Raymond Scott Alexander v. State of Mississippi , 228 So. 3d 338 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-01454-COA
RAYMOND SCOTT ALEXANDER A/K/A APPELLANT
RAYMOND S. ALEXANDER A/K/A RAYMOND
ALEXANDER
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/12/2016
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RAYMOND SCOTT ALEXANDER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KAYLYN HAVRILLA MCCLINTON
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
DISPOSITION: AFFIRMED - 09/26/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
WESTBROOKS, J., FOR THE COURT:
¶1. Raymond Scott Alexander, appearing pro se, appeals the Rankin County Circuit
Court’s dismissal of his motion for postconviction relief (PCR). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In July 2003, Alexander was indicted on one count of possession of a controlled
substance (methamphetamine) by a Rankin County grand jury. Alexander pleaded guilty to
the charge in 2004, and was placed in the nonadjudication program to serve a term of five
years of supervised probation under the supervision of the Mississippi Department of
Corrections (MDOC). Alexander was informed that if he did not comply with the any of the
conditions of the nonadjudication program, he would be sentenced to eight years in the
custody of MDOC, with one year suspended and five years of supervised probation.
¶3. Later in 2004, the State moved to impose Alexander’s sentence for violating the terms
of the nonadjudication program. Alexander had failed to pay court costs and admitted to
molesting a nine-year-old girl. As a result, Alexander was sentenced to eight years in the
custody of the MDOC, with one year suspended and five years of supervised probation.
¶4. In 2005, Alexander was indicted in the Circuit Court of Rankin County on one count
of gratification of lust and two counts of sexual battery. Alexander entered a guilty plea to
one count of sexual gratification and one count of sexual battery. Alexander was sentenced
to twelve years in the custody of the MDOC for gratification of lust and thirty years in the
custody of the MDOC for sexual battery, with twelve years to serve, eighteen years
suspended, and five years of postrelease supervision. The gratification-of-lust and sexual-
battery sentences were ordered to run concurrently; however, they were ordered to run
consecutively to Alexander’s eight-year sentence for possession of a controlled substance.
¶5. In June 2016, Alexander filed a “petition for immediate release on probation and in
the alternative immediate release on parole.” The circuit court treated the filing as a PCR
motion and denied it. The circuit court found that the motion was time-barred and without
merit. In July 2016, Alexander filed a similarly titled petition in the Mississippi Supreme
Court. Because there had been no direct appeal of Alexander’s convictions and sentences,
the supreme court dismissed Alexander’s petition without prejudice, and found that it could
be brought in the circuit court as a PCR motion.
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¶6. In September 2016, Alexander filed his second PCR motion. The circuit court
dismissed his motion, stating it was time-barred, successive, and without merit. Alexander
appeals.
STANDARD OF REVIEW
¶7. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only
disturb the trial court’s factual findings if they are clearly erroneous; however, we review the
trial court’s legal conclusions under a de novo standard of review.” Jackson v. State, 178 So.
3d 807, 809 (¶8) (Miss. Ct. App. 2014) (citation omitted).
DISCUSSION
¶8. The circuit court held that Alexander’s PCR motion was time-barred, successive, and
without merit. We agree.
¶9. “A PCR motion challenging a guilty plea must be filed within three years of the entry
of the judgment of conviction.” Kennedy v. State, 179 So. 3d 82, 83 (¶6) (Miss. Ct. App.
2015); see also Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Following Alexander’s violation
of the terms of his nonadjudication program, his sentence of eight years, with one year
suspended, for possession of a controlled substance was imposed in 2004. Next, Alexander
pleaded guilty to the charges of gratification-of-lust and sexual battery in 2005 and received
concurrent sentences for these charges. However, Alexander did not file a PCR motion until
2016. Therefore, Alexander’s motion is time-barred.
¶10. Additionally, Alexander’s PCR motion is successive-writ barred. “Under the
[Uniform Postconviction Collateral Relief Act], any order denying or dismissing a PCR
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motion is a bar to a second or successive PCR motion.” Stokes v. State, 199 So. 3d 745, 749
(¶9) (Miss. Ct. App. 2016) (citing Miss. Code Ann. § 99-39-23(6) (Rev. 2015)). The circuit
court dismissed Alexander’s first PCR motion filed in June 2016, citing lack of merit and the
procedural time-bar. In the order dismissing Alexander’s second PCR motion, the circuit
court found that “it . . . plainly appear[ed] from the face of the petition that [Alexander] was
not entitled to any relief.” See Miss. Code Ann. § 99-39-11(2) (Rev. 2015). We find the
Court properly dismissed Alexander’s successive motion.
¶11. However, Alexander asserts that his second PCR motion is exempt from the
procedural bars, because he was issued an illegal sentence. In Mississippi, “only four types
of ‘fundamental rights’ have been expressly found to survive PCR procedural bars: (1)
double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post
facto claims.” Kennedy, 179 So. 3d at 83-84 (¶8) (citing Boyd v. State, 155 So. 3d 914, 918
(¶13) (Miss. Ct. App. 2014)). However, this Court has previously held that “mere assertions
of constitutional-rights violations do not suffice to overcome the procedural bar.” Stokes,
199 So. 3d at 749 (¶10). But as explained below, Alexander did not receive an illegal
sentence. Thus, his PCR motion is procedurally barred.
I. Illegal Sentence
¶12. Alexander asserts that he received an illegal sentence for his possession-of-a-
controlled-substance charge. However, we disagree with his assertion. Alexander was
sentenced to eight years, with one year suspended, for possession of a controlled substance
pursuant to Mississippi Code Annotated section 41-29-139(c)(1)(B) (Rev. 2001). That code
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section, revised in 2014, now states in part:
A person shall be charged and sentenced as follows for a violation of this
subsection with respect to:
(1) A controlled substance classified in Schedule I or II, except marijuana and
synthetic cannabinoids:
....
(B) If one-tenth (0.1) gram or more or two (2) or more dosage
units, but less than two (2) grams or ten (10) dosage units, by
imprisonment for not more than three (3) years or a fine of not
more than Fifty Thousand Dollars ($50,000.00), or both.
(Emphasis added).
¶13. However, Alexander was sentenced to possession of a controlled substance in 2004.
This court has recently held that “when a person is sentenced prior to a statute’s amendment,
the penalty of the statute as it existed at the time of sentencing applies.” Barnett-Phillips v.
State, 195 So. 3d 226, 229 (¶8) (Miss. Ct. App. 2016).
¶14. In 2004, Mississippi Code Annotated section 41-29-139(c)(1)(B) read in part:
(B) One-tenth (0.1) gram but less than two (2) grams or two (2) dosage units
but less than ten (10) dosage units, by imprisonment for not less than two (2)
years nor more than eight (8) years and a fine of not more than Fifty
Thousand Dollars ($50,000.00).
1999 Miss. Laws ch. 341, §1 (S.B. 2915) (emphasis added).
¶15. Alexander further asserts that his sentence is illegal because he was sentenced as a
habitual offender. The record does not support Alexander’s assertion. Therefore, this issue
is without merit.
¶16. Further, Alexander argues that his sentence is illegal because he was sentenced above
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the maximum, and no other judge within the same county would have sentenced him to that
same amount of time. However, “sentencing is within the complete discretion of the trial
court and not subject to appellate review if it is within the limits prescribed by statute.”
Alexander v. State, 979 So. 2d 716, 718 (¶4) (Miss. Ct. App. 2007) (citations omitted). “The
general rule in Mississippi is that a sentence that does not exceed the maximum term allowed
by the statute cannot be disturbed on appeal.” Id.
¶17. Alexander was sentenced to eight years, with one year suspended, for possession of
a controlled substance. This sentence did not exceed the maximum term allowed by statute.
Accordingly, this issue is without merit.
II. Early Release/Parole or Earned-Time Allowance
A. Earned Time
¶18. Notwithstanding the procedural bar for this claim, Alexander asserts that he is eligible
for an earned-time allowance. However, this argument lacks merit. “Mississippi Code
Annotated section 47-5-139(1)(d) (Supp. 2008 & Rev. 2015) provides that an inmate shall
not be eligible for the earned time allowance if . . . the inmate was convicted of a sex crime.”
Brown v. State, 187 So. 3d 667, 671 (¶10) (Miss. Ct. App. 2016).
¶19. Alexander is not eligible for an earned-time allowance, because he was convicted of
gratification of lust and sexual battery. Further, Alexander has completed serving his eight-
year sentence for the possession charge and has started serving time for the two sex crimes.
Therefore, this issue is meritless.
B. Time Served
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¶20. Alexander also argues that he was not given credit for time served for his charge of
possession of a controlled substance. Alexander is correct that, if warranted, he should have
received credit for any pretrial time he served prior to pleading guilty to possession of a
controlled substance. It appears from the record that Alexander received credit for time
served. However, if there was any merit to Alexander’s claim, he did not request proper
relief regarding credit for time served from the MDOC administrative system. This Court
has previously held that “a post-conviction relief pleading is not the proper means to
calculate and receive credit for the initial . . . time served.” McDonald v. State, 16 So. 3d 83,
85 (¶6) (Miss. Ct. App. 2009). Therefore, this issue is without merit.
¶21. Additionally, Alexander was sentenced for possession of a controlled substance to
eight years, with one year suspended, in 2004. Alexander has serve his sentence for the
possession charge; therefore, he is currently serving his time for the gratification-of-lust and
sexual-battery charges from 2005. Therefore, Alexander lacks standing to bring the issue in
his PCR motion, because he is no longer “serving time under the sentence he complains of.”
Wilson v. State, 76 So. 3d 733, 735 (¶11) (Miss. Ct. App. 2011) (citations omitted).
¶22. Accordingly, we find that Alexander fails to meet his burden of showing that any
statutory exception or fundamental-right exception applies to his claims. Therefore, we find
that the circuit court did not err in denying his PCR motion.
¶23. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON AND
GREENLEE, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
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