Porter v. State

963 So. 2d 1225, 2007 WL 1334487
CourtCourt of Appeals of Mississippi
DecidedMay 8, 2007
Docket2005-CP-01795-COA
StatusPublished
Cited by11 cases

This text of 963 So. 2d 1225 (Porter 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
Porter v. State, 963 So. 2d 1225, 2007 WL 1334487 (Mich. Ct. App. 2007).

Opinion

963 So.2d 1225 (2007)

Lajuane PORTER, Appellant
v.
STATE of Mississippi, Appellee.

No. 2005-CP-01795-COA.

Court of Appeals of Mississippi.

May 8, 2007.
Rehearing Denied September 4, 2007.

*1227 Lajuane Porter, Appellant, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, attorney for appellee.

Before KING, C.J., CHANDLER and ISHEE, JJ.

KING, C.J., for the Court.

¶ 1. Lajuane Porter appeals the Marshall County Circuit Court's denial of his petition for post-conviction relief. Porter's issue on appeal is whether the trial court erred in denying his post conviction ineffective assistance of counsel claim without granting an evidentiary hearing. While finding the trial court followed the incorrect procedure in denying Porter's claim without an evidentiary hearing, we find this error to be harmless. We affirm the trial court's decision.

FACTS

¶ 2. On August 21, 2002, Lajuane Porter was convicted of aggravated assault by a jury in Marshall County, Mississippi. He was sentenced to twenty years in the custody of the Mississippi Department of Corrections. Porter filed a direct appeal and on January 6, 2004, this Court affirmed his conviction. See Porter v. State, 869 So.2d 414 (Miss.Ct.App.2004). Porter sought relief through the supreme court by submitting an Application for Leave to File Motion for Post Conviction Collateral Relief. The court granted Porter leave to file his post-conviction relief motion on the sole issue of ineffective assistance of counsel but denied his claim of an excessive sentence, finding this issue to be without merit. Porter subsequently filed his post-conviction relief motion with the circuit court. On August 5, 2005, the trial court denied the petition without a hearing. Porter timely appeals that decision.

STANDARD OF REVIEW

¶ 3. This Court reviews denials of post-conviction relief motions under a clearly erroneous standard. Mosley v. State, 941 So.2d 877, 878(¶ 5) (Miss.Ct.App. 2006). The trial court's factual findings will not be disturbed unless they are proven to be clearly erroneous. Rankins v. State, 839 So.2d 581, 582(¶ 3) (Miss.Ct.App. 2003). However, we examine questions of law de novo. Graves v. State, 918 So.2d 791, 792(¶ 3) (Miss.Ct.App.2005).

ANALYSIS

I. Whether the trial court erred in denying Porter's post conviction ineffective assistance of counsel motion without granting an evidentiary hearing.

¶ 4. Porter challenges the trial court's summary denial of his post-conviction relief motion. He asserts that the supreme court's decision, granting him leave to file his post-conviction motion in the trial court, automatically entitled him to an evidentiary hearing. Although the trial court followed the incorrect procedure in denying Porter's motion without granting an evidentiary hearing, we find the error to be harmless.

¶ 5. On January 6, 2005, this Court affirmed Porter's conviction of aggravated assault. Porter, pursuant to Mississippi *1228 Code Annotated Section 99-39-7 (Supp. 2006), filed an application with the supreme court for leave to seek postconviction relief. The supreme court reviews applications for leave pursuant to Mississippi Code Annotated Section 99-39-27(Supp.2006). Under this section, the court may exercise two options when reviewing the petitioner's application. Mitchell v. State, 809 So.2d 672, 673(¶ 4) (Miss.2002). First, the court may rule on the motion, granting or denying the requested relief, if it plainly appears "from the face of the application, motion, exhibits and the prior record" that the claim survives a procedural bar under Section 99-39-21 and there is a substantial showing that the petitioner has been denied a state or federal right. Id. Second, the court may grant the petitioner's application to proceed in the trial court for "further proceedings under Sections 99-39-13 through 99-39-23." Miss.Code Ann. § 99-39-27(7)(b).

¶ 6. In this case, the supreme court did not rule on the merits of Porter's issue of ineffective assistance of counsel, but granted Porter permission to file his motion in the trial court for further proceedings under Sections 99-39-13 (Supp.2006) through 99-39-23(Supp.2006).[1] The court rejected Porter's claim of excessive sentence and stated that the claim would not be able to survive because it lacked merit.

¶ 7. Porter argues that once the supreme court granted his request for leave to proceed in the trial court under Section 99-39-27(7)(b), he was automatically entitled to an evidentiary hearing on the merits of his ineffective assistance of counsel, due to the supreme court's holding in Hymes, 703 So.2d at 260-61 (¶¶ 10-16).

¶ 8. In Hymes, the court adopted the petitioner's argument that the supreme court's grant of an application for leave to proceed in the trial court, under Section 99-39-27(b), creates a prima facie case of the petitioner's claim. Id. at 261(¶ 14).

¶ 9. Section 99-39-27(7)(b), however, does not require the court to conduct an automatic evidentiary hearing on the merits of the claim. In fact, this Court has consistently held that there is no automatic right to an evidentiary hearing under the Mississippi Uniform Post-Conviction Collateral Relief Act. Hardiman v. State, 904 So.2d 1225, 1228(¶ 7) (Miss.Ct.App.2005). Once a prima facie case is established, the trial court may still proceed under Section 99-39-19 (Supp.2006) and summarily deny a petitioner's motion if, after the answer has been filed and discovery completed, it appears that no evidentiary hearing is warranted. See Miss.Code Ann. § 99-39-19.

¶ 10. Porter filed his motion in the circuit court, after the supreme court's grant of leave to proceed. Because the supreme court's permission to proceed with this matter is a finding of a prima facie case, the trial court should have requested the State to respond, and file its answer and raise all affirmative defenses, pursuant to Section 99-39-13. After doing so, the trial court should have examined the motion *1229 under Section 99-39-19, along with the filed answer and any completed discovery, to determine if an evidentiary hearing should be required. The trial court did not do this, but choose rather to summarily deny Porter's motion under Section 99-39-11 (Supp.2006).

¶ 11. Section 99-39-11 reads in part, as follows:

(2) If 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, the judge may make an order for its dismissal and cause the prisoner to be notified.
(4) This section shall not be applicable where an application for leave to proceed is granted by the Supreme Court under Section 99-39-27.

¶ 12. The trial court erred in using Section 99-39-11 to summarily deny Porter's motion because the section is not applicable to this proceeding. Mitchell v. State, 809 So.2d 672, 674(¶ 7) (Miss.2002). A court may not use Section 99-39-11 to summarily deny a motion if the supreme court has granted permission to file the motion in the trial courts, pursuant to Section 99-39-27. Hymes, 703 So.2d at 260(¶ 8).

¶ 13.

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Cite This Page — Counsel Stack

Bluebook (online)
963 So. 2d 1225, 2007 WL 1334487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/porter-v-state-missctapp-2007.