Wendell Duncan v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CP-01487-COA
WENDELL DUNCAN A/K/A WENDELL AVERY APPELLANT
DUNCAN
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/09/2013
TRIAL JUDGE: HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: WENDELL DUNCAN (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY GORE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED – 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.
IRVING, P.J., FOR THE COURT:
¶1. Wendall Duncan appeals, for the fourth time, the dismissal of his motion for
post-conviction relief (PCR) by the Washington County Circuit Court. Finding no error, we
affirm.
FACTS
¶2. The underlying facts leading up to Duncan’s conviction and denial of the first three
PCR motions have not changed. On November 30, 1994, a Washington County jury
convicted Duncan of conspiracy to commit burglary of a business and burglary of a business.
Duncan was sentenced, as an habitual offender under Mississippi Code Annotated section
99-19-81 (Rev. 2007), to serve five years in the custody of the Mississippi Department of
Corrections (MDOC) for the conspiracy count and seven years for the burglary-of-a-business
count. The sentences were set to run consecutively, for a total of twelve years in the custody
of the MDOC. Duncan failed to file a direct appeal after his 1994 conviction and sentence.
¶3. Duncan was later convicted of armed robbery in March 1995. At the conclusion of
that sentencing hearing, the circuit court found that the State had failed to establish that
Duncan’s two prior convictions arose out of separate incidents at different times. The circuit
court then sentenced Duncan, as a non-habitual offender, to thirty years in the custody of the
MDOC, to run consecutively to the previously imposed sentence for Duncan’s burglary-of-a-
business and conspiracy convictions.
¶4. Duncan filed his first motion for PCR challenging his conspiracy and burglary
convictions in early 1996. On July 29, 1996, the circuit court dismissed Duncan’s PCR
motion. The Mississippi Supreme Court affirmed the circuit court’s judgment on June 11,
1998. On January 3, 2008, Duncan filed a motion to vacate the convictions of conspiracy
to commit burglary of a business and burglary of a business. The circuit court dismissed that
motion, which the court treated as a motion for PCR, as time-barred and successive-writ
barred. On appeal, this court affirmed the trial court’s dismissal of Duncan’s motion for
PCR. Duncan v. State, 28 So. 3d 665, 667 (¶¶6-7) (Miss. Ct. App. 2009).
¶5. On January 19, 2011, the Mississippi Supreme Court dismissed Duncan’s motion for
leave to proceed in the trial court pursuant to Mississippi Code Annotated section 99-39-7
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(Supp. 2014), after finding that Duncan had failed to file a direct appeal of his conspiracy-to-
commit-burglary and burglary-of-a-business convictions and sentences. Nonetheless,
Duncan filed a motion to correct his sentence in the circuit court, which the circuit court
treated as a PCR motion and dismissed as successive-writ barred. This court again affirmed
the circuit court’s dismissal and again acknowledged that the PCR motion was time-barred
and successive-writ barred. Duncan v. State, 100 So. 3d 996 (Miss. Ct. App. 2012).
¶6. On July 9, 2013, the circuit court dismissed, for the fourth time, a PCR motion filed
by Duncan. This appeal arises from the circuit court’s denial of Duncan’s fourth PCR
motion targeting his twelve-year sentence for conspiracy and burglary imposed in 1994.
DISCUSSION
¶7. “A trial court’s dismissal of a motion for post-conviction relief will not be reversed
absent a finding that the trial court’s decision was clearly erroneous. However, when issues
of law are raised, the proper standard of review is de novo.” Duncan v. State, 28 So. 3d 665,
666 (¶4) (Miss. Ct. App. 2009) (internal citations omitted).
¶8. Duncan argues that his twelve-year sentence, as an habitual offender, for conspiracy
and burglary of a business was unlawful, and he asks this court to reverse his sentence and
remand this case back to the trial court for re-sentencing.
¶9. Mississippi Code Annotated section 99-39-5(2) (Supp. 2014) states:
A motion for relief under this article shall be made within three (3) years after
the time in which the petitioner’s direct appeal is ruled upon by the Supreme
Court of Mississippi or, in case no appeal is taken, within three (3) years after
the time for taking an appeal from the judgment of conviction or sentence has
expired, or in case of a guilty plea, within three (3) years after entry of the
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judgment of conviction. Excepted from this three-year statute of limitations
are those cases in which the petitioner can demonstrate either:
(a)(i) That there has been an intervening decision of the Supreme Court of
either the State of Mississippi or the United States which would have actually
adversely affected the outcome of his conviction or sentence or that he has
evidence, not reasonably discoverable at the time of trial, which is of such
nature that it would be practically conclusive that had such been introduced at
trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or
admitted to a crime, there exists biological evidence not tested, or, if
previously tested, that can be subjected to additional DNA testing that would
provide a reasonable likelihood of more probative results, and that testing
would demonstrate by reasonable probability that the petitioner would not
have been convicted or would have received a lesser sentence if favorable
results had been obtained through such forensic DNA testing at the time of the
original prosecution.
(b) Likewise excepted are those cases in which the petitioner claims that his
sentence has expired or his probation, parole or conditional release has been
unlawfully revoked. Likewise excepted are filings for post-conviction relief in
capital cases which shall be made within one (1) year after conviction.
It is clear that the current PCR motion filed by Duncan is time-barred by more than fifteen
years. As noted in Duncan, 28 So. 3d at 666 (¶5), “this is well after his twelve-year sentence
had been served.” As such, even if an error was found regarding his habitual-offender status,
we could not cure the defect since the sentence Duncan complains of is technically over.
Furthermore, Duncan does not state that an exception applies, nor can we find one.
¶10. Mississippi Code Annotated section 99-39-23(6) (Supp. 2014) states:
The order as provided in subsection (5) of this section or any order dismissing
the petitioner’s motion or otherwise denying relief under this article is a final
judgment and shall be conclusive until reversed. It shall be a bar to a second
or successive motion under this article. Excepted from this prohibition is a
motion filed under Section 99-19-57(2), raising the issue of the convict’s
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supervening mental illness before the execution of a sentence of death. A
dismissal or denial of a motion relating to mental illness under Section
99-19-57(2) shall be res judicata on the issue and shall likewise bar any second
or successive motions on the issue. Likewise excepted from this prohibition
are those cases in which the petitioner can demonstrate either that there has
been an intervening decision of the Supreme Court of either the State of
Mississippi or the United States which would have actually adversely affected
the outcome of his conviction or sentence or that he has evidence, not
reasonably discoverable at the time of trial, which is of such nature that it
would be practically conclusive that, if it had been introduced at trial, it would
have caused a different result in the conviction or sentence. Likewise excepted
are those cases in which the petitioner claims that his sentence has expired or
his probation, parole or conditional release has been unlawfully revoked.
Likewise excepted are those cases in which the petitioner has filed a prior
petition and has requested DNA testing under this article, provided the
petitioner asserts new or different grounds for relief related to DNA testing not
previously presented or the availability of more advanced DNA technology.
(Emphasis added). This PCR motion is also barred as a successive writ. Duncan has not
articulated and fails to show any statutorily recognized exception that applies. This issue is
without merit.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF WASHINGTON COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO WASHINGTON COUNTY.
LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.
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