Shelby Ray Parham v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CP-00239-COA

SHELBY RAY PARHAM A/K/A SHELBY APPELLANT
PARHAM

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/24/2013
TRIAL JUDGE: HON. JAMES T. KITCHENS JR.
COURT FROM WHICH APPEALED: CLAY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: SHELBY RAY PARHAM (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: MELANIE THOMAS
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED - 02/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., BARNES AND ISHEE, JJ.

ISHEE, J., FOR THE COURT:

¶1. In 2004, Shelby Ray Parham pleaded guilty in the Clay County Circuit Court to

uttering a forgery. The circuit court sentenced him as a habitual offender to ten years in the

custody of the Mississippi Department of Corrections (MDOC). Parham filed a motion for

post-conviction relief (PCR) in 2009. The circuit court dismissed the motion as time-barred

but found that, the procedural bar notwithstanding, the issues Parham had raised were

meritless. The following year, this Court affirmed the circuit court’s dismissal of Parham’s
PCR motion.1 In 2012, Parham filed another PCR motion in the circuit court that was later

dismissed. Aggrieved, Parham now appeals. Finding no error, we affirm.

STATEMENT OF FACTS

¶2. In April 2004, Parham was indicted for seven charges, including false pretense,

uttering a forgery, and fraudulent use of identity to obtain a thing of value. Parham, 54 So.

3d at 868 (¶3). Due to Parham’s past convictions, the State moved to amend the indictment

to reflect Parham’s status as a habitual offender under Mississippi Code Annotated section

99-19-83 (Rev. 2000). Parham, 54 So. 3d at 868 (¶4). The circuit court did not take action

on this motion. Id.

¶3. Pursuant to plea negotiations, the State later filed another motion to amend Parham’s

indictment to reflect his status as a habitual offender under Mississippi Code Annotated

section 99-19-81 (Rev. 2000) — a habitual-offender statute carrying less severe punishments

than Mississippi Code Annotated section 99-19-83. Parham, 54 So. 3d at 868 (¶4). Parham

joined the State’s motion, and the motion was granted. Id. Subsequently, Parham pleaded

guilty as a habitual offender to one count of uttering a forgery; the State dismissed the other

six charges. Id.

¶4. Parham filed a PCR motion in 2009 claiming his sentence was illegal because his

habitual-offender status was imposed without the approval of a jury. The circuit court

dismissed the motion as time-barred. Nonetheless, the circuit court addressed Parham’s

assertion, and determined his claim was without merit. Parham appealed the circuit court’s

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Parham v. State, 54 So. 3d 867, 869 (¶13) (Miss. Ct. App. 2010).

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judgment.

¶5. In 2010, we addressed Parham’s claims on appeal and affirmed the circuit court’s

judgment. Id. at 869 (¶13). Therein, we concluded that Parham’s case was time-barred. Id.

(¶10). Additionally, we held that his claim of an illegal sentence was meritless since

Mississippi law does not afford an accused the right of a trial before a jury with regard to the

determination of habitual-offender status. Id. at (¶12) (citing Keyes v. State, 549 So. 2d 949,

951 (Miss. 1989)).

¶6. Parham later filed another PCR motion arguing the imposition of habitual-offender

status was improper and his resulting sentence is illegal. The circuit court dismissed the

motion as being time-barred. Parham then filed the instant appeal.

DISCUSSION

¶7. PCR motions are governed by Mississippi Code Annotated section 99-39-5 (Supp.

2014). The statute provides that a prisoner has three years within which to request post-

conviction relief. After that time, only certain cases are excepted from the procedural bar.

Exceptions to the three-year statute of limitations include:

[A]n intervening decision of the Supreme Court of either the State of
Mississippi or the United States which would have actually adversely affected
the outcome of [the movant’s] conviction or sentence or that [the movant] has
evidence, not reasonably discoverable at the time of trial, which is of such
nature that it would be practically conclusive that had such been introduced at
trial it would have caused a different result in the conviction or sentence; or
[t]hat, even if the [movant] pled guilty or nolo contendere, or confessed or
admitted to a crime, there exists biological evidence not tested, or, if
previously tested, that can be subjected to additional DNA testing that would
provide a reasonable likelihood of more probative results, and that testing
would demonstrate by reasonable probability that the [movant] would not have
been convicted or would have received a lesser sentence if favorable results
had been obtained through such forensic DNA testing at the time of the

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original prosecution. Likewise excepted are those cases in which the [movant]
claims that his sentence has expired or his probation, parole or conditional
release has been unlawfully revoked. Likewise excepted are filings for post-
conviction relief in capital cases which shall be made within one (1) year after
conviction.

Miss. Code Ann. § 99-39-5(2)(a)-(b).

¶8. Here, Parham pleaded guilty in April 2004 and was sentenced in October 2004.

Parham’s instant PCR motion was filed in October 2012 — approximately eight years after

his conviction and sentence. Parham asserts that the case of Gowdy v. State, 56 So. 3d 540

(Miss. 2010), is an intervening decision because it overrules caselaw that the circuit court

applied to him at the time of his sentencing. However, Parham’s claim that Gowdy negates

the three-year time-bar is unfounded.

¶9. First, the case that Gowdy overruled was handed down after Parham was sentenced.

Thus, the circuit court did not rely on Gowdy’s predecessor in adjudicating Parham’s case,

and Gowdy is not an intervening decision. Second, even if Gowdy were an intervening

decision, it stands for the legal principle that the State must disclose to the accused its intent

to seek a habitual-offender-status amendment prior to the start of an accused’s trial so as to

allow the accused “a fair opportunity to present a defense” and prevent “unfair[] surprise.”

Id. at 545 (¶19) (citation omitted). Here, Parham was aware of the State’s intent to amend

his indictment before he entered a guilty plea. He even joined the State’s motion to amend

the indictment. Indeed, it would appear that the amendment to reflect an application of

Mississippi Code Annotated section 99-19-81 instead of section 99-19-83 was part of the

State’s concession to Parham pursuant to a plea bargain. Accordingly, Parham’s case is not

excepted from the three-year statute of limitations.

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¶10. Furthermore, Parham’s assertion in his second PCR motion mirrors that of his last

PCR motion. Parham argues that he was illegaly indicted as a habitual offender. This

argument was addressed by the circuit court in 2009, and we affirmed the circuit court’s

judgment in 2010.

¶11. Mississippi Code Annotated section 99-39-23(6) (Supp. 2014) applies to successive

writs. Section 99-39-23(6) provides that an issue raised by a PCR movant and addressed in

a final judgment with specific findings of facts and conclusions of law cannot be raised by

the movant again. Any motion filed after an entry of the final judgment and asserting the

same issue is procedurally barred as a secondary or successive writ. Accordingly, because

this issue was raised in Parham’s prior PCR motion and fully adjudicated by both the circuit

court and this Court, the instant PCR motion is also barred as a successive writ. Hence, the

circuit court’s dismissal of Parham’s PCR motion as procedurally barred was proper. This

issue is without merit.

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

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

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