Jerrell Thomas a/k/a Jerrell Jerome Thomas a/k/a Jerrell J. Hinton v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-01026-COA

JERRELL THOMAS A/K/A JERRELL JEROME APPELLANT
THOMAS A/K/A JERRELL J. HINTON

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/25/2019
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JERRELL THOMAS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: REVERSED AND REMANDED - 04/06/2021
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

BARNES, C.J., FOR THE COURT:

¶1. On October 3, 2006, a Forrest County Circuit Court jury found Jerrell Thomas guilty

of touching a child for lustful purposes. He was sentenced to serve a term of fifteen years

in the custody of the Mississippi Department of Corrections. On October 16, 2006,

Thomas’s privately retained defense counsel filed timely post-trial motions for a new trial

and to reconsider his sentence. For reasons not disclosed by the record, the trial court never

ruled upon the motions, and thus no direct appeal was ever taken. Thereafter, Thomas’s trial

counsel passed away.

¶2. Nearly thirteen years later, on May 14, 2019, Thomas filed a motion for post-
conviction relief (PCR) requesting the Forrest County Circuit Court grant him an out-of-time

appeal and appointment of counsel as an indigent defendant for a direct appeal. He claimed

that he could not afford to retain counsel to perfect an appeal, and he complained that his

defense counsel never informed him that he could appeal as an indigent. The trial court

summarily dismissed Thomas’s PCR motion for an out-of-time appeal as time-barred,

stating:

The record does not disclose why Thomas’s motion for a new trial and motion
to reconsider sentence languished for twelve-plus years without a ruling or
why Thomas did not appeal. But more important at this late stage, there is
nothing in the record to justify Thomas’s failure to request an out-of-time
appeal for almost thirteen years after he failed to file a timely notice of appeal.

¶3. Thomas is no longer imprisoned but is registered as a sex offender. It is unclear when

he was released from custody, but the address on his reply brief indicates he was still

imprisoned as late as July 2020. However, Thomas can still file for post-conviction relief.

For certain post-conviction challenges, “[s]tanding no longer hinges on the requirement of

being ‘any prisoner in custody under sentence’” of a Mississippi court. Howell v. State, 283

So. 3d 1100, 1104 (¶16) (Miss. 2019) (quoting Miss. Code Ann. § 99-39-5(1) (Rev. 2007)).

Section 99-39-5 was amended in 2009 to allow persons who are “on parole or probation or

subject to sex offender registration” to file a PCR motion if claiming certain matters, one of

which being the right to an out-of-time appeal. Miss. Code Ann. § 99-39-5(1)(i) (Rev.

2015); see Howell, 283 So. 3d at 1103-05 (¶¶13, 19) (The supreme court found the

defendant had standing to file a PCR motion claiming an illegal sentence under section 99-

39-5(1)(d) even though his sentence had expired.).

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¶4. Thomas, appearing pro se, now appeals the dismissal of his PCR motion. We find

the trial court erred in dismissing the motion as time-barred. Because the trial court never

ruled upon the 2006 post-trial motions, Thomas’s case before the trial court was not final

until the new rules of criminal procedure provided a rule to finalize his case by operation of

law in 2017. Because he filed his PCR motion within three years of this date, his PCR

motion is not time-barred. Accordingly, we reverse and remand for proceedings consistent

with this opinion.

STANDARD OF REVIEW

¶5. “When a circuit court summarily denies or dismisses a request for an out-of-time

appeal, we review the decision for abuse of discretion.” Pulliam v. State, 282 So. 3d 734,

736 (¶7) (Miss. Ct. App. 2019) (citing Johnson v. State, 137 So. 3d 336, 338 (¶7) (Miss. Ct.

App. 2014)). “Questions of law are reviewed de novo.” Id. (citing Barnes v. State, 151 So.

3d 220, 221 (¶5) (Miss. Ct. App. 2014)).

DISCUSSION

¶6. Rule 4(e) of the Mississippi Rules of Appellate Procedure provides that a criminal

defendant must file a notice of appeal within thirty days after the date of the denial of any

motion for a new trial or for judgment of acquittal notwithstanding the jury verdict, or after

the date of imposition of sentence, whichever is later.1 The record Thomas provides for our

review is sparse and does not include his defense counsel’s post-trial motions or any

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The rule further states, “A notice of appeal filed after the court announces a
decision, sentence, or order but before it disposes of any of the above motions, is ineffective
until the date of the entry of the order disposing of the last such motion outstanding, or until
the date of the entry of the judgment of conviction, whichever is later.” M.R.A.P. 4(e).

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indication they were ruled upon. However, the trial court’s opinion dismissing Thomas’s

PCR motion stated that defense counsel timely filed the motions on October 16, 2006, but

the motions were never ruled upon. The record was silent as to why. Because the motions

were never ruled upon, Thomas’s case was technically still pending before the trial court and

thus not ripe for appeal. Therefore, his PCR motion requesting an out-of-time appeal could

not be time-barred.

¶7. The Mississippi Rules of Criminal Procedure, effective July 1, 2017, include a rule

“new to Mississippi practice” on post-trial motions to promote finality. MRCrP 25.3 cmt.

Rule 25.3 provides, “A motion for a new trial or a motion to vacate judgment pending thirty

(30) days after entry of judgment shall be deemed denied as of the thirtieth (30th) day after

the motion was filed.” MRCrP 25.3. The rule was created to prevent the exact situation that

occurred in Thomas’s case—“when a timely post-trial motion is filed but is not decided”

upon by the trial court. MRCrP 25.3 cmt. If the trial court never rules upon the post-trial

motion, “[s]uch a case is then essentially in limbo, as the pending post-trial motion

indefinitely postpones the running of the period for filing a notice of appeal and indefinitely

delays finality in the case.” Id.

¶8. In Thomas’s case, however, the new rules of criminal procedure were not in effect

at the time of trial, and the applicable rule, Uniform Rule of Circuit and County Court

Practice 10.05, did not provide for any such denial of post-trial motions by operation of law.

Because Thomas’s motion for a new trial and for reconsideration of sentence were never

ruled upon, the time for filing a notice of appeal was “indefinitely postpone[d],” and

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Thomas’s case was left “in limbo.”

¶9. Under Rule 25.3, the earliest possible date that Thomas’s case could be final and ripe

for appeal was the date the new rules of criminal procedure went into effect—July 1,

2017—as his post-trial motions had already been pending for “thirty days after entry of

judgment” when the rules went into effect.2 Regarding the timeliness of his PCR motion,

under Mississippi Code Annotated section 99-39-5(2), Thomas had three years to file his

motion “after the time for taking an appeal from the judgment of conviction or sentence has

expired.” Thomas filed his PCR motion in May 2019, which is within three years of July

2017. Therefore, his PCR motion was not time-barred. Moreover, there is nothing in the

record to indicate Thomas was aware that his conviction became final in 2017 under the new

criminal procedure rules. Further, we note that but for the operation of these new rules,

Thomas’s case would still not be final for purposes of appeal.

¶10. Section 99-39-5(1)(i) allows an inmate to file a motion for post-conviction relief if

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Alternatively, Thomas’s case could be final thirty days after the date the new rules
went into effect, or July 31, 2017, but this thirty-day difference is not pertinent to our
disposition.
The dissent reasons that “the language of new Rule 25.3 suggests that [the rule]
simply was not intended to apply to new trial motions that had already been pending for
more than thirty days.” Yet the “Order Adopting the Mississippi Rules of Criminal
Procedure” clearly states that these rules “shall govern the procedure in all criminal
proceedings in the Circuit, County, Justice and Municipal Courts of this State. These rules
shall take effect on July 1, 2017.” (Emphasis added). Thomas’s motion for a new trial was
pending in a criminal proceeding on July 1, 2017, and we cannot “simply hold that Rule 25.3
does not apply” as proposed by the dissent. We must interpret the rules “to provide for the
just and speedy determination of criminal proceedings . . . [and] to eliminate unjustifiable
delay and expense.” MRCrP 1.2. We believe that our disposition in this matter does so, as
it will bring finality to the ongoing criminal proceedings rather than leaving Thomas exactly
where he was for over ten years—waiting for the trial court to rule.

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the inmate claims entitlement to an out-of-time appeal. However, Thomas could not file for

such relief until July 2017, as his case was technically still pending before the trial court

until the new rules of criminal procedure provided finality under Rule 25.3. Because

Thomas filed his PCR motion in May 2019, it was within the statutory three-year window

of section 99-39-5(2). Under the unusual circumstances of this case, we find the trial court

abused its discretion in dismissing Thomas’s PCR motion as time-barred.

¶11. Here, the trial court never determined whether Thomas was entitled to an out-of-time

appeal. Because the trial court retains “the exclusive, original jurisdiction to determine the

merits” of a PCR motion after dismissal, we remand for the trial court to do so. See Graham

v. State, 85 So. 3d 847, 850 (¶6) (Miss. 2012); see also Smith v. State, 290 So. 3d 1244,

1246-47 (¶7) (Miss. 2020) (The supreme court reversed and remanded a case for the trial

court to determine if a timely PCR motion requested grounds for out-of-time appeal.);

Pulliam, 282 So. 3d at 737 (¶13) (Where the circuit court improperly determined a PCR

request for an out-of-time appeal was untimely, this Court reversed and remanded because

the circuit court had not considered if the defendant was entitled to such an appeal.).

Accordingly, we reverse and remand for the trial court to determine if Thomas was entitled

to an out-of-time appeal.

¶12. REVERSED AND REMANDED.

CARLTON, P.J., GREENLEE, WESTBROOKS, McDONALD, LAWRENCE
AND McCARTY, JJ., CONCUR. WILSON, P.J., DISSENTS WITH SEPARATE
WRITTEN OPINION, JOINED BY SMITH, J. EMFINGER, J., NOT
PARTICIPATING.

WILSON, P.J., DISSENTING:

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¶13. In October 2006, following a jury trial, Thomas was convicted and sentenced for

touching a child for lustful purposes. Thomas filed a timely motion for a new trial, but the

trial court has never ruled on that motion. When the motion was filed and for more than a

decade thereafter, the law was clear that there was no final judgment in Thomas’s case

because his motion for a new trial remained pending. Therefore, any appeal would have

been premature and would have been dismissed for lack of jurisdiction. See MRCrP 25.3

cmt.; Darnell v. Darnell, 199 So. 3d 695, 696-97 (¶5) (Miss. 2016); Griffin v. State, 565 So.

2d 545, 548 (Miss. 1990); McCoy v. State, No. 2013-KA-02126-COA, at 6-7 (¶¶13-15)

(Miss. Ct. App. June 9, 2015).

¶14. The Mississippi Rules of Criminal Procedure became effective on July 1, 2017, more

than ten years after Thomas filed his motion for a new trial. Under new Rule 25.3, titled

“Denial by Operation of Law,” “A motion for a new trial or a motion to vacate judgment

pending thirty (30) days after entry of judgment shall be deemed denied as of the thirtieth

(30th) day after the motion was filed.” MRCrP 25.3. The Comment to Rule 25.3 explains,

Rule 25.3 is new to Mississippi practice. The Rule promotes finality by
providing that a motion for a new trial or a motion to vacate judgment shall
not remain pending in the trial court for more than thirty (30) days after the
motion was filed. This Rule thereby addresses the problem of when a timely
post-trial motion is filed but is not decided or even noticed for a hearing.
Such a case is then essentially in limbo, as the pending post-trial motion
indefinitely postpones the running of the period for filing a notice of appeal
and indefinitely delays finality in the case.

Id. cmt. (emphasis added).

¶15. The majority opinion recognizes that Thomas’s motion for a new trial remained

pending in the trial court and that there was no appealable final judgment in his case from

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October 2006 until July 2017. But the majority then holds that under new Rule 25.3,

Thomas’s motion for a new trial was “deemed denied” by operation of law on either July 1,

2017, when the new rule went into effect, or thirty days later, on July 31, 2017. Ante at ¶9

& n.2. The majority further reasons that Thomas’s case became “final and ripe for appeal”

at that time. Ante at ¶9.

¶16. I respectfully disagree. The new rule’s plain language does not say that long-pending

motions are to be “deemed denied” on the rule’s effective date or thirty days after. Rather,

the rule states that a motion for a new trial “shall be deemed denied as of the thirtieth (30th)

day after the motion was filed.” MRCrP 25.3 (emphasis added). Therefore, if the new rule

is in fact applicable to Thomas’s motion, then his motion was “deemed denied” in

2006—more than ten years before the rule went into effect. The new rule should not be

interpreted to result in the denial of a motion nunc pro tunc to a date years earlier. Rather,

the language of new Rule 25.3 suggests that it simply was not intended to apply to new trial

motions that had already been pending for more than thirty days.

¶17. The Mississippi Supreme Court addressed a somewhat analogous issue in Fisher v.

Drankus, 204 So. 3d 1232 (Miss. 2016). In Drankus, the Court considered whether a new

statute that required the Mississippi Department of Corrections (MDOC) to develop “case

plans” for parole-eligible inmates applied to inmates who had been convicted and sentenced

prior to the new statute’s effective date. Id. at 1233-35 (¶¶1, 7). The Court noted that the

new statute required MDOC to, among other things, develop a case plan within ninety days

of an inmate’s “admission” to MDOC custody and ensure that the case plan was “achievable

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prior to the inmate’s parole eligibility date.” Id. at 1235 (¶7) (quoting Miss. Code Ann.

§ 47-7-3.1(2), (4)). MDOC argued that the statute only applied to new inmates because “it

would be impossible for MDOC to comply with the statute as drafted if it were applied

retroactively to offenders . . . who were convicted and sentenced prior to” the statute’s

effective date, including offenders whose parole eligibility dates had long since passed. Id.

at 1235 (¶¶7-8). The Court held that MDOC’s interpretation was “reasonable and not

inconsistent with the language of the [new] statute and ascertainable legislative intent.” Id.

at 1235 (¶10).3 The Court agreed with MDOC that the new statute “contain[ed] operative

mandates which indicate[d] that [its] parole-case-plan directive was intended to apply

prospectively” only. Drankus, 204 So. 3d at 1235 (¶10). The Court further noted that

“[n]othing in the [new statute] addresse[d]” the issue of inmates whose parole-eligibility

dates had already passed. Id. at 1236 (¶12). In affirming MDOC’s interpretation of the new

statute, the Court relied on “[t]he longstanding rule in Mississippi . . . that statutes will be

construed to have a prospective operation only, unless a contrary contention is manifested

by the clearest and most positive expression.” Id. at (¶13) (quotation marks omitted).4

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In Drankus, the Court stated that “[a]n agency’s interpretation of its governing
statutes is a question of law, subject to de novo review, but with deference to the agency’s
interpretation.” Id. at 1235 (¶9). Subsequently, the Court held that courts must review the
agency’s interpretation de novo and without deference to the agency. King v. Miss. Military
Dep’t, 245 So. 3d 404, 408 (¶12) (Miss. 2018).
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Presiding Justice Dickinson concurred in the result but reasoned that the Court
“err[ed] by framing the issue as one of prospective versus retroactive application.” Id. at
1241 (¶17) (Dickinson, P.J., concurring in result only). He concluded that the inmate was
not seeking to apply the statute retroactively but only sought to apply the new statute “to his
presently existing parole-eligibility status.” Id. at 1242 (¶20). Nonetheless, Justice
Dickinson agreed that “the best interpretation of the statute’s plain language, when read as

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Based on that rule, the Court held that the new statute did not apply to offenders whose

parole eligibility dates passed prior to the statute’s effective date. Id. at 1236 (¶14).

¶18. The issue in this case is similar to the issue in Drankus. Rule 25.3 cannot sensibly

be applied to Thomas’s motion for a new trial because it would result in that motion being

“deemed denied” as of a date more than ten years in the past. The majority opinion avoids

that result only by rewriting Rule 25.3 to account for the facts of this case.5 Rather than

rewriting the rule, I would simply hold that Rule 25.3 does not apply to Thomas’s motion

for a new trial and, therefore, that the motion remains pending in Thomas’s criminal case.

For that reason, I would also hold that Thomas’s motion for post-conviction relief and an

out-of-time appeal is unnecessary and should be dismissed without prejudice. The trial court

should simply rule on Thomas’s still-pending motion for a new trial, at which point Thomas

may file a direct appeal from his conviction.

SMITH, J., JOINS THIS OPINION.

a whole,” was that the statute only applied to those “parole-eligible offenders to who [it
could] be applied completely.” Id. at 1244 (¶25). That is, he agreed with the Court that the
statute did not apply to inmates whose parole-eligibility dates had already passed. Id.
5
The majority “believe[s] that [its] disposition in this matter” is preferable and
promotes some of the purposes of the new Rules of Criminal Procedure because it “will
bring finality to the ongoing criminal proceedings.” Ante at n.2. A desire for “finality” is
an ironic justification for the majority’s disposition, which is to remand the case for a
hearing to determine whether to reopen those same criminal proceedings.

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