Abdullah Qasem Alsahquni v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CA-01378-COA

ABDULLAH QASEM ALSAHQUNI A/K/A MIKE APPELLANT
A/K/A ABDULLAH ALSAHQUNI A/K/A
ABDULLAH ALSAHQANI A/K/A ABDULLAH
ALSAQUANI

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/18/2013
TRIAL JUDGE: HON. LEE J. HOWARD
COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: MARK KEVIN HORAN
HARTWELL VIRGINIA HARRIS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED: 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE IRVING, P.J., FAIR AND JAMES, JJ.

FAIR, J., FOR THE COURT:

¶1. Abdullah Qasem Alsahquni received five years of nonadjudicated probation following

a guilty plea. Shortly after his charges were dismissed, he filed two separate motions for

post-conviction relief (PCR). The trial court dismissed both motions, stating it had no

jurisdiction. We agree, finding that “nonadjudication” of guilt resulting in dismissal of

charges is not a “conviction” or “sentence” within the purview of the Mississippi Uniform
Post-Conviction Relief Act. Therefore, Alsahquni lacks standing to make any claims under

Mississippi Code Annotated section 99-39-5 (Supp. 2014). The judgment of the trial court

is affirmed.

FACTS

¶2. On October 12, 2006, and November 7, 2006, a confidential informant entered

Alsahquni’s convenience store and purchased over 250 dosage units of pseudoephedrine;

both times, the informant told Alsahquni she intended to manufacture methamphetamine.

Consequently, Alsahquni was indicted for two counts of selling pseudoephedrine to

unlawfully manufacture a controlled substance. See Miss. Code Ann. § 41-29-315(5)(a)

(repealed July 1, 2010). He pled guilty to the first charge, and the State retired the second

charge. The court withheld Alsahquni’s guilty plea and placed him on nonadjudicated

probation for five years. He was also assessed a $5,000 fine. On September 14, 2011, the

court released Alsahquni from probation and dismissed his charges. Despite the dismissal

of the charges, Alsahquni’s guilty plea negatively affected his immigration status; he was

taken into federal custody for potential deportation.

¶3. Alsahquni filed a PCR motion on October 21, 2011, claiming that his guilty plea was

involuntary and that he received ineffective assistance of counsel. Specifically, he claimed

his attorney should have advised him of the consequences associated with his guilty plea.1

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Alsahquni claimed that the United States Supreme Court’s recent holding in Padilla
v. Kentucky, 130 S. Ct. 1473 (2010), required his attorney to inform him of the immigration
consequences of a guilty plea. Finding no merit to this claim, the court ruled that Padilla did
not apply retroactively to Alsahquni’s 2008 guilty plea. In 2013, the United States Supreme

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The court issued a writ of habeas corpus ad prosequendum to the Federal Detention Center

in Oakdale, Louisiana, and Department of Homeland Security to transport Alsahquni to the

evidentiary hearing set for April 20, 2012. The federal authorities would not cooperate, so

Alsahquni and the State agreed to submit memorandums briefing the issues in lieu of a

hearing. Additionally, Alsahquni submitted an affidavit stating that his attorney did not

inform him that entering a guilty plea would affect his immigration status. Alsahquni’s trial

attorney also filed an affidavit, recognizing that he had no experience in immigration law and

therefore did not inform Alsahquni he would be deported following a guilty plea. He also

stated, however, that he referred his immigration clients, including Alsahquni, to consult an

immigration attorney on issues of immigration.

¶4. In dismissing Alsahquni’s PCR motion, the court stated it lacked jurisdiction since

Alsahquni’s charges were dismissed in September 2011. Jurisdiction notwithstanding, the

court addressed both of Alsahquni’s claims and found no merit to either.

¶5. Alsahquni filed a second PCR motion on June 28, 2013, arguing ineffective assistance

of counsel. The court summarily dismissed the motion, again finding it lacked jurisdiction

and also holding his second PCR motion to be a successive writ. Alsahquni appealed.

STANDARD OF REVIEW

¶6. When reviewing the dismissal of a PCR motion, an appellate court “will not disturb

the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v.

Court also held that Padilla does not apply retroactively to cases already final on direct
review. Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013).

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State, 975 So. 2d 219, 222 (¶8) (Miss. 2008). Our review of the summary dismissal of a PCR

motion, a question of law, is de novo. Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss.

1999).

DISCUSSION

¶7. The trial court dismissed Alsahquni’s second PCR motion for the same reason it had

dismissed his first, finding it had no jurisdiction because Alsahquni’s charges were

dismissed. As an appellate court, it is our affirmative duty to determine whether we have

jurisdiction over the matter before addressing the merits. Winborn v. State, 213 Miss. 322,

323, 56 So. 2d 885, 885 (1952). “A lack of standing ‘robs the court of jurisdiction to hear

the case.’” Pruitt v. Hancock Med. Ctr., 942 So. 2d 797, 801 (¶14) (Miss. 2006) (quoting

McNair v. U.S. Postal Serv., 768 F.2d 730, 737 (5th Cir. 1985)). Therefore, absent standing,

the appropriate disposition would be to dismiss the case.

¶8. Alsahquni filed his PCR motions after his charges were dismissed. The purpose of

the Mississippi Uniform Post-Conviction Relief Act is to “streamline and clarify the rules

and statutes pertaining to post-conviction collateral relief law and procedures, to resolve any

conflicts therein and to provide the courts of this state with an exclusive and uniform

procedure for the collateral review of convictions and sentences.” Miss. Code Ann. § 99-39-

3 (Rev. 2007) (emphasis added). Further, Mississippi Code Annotated section 99-39-5 states

that “[a]ny person sentenced by a court of record of the State of Mississippi, including a

person currently incarcerated, civilly committed, on parole or probation or subject to sex

offender registration . . . may file a motion to vacate, set aside or correct the judgment or

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sentence[.]”

¶9. Although Alsahquni pled guilty, the court did not accept his guilty plea. Alsahquni

instead received five years of nonadjudicated probation under Mississippi Code Annotated

section 99-15-26 (Rev. 2007). Section 99-15-26 states in relevant part:

(1) In all criminal cases, felony and misdemeanor, other than crimes against
the person, the circuit or county court shall be empowered, upon the entry of
a plea of guilty by a criminal defendant, to withhold acceptance of the plea
and sentence thereon pending successful completion of such conditions as
may be imposed by the court pursuant to subsection (2) of this section . . . .

(2)(a) Conditions which the circuit, county, justice or municipal court may
impose under subsection (1) of this section shall consist of:

(i) Reasonable restitution to the victim of the crime.

(ii) Performance of not more than nine hundred sixty (960) hours of
public service work approved by the court.

(iii) Payment of a fine not to exceed the statutory limit.

(iv) Successful completion of drug, alcohol, psychological or
psychiatric treatment, successful completion of a program designed to
bring about the cessation of domestic abuse, or any combination
thereof, if the court deems treatment necessary.

(v) The circuit or county court, in its discretion, may require the
defendant to remain in the program subject to good behavior for a
period of time not to exceed five (5) years . . . .

....

(4) Upon successful completion of the court-imposed conditions permitted by
subsection (2) of this section, the court shall direct that the cause be dismissed
and the case be closed.

(5) Upon petition therefor, the court shall expunge the record of any case in
which an arrest was made, the person arrested was released and the case was

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dismissed or the charges were dropped or there was no disposition of such
case.

Miss. Code Ann. § 99-15-26 (emphasis added).

¶10. Alsahquni was released from his nonadjudicated probation, and his charges were

dismissed. He was neither convicted nor sentenced in accordance with Mississippi Code

Annotated section 99-39-5. Therefore, Alsahquni lacked standing to file a PCR motion. So

this Court need not address the merits of Alsahquni’s claim that he received ineffective

assistance of counsel. We affirm the trial court’s dismissal of Alsahquni’s PCR motion.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.

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