argued that the State’s failure to introduce testimony at
    the hearing from the witness who certified the documents used to prove her prior convictions
    for habitual-offender status had deprived her of her right to confront witnesses and, thus,
    invalidated the habitual portion of her sentence. She cited Bullcoming v. New Mexico, 
    131 S. Ct. 2705
    (2011), an “intervening decision,” to support her argument that the certified
    documents presented were testimonial in nature. However, the trial court denied her claim,
    finding that the certified records of her prior judgments were not testimonial and, therefore,
    did not violate the Confrontation Clause.
    ¶7.    We agree with the trial court’s conclusion. First, Bullcoming does not address records
    of prior convictions; it concerns forensic laboratory reports. See 
    Bullcoming, 131 S. Ct. at 2712
    . Second, as this Court has observed, “certified copies of the indictments and sentencing
    orders . . . are not documents created solely for an evidentiary purpose[, but rather are]
    created for the administrative purpose of tracking criminal proceedings[.]” Small v. State,
    3
    
    141 So. 3d 61
    , 68 (¶24) (Miss. Ct. App. 2014). Thus, “self-authenticating records of a
    defendant’s prior convictions are not testimonial evidence, and do not trigger a defendant’s
    constitutional right to confront witnesses.” Vanwey v. State, 
    147 So. 3d 367
    , 370 (¶10)
    (Miss. Ct. App. 2014) (citing Frazier v. State, 
    907 So. 2d 985
    , 996 (¶36) (Miss. Ct. App.
    2005)). The Mississippi Supreme Court had not addressed this issue until recently when, in
    Burrell v. State, 2014-KA-00670-SCT, 
    2015 WL 6388746
    , at *6 (¶19) (Miss. Oct. 22, 2015),
    it “adopt[ed] the Court of Appeals’ rationale on this issue.” Consequently, we find this
    argument without merit.
    II.    Whether Wallace’s amended indictment was defective.
    ¶8.    As noted, the trial court approved the State’s motion to amend Wallace’s indictment
    to charge her as a habitual offender under section 99-19-81. The amended language was as
    follows:
    [A]nd the said Rosa Wallace having been previously convicted of possession
    of cocaine greater than .1 grams in Case No. CR-02-169(PF)L in the First
    Judicial District Court of Lee County, Mississippi, and sentenced on August
    22, 2002, to serve a term of eight (8) years in the [c]ustody of the [MDOC];
    and the said Rosa Wallace having been previously convicted of possession of
    cocaine less than .1 grams in Case No. CR-02-605-(PF)L in the First Judicial
    District Court of Lee County, Mississippi, and sentenced on August 22, 2002,
    to serve a term of four (4) years in the [c]ustody of the [MDOC];
    and the said Rosa Wallace having been previously convicted of possession of
    cocaine greater than .1 grams in Case No. CR-02-169(PF)L in the First
    Judicial District Court of Lee County, Mississippi, and sentenced on August
    22, 2002, to serve a term of eight (8) years in the [c]ustody of the [MDOC] and
    the said Rosa Wallace thereby coming under Section 41-29-147, Mississippi
    Code 1972 Annotated, as amended, a MISSISSIPPI SECOND OFFENDER
    STATUTE[;]
    4
    and the said Rosa Wallace thus having been convicted twice previously of
    felonies upon charges separately brought and arising out of separate incidents
    at different times and having been sentenced to separate terms of one (1) years
    or more in a state and/or federal penal institution, and the said Rosa Wallace
    thereby coming under Section 99-19-81, Mississippi Code 1972 Annotated, as
    amended, a MISSISSIPPI HABITUAL OFFENDER STATUTE[,] contrary to
    the form of the statute in such cases provided, and against the peace and
    dignity of the State of Mississippi.
    Wallace contends that because the amended habitual-offender language to the indictment
    failed to include dates of the previous judgments, she was not properly charged under Rule
    11.03(1) of the Uniform Rules of Circuit and County Court, which provides in pertinent part:
    “The indictment must allege with particularity the nature or description of the offense
    constituting the previous convictions, the state or federal jurisdiction of any previous
    conviction, and the date of judgment.”
    ¶9.    We find no merit to Wallace’s argument. In Small, our court addressed this identical
    issue raised by the defendant under similar circumstances, holding:
    As to the proof of his prior convictions, the State’s motion to amend the
    indictment clearly stated the offenses, cause numbers, dates that sentences
    were imposed, and the terms of the sentences imposed for [Frederick] Small’s
    prior convictions. Certified copies of the indictments and sentencing orders
    were submitted into the record at the hearing to amend the indictment and
    incorporated into the sentencing-hearing record. Further, Small negotiated for
    a guilty plea as a habitual offender and a recommended sentence with a cap
    of eighteen years. He did not object to the introduction of the certified copies
    of the documents relating to the prior convictions at the hearing on amending
    the indictment or at his sentencing hearing.
    This was sufficient to provide notice to Small of the prior crimes used to
    charge him as a habitual offender and an opportunity to challenge them. In
    Benson v. State, 
    551 So. 2d 188
    (Miss. 1989), the Mississippi Supreme Court
    held that the failure of an indictment to list the date of conviction was not fatal.
    The court noted:
    5
    While it is correct that the date of the judgment is not
    specifically stated in the indictment, all of the information that
    is contained, and specifically the cause number, afforded the
    defendant access to the date of the judgment. This Court holds
    that information pertaining to the date of the judgment was
    substantially set forth in the indictment and that sufficient
    information was afforded the defendant to inform him of the
    specific prior convictions upon which the State relied for
    enhanced punishment to comply with due process. The purpose
    of the above rule is fulfilled.
    
    Id. at 196[.]
    Small, 141 So. 3d at 67-68 
    (¶¶20-21).
    ¶10.   In the present case, the amendment to the indictment set forth the dates of the prior
    convictions, the cause numbers, and the terms of the sentences imposed. Copies of the
    certified sentencing orders were submitted into evidence without objection. Thus, we find
    no defect in Wallace’s indictment, as she was given sufficient notice of the prior convictions
    used to enhance her sentence.
    III.   Whether the trial court’s imposition of ten years of post-release
    supervision subjected Wallace to an illegal sentence and double
    jeopardy.
    ¶11.   Wallace argues she was subjected to an illegal sentence because she received ten years
    of post-release supervision, in addition to the term of imprisonment (twenty years). She
    claims that this constitutes double jeopardy, as she was sentenced for the same offense twice
    and, therefore, the habitual-offender portion of her sentence should be vacated.
    ¶12.   Having been convicted of two prior felonies, Wallace was sentenced as a habitual
    offender in accordance with sections 41-29-147 and 99-19-81. Consequently, the maximum
    sentencing term for the charged offense was sixty years, which Wallace acknowledged at the
    6
    plea hearing. However, the trial court noted and accepted the State’s recommendation that,
    based on the appropriate proportionality analysis, “something less than the maximum
    sentence of [sixty] years” was the appropriate sentence. Therefore, the trial judge sentenced
    Wallace to only thirty years, “to be served [twenty] years incarceration [and] ten years post-
    release supervision, five of that reporting.”
    ¶13.   “[A] trial court may sentence a [defendant] to a term of incarceration plus a term of
    post-release supervision for any felony crime, provided the term of incarceration plus the
    term of post-release supervision do not exceed the statutory maximum sentence for the crime
    committed.” Kern v. State, 
    828 So. 2d 871
    , 872 (¶7) (Miss. Ct. App. 2002). Accordingly,
    as Wallace’s thirty-year sentence does not exceed the maximum allowed by law, and she was
    not sentenced to two separate terms for the same offense, this issue is without merit.
    ¶14.   Accordingly, we affirm the trial court’s denial of Wallace’s PCR motion.
    ¶15. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY
    DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
    COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES
    AND WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.
    7
    

Document Info

Docket Number: 2014-CP-00806-COA

Citation Numbers: 195 So. 3d 852, 2016 Miss. App. LEXIS 100

Judges: Barnes, Carlton, Fair, Greenlee, Griffis, Irving, Ishee, James, Lee, Wilson

Filed Date: 2/23/2016

Precedential Status: Precedential

Modified Date: 10/19/2024