Johnny Lewis Washington v. State of Mississippi , 237 So. 3d 775 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-00124-COA
JOHNNY LEWIS WASHINGTON A/K/A APPELLANT
JOHNNY L. WASHINGTON A/K/A JOHNNY
WASHINGTON A/K/A JOHN LEWIS
WASHINGTON
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/21/2015
TRIAL JUDGE: HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: DAVID S. VAN EVERY SR.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: DENIED APPELLANT’S MOTION FOR
POSTCONVICTION RELIEF
DISPOSITION: AFFIRMED - 05/30/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.
CARLTON, J., FOR THE COURT:
¶1. On May 25, 1977, Johnny Washington was convicted of capital murder and sentenced
to death. Washington then filed an unsuccessful direct appeal of his conviction and sentence
to the Mississippi Supreme Court. He next filed a successful petition in federal court for
habeas review. In accordance with the federal court’s ruling, the Lowndes County Circuit
Court resentenced Washington on February 25, 1983, to life in the custody of the Mississippi
Department of Corrections (MDOC). On July 21, 2015, Washington filed a motion for
postconviction relief (PCR). On December 21, 2015, the circuit court entered an order
denying Washington’s PCR motion after finding that Washington’s claims lacked merit.
¶2. Washington now appeals the circuit court’s denial of his PCR motion, and he asserts
the following assignments of error: (1) the sentencing court lacked authority pursuant to
Mississippi Code Annotated section 99-19-101 (Rev. 2015) to resentence him; (2) the
sentencing court exceeded its authority and went outside the district court’s order; (3) he did
not knowingly, intelligently, and voluntarily waive his constitutional right to a trial by jury
for sentencing purposes; and (4) these errors constitute cumulative and plain error.
¶3. Upon review, we find the record reflects that Washington failed to obtain permission
from the supreme court to file the instant PCR motion.1 We therefore affirm the circuit
court’s denial of Washington’s PCR motion, although we do so due to Washington’s failure
to obtain leave from the supreme court to proceed with his PCR motion.2
FACTS
¶4. On May 25, 1977, a Lowndes County jury convicted Washington of capital murder
for the shooting death of a man during the armed robbery of a convenience store. The jury
subsequently sentenced Washington to death. On July 12, 1978, the supreme court affirmed
Washington’s conviction and sentence. Washington v. State, 361 So. 2d 61, 68 (Miss. 1978).
Washington eventually petitioned the United States District Court for the Northern District
1
See Jackson v. State, 67 So. 3d 725, 730 (¶17) (Miss. 2011); Willie v. State, 69 So.
3d 42, 44 (¶¶5-6) (Miss. Ct. App. 2011); Miss. Code Ann. § 99-39-7 (Rev. 2015).
2
See Jackson v. State, 2015-CT-00521-SCT, 2017 WL 1026531, at *2 (¶6) (Miss.
Mar. 16, 2017).
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of Mississippi for a writ of habeas corpus. After conducting an evidentiary hearing on the
matter, the district court denied habeas relief. Washington then appealed to the United States
Court of Appeals for the Fifth Circuit, requesting habeas relief.
¶5. Upon review, the Fifth Circuit found:
Washington was not denied effective assistance of counsel in the guilt phase
of his trial. . . . [H]owever, we conclude that the process by which the State
secured a death sentence for Washington’s crime was constitutionally flawed
because the jury was precluded from considering nonstatutory mitigating
factors in violation of the [United States] Supreme Court’s Lockett [v. Ohio,
438 U.S. 586 (1978),] decision.
Washington v. Watkins, 655 F.2d 1346, 1377-78 (5th Cir. 1981). As a result, the Fifth Circuit
reversed the district court’s judgment denying Washington habeas relief, and the Fifth Circuit
remanded the case “with instructions that the district court shall enter judgment granting
appropriate habeas relief in accordance with this opinion[;] we leave it to the district court
to determine, after briefing and argument by the parties, the precise form of such relief.” Id.
at 1378.
¶6. In response to the Fifth Circuit’s mandate regarding Washington’s capital-murder
conviction and sentence, the district court entered an order on May 18, 1982, and directed
the circuit court to resentence Washington. The district court stated:
After briefing and argument by the parties, we determine that the precise form
of habeas relief required under these circumstances is to vacate [Washington’s]
death sentence, which will result in the imposition of a life sentence under
Mississippi law[,] unless the State chooses to resentence [Washington] in
accordance with state law. [Mississippi Code Annotated section] 99-19-101
(Supp. 1981) provides that[,] in the usual case of conviction of a capital
offense, the separate sentencing proceeding is to be determined by the same
trial jury which determined guilt, but that in cases, as here, where it is
impossible or the trial court is unable to reconvene the original trial jury for a
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hearing on the issue of penalty, the trial judge may summon another jury to
determine the issue of the imposition of the penalty[.]
¶7. On February 25, 1983, Washington’s defense counsel filed a motion in the circuit
court to permit Washington to waive his jury trial and to impose a life sentence. The motion
stated that Washington “respectfully requests that the court permit [him to] knowingly and
intelligently and with the consultation and advice of counsel . . . waive trial by jury.” The
motion further requested that the circuit court impose a sentence of life imprisonment
pursuant to Mississippi Code Annotated section 97-3-21 (Supp. 1977) as “the appropriate
punishment.”
¶8. The circuit court entered an order on February 25, 1983, and accepted Washington’s
waiver of trial by jury. The circuit court sentenced Washington to life imprisonment in
MDOC’s custody. This Court’s opinion in Washington v. State, 154 So. 3d 34, 37 (¶4)
(Miss. Ct. App. 2012), reflects that, “[o]n that same day, February 25, 1983, a Lowndes
County grand jury indicted Washington for the armed robbery of Roy Thompson in Lowndes
County cause number 7925. . . . Washington was also indicted for the aggravated assault of
Elouise Clark in Lowndes County cause number 7926.”3 As a result, the sentencing circuit
court further ordered Washington’s life sentence for capital murder to run consecutively to
his sentences for the two offenses he was indicted for that same day: armed robbery and
aggravated assault.
3
Washington later entered guilty pleas to the charges of armed robbery and
aggravated assault. Washington, 154 So. 3d at 37 (¶4). The circuit court sentenced
Washington to consecutive sentences of forty years for the armed-robbery conviction and
twenty years for the aggravated-assault conviction, with both sentences to be served in
MDOC’s custody. Id.4
¶9. On July 21, 2015, Washington filed a motion to vacate and set aside his sentence. The
circuit court treated Washington’s filing as a PCR motion. On December 21, 2015, the
circuit court entered an order denying Washington’s PCR motion after finding that
Washington’s claims lacked merit. As the record reflects, Washington did not plead guilty
and was only resentenced. The record also reflects that Washington failed to obtain
permission from the supreme court to file his instant PCR motion.4
STANDARD OF REVIEW
¶10. When reviewing a circuit 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. Hughes v. State, 106 So.
3d 836, 838 (¶4) (Miss. Ct. App. 2012).
¶11. We also review de novo the issue of jurisdiction since it constitutes a question of law.
Tyson Breeders Inc. v. Harrison, 940 So. 2d 230, 232 (¶5) (Miss. 2006). In addressing
Washington’s appeal, we acknowledge that section 99-39-7 provides:
The motion under this article shall be filed as an original civil action in the
trial court, except in cases in which the petitioner’s conviction and sentence
have been appealed to the Supreme Court of Mississippi and there affirmed or
the appeal dismissed. Where the conviction and sentence have been affirmed
on appeal or the appeal has been dismissed, the motion under this article shall
not be filed in the trial court until the motion shall have first been presented to
a quorum of the Justices of the Supreme Court of Mississippi, convened for
said purpose either in termtime or in vacation, and an order granted allowing
the filing of such motion in the trial court.
DISCUSSION
4
See Jackson, 67 So. 3d at 730 (¶17); Willie, 69 So. 3d at 44 (¶¶5-6); Miss. Code
Ann. § 99-39-7.
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¶12. As the procedural history of this case reflects, a jury convicted Washington of capital
murder and sentenced him to death. The supreme court then affirmed Washington’s
conviction and sentence on direct appeal. Washington, 361 So. 2d at 68. Upon his request
in federal court for habeas relief, the federal court set aside Washington’s sentence.
Afterwards, in 1983, the state circuit court resentenced Washington.
¶13. We acknowledge that, pursuant to section 99-39-7, a prisoner must seek leave from
the supreme court to proceed in the trial court where his “conviction and sentence have been
appealed to the [supreme court] and there affirmed or the appeal dismissed.” Miss. Code
Ann. § 99-39-7. Since Washington filed a direct appeal of his original sentence and
conviction, and since he failed to obtain permission to file the instant PCR motion, then the
circuit court below lacked jurisdiction over Washington’s motion for PCR. See Rice v. State,
189 So. 3d 722, 725 (¶12) (Miss. Ct. App. 2016). While the circuit court incorrectly denied
rather than dismissed Washington’s PCR motion, we find the distinction immaterial. We
therefore affirm.
¶14. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES
COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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