Randy Phillips a/k/a Randy Melville Phillips v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CP-00120-COA

RANDY PHILLIPS A/K/A RANDY MELVILLE APPELLANT
PHILLIPS

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/07/2021
TRIAL JUDGE: HON. JOHN H. EMFINGER
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RANDY PHILLIPS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 01/25/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., McDONALD AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Randy Phillips pled guilty to felony shoplifting in 2013. The State initially

recommended the court sentence Phillips to ten years in custody with five years to serve, and

five years of post-release supervision. During the plea hearing, the Rankin County Circuit

Court rejected the State’s recommendation based on Phillips’ prior felony convictions and

informed Phillips that the court would sentence him to serve ten years in the Mississippi

Department of Corrections (MDOC) if he still wanted to plead guilty. Phillips chose to

proceed, and the circuit court sentenced Phillips to serve ten years in the custody of the

MDOC.
¶2. On November 23, 2020, Phillips filed a motion for post-conviction collateral relief

(PCR) in Rankin County Circuit Court, claiming his plea was involuntary because the circuit

court failed to give him the opportunity to withdraw his guilty plea after the court informed

him it would not accept the State’s recommendation for his sentence.1 He further claimed

that he received an illegal sentence as a result of the court’s error.

¶3. The circuit court found that Phillips’ PCR motion was time-barred and failed to meet

any exception to the procedural bar and therefore dismissed Phillips’ PCR motion. Phillips

appealed pro se. After review, we find no error and affirm.

STANDARD OF REVIEW

¶4. Mississippi Code Annotated section 99-39-11(2) (Rev. 2020) provides that the trial

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.” “When reviewing a trial court’s denial or dismissal of a motion for

PCR, we will only disturb the trial court’s factual findings if they are clearly erroneous[.]”

Chapman v. State, 167 So. 3d 1170, 1172 (¶3) (Miss. 2015). We review questions of law de

novo. Id.

ANALYSIS

¶5. At the outset, we recognize that the trial court correctly determined that Phillips’

motion was time-barred. A defendant who pleads guilty to a charge has three years after

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In his PCR motion, Phillips also made identical claims about two separate guilty
pleas of possession of a controlled substance from 2019. Because Phillips only appeals the
issue in regard to his 2013 conviction, we need not address his guilty pleas for his 2019
convictions.

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entry of the judgment of conviction to apply for relief under Mississippi Code Annotated

section 99-39-5(2) (Rev. 2020). Phillips pled guilty in 2013, and he filed this PCR motion

in 2020.

¶6. To circumvent that procedural bar, Phillips must assert a cognizable claim involving

the violation of a fundamental constitutional right. See Rowland v. State, 42 So. 3d 503, 506

(¶9) (Miss. 2010). However, “merely asserting a constitutional-right violation is insufficient

to overcome the procedural bars. There must at least appear to be some basis for the truth

of the claim before the procedural bar will be waived.” Fluker v. State, 170 So. 3d 471, 475

(¶11) (Miss. 2015) (citation and internal quotation marks omitted).

¶7. Here, Phillips claims his plea was involuntary and that he received an illegal sentence.

It is well-settled that “a claim of an involuntary guilty plea does not surmount the procedural

bar.” Vitela v. State, 183 So. 3d 104, 107 (¶12) (Miss. Ct. App. 2015). But the right to be

free from an illegal sentence is a fundamental constitutional right. Bosarge v. State, 141 So.

3d 24, 26 (¶7) (Miss. Ct. App. 2014). An illegal sentence is one that “does not conform to

the applicable penalty statute.” Grayer v. State, 120 So. 3d 964, 969 (¶16) (Miss. 2013)

(citation and internal quotation marks omitted).

¶8. Phillips pled guilty to felony shoplifting pursuant to Mississippi Code Annotated

section 97-23-93(7) (Rev. 2006). At the time of Phillips’ guilty plea on August 7, 2013, for

the alleged offense in December 2012, that section stated, “A person convicted of shoplifting

merchandise for which the merchant’s stated price exceeds Five Hundred Dollars ($500.00)

shall be guilty of a felony and, upon conviction, punished as provided in Section 97-17-41

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for the offense of grand larceny.” Miss. Code Ann. § 97-23-93(7) (Rev. 2006). Section 97-

17-41 stated, “Every person who shall be convicted of taking and carrying away, feloniously,

the personal property of another, of the value of Five Hundred Dollars ($500.00) or more,

shall be guilty of grand larceny, and shall be imprisoned in the Penitentiary for a term not

exceeding ten (10) years; or shall be fined not more than Ten Thousand Dollars ($10,000.00),

or both. . . .” Miss. Code Ann. § 97-17-41(1) (Rev. 2006). Phillips was sentenced to serve

ten years in the custody of the MDOC. Because Phillips’ sentence was within the parameters

prescribed by statute, he did not receive an illegal sentence. Therefore, Phillips has not

overcome the procedural bar.

¶9. Notwithstanding the procedural bar, Phillips’ claim that his plea was involuntary is

without merit. “A guilty plea is voluntarily and intelligently made if the circuit court advised

the defendant of his rights, the nature of the charge against him, as well as the consequences

of the plea.” Goul v. State, 223 So. 3d 813, 815 (¶7) (Miss. Ct. App. 2017) (internal

quotation marks omitted) (citing URCCC 8.04(A)(3)); accord MRCrP 15.3(c)-(d). The

transcript from Phillips’ plea hearing shows that the court read Phillips his indictment for

felony shoplifting and asked Phillips if he understood the elements of that crime. Phillips

responded that he did. The court informed Phillips of his rights and ensured that Phillips was

aware of the rights he was waiving by pleading guilty. The court also informed Phillips of

the minimum and maximum periods of incarceration. When the court asked Phillips if he

had any prior felony convictions, Phillips listed several, including second-degree robbery,

grand larceny, and possession of methamphetamine. Then, the following exchange occurred:

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The Court: All right. Mr. Phillips, you’ve told me about a number of felony
convictions that the State contends it was not aware of when [it] made the
offer in your case. And, quite honestly, based upon those numbers of
convictions that you have, I wouldn’t follow the recommendation that’s
contained in this petition . . . basically, you would be looking at 10 years as it
relates to [this charge]. Knowing that, do you still wish to go forward with the
plea?

The Defendant: I do.

After that exchange, the court asked Phillips two more times if he still wished to go forward

with his guilty plea even though the court would not be following the State’s

recommendation:

The Court: All right. The bottom line is, knowing that this recommendation
is not going to be followed, do you still want to go forward with your guilty
plea?

The Defendant: Yes. Yes I do.

....

The Court: And because of all these priors, you’re subject to being charged,
tried and convicted as a habitual offender which means if you are you’d have
to serve the maximum punishment authorized by law . . . knowing all these
things, do you wish to go forward with your plea?

The Defendant: I do.

After review, this Court finds that the record undoubtedly shows that Phillips’ plea was

intelligent and voluntary. Accordingly, we find that the circuit court correctly ruled that

Phillips’ PCR motion was time-barred, and it is without merit. Therefore, we affirm.

¶10. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, McCARTY AND SMITH, JJ., CONCUR.
EMFINGER, J., NOT PARTICIPATING.

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