Sylvester Bell a/k/a Bell Sylvester v. State of Mississipp

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-00187-COA

SYLVESTER BELL A/K/A BELL SYLVESTER APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 12/21/2018
TRIAL JUDGE: HON. LINDA F. COLEMAN
COURT FROM WHICH APPEALED: TUNICA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SYLVESTER BELL (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 04/14/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE BARNES, C.J., WESTBROOKS AND C. WILSON, JJ.

BARNES, C.J., FOR THE COURT:

¶1. Sylvester Bell appeals the Tunica County Circuit Court’s dismissal of his third motion

for post-conviction relief (PCR) as time-barred. Finding no exception to the procedural bar,

we affirm the court’s dismissal of Bell’s motion.

FACTS AND PROCEDURAL HISTORY

¶2. On July 3, 2007, Bell entered a guilty plea to statutory rape and was sentenced as a

habitual offender to serve thirty years in the custody of the Mississippi Department of

Corrections without eligibility for parole or probation.1 Bell filed a PCR motion on October

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See Miss. Code Ann. § 99-19-81 (Rev. 2007).
19, 2009, which the circuit court denied. Appealing the decision, Bell argued that “the

circuit court erred by failing to include the transcript from his guilty plea and sentencing

hearing in response to his request for the designation of records pursuant to Mississippi Rule

of Appellate Procedure 10(b)(1).” Bell v. State, 105 So. 3d 401, 402 (¶1) (Miss. Ct. App.

2012). Because Bell had failed to request the transcripts, and “the circuit court never had an

opportunity to rule on the issue,” this Court concluded that the issue was procedurally barred

and affirmed the court’s denial of Bell’s motion. Id. at 404 (¶10).

¶3. Bell filed a second PCR motion on April 15, 2013. The circuit court dismissed the

motion as successive-writ barred, and Bell appealed that decision. Bell v. State, 207 So. 3d

705 (Miss. Ct. App. 2016). Finding Bell had not demonstrated an exception to the procedural

bar, we affirmed the court’s dismissal; alternatively, we determined the claims lacked merit.

Id. at 710 (¶23). This Court further noted that because the court reporter at Bell’s plea

hearing had passed away, there was no transcript available. Id. at 707 n.3.

¶4. Bell filed his third PCR motion on April 10, 2018, claiming that he did not sign his

July 2007 guilty-plea petition. Further, citing this Court’s notation in Bell, 207 So. 3d at 707

n.3, Bell argued that the unavailability of the transcript of his plea hearing was a violation

of the circuit court’s duty to make a record of the proceedings under Rule 5.02 of the

Uniform Rules of Circuit and County Court Practice.

¶5. The circuit court dismissed Bell’s motion on December 21, 2018, finding it was

procedurally barred by the applicable three-year statute of limitations.2 See Miss. Code Ann.

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Bell filed a petition for writ of mandamus with the Mississippi Supreme Court on
October 22, 2018, requesting that the circuit court rule on his PCR motion. The supreme

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§ 99-39-5(2) (Rev. 2015). Aggrieved, Bell appeals the court’s decision.

DISCUSSION

¶6. “The [circuit] court may summarily dismiss a PCR petition where it plainly appears

from the face of the petition, any annexed exhibits, and the prior proceedings in the case that

the petitioner is not entitled to any relief.” Salter v. State, 184 So. 3d 944, 948 (¶10) (Miss.

Ct. App. 2015) (citing Miss. Code Ann. § 99-39-11(2) (Supp. 2014)). “In reviewing the

dismissal of a PCR motion, we ‘will not disturb the circuit court’s factual findings unless

they are clearly erroneous.’” Allen v. State, 177 So. 3d 1148, 1149 (¶5) (Miss. Ct. App.

2014) (quoting Smith v. State, 118 So. 3d 180, 182 (¶6) (Miss. Ct. App. 2013)). Issues of law

are reviewed de novo. Id.

¶7. The circuit court dismissed Bell’s motion as procedurally time-barred under

Mississippi Code Annotated section 99-39-5(2), which provides that in the case of a guilty

plea, a petitioner’s PCR motion “shall be made . . . within three (3) years after entry of the

judgment of conviction.” Bell entered his guilty plea in 2007; his PCR motion was not filed

until 2018, more than ten years later. Furthermore, although not addressed by the circuit

court, Bell’s PCR motion—his third—is also barred as a successive writ under Mississippi

Code Annotated section 99-39-23(6) (Rev. 2015).

court dismissed the petition without prejudice on November 16, 2018, finding that Bell
failed to show that he had filed said PCR motion. On December 7, Bell filed the
supplemented PCR petition. After the circuit court dismissed Bell’s PCR motion on
December 21, 2018, the supreme court dismissed the petition for writ of mandamus as moot.

On May 8, 2019, this Court granted Bell’s motion to proceed in forma pauperis on
appeal, finding that neither of Bell’s prior PCR motions “were dismissed as frivolous or
because he failed to state a relievable claim.”

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¶8. As we noted in Bell’s prior appeal:

In order to overcome these procedural bars, Bell must prove an exception
applies. Exceptions include an intervening decision of the Mississippi
Supreme Court or United States Supreme Court that would have adversely
affected the outcome of his conviction or sentence; newly discovered
evidence; the expiration of his sentence or the unlawful revocation of his
probation, parole, or conditional release; or the existence of DNA evidence
that may have favorably affected his conviction or sentence. Miss. Code Ann.
§§ 99-39-5(2); 99-39-23(6). “Errors affecting fundamental constitutional
rights are also excepted from the procedural bars.” 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).

Bell, 207 So. 3d at 707-08 (¶6) (brackets omitted). We find Bell’s arguments insufficient to

overcome the procedural bar.

¶9. Bell claims that he did not sign the plea petition and that the State falsified the

petition, changing his sentence from twenty years to thirty years. “When a PCR movant

challenges the validity of his guilty plea, he carries the burden to prove that his plea was

invalid.” Whetstone v. State, 109 So. 3d 616, 619 (¶10) (Miss. Ct. App. 2013) (citing

Hannah v. State, 943 So. 2d 20, 25 (¶11) (Miss. 2006)). While the current record does not

contain the guilty-plea petition, in Bell, 207 So. 3d at 708 (¶11), this Court noted that Bell

had signed his plea petition. Moreover, “there is no rule that requires a defendant to sign a

guilty-plea petition before the court can accept his guilty plea . . . [and] the absence of a

guilty-plea petition does not automatically invalidate the plea.” Whetstone, 109 So. 3d at 619

(¶10).

¶10. Bell also contends that because there is no transcript of the plea hearing, the circuit

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court violated his due process rights by failing to provide a complete record. This Court has

already addressed the issue of the transcript’s unavailability, holding, “Although the

plea-hearing transcript is unavailable due to the court reporter’s death, the judgment of

conviction specifically states that Bell and the district attorney appeared before the court and

that Bell was ‘duly advised of all his legal and constitutional rights in the premises,’ and was

‘further advised of the consequences of such a plea.’” Bell, 207 So. 3d at 708-09 (¶12).

Additionally, as the circuit court noted in its order dismissing the PCR motion, “At the court

reporter’s death, any claim by [Bell] for post-conviction relief was already barred by the

statute of limitations. Therefore, the death of the court reporter and the whereabouts of the

documents mention by [Bell] can in no way revive his untimely claim.”

¶11. Accordingly, we affirm the circuit court’s dismissal of Bell’s PCR motion as time-

barred, as he has not shown an exception to the procedural bar. Alternatively, we find no

merit to the issues raised by Bell.

¶12. AFFIRMED.

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

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