McCoy v. State

111 So. 3d 673, 2012 WL 6013792
CourtCourt of Appeals of Mississippi
DecidedDecember 4, 2012
DocketNos. 2011-CP-01314-COA, 2011-CP-01315-COA, 2011-CP-01316-COA
StatusPublished
Cited by10 cases

This text of 111 So. 3d 673 (McCoy v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
McCoy v. State, 111 So. 3d 673, 2012 WL 6013792 (Mich. Ct. App. 2012).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Bruce Calvin McCoy appeals the dismissal of his three most recent motions for post-conviction relief (PCR). These motions challenge his convictions of two counts of burglary of a dwelling and one count of burglary of a building.1 The trial judge dismissed each of these three motions — which were filed more than six years after his guilty pleas and subsequently to another PCR motion — as untimely and successive. McCoy admits his motions are procedurally barred. But he insists several exceptions to the bars exist: (1) newly discovered evidence of the sentencing judge’s bias, (2) an intervening decision of the Mississippi Supreme Court, and (3) a charging flaw in his indictments. He also claims his attorney’s assistance was constitutionally deficient. Because McCoy’s PCR motions assert no viable exceptions to these procedural bars, we too find the motions are untimely and successive. Thus, we affirm.

Background

¶ 2. After pleading guilty to nine different felonies in 2004, McCoy filed a PCR motion in 2005. Review of the denial of his 2005 PCR motion was assigned to this court. McCoy v. State, 941 So.2d 879 (Miss.Ct.App.2006). We previously summarized the background of his case:

McCoy was charged, in four separate indictments on November 10, 2004, for nine different crimes, involving four different victims. On December 6, 2004, McCoy pled guilty to two counts of burglary of a dwelling, one count of burglary of a building, four counts of grand larceny, and two counts of petit larceny. Each of the counts was enhanced under our habitual criminal statute, Mississippi Code Annotated section 99-19-81 (Rev. 2000). At his sentencing hearing held on January 10, 2005, McCoy received a term of incarceration of twenty-five years for both charges of burglary of a dwelling, seven years for the charge of burglary of a building, five years for each of the four grand larceny charges, and six months for the petit larceny charges. All sentences are to run concurrently and without the chance of early release or parole. Various costs, fees, fines and restitution payments were also assessed upon McCoy.

Id. at 880 (¶ 2).

¶ 3. We dismissed McCoy’s appeal without prejudice for failing to file separate motions challenging each judgment as required by Mississippi Code Annotated section 99-39-9(2) (Supp.2012). McCoy, 941 So.2d at 881 (¶ 4). In 2007, McCoy again filed a PCR motion, which the trial judge denied. McCoy appealed, but his appeal [676]*676was dismissed for failure to pay the costs of the appeal. McCoy v. State, 2007-TS-00951-COA (Aug. 16, 2007).

¶ 4. On March 15, 2011, McCoy filed three separate PCR motions. The trial judge summarily dismissed each of these new motions as untimely and successive. McCoy now appeals. Because he makes essentially the same arguments in each of his three appeals, we have consolidated and addressed them in one opinion.

Standard of Review

¶ 5. We review the dismissal of a PCR motion for abuse of discretion. Burrough v. State, 9 So.3d 368, 371 (¶ 6) (Miss. 2009). A circuit court may summarily dismiss a PCR motion “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss.Code Ann. § 99-39-11(2) (Supp.2012). “We will affirm if the petitioner has failed to demonstrate ‘a claim procedurally alive substantially showing denial of a state or federal right.’ ” Mitchener v. State, 964 So.2d 1188, 1192 (¶ 10) (Miss.Ct.App.2007) (quoting Young v. State, 731 So.2d 1120, 1122 (¶9) (Miss.1999)).

Discussion

I. Procedural Bars

¶ 6. The trial court found, and McCoy concedes, that his present PCR motions are procedurally barred. They were filed outside of the the three-year statute of limitations of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). See Miss.Code Ann. § 99-39-5(2) (Supp.2012). And they are successive to his 2007 PCR motion — another bar to our review. See Miss.Code Ann. § 99-39-23(6) (Supp.2012). But McCoy urges three exceptions to these procedural bars exist.

¶ 7. First, he claims newly discovered evidence — that one of the crime victims was the trial judge’s court administrator— shows the trial judge was required to re-cuse himself. Second, McCoy suggests an intervening Mississippi Supreme Court decision would have affected the outcome of his case. Third, he argues his fundamental constitutional rights were violated because his indictment failed to allege all elements of burglary.

A. Newly Discovered Evidence

¶ 8. McCoy is correct that newly discovered evidence, if outcome determinitive, provides an exception to both procedural bars. See Miss.Code Ann. §§ 99-39-5(2)(a)(i) (recognizing exception to three-year statute of limitations for newly discovered evidence) and 99-39-23(6) (providing exception to successive-writ bar for newly discovered evidence). Newly discovered evidence is “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.” Miss.Code Ann. § 99-39-23(6). To prevail on this exception, McCoy must show evidence that is both newly discovered and material to the outcome of his convictions.

¶ 9. McCoy suggests he recently learned from an old newspaper article that one of the burglary victims, Laurie Chaison, was the trial judge’s court administrator. McCoy argues the trial judge should have recused on this basis and that he was prejudiced because Chaison testified at his sentencing.

¶ 10. We find Chaison’s role as court administrator was neither “newly discovered evidence” nor material to the outcome of McCoy’s convictions and sentences. “The term ‘newly discovered evidence’ refers to evidence, that is, an exhibit, testimony, or some other information [677]*677that could have been offered as evidence in the defendant’s trial but was not offered because it was not reasonably discoverable at the time of the trial.” Pickle v. State, 942 So.2d 243, 246 (¶12) (Miss.Ct.App.2006). McCoy was sentenced on January 7, 2005. And according to the trial judge, Chaison did not become court administrator until February 14, 2005, over a month after McCoy was sentenced. So his “evidence” of the trial judge’s bias — that his court administrator was one of the victims — did not exist at the time of McCoy’s sentencing and, thus, could not have been offered at the time of McCoy’s sentencing. But more importantly, Chaison’s supervisor, Judge Mike Taylor, did not sentence McCoy. Instead, it was his predecessor, Judge Mike Smith, who presided over McCoy’s sentencing.

¶ 11.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Antonio Burgin v. State of Mississippi
Court of Appeals of Mississippi, 2021
John Joseph Dedeaux v. State of Mississippi
Court of Appeals of Mississippi, 2020
Bruce Calvin McCoy v. State of Mississippi
230 So. 3d 1090 (Court of Appeals of Mississippi, 2017)
John Ray Kidd v. State of Mississippi
221 So. 3d 1041 (Court of Appeals of Mississippi, 2016)
Curtis Davis, Jr. v. State of Mississippi
174 So. 3d 299 (Court of Appeals of Mississippi, 2015)
Kenneth Blake Watkins v. State of Mississippi
170 So. 3d 582 (Court of Appeals of Mississippi, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
111 So. 3d 673, 2012 WL 6013792, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccoy-v-state-missctapp-2012.