Larry Wooten v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2018-CP-00378-COA
LARRY WOOTEN A/K/A LARRY C. WOOTEN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/08/2018
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: LARRY WOOTEN (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 05/28/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. On January 3, 2006, Larry Wooten pleaded guilty to possession of cocaine. The
Rankin County Circuit Court sentenced Wooten to serve eight years in the custody of the
Mississippi Department of Corrections (MDOC). The court ordered that after Wooten served
three years with MDOC he would be placed on post-release supervision for three years. The
circuit court revoked Wooten’s post-release supervision after several separate violations and
ordered him to serve the remainder of his sentence.
¶2. Twelve years later on January 30, 2018, Wooten filed a motion for post-conviction
relief (PCR) and alleged that he was inappropriately sentenced as a result of his post-release
supervision being revoked. The circuit court denied Wooten’s motion. For the reasons
outlined below, we affirm the circuit court’s judgment.
FACTS
¶3. On February 10, 2005, Larry Wooten was charged by indictment with possession of
cocaine — a Schedule II controlled substance — in violation of Mississippi Code Annotated
section 41-29-139 (Supp. 2000). Almost a year later in January 2006, Wooten entered a plea
of guilty. The circuit court sentenced Wooten to serve an eight-year term. Specifically,
Wooten was to serve the first three years in the custody of MDOC, followed by a three-year
period on post-release supervision.
¶4. Wooten first violated his post-release supervision on December 11, 2007, when he
tested positive for marijuana. Again, on April 2, 2008, Wooten violated the terms and
conditions of his post-release supervision by pleading guilty to driving under the influence
(DUI), driving without a driver’s license, and a seatbelt violation. As a result, on August 6,
2008, MDOC filed a petition for revocation, and on July 30, 2009, the circuit court revoked
Wooten’s suspended sentence. Wooten was ordered to serve the remainder of his sentence
in the custody of MDOC. From September 2009 until July 2013, Wooten requested his
sentencing order a total of six times. Each time, Wooten was provided with a copy of his
sentencing order and a copy of the order of revocation.
¶5. Despite having his sentencing order, it was not until January 30, 2018, that Wooten,
pro se, moved for PCR, alleging that he was “re-sentenced” by the trial court at his
revocation hearing and that his original sentence was unsupported by statutory law. The
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circuit court dismissed his motion and held that Wooten had failed to file his motion within
the time prescribed by law and was not entitled to relief. As a result, Wooten filed his notice
of appeal.1
STANDARD OF REVIEW
¶6. In matters of post-conviction relief this Court’s standard of review is clear. The denial
of a PCR motion will not be reversed unless this Court finds that the trial court’s decision
was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002).
We review questions of law de novo. Hobson v. State, 910 So. 2d 1139, 1140 (¶4) (Miss.
Ct. App. 2005).
ANALYSIS
¶7. Wooten argues on appeal that his claim is not time-barred. Specifically, Wooten
claims his sentence was improperly revoked and that his sentence had expired by the time he
was ordered to serve the remainder in the custody of MDOC. Additionally, Wooten asserts
that the circuit court “re-sentenced” him during his revocation hearing and that his sentence
was illegally increased from six years to eight. We first address the procedural bar.
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Wooten’s notice of appeal is not timely under Rule 4 of the Mississippi Rules of
Appellate Procedure, because it was filed more than thirty days after the circuit court’s order
of dismissal. Rule 2(a)(c) of those rules, however, allows for a suspension of the Rules of
Appellate Procedure in the interest of expediting a decision or for good cause. Specifically,
Rule 2(a)(c) provides that “the time for taking an appeal under Rules 4 or 5 may be extended
in criminal and post-conviction cases, but not in civil cases.” Wooten signed his notice of
appeal within the thirty-day period provided for by Rule 4, but the appeal was not filed with
the clerk until after the period expired. We find that to be good cause shown and suspend
the rules to extend the time period.
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¶8. The circuit court found that Wooten’s PCR motion was time-barred because it did not
meet the three-year statutory requirements under Mississippi Code Annotated section 99-39-
5(2) (Rev. 2015). To be clear, Wooten’s post-release supervision was revoked on July 30,
2009, and he moved for PCR on January 30, 2018. Twelve years had lapsed between the
initial judgment of conviction and his PCR motion. In his brief, Wooten argues that the
procedural bars do not apply because his sentence is not supported by a statute.
Alternatively, he claims the violation of his constitutional rights surpasses any procedural
bars.
¶9. A defendant who enters a plea of guilty has three years after the entry of the judgment
of conviction to seek relief. Miss. Code Ann. § 99-39-5(2). There are, however, several
exceptions available to a defendant who moves for relief after the three-year period. Id. at
§ 99-39-5(2)(a)-(b). The defendant carries the burden to “show he has met a statutory
exception.” Campbell v. State, 233 So. 3d 904, 906 (¶5) (Miss. Ct. App. 2017) (citing White
v. State, 59 So. 3d 633, 635 (¶8) (Miss. Ct. App. 2011)). The statute specifically cites six
exceptions to the time-bar:
1. An intervening decision from the Mississippi or United States Supreme
Court that would adversely affect the outcome of the conviction or
sentence;
2. Newly discovered evidence not reasonably discoverable at trial that
would likely have caused a different result;
3. Biological evidence demonstrating that the movant would likely either
not have been convicted or received a lesser sentence;
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4. The movant’s sentence is expired;
5. His parole, probation, or conditional release has been unlawfully
revoked; or
6. The motion is in a capital case and is filed no more than one year after
conviction.
Miss. Code Ann. § 99-39-5(2). The supreme court has also carved out an exception to the
time-bar for violations of a defendant’s fundamental rights. Rowland v. State, 42 So. 3d 503,
507 (¶12) (Miss. 2010). “Errors affecting fundamental constitutional rights are excepted
from the procedural bars.” Id. As this Court has found in the past, “the mere suggestion of
a constitutional-rights violation is not itself sufficient to surmount the time-bar.” Smith v.
State, 118 So. 3d 180, 183 (¶11) (Miss. Ct. App. 2013).
¶10. Wooten was convicted on January 3, 2006. Wooten’s post-release supervision was
revoked on July 30, 2009. He moved for PCR on January 30, 2018—clearly more than three
years after the date the court entered his judgment of conviction and after his sentence was
revoked. Therefore, the circuit court correctly determined the claim was time-bared.
Regardless, if any one exception applies, the time-bar is defeated.
¶11. Wooten claims that his sentence was illegally revoked. Specifically, he claims that
the circuit court merely adopted the recommendation of MDOC and failed to hold a proper
revocation hearing. This, he argues, violates his rights to due process and equal protection
under the law. Alternatively, he asserts that his sentence was expired and so the revocation
of his post-release supervision was improper. Of these two, we first address his claims that
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he was not afforded a proper revocation hearing.
¶12. The record indicates that there was a hearing on MDOC’s motion for revocation. The
defendant was present and the court considered the motion before it. At this hearing, the
court found that Wooten had violated the terms and provision of his post-release supervision
and granted MDOC’s petition. “Revocation requires only a showing that the defendant
‘more likely than not’ violated the terms [of his post-release supervision.]” Felix v. State,
73 So. 3d 1194, 1196 (¶8) (Miss. Ct. App. 2011). The revocation order indicates that
Wooten pleaded guilty to testing positive for marijuana and also to DUI, driving without a
driver’s license, and a seatbelt violation. As the order points out, these crimes are violations
of the terms and conditions of Wooten’s post-release supervision. His guilty plea to these
offenses clearly met the standard outlined by this Court.
¶13. Wooten’s alternative argument for exception to the time-bar is that his sentence had
expired by the time his post-release supervision was revoked. Wooten argues that his
sentence expired in April or May of 2010. These dates come from Wooten’s belief he was
sentenced to a “six-year split sentence.” Respectfully, it is clear from the record that Wooten
does not understand the contents of his sentencing order.
¶14. While on his three year post-release supervision, Wooten violated the terms of the
circuit court’s order on two separate occasions. MDOC, within the time period allotted, filed
a motion for the circuit court to revoke Wooten’s suspended five-year sentence. The circuit
court agreed with MDOC’s assessment. As a result, Wooten was ordered to serve his
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remaining time.
¶15. A circuit court has the authority to “continue or revoke all or any part of the probation
or the suspension of sentence, and may cause the sentence imposed to be executed or may
impose any part of the sentence which might have been imposed at the time of conviction.”
Miss. Code Ann. § 47-7-37(5)(a) (Supp. 2018). Simply put, it was within the circuit court’s
authority to order Wooten to serve the remainder of his original sentence after he violated the
terms and conditions of his post-release supervision. Thus, this issue is without merit, and
we find that the circuit court did not err.
¶16. AFFIRMED.
BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, McCARTY AND C. WILSON, JJ.,
CONCUR.
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