IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2023-CP-00890-COA
ARTHUR BLANTON BALL, JR. APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/21/2023 TRIAL JUDGE: HON. PRENTISS GREENE HARRELL COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ARTHUR BLANTON BALL JR. (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: CASEY BONNER FARMER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 12/17/2024 MOTION FOR REHEARING FILED:
EN BANC.
McCARTY, J., FOR THE COURT:
¶1. In this appeal we are tasked to determine if Arthur Ball’s right to be free from Double
Jeopardy was violated by his voluntary guilty pleas in two separate counties. The trial court
ruled that his right was not violated. Because we find Ball waived this argument as a result
of his guilty pleas, we affirm the trial court’s denial of post-conviction relief.
PROCEDURAL HISTORY
¶2. The underlying facts relevant to this appeal are not in dispute. In September 2018, a
grand jury in Claiborne County returned a two-count indictment against Arthur Ball in cause number 11:18-cr-27THI.1 The first count was for the possession of stolen firearms, and the
second was for the possession of a weapon by a convicted felon.
¶3. In December of the same year, a Marion County grand jury indicted him in cause
number 46:18-cr-227-PH for two separate counts: burglary of a dwelling and possession of
a weapon by a felon. From Ball’s later pleadings, this burglary was the source of the weapon
he was later accused of possessing.
¶4. In January 2019, Ball plead guilty to a single charge in Claiborne County—the
possession of a weapon by a felon. In September 2019, he plead guilty to both burglary and
possession of a weapon by a felon in Marion County.
¶5. After his guilty pleas were entered and after he began serving time, Ball filed a
petition for post-conviction relief. He had multiple claims, but the one that survives for
review today centered on his argument that he was being twice punished for the same crime.
¶6. Ball’s core theory was that the State was impermissibly prosecuting him twice for
possession of the same guns. As Ball himself argued in a handwritten pleading before the
trial court:
1 In the order denying Ball’s PCR motion, the circuit court stated that it had reviewed the indictment and sentencing order in Ball’s Claiborne County case as well as the indictment, plea petition, conviction, sentence, and plea hearing transcript in the Marion County case. These documents were not included in the record on appeal. Unlike appeals from orders summarily dismissing a PCR motion, these documents were not required to be included in the record. See MRCP 54(c) (“When a court summarily dismisses a motion for post-conviction collateral relief . . . the order must identify the files, records, transcripts, and correspondence the court relied on and direct that certified copies of those documents be placed in the motion cause number’s file” (emphasis added)). Therefore, if a party wishes to include these materials, they must do so pursuant to Mississippi Rules of Appellate Procedure 10(b)(1)-(2).
2 The Petitioner contends that possession of these weapons stem from one Burglary Cause #46:18cr227 [(the Marion County case)] that all said weapons was obtained at one time. While the Burglary occurred in Marion County the act of being caught in possession occurs in Claiborne County. Does the State of Mississippi have legal authority to charge Petitioner in every other county or two traveled through between Marion and Claiborne with possession?
¶7. Ball further argued the State could not prosecute him “for possessing the same
weapons stemming from obtaining all said weapons at the same time.”
¶8. Recognizing the gravity of Ball’s claim, the trial court ordered the State to respond
to the PCR. The State filed its response. The trial court set an evidentiary hearing and
ordered Ball to be transported so he could participate. During the hearing, the trial court
heard arguments from both Ball and the State.
¶9. In a written order, the trial court found there was a crucial distinction between the two
indictments from the two separate counties: “The firearm Ball pleaded guilty to possessing
in Marion County was a Marlin 917V5 rifle, bearing serial number 92636879, which was not
the same firearm he pleaded guilty to possessing in Claiborne County.”
¶10. So the trial court’s view of Ball’s claims was “not whether he received the weapons
at different times or from different sources, but whether he illegally possessed one firearm
in Marion County, and later illegally possessed another firearm when he was stopped and
arrested in Claiborne County.” The trial court proceeded to reach the merits of Ball’s
argument. It found that Double Jeopardy was not violated because Ball “was illegally in
possession of a firearm in Marion County, and at a different time and location he was
illegally in possession of a separate firearm Claiborne County.” The trial court denied his
request for post-conviction relief, and Ball now appeals.
3 DISCUSSION
¶11. On appeal, Ball argues the trial court should be reversed because “his Constitutional
Rights were violated by way of Double Jeopardy” since “[i]t is well established that the
simultaneous, undifferentiated Possession of Multiple Firearms constitutes only one
offence[.]” In response, the State argues in part that Ball waived this argument.
¶12. In 2016, this Court considered how guilty pleas intersected with a subsequent claim
of double jeopardy. In that case, a petitioner sought to claw back his guilty plea after
pleading “guilty to manslaughter, two counts of felon in possession of a firearm, and one
count of carrying a concealed weapon after a felony conviction.” Knight v. State, 192 So.
3d 360, 362 (¶1) (Miss. Ct. App. 2016). The theory of the State had been that “Knight had
emptied two firearms into a mobile home, killing Charles Dawson in the process,” and police
had found an abandoned pistol at the scene, which “had been identified as Knight’s.” Id. at
(¶3). After he was arrested, Knight was found with other firearms, including a rifle that was
consistent with “[s]hell casings recovered at the scene[.]” Id.
¶13. After a series of challenges, Knight brought a PCR claim that he had impermissibly
plead guilty in violation of his right against double jeopardy. Id. at (¶8). The trial court
denied relief. Id. at 367-68 (¶25). Since “a double-jeopardy claim is a question of law,” the
issue was “review[ed] de novo.” Id. at 363 (¶9).
¶14. As here, the State argued that Knight waived the issue by pleading guilty; at the time,
we noted that “our [S]upreme [C]ourt has not addressed circumstances in which a guilty plea
operated as a waiver of a double-jeopardy claim.” Id. at 365 (¶15). We proceeded to review
4 United States Supreme Court decisions on the issue and ascertained two rules. Id. at (¶15).
¶15. As a general point, “The fact remains that the waiver question turns on the nature of
the double-jeopardy claim.” Id. So first, “[t]hose [claims] involving charges that are facially
duplicative of an earlier crime are not waived by pleading guilty.” Id.
¶16. Conversely, “a guilty plea does waive a double-jeopardy claim that cannot be proven
without contradicting the indictments under which a prisoner pled guilty.” Id. We applied
a U.S. Supreme Court decision that “prisoners who plead guilty to ‘indictments that on their
face described separate crimes’ essentially waive the right to contradict ‘the admissions
inherent in their guilty pleas.’” Id. at (¶14) (quoting United States v. Broce, 488 U.S. 563,
576 (1989)).
¶17. Applying those rules to the petitioner, we found double jeopardy had not been
violated. Id. at (¶16). “Knight pled guilty to two separate bills of information,” and “One
bill of information charged him with possession of the SKS [rifle], and the other charged him
with possession of a shotgun.” Id. “On their face, the two bills of information describe
separate crimes,” we concluded. Id. As a result, we found that “Knight waived his current
double-jeopardy claim by pleading guilty to the charges.” Id.
¶18. We subsequently applied these rules from Broce and Knight in a PCR case where a
petitioner claimed he was punished three times for the same act of larceny. “‘Just as a
defendant who pleads guilty to a single count admits guilt to the specified offense, so too
does a defendant who pleads guilty to two counts with facial allegations or distinct offenses
concede that he has committed two separate crimes.’” Hooghe v. State, 244 So. 3d 81, 86
5 (¶13) (Miss. Ct. App. 2017) (quoting Broce, 488 U.S. at 570)).
¶19. The same year, we applied Broce and Knight again, reasoning that “Conscious waiver
[of the right to be free from double jeopardy] is not required because, by pleading guilty, the
defendant admits not only to the facts alleged but also to his substantive, legal guilt for the
offense charged.” Lowell v. State, 229 So. 3d 1054, 1056 (¶6) (Miss. Ct. App. 2017); see
also Tallant v. State, 345 So. 3d 575, 590 (¶42) (Miss. Ct. App. 2021) (applying Knight to
conclude that “when Tallant pled guilty to the three separate child pornography charges, he
waived his right to claim a multiplicitous indictment/double jeopardy claim”); Jones v. State,
284 So. 3d 855, 861 (¶18) (Miss. Ct. App. 2019) (finding a petitioner in a PCR case had
“waived any double-jeopardy claim upon pleading guilty” because “the charges against [her]
are not facially duplicative, and as such, she was properly charged with two distinct crimes”).
¶20. Just as in Knight, the two indictments featured distinct offenses and distinct
allegations that constitute different crimes; namely, that Ball possessed different stolen
weapons in different counties. In accord with the U.S. Supreme Court’s decision in Broce
and our prior decisions in Knight, Hooghe, Lowell, Tallant, and Jones, we find that by
pleading guilty, Ball waived his right to later assert a claim that he was placed in double
jeopardy by virtue of the two indictments.
CONCLUSION
¶21. “On appeal, we will affirm a decision of the circuit court where the right result is
reached even though we may disagree with the reason for that result.” Mack v. State, 943 So.
2d 73, 76 (¶7) (Miss. Ct. App. 2006). Due to Ball’s waiver of his claim by virtue of his
6 guilty pleas, we affirm the trial court’s denial of post-conviction relief.
¶22. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., McDONALD, LAWRENCE, SMITH, EMFINGER AND WEDDLE, JJ., CONCUR. WESTBROOKS, J., SPECIALLY CONCURS WITH SEPARATE WRITTEN OPINION, JOINED BY BARNES, C.J., AND McDONALD, J.
WESTBROOKS, J., SPECIALLY CONCURRING:
¶23. I agree that Ball conceded in his appellate brief that his indictments facially alleged
two separate firearms were possessed in different locations. I also agree he waived his
double jeopardy claim on these specific facts. I write separately because while a PCR
petitioner carries the burden of proving entitlement of relief, a couple of issues concern me
that would have determined the outcome for me had Ball not conceded.
¶24. Ball filed his motion for post-conviction collateral relief and raised three issues for
the trial court’s consideration. At the end of his motion, Ball also requested the appointment
of an attorney. The judge summarily dismissed the claims of an involuntary plea and
ineffective assistance of counsel. If Ball had not raised a legitimate question regarding
double jeopardy, I am confident the court would have summarily denied his motion
altogether. Even so, the court ordered an evidentiary hearing.
¶25. In Ball’s initial PCR motion to the trial court, he requested the appointment of
counsel, to which the court never made an acknowledgment. “[T]he trial court has discretion
to appoint counsel in PCR proceedings where the trial court determines that the petitioner
qualifies and displays a need for counsel.” Higginbotham v. State, 114 So. 3d 9, 17 (¶26)
(Miss. Ct. App. 2012) (citing Unruh v. Puckett, 716 So. 2d 636, 641 (¶21) (Miss. 1998))
7 (recognizing the need for appointed counsel existed because the petitioner had limited case
materials due to imprisonment in South Dakota and claimed indigent status); see Miss. Code
Ann. § 99-39-23(1) (Rev. 2020) (stating “the [trial] judge may appoint counsel for a
petitioner who qualifies for the appointment of counsel”). Under section 99-39-23(2), when
an evidentiary hearing is required, “[t]he hearing shall be conducted as promptly as
practicable” while also taking into consideration the “regard for the need of counsel for both
parties for adequate time for investigation and preparation.”
¶26. In Ball’s PCR motion, which Ball signed on April 8, 2021, he stated, “Petitioner
respectfully requests that this Honorable Court enter an Order requiring the State to file an
Answer or other Pleading as to take any other action as the Judge deems appropriate,
including, but not limited to, the appointment of Counsel.” (Emphasis added). Ball also
stated in his PCR motion, “Petitioner has limited knowledge of law or process to obtain
records, copies of documents and is hindered because of incarceration.”
¶27. In initially ruling on Ball’s PCR motion, the trial court addressed all three issues Ball
raised: (1) his right against double jeopardy, (2) ineffective assistance of counsel, and (3) his
involuntary plea. The trial court granted the evidentiary hearing on Ball’s double jeopardy
claim and dismissed the other two claims. However, at no point in the order did the trial
court address Ball’s request for the appointment of counsel.
¶28. During the hearing, Ball also raised an issue regarding his habitual-offender status.
The trial judge agreed that there was a discrepancy and agreed to correct it by writing to
MDOC. Prior to that, the trial court had a question regarding sovereignty between the
8 counties and venue. While the State appropriately addressed the court’s question, this legal
jargon likely was not understood by Ball. The court welcomed Ball to file a written response
on the sovereignty issue—although he was going to rule against him—and when asked if he
understood, Ball responded, “Somewhat, your honor.” It was not an affirmative response,
and the assistance of counsel would have benefitted Ball. Yet, even with this response, the
trial judge did not use his discretion to even consider appointing counsel to Ball. In my
opinion, the trial court’s discretion should be used as an expansive conduit rather than a
constrictive one in its decisions leading to a transparent, fair, and just proceeding for all
parties.
¶29. As mentioned, Ball made a request for an attorney in his motion. During the hearing,
he did not follow up and request one, and the trial court did not address it. The law invites
defendants under Mississippi Code Annotated section 99-39-5 (Rev. 2020) to challenge their
convictions, but our precedent disaffirms this by narrowing the scope of legal arguments that
can be made and failing to guarantee the legal tools needed to make a decent case, let alone
a successful one. See Howell v. State, 358 So. 3d 613, 616 (¶12) (Miss. 2023) (overruling
any precedent that has “held the fundamental-rights exception can apply to the substantive,
constitutional bars codified by the Legislature in the [UPCCRA]”). Consider also our
supreme court has held that a trial judge does not abuse his discretion for failing to sua
sponte appoint an attorney for a PCR motion, even if appointment would have been helpful.
Moore v. State, 587 So. 2d 1193, 1195-96 (Miss. 1991); accord Magee v. State, No.
2023-CP-00008-COA, 2024 WL 3947326, at *4 (¶17) (Miss. Ct. App. Aug. 27, 2024) (citing
9 Porras v. State, 365 So. 3d 987, 992 (¶17) (Miss. Ct. App. 2022)) (explaining that PCR
motions are considered civil in nature and that “there is no right to appointed counsel in PCR
proceedings”). Yes, the petition is a civil filing, but the alignment of civil procedural rules
does little to change the impact PCR decisions have on the integrity of the original criminal
plea or trial, conviction, and sentence. In reality the petitioner is challenging the criminal
process and sentencing. At its core, post-conviction collateral relief is an extension (albeit
not a continuation) of a criminal proceeding. Accordingly, I reiterate that a trial judge’s
discretion should reflect this context.
¶30. Turning to the hearing and the double jeopardy issue, I acknowledge there is no
precedent in Mississippi that shifts the burden of establishing an entitlement to relief to the
State, and I do not suggest otherwise. My point is not to shift the burden to the State.
However, the State always has an affirmative duty to advocate responsibly. Harness v. State,
58 So. 3d 1, 10 (¶33) (Miss. 2011). A prosecutor for the State acts as a “minister of justice
and not simply that of an advocate.” Miss. R. Prof. Conduct 3.8 cmt. “It is the duty of the
prosecutor to see that nothing but competent evidence is submitted to [a court of law.] 42
Am. Jur., Sec. 20, p. 255.” Sanchez v. State, 792 So. 2d 286, 291 (¶14) (Miss. Ct. App.
2001) (citing Hosford v. State, 525 So. 2d 789, 792 (Miss. 1988)). “A prosecutor also has
the responsibility to assure that all of the constitutional and statutory rights of the defendant
are protected.” Id. at (¶15) (citing Adams v. State, 202 Miss. 68, 75, 30 So. 2d 593, 596
(1947)).
¶31. At Ball’s evidentiary hearing, neither Ball nor the State presented the Marion County
10 or the Claiborne County indictment to the court to prove that the charges he was facing were,
in fact, for two separate guns in different counties. The State gave fictional “illustrations”
of the guns Ball was charged with possessing in the separate counties without providing any
factual information as to the specificity of the guns. That portion of the hearing between the
trial court and counsel for the State reads in the record as follows:
THE COURT: Now, I agree with that. Let me ask you a few questions to clear it up in my mind. He went into somewhere in this county and got multiple guns?
MR. STEWART: Yes, Your Honor.
THE COURT: He subsequently went to Claiborne and he got charged with guns by possession, a singular gun?
MR. STEWART: Yes, sir.
THE COURT: Marion County subsequently brought a charge of burglary -- him in possession of a gun while a convicted felon of a separate gun that was taken in that original burglary?
THE COURT: Now, if we use the illustration and this may or may not be true, but he was charged with a .38 over in Claiborne. Over here he was charged with a .22?
THE COURT: That’s for illustration purpose anyway. In that event, Matt, I would agree with him, that they would be different guns.
MR. STEWART: To further illustrate, Your Honor, and so the record can’t see this, I’m holding seven pens, okay? He steals all seven pens from a house in Marion County. Ipso Facto he possessed a firearm in Marion County. So Marion
11 County charges this firearm right here. Now, he’s still got it when he gets to Claiborne County, he’s got all of them, but Claiborne County charges him with a separate one.
THE COURT: That’s a distinction that I will concur with.
Again, neither indictment from either county was included in the record on appeal. The State
acknowledges in its appellate brief that Ball’s indictments were not included in the record
presented to this Court, yet the State alleges that the indictments do not facially offend the
double jeopardy clause because “all parties agreed that his indictment in Marion County
alleged possession of a different firearm than the indictment in Claiborne County.”
¶32. I take this opportunity to clarify, with respect to the State’s argument, that no trial
court may rely solely on an alleged agreement among parties when squarely presented with
a question of fact central to determining whether the State has convicted and sentenced a
person twice for the same offense. “The purpose of an evidentiary hearing is for the court
to receive evidence in order to make findings of fact.” Higginbotham v. State, 367 So. 3d
200, 206 (¶13) (Miss. Ct. App. 2020) (quoting Williams v. State, 752 So. 2d 410, 414 (¶13)
(Miss. Ct. App. 1999)). The State’s use of an illustration to represent attainable facts
demonstrates an unconcerned dereliction of its duty to protect the integrity of the judicial
process, which at the bare minimum requires the admission of facts, not an illustration as a
substitution.
¶33. In September 2018, a grand jury indicted Ball for being a felon in possession of a
firearm in Claiborne County on July 18, 2018. Ball pled guilty to and was sentenced for the
charge. Three months later, another grand jury indicted Ball for burglary and being a felon
12 in possession of a firearm in Marion County on July 26, 2018.2 Defendants do not always
forfeit their rights to raise claims of double jeopardy by pleading guilty; however, those “who
plead guilty to ‘indictments that on their face described separate’ crimes essentially waive
the right to contradict ‘the admissions inherent in their guilty pleas.’” Knight v. State, 192
So. 3d 360, 365 (¶14) (Miss. Ct. App. 2016) (quoting United States v. Broce, 488 U.S. 563,
¶34. In the Marion County Circuit Court’s “Final Order to Motion for PCR,” which was
submitted to this Court on appeal, the circuit court stated:
In reaching its decision regarding Ball’s double jeopardy claim, the court, in addition to reviewing the State’s Response and Ball’s Response (Reply), also reviewed the documents described in its Order disposing of Ball’s claims of ineffective counsel and involuntary plea (Doc. #8):
Claiborne County Circuit Court, Cause No. 11:18-cr-027THI Doc. #1: Indictment Doc. #9: Guilty Plea and Sentencing Order
Marion County Circuit Court, Cause No. 46:18-cr-227-PH Doc. #1: Indictment Doc. #38: Petition to Enter Plea of Guilty Doc. #39: Order of Conviction and Sentence Doc. #44: Plea Transcript
The Marion County Circuit Court’s order continued, “The firearm Ball pleaded guilty to
possessing in Marion County was a Marlin 917V5 rifle, bearing serial number 92636879,
which was not the same firearm he pleaded guilty to possessing in Claiborne County.” Yet
2 In his PCR motion, Ball alleged the date in the Claiborne County indictment was wrong and should have read July 26, 2018, as well. Neither the State nor the court directly addressed the claim Ball made regarding the date in the Claiborne County indictment. During the evidentiary hearing, the judge apparently maintained the impression that the possession in Claiborne County occurred after the Marion County incident.
13 nowhere in that order is there a mention of the specific gun and serial number that Ball was
charged with in Claiborne County. I also add that the indictments, which were more
accessible to the State and the court, were not read in full and/or placed in the record for our
benefit. But for Ball’s concession in his appellate brief, we would not have had the
clarification necessary for determining if this claim of double jeopardy had merit.
¶35. The trial court stated in the written order denying Ball’s PCR claim, “When he
traveled to Claiborne County, he was still a felon and still in possession of a firearm; he was
therefore guilty of committing the same crime but in a new jurisdiction.” The court
continued, “The issue in Ball’s case is not whether he received the weapons at different times
or from different sources, but whether he illegally possessed one firearm in Marion County,
and later illegally possessed another firearm when he was stopped and arrested in Claiborne
County.” This last point is only half true. The initial possession of the firearms was an
issue—one of fact. See Knight, 192 So. 3d at 367 (¶23). Whether he received the weapons
at the same time was a factual question the circuit court did not outwardly resolve at the
hearing to determine if Ball’s continuing possession constituted the same offense.
¶36. Nonetheless, I am aware that when reviewing findings of fact in PCR orders, our
standard of review prevents us from reversing those findings unless they are clearly
erroneous. Tingle v. State, 285 So. 3d 708, 710 (¶8) (Miss. Ct. App. 2019). The trial court’s
order stated that the court had reviewed the parties’ filings, both indictments, guilty pleas,
and sentencing orders and concluded Ball was not subjected to double jeopardy. Based on
this statement and Ball’s concessions, I would concur that the trial court did not make a clear
14 error of fact. Although I would affirm the denial of relief, I would reproach the State’s use
of mere examples instead of actual facts at the hearing to reject a claim of double jeopardy
like the one presented. Ball presented a non-frivolous claim for double jeopardy, see United
States v. Jones, 733 F.3d 574, 580 (5th Cir. 2013), and absent his concessions and sworn
pleas, in addition to the trial court’s acknowledgment of its review of each indictment, this
matter would have faced a different result. For this reason, I specially concur.
BARNES, C.J., AND McDONALD, J., JOIN THIS OPINION.