Sylvester Bell a/k/a Bell Sylvester v. State of Mississipp ( 2020 )


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  •            IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
    NO. 2019-CP-00187-COA
    SYLVESTER BELL A/K/A BELL SYLVESTER                                         APPELLANT
    v.
    STATE OF MISSISSIPPI                                                          APPELLEE
    DATE OF JUDGMENT:                          12/21/2018
    TRIAL JUDGE:                               HON. LINDA F. COLEMAN
    COURT FROM WHICH APPEALED:                 TUNICA COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                    SYLVESTER BELL (PRO SE)
    ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
    BY: BILLY L. GORE
    NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
    DISPOSITION:                               AFFIRMED - 04/14/2020
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE BARNES, C.J., WESTBROOKS AND C. WILSON, JJ.
    BARNES, C.J., FOR THE COURT:
    ¶1.    Sylvester Bell appeals the Tunica County Circuit Court’s dismissal of his third motion
    for post-conviction relief (PCR) as time-barred. Finding no exception to the procedural bar,
    we affirm the court’s dismissal of Bell’s motion.
    FACTS AND PROCEDURAL HISTORY
    ¶2.    On July 3, 2007, Bell entered a guilty plea to statutory rape and was sentenced as a
    habitual offender to serve thirty years in the custody of the Mississippi Department of
    Corrections without eligibility for parole or probation.1 Bell filed a PCR motion on October
    1
    See 
    Miss. Code Ann. § 99-19-81
     (Rev. 2007).
    19, 2009, which the circuit court denied. Appealing the decision, Bell argued that “the
    circuit court erred by failing to include the transcript from his guilty plea and sentencing
    hearing in response to his request for the designation of records pursuant to Mississippi Rule
    of Appellate Procedure 10(b)(1).” Bell v. State, 
    105 So. 3d 401
    , 402 (¶1) (Miss. Ct. App.
    2012). Because Bell had failed to request the transcripts, and “the circuit court never had an
    opportunity to rule on the issue,” this Court concluded that the issue was procedurally barred
    and affirmed the court’s denial of Bell’s motion. 
    Id. at 404
     (¶10).
    ¶3.    Bell filed a second PCR motion on April 15, 2013. The circuit court dismissed the
    motion as successive-writ barred, and Bell appealed that decision. Bell v. State, 
    207 So. 3d 705
     (Miss. Ct. App. 2016). Finding Bell had not demonstrated an exception to the procedural
    bar, we affirmed the court’s dismissal; alternatively, we determined the claims lacked merit.
    
    Id. at 710
     (¶23). This Court further noted that because the court reporter at Bell’s plea
    hearing had passed away, there was no transcript available. 
    Id.
     at 707 n.3.
    ¶4.    Bell filed his third PCR motion on April 10, 2018, claiming that he did not sign his
    July 2007 guilty-plea petition. Further, citing this Court’s notation in Bell, 
    207 So. 3d at
    707
    n.3, Bell argued that the unavailability of the transcript of his plea hearing was a violation
    of the circuit court’s duty to make a record of the proceedings under Rule 5.02 of the
    Uniform Rules of Circuit and County Court Practice.
    ¶5.    The circuit court dismissed Bell’s motion on December 21, 2018, finding it was
    procedurally barred by the applicable three-year statute of limitations.2 See Miss. Code Ann.
    2
    Bell filed a petition for writ of mandamus with the Mississippi Supreme Court on
    October 22, 2018, requesting that the circuit court rule on his PCR motion. The supreme
    2
    § 99-39-5(2) (Rev. 2015). Aggrieved, Bell appeals the court’s decision.
    DISCUSSION
    ¶6.    “The [circuit] court may summarily dismiss a PCR petition where it plainly appears
    from the face of the petition, any annexed exhibits, and the prior proceedings in the case that
    the petitioner is not entitled to any relief.” Salter v. State, 
    184 So. 3d 944
    , 948 (¶10) (Miss.
    Ct. App. 2015) (citing 
    Miss. Code Ann. § 99-39-11
    (2) (Supp. 2014)). “In reviewing the
    dismissal of a PCR motion, we ‘will not disturb the circuit court’s factual findings unless
    they are clearly erroneous.’” Allen v. State, 
    177 So. 3d 1148
    , 1149 (¶5) (Miss. Ct. App.
    2014) (quoting Smith v. State, 
    118 So. 3d 180
    , 182 (¶6) (Miss. Ct. App. 2013)). Issues of law
    are reviewed de novo. Id.
    ¶7.    The circuit court dismissed Bell’s motion as procedurally time-barred under
    Mississippi Code Annotated section 99-39-5(2), which provides that in the case of a guilty
    plea, a petitioner’s PCR motion “shall be made . . . within three (3) years after entry of the
    judgment of conviction.” Bell entered his guilty plea in 2007; his PCR motion was not filed
    until 2018, more than ten years later. Furthermore, although not addressed by the circuit
    court, Bell’s PCR motion—his third—is also barred as a successive writ under Mississippi
    Code Annotated section 99-39-23(6) (Rev. 2015).
    court dismissed the petition without prejudice on November 16, 2018, finding that Bell
    failed to show that he had filed said PCR motion. On December 7, Bell filed the
    supplemented PCR petition. After the circuit court dismissed Bell’s PCR motion on
    December 21, 2018, the supreme court dismissed the petition for writ of mandamus as moot.
    On May 8, 2019, this Court granted Bell’s motion to proceed in forma pauperis on
    appeal, finding that neither of Bell’s prior PCR motions “were dismissed as frivolous or
    because he failed to state a relievable claim.”
    3
    ¶8.      As we noted in Bell’s prior appeal:
    In order to overcome these procedural bars, Bell must prove an exception
    applies. Exceptions include an intervening decision of the Mississippi
    Supreme Court or United States Supreme Court that would have adversely
    affected the outcome of his conviction or sentence; newly discovered
    evidence; the expiration of his sentence or the unlawful revocation of his
    probation, parole, or conditional release; or the existence of DNA evidence
    that may have favorably affected his conviction or sentence. 
    Miss. Code Ann. §§ 99-39-5
    (2); 99-39-23(6). “Errors affecting fundamental constitutional
    rights are also excepted from the procedural bars.” Rowland v. State, 
    42 So. 3d 503
    , 506 (¶9) (Miss. 2010).               However, “merely asserting a
    constitutional-right violation is insufficient to overcome the procedural bars.
    There must at least appear to be some basis for the truth of the claim before the
    procedural bar will be waived.” Fluker v. State, 
    170 So. 3d 471
    , 475 (¶11)
    (Miss. 2015).
    Bell, 
    207 So. 3d at 707-08
     (¶6) (brackets omitted). We find Bell’s arguments insufficient to
    overcome the procedural bar.
    ¶9.      Bell claims that he did not sign the plea petition and that the State falsified the
    petition, changing his sentence from twenty years to thirty years. “When a PCR movant
    challenges the validity of his guilty plea, he carries the burden to prove that his plea was
    invalid.” Whetstone v. State, 
    109 So. 3d 616
    , 619 (¶10) (Miss. Ct. App. 2013) (citing
    Hannah v. State, 
    943 So. 2d 20
    , 25 (¶11) (Miss. 2006)). While the current record does not
    contain the guilty-plea petition, in Bell, 
    207 So. 3d at 708
     (¶11), this Court noted that Bell
    had signed his plea petition. Moreover, “there is no rule that requires a defendant to sign a
    guilty-plea petition before the court can accept his guilty plea . . . [and] the absence of a
    guilty-plea petition does not automatically invalidate the plea.” Whetstone, 
    109 So. 3d at 619
    (¶10).
    ¶10.     Bell also contends that because there is no transcript of the plea hearing, the circuit
    4
    court violated his due process rights by failing to provide a complete record. This Court has
    already addressed the issue of the transcript’s unavailability, holding, “Although the
    plea-hearing transcript is unavailable due to the court reporter’s death, the judgment of
    conviction specifically states that Bell and the district attorney appeared before the court and
    that Bell was ‘duly advised of all his legal and constitutional rights in the premises,’ and was
    ‘further advised of the consequences of such a plea.’” Bell, 
    207 So. 3d at 708-09
     (¶12).
    Additionally, as the circuit court noted in its order dismissing the PCR motion, “At the court
    reporter’s death, any claim by [Bell] for post-conviction relief was already barred by the
    statute of limitations. Therefore, the death of the court reporter and the whereabouts of the
    documents mention by [Bell] can in no way revive his untimely claim.”
    ¶11.   Accordingly, we affirm the circuit court’s dismissal of Bell’s PCR motion as time-
    barred, as he has not shown an exception to the procedural bar. Alternatively, we find no
    merit to the issues raised by Bell.
    ¶12.   AFFIRMED.
    CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL,
    McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.
    5
    

Document Info

Docket Number: NO. 2019-CP-00187-COA

Judges: Barnes, Carlton, Wilson, Greenlee, Westbrooks, Tindell, McDonald, Lawrence, McCarty, Wilson

Filed Date: 4/14/2020

Precedential Status: Precedential

Modified Date: 10/11/2024