Bell v. State

95 So. 3d 760, 2012 Miss. App. LEXIS 509, 2012 WL 3289931
Court of Appeals of Mississippi·Decided August 14, 2012·No. No. 2011-CP-00645-COA·Published·Cited by 17 cases

Opinion

CARLTON, J.,

for the Court:

¶ 1. Charles Sylvester Bell appeals the Forrest County Circuit Court’s order summarily dismissing his motion for post-conviction relief (PCR) as time-barred pursuant to Mississippi Code Annotated section 99-39-5(2) (Supp.2011). On appeal, Bell argues that the trial court erred by: (1) denying his PCR motion as time-barred under section 99-39-5(2); (2) denying his PCR motion in light of an illegal sentence; (3) denying his PCR motion in light of a fundamental constitutional right when it re-indicted him on the same armed-robbery charge, and whether this violated the protection against double jeopardy; (4) denying him relief by re-sentencing him pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007), a statute not in existence when the crime was committed, and whether such sentencing violated public policy; and (5) allowing him to plead guilty to a charge previously used to convict him.

[762] ¶ 2. The record and the law of this case show that Bell was convicted of capital murder and sentenced to death. Following the overturning of Bell’s death sentence for his capital-murder conviction by the United States Court of Appeals for the Fifth Circuit, the State re-indicted Bell for armed robbery as a habitual offender. Bell pled guilty to the offense charged in the new indictment, and the trial court sentenced him to twenty-five years for his armed-robbery conviction. The trial court also sentenced Bell to life imprisonment, rather than the death penalty, for his capital-murder conviction. Bell now, as set forth above, asserts the re-indictment constituted error, and that the trial court erred in allowing him to plead guilty. Finding Bell’s PCR motion to be both time-barred and procedurally barred as a successive writ, we affirm the trial court’s dismissal.

FACTS

¶ 3. In 1977, Bell was indicted for capital murder under Mississippi Code Annotated section 97 — 3—19(2)(e) (Rev.2006) for killing D.C. Haden while engaged in the commission of the crimes of armed robbery and kidnapping. Bell was subsequently convicted of capital murder and sentenced to death. On appeal, the Mississippi Supreme Court upheld his conviction and sentence. See Bell v. State, 360 So.2d 1206,1215 (Miss.1978).

¶ 4. Subsequently, in 1982, the United States Court of Appeals for the Fifth Circuit overturned Bell’s death sentence. See Bell v. Watkins, 692 F.2d 999, 1014 (5th Cir.1982). Following the overturning of his death sentence, Bell was re-indicted for armed robbery as a habitual offender under Mississippi Code Annotated section 99-19-81 in July 1984.1 Then, in August 1984, Bell pled guilty to the offense in the new indictment of armed robbery as a habitual offender, and he was sentenced to serve twenty-five years in the custody of the Mississippi Department of Corrections. At that same time, the trial court sentenced Bell to life imprisonment for the capital-murder conviction. In Bell v. State, 751 So.2d 1035, 1037-38 (¶ 11) (Miss.1999), the Mississippi Supreme Court acknowledged that the record reflected that Bell knowingly and voluntarily pled guilty to armed robbery as a habitual offender to avoid the death penalty. The supreme court explained that the trial court thoroughly questioned Bell about his desire to plead guilty to armed robbery as a habitual offender, and the opinion reflects that Bell had been advised of his statutory and constitutional rights, including his ex post facto rights, and voluntarily waived these rights to avoid receiving the death penalty. Id. at (¶¶ 8-17).

¶ 5. Bell has filed numerous pleadings seeking review of his convictions and sentences through the years. See Bell, 692 F.2d at 999, cert. denied sub. nom. Bell v. Thigpen, 464 U.S. 843, 104 S.Ct. 142, 78 L.Ed.2d 134 (1983); Bell, 751 So.2d at 1035; Bell v. State, 726 So.2d 93 (Miss.1998); Bell v. Watkins, 381 So.2d 118 (Miss.1980); Bell, 360 So.2d at 1206; Bell v. State, 886 So.2d 739 (Miss.Ct.App.2004); Bell v. Miss. Dep’t of Corr., 290 Fed.Appx. 649 (5th Cir.2008); Bell v. Miss. Dep’t of Corr., 118 Fed.Appx. 874 (5th Cir.2005).

¶ 6. Most recently, Bell filed a “Petition for Post[-]Conviction Relief’ on July 19, 2010, and a “Motion to Amend and/or Supplement Pending Post[-]Conviction” on [763] September 10, 2010, which the trial court collectively treated as a PCR motion. On April 5, 2011, the Circuit Court of Forrest County summarily dismissed Bell’s PCR motion as time-barred under section 99-39-5(2).

STANDARD OF REVIEW

¶ 7. This Court employs a well-stated standard of review when reviewing a trial court’s dismissal of a motion for post-conviction relief. “We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo.” Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss.Ct.App.2004).

DISCUSSION

I. PROCEDURAL BARS

¶ 8. “Under the Uniform Post^Conviction Collateral Relief Act [ (UPCCRA) ], successive motions are generally barred from our review.” White v. State, 59 So.3d 633, 635 (¶ 6) (Miss.Ct.App.2011); see Miss.Code Ann. § 99-39-23(6) (Supp.2011). Additionally, “a three-year limitations period applies to claims for relief under the UPCCRA.” Id. (citing Miss.Code Ann. § 99-39-5(2)).

¶ 9. Upon review, we find that Bell’s present PCR motion constitutes a successive writ because it is at least his fourth PCR motion. He has also alleged in prior PCR motions the same issues asserted in this appeal — violations of the Ex Post Facto and Double Jeopardy Clauses. See Bell, 726 So.2d at 94 (¶ 4); Bell, 751 So.2d at 1036 (¶ 1); Bell,. 886 So.2d at 739 (¶ 1). Further, because he is challenging a 1984 conviction, his PCR motion was filed well outside the three-year statute of limitations.

¶ 10. Accordingly, we must look to see whether an exception to these procedural bars applies. The movant bears the burden of showing he has met a statutory exception. White, 59 So.3d at 635 (¶ 8). Further, as discussed below, we recognize that “[ejrrors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Id. (citation omitted).

II. EXCEPTION FOR INTERVENING DECISIONS

¶ 11. In an attempt to circumvent the procedural bars, Bell argues that the Mississippi Supreme Court’s decision in Rowland v. State, 42 So.3d 503 (Miss.2010), is an intervening decision that, if applied, would cause a different result in his case.

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Bell v. State, 95 So. 3d 760, 2012 Miss. App. LEXIS 509, 2012 WL 3289931 (Mich. Ct. App. 2012).

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