Gregory Paul Carr a/k/a Gregory Carr a/k/a Gregory P. Carr v. State of Mississippi;

• Court: Court of Appeals of Mississippi
• Decided: March 10, 2020
• Docket: NO. 2018-CP-00669-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CP-00669-COA

GREGORY PAUL CARR A/K/A GREGORY APPELLANT CARR A/K/A GREGORY P. CARR

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/29/2018 TRIAL JUDGE: HON. W. ASHLEY HINES COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GREGORY PAUL CARR (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 03/10/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ.

C. WILSON, J., FOR THE COURT:

¶1. Gregory Carr appeals, pro se, the Washington County Circuit Court’s denial of his

motion for post-conviction relief (PCR). After considering the issues Carr raises, we find

no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Carr’s PCR appeal stems from three separate indictments. On January 13, 2013, a

Washington County grand jury indicted Carr for burglary (Count I), for aggravated assault

(Count II), and as a habitual offender under Mississippi Code Annotated section 99-19-81

(Rev. 2007) (Washington County cause no. 2013-0289). On December 18, 2014, Carr was indicted for unlawful possession of a firearm or weapon by a felon and as a habitual offender

in accordance with section 99-19-81 (Washington County cause no. 2014-0264). Carr was

indicted a third time on June 18, 2015, for two counts of automobile burglary and as a

habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007)

(Washington County cause no. 2015-0094).

¶3. Carr was represented by counsel in the circuit court. On December 3, 2015, Carr filed

two petitions to enter guilty pleas. In cause number 2013-0289, Carr admitted that he had

assaulted Kevin Matthews in July 2013, and Carr agreed to plead guilty to aggravated assault.

In exchange for Carr’s guilty plea, the State, apparently intending to reference the burglary

charge in Count I, agreed to “dismiss Count II and the habitual portion of this indictment”

and recommended that Carr be sentenced to fifteen years in the custody of the Mississippi

Department of Corrections (MDOC), with ten years to serve and five years of post-release

supervision.

¶4. Carr also agreed to plead guilty to one count of automobile burglary charged in cause

number 2015-0094. In his plea petition, Carr admitted that “on or around July 31, 2014[,]

[he] broke into and entered a vehicle with the intent to take the property located therein,” and

he acknowledged that if the court accepted the State’s recommendation, he would be

sentenced as a habitual offender to serve seven years in MDOC’s custody. Carr stated that

he understood that this sentence would be set to run concurrently with the proposed sentence

in cause number 2013-0289. In exchange for this guilty plea, the State agreed to dismiss the

other automobile-burglary count in cause number 2015-0094 and dismiss cause number

2 2014-0264 in its entirety.

¶5. A guilty-plea hearing was held the same day. During the hearing, the circuit court

outlined the rights that Carr was waiving by pleading guilty, and the court ensured that Carr

understood both the factual basis for each charge and the consequences of his guilty pleas.

Carr acknowledged his plea petitions, agreeing that he “presented the [c]ourt a petition and

guilty plea to one count of automobile burglary in 2015-0094 and one count [of] aggravated

assault in 2013-0289.” The circuit court informed Carr of the minimum and maximum

penalties for automobile burglary and aggravated assault, which Carr stated he understood.

¶6. The prosecutor recited the alleged facts related to the relevant automobile burglary

charge in cause number 2015-0094, stating that “on or about [July 31, 2014,] [Carr] did

unlawfully, willingly, feloniously and burglariously break into a gray 2005 Chevy

Trailblazer, . . . with the intent to take, steal and carry away the merchandise and/or personal

property located for use therein.” Carr admitted these facts as true, and when the court asked

how he pled to the charge of automobile burglary, Carr responded, “Guilty.” The circuit

court accepted Carr’s guilty plea to the burglary charge and found it to be “knowingly,

willingly, and voluntarily entered.”

¶7. The prosecutor then recited the factual basis for Carr’s 2013 aggravated-assault

charge, namely “that [Carr] did unlawfully, willfully, and feloniously attempt to cause bodily

injury to Kevin Matthews by attempting to hit [Matthews] with an automobile . . . .” The

circuit court asked Carr if he accepted the facts as true, and Carr replied, “Yeah.” The circuit

court continued, “And as to this charge of aggravated assault, how do you plead? Guilty or

3 not guilty?” (Emphasis added). Carr responded, “Guilty.” The circuit court accepted Carr’s

guilty plea to aggravated assault and likewise found it to be “knowingly, willingly, and

voluntarily entered.”

¶8. Regarding the habitual offender enhancement alleged in cause number 2015-0094, the

State made an ore tenus motion during the guilty plea hearing “to amend the indictment to

reflect that it is [a section 99-19-81] habitual rather than [a section 99-19-83] habitual.” The

State asserted that “[i]f we don’t do that and if he pleads as an ’83 . . . it will tentatively give

him life.” Amending the indictment thus benefitted Carr by “allow[ing] [the agreed upon]

sentence to happen.” Carr’s counsel did not object to this motion but instead stated that this

amendment reflected Carr’s “understanding of the offer from the State, and that is the

understanding that Mr. Carr has accepted . . . .” The circuit court accordingly granted the

State’s motion to amend Carr’s indictment in cause number 2015-0094. Carr then pled guilty

to the habitual offender allegations in cause number 2015-0094 and acknowledged as true

the facts surrounding the enhancement based on three prior convictions: a 1983 conviction

for burglary, a 1989 conviction for simple assault on a law enforcement officer, and a 2006

conviction for shoplifting. Again, the circuit court found that Carr entered this plea

knowingly, willingly, and voluntarily.

¶9. After the circuit court accepted Carr’s guilty pleas and excused Carr from the

courtroom, the following exchange took place between the court and the prosecutor:

The Court: . . . What is the State’s intent on . . . 2014-0264?

[Counsel]: The State will nol pros that charge as well and provide the Court with an order.

4 The Court: Also on Count Two on each one of these cases [(causes 2013- 0289 and 2015-0094)].

[Counsel]: Yes, sir.

¶10. Based on this exchange, the circuit court entered its sentencing order in cause number

2013-0289 on December 8, 2015. The court’s order again expressly found that Carr

knowingly, willingly, and voluntarily pled guilty to aggravated assault. As agreed to by the

State and Carr, the circuit court sentenced Carr to fifteen years in the MDOC’s custody for

aggravated assault, with ten years to serve and five years of post-release supervision. The

court ordered that “all the time to be served by [Carr] in this cause shall run concurrent to all

time served . . . in . . . cause number 2015-0094.” In cause number 2015-0094, the circuit

court sentenced Carr as a habitual offender to serve seven years in the MDOC’s custody for

one count of automobile burglary, also in accordance with his guilty plea petition and

agreement with the State.

¶11. The same day, the circuit court entered an “Order for Nolle Prosequi as to Count II

Only” in cause number 2013-0289. In that order, the court held “that COUNT II, Burglary

of a dwelling, in [cause number 2013-0289] is dismissed, as this defendant has pled guilty

in Cause Number 2015-0094 (count one), auto burglary as a 99-19-81 habitual offender and

2013-0289 (count one), aggravated assault, and has been sentenced.” The order transposed

Counts I and II of the indictment in cause number 2013-0289, as burglary1 was charged in

Count I, not Count II, and aggravated assault was charged in Count II, not Count I. The

1 Based on the allegations set forth in the indictment, Carr was not charged with “burglary of a dwelling,” as the court’s order recited, but with burglary of an automobile.

5 circuit court’s order echoed the exchange between the court and the State during Carr’s plea

hearing in which the State agreed that it would “nol pros . . . Count Two on each one of these

cases.” This clerical confusion is the genesis of this case.

¶12. On August 21, 2017, Carr filed a “Motion to Vacate, Set Aside, Sentence Order,

Sentence, and Conviction.” In the motion, Carr asserted that because Count II of the

indictment in cause number 2013-0289 charged him with aggravated assault, and because the

“Order for Nolle Prosequi as to Count II Only” dismissed Count II, his sentence for

aggravated assault is void and invalid. Carr filed a “motion to amend” his motion on August

22, 2017, and filed the same motion to amend again on September 6, 2017. In his motions

to amend, Carr sought to be discharged from all charges in cause number 2013-0289 and for

that cause to be dismissed with prejudice.

¶13. The Washington County Circuit Court treated Carr’s original motion as a PCR

motion. On March 27, 2018, the circuit court denied both Carr’s original motion and

motions to amend, finding as follows:

It is clear from Carr’s plea petition and the transcript of the plea hearing that the parties intended for Carr to enter a plea of guilty to the crime of [a]ggravated [a]ssault in [cause number] 2013-0289 and that the remaining count would be dismissed. . . . Carr knowingly, willingly, and voluntarily pled guilty to the crime of [a]ggravated [a]ssault in [cause number] 2013-0289 and . . . he received the sentence that he and the State agreed to for that crime. . . . [I]t is clear that the parties intended for the remaining charge of [b]urglary of a [d]welling to be dismissed. . . . [I]t was either a clerical error or a scrivener’s error that caused the incongruity between the counts as listed in the indictment and as presented in the subsequent court filing and proceeding.

¶14. The circuit court concluded that the sentencing order properly reflected Carr’s

sentence and should not be vacated. However, the circuit court found that the “Order for

6 Nolle Prosequi as to Count II Only” in cause number 2013-0289 should be vacated. The

court subsequently entered a corrected order dismissing the burglary charge as originally

intended by the court and the parties.

¶15. Carr now appeals, asserting that the circuit court erred in denying his PCR motion

because he did not voluntarily plead guilty to aggravated assault. Carr also contends, for the

first time, that he was improperly sentenced as a habitual offender and subjected to double

jeopardy. We review Carr’s assignments of error in turn.

STANDARD OF REVIEW

¶16. This Court reviews the dismissal or denial of a PCR motion for abuse of discretion.

Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012). “We will only reverse if

the trial court’s decision is clearly erroneous.” Id. (citing Crosby v. State, 16 So. 3d 74, 77

(¶5) (Miss. Ct. App. 2009)). Questions of law are reviewed de novo. Id.

DISCUSSION

I. Involuntary Guilty Plea

¶17. Carr contends that he did not voluntarily plead guilty to aggravated assault because

he did not understand that he was pleading guilty to aggravated assault. Carr asserts that the

plea negotiations resulted in an agreement that the State would dismiss the aggravated-assault

charge and that he would enter guilty pleas to two charges of automobile burglary. For

support, Carr relies upon the plea-hearing transcript and the December 8, 2015 “Order for

Nolle Prosequi as to Count II Only,” which, as noted above, transposed the two counts in the

indictment in cause number 2013-0289 and ordered that “COUNT II, Burglary of a dwelling,

7 in [cause number 2013-0289] is dismissed . . . .” (Emphasis added). Despite any confusion

caused by the scrivener’s error, Carr’s contention is without merit.

¶18. “In order to be valid, a guilty plea must be entered voluntarily and intelligently,

meaning that the defendant is ‘advised concerning the nature of the charge against him and

the consequences of the plea.’” Gaulden v. State, 240 So. 3d 503, 507-08 (¶13) (Miss. Ct.

App. 2018) (quoting Holland v. State, 956 So. 2d 322, 327 (¶11) (Miss. Ct. App. 2007)).

Carr, “as the movant, has the burden of establishing his involuntary-guilty-plea claim.” Id.

(citing Holland, 956 So. 2d at 327 (¶11); Green v. State, 802 So. 2d 181, 184 (¶19) (Miss.

Ct. App. 2001)).

¶19. Carr fails to meet his burden; if anything, the record contradicts his claim. “Great

weight is given to statements made under oath and in open court . . . .” Berry v. State, 230

So. 3d 360, 364 (¶13) (Miss. Ct. App. 2017). Here, in open court and under oath, Carr

acknowledged the contents of his petition to plead guilty to one count of aggravated assault,

admitted the factual basis underlying the aggravated-assault charge, and actually pled guilty

to aggravated assault. Reviewing Carr’s plea petition and the plea-hearing transcript, it is

quite clear that as the circuit court found, Carr “knowingly, willingly, and voluntarily pled

guilty to the crime of [a]ggravated [a]ssault in [cause number] 2013-0289 and . . . received

the sentence that he and the State agreed to for that crime . . . .” The record further

demonstrates that Carr was “advised concerning the nature of the charge against him and the

consequences of the plea,” Gaulden, 240 So. 3d at 507-08 (¶13), and Carr stated that he

understood both the charge and the consequences. Accordingly, the circuit court did not

8 abuse its discretion in finding that Carr knowingly, voluntarily, and intelligently pled guilty

to aggravated assault and that “the incongruity between the counts as listed in the indictment

and as presented in the subsequent court filing and proceeding” was insufficient to invalidate

either Carr’s guilty plea or sentence.

II. Habitual Offender Enhancement

¶20. Carr also contends that he was improperly sentenced as a habitual offender in cause

number 2015-0094. First, Carr contends that the sentence is illegal because the State failed

to meet its evidentiary burden, as it did not produce “any pen packs or affidavits” at the

sentencing hearing. He further contends that the circuit court erred by failing to conduct a

bifurcated hearing before sentencing him as a habitual offender. Second, Carr contends that

the circuit court erred in granting the State’s ore tenus motion to amend the indictment in

cause number 2015-0094 during the guilty-plea hearing because the change in the indictment

was one of substance. As such, Carr asserts that this sentence is illegal because the

indictment was required to be amended by the grand jury. Lastly, Carr contends that he was

subjected to double jeopardy because one of the prior convictions used to prove the habitual

offender enhancement of his automobile-burglary sentence had already been used to enhance

another sentence for a separate charge.

¶21. As a threshold matter, reviewing Carr’s original and amended PCR motions, it is clear

that he failed to raise these issues before the circuit court and instead asserts them for the first

time on appeal. It is well settled that “[a] petitioner who fails to raise an issue in his PCR

motion may not raise that issue for the first time on appeal.” Jones v. State, 203 So. 3d 657,

9 660 (¶17) (Miss. Ct. App. 2016) (quoting Bass v. State, 174 So. 3d 883, 885 (¶7) (Miss. Ct.

App. 2015)). To survive this procedural bar, Carr asserts that his claims implicate

fundamental rights. “[E]rrors affecting fundamental constitutional rights are excepted from

the procedural bars . . . .” Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010). The

“fundamental-rights exceptions . . . expressly found to survive procedural bars [include] the

right against double jeopardy . . . [and] the right to be free from an illegal sentence . . . .”

Nichols v. State, 265 So. 3d 1239, 1242 (¶10) (Miss. Ct. App. 2018).

¶22. Here, to the extent that Carr’s claims constitute “fundamental-rights exceptions” to

the procedural bar, we find them meritless. First, the State offered sufficient proof of Carr’s

habitual offender status, and the circuit court was not required to hold a bifurcated hearing

before accepting Carr’s resulting guilty plea. To substantiate a habitual offender conviction,

“[a]ll that is required is that the accused be properly indicted as an habitual offender; that the

prosecution prove the prior offenses by competent evidence; and that the defendant be given

a reasonable opportunity to challenge the prosecution’s proof.” Crouch v. State, 826 So. 2d

772, 775 (¶4) (Miss. Ct. App. 2002) (citations omitted). The record here reflects that Carr

was properly indicted as a habitual offender. Further, the State offered three prior

convictions to support Carr’s habitual offender enhancement. As with the aggravated assault

and burglary charges, Carr did not challenge the State’s proffer of facts related to his prior

convictions. Instead, he admitted them and pled guilty to burglary as a habitual offender.

See id. at 775-76 (¶4) (concluding that the defendant was not entitled to a separate hearing

on his habitual offender status because he had been “properly indicted as a habitual offender,

10 and although he had ample opportunity to challenge his prior offenses, he chose to admit

them”). Against this record, we find no error in the circuit court’s acceptance of Carr’s guilty

plea as a habitual offender.

¶23. Carr’s assertion that the circuit court improperly granted the State’s motion to amend

the indictment in cause number 2015-0094 (to allow a more lenient sentence for Carr’s

habitual offender status) also misses the mark. In briefing on appeal, Carr asserts that the

amendment affected his fundamental right to be free from an illegal sentence and constituted

a due process violation. But the change was for Carr’s benefit. Indeed, rather than object

to the State’s motion, Carr’s counsel affirmatively agreed to the relief requested, confirming

that the amendment reflected Carr’s “understanding of the offer from the State, and that is

the understanding that Mr. Carr has accepted . . . .” Carr cannot now, having “benefitted

from the lenience of the [trial] court judge . . . , argue that such leniency was a violation of

his fundamental rights.” McGleachie v. State, 800 So. 2d 561, 563 (¶4) (Miss. Ct. App.

2001) (holding that if such an error in sentencing “is, in fact, an error at all, it is a harmless

error rather than a fundamental one” that benefitted defendant).

¶24. Carr’s double jeopardy argument also lacks merit. Carr contends that he was

subjected to double jeopardy because one of the prior convictions used to enhance his

automobile-burglary sentence had already been used to enhance a prior sentence. But Carr

misapprehends the applicability of double jeopardy to his habitual-offender burglary

sentence. “Double jeopardy, which is prohibited by the Fifth Amendment of the United

States Constitution and Article 3, Section 22 of the Mississippi Constitution, occurs when

11 an accused is subjected to being tried twice for the same offense.” Horn v. State, 825 So. 2d

725, 727 (¶15) (Miss. Ct. App. 2002) (citing State v. Fleming, 726 So. 2d 113, 115 (¶8)

(Miss. 1998)); see Blockburger v. United States, 284 U.S. 299, 304 (1932). Carr has not

been punished twice for any offense as a result of the enhancement of his instant sentence

for automobile burglary.

¶25. The State offered evidence of three prior convictions for the purpose of showing that

Carr was a habitual offender,2 such that the sentence for Carr’s current burglary charge could

properly be enhanced. “Prior convictions [that] are ‘constitutionally valid in and of

themselves’ may appropriately be used to enhance punishments for subsequent convictions.”

Horn, 825 So. 2d at 727 (¶16) (quoting Bailey v. State, 728 So. 2d 1070, 1072-73 (¶12)

(Miss. 1997)). A “sentence enhancement does not set out separate elements of an underlying

felony.” Clark v. State, 127 So. 3d 292, 298 (¶18) (Miss. Ct. App. 2013). The fact that one

of those convictions had also been used to enhance an earlier sentence for an unrelated

offense did not subject Carr to double jeopardy here. See Horn, 825 So. 2d at 727 (¶16)

(holding that the use of prior DUI convictions to enhance a defendant’s new DUI conviction

did not violate double jeopardy because the defendant was not being punished for prior

2 Under Mississippi Code Annotated section 99-19-81, the State was only required to offer evidence of two prior convictions in order to enhance Carr’s current burglary charge. Under section 99-19-81, “[e]very person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony . . . .” Thus, even without the prior conviction that forms the basis for Carr’s double jeopardy argument, the State offered proof sufficient to support Carr’s conviction as a habitual offender here.

12 convictions in the subsequent case). Given proof that Carr was a habitual offender, he simply

faced an enhanced punishment for his current burglary charge, not a second punishment for

any prior offenses. As with Carr’s other contentions regarding his habitual offender

conviction, his double jeopardy claim is without merit.

¶26. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.