Andre Conner v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CP-00578-COA

ANDRE CONNER A/K/A ANDRE DESHAUN APPELLANT
CONNER A/K/A DESHAWN CONNER A/K/A
ANDRE D. CONNER

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/28/2016
TRIAL JUDGE: CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: ANDRE CONNER (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED - 03/14/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., FAIR AND WILSON, JJ.

WILSON, J., FOR THE COURT:

¶1. Andre Conner appeals from the denial of his motion for post-conviction relief. He

argues that the circuit court should have granted him an out-of-time appeal, nearly seven

years after his time for filing a notice of appeal expired. We affirm the circuit court’s order

denying Conner’s motion.

FACTS

¶2. On August 25, 2004, a Harrison County jury found Conner guilty of murder. On
August 27, 2004, the circuit court entered a final judgment of conviction and sentenced

Conner to life imprisonment. Conner was represented at trial by privately retained counsel,

and on August 31, 2004, his attorney filed a timely motion for a new trial. For reasons not

disclosed by the record, more than four years passed without a ruling on the motion. On

November 18, 2008, Eric Conner (Eric) filed a “petition for an out-of-time appeal” on

Conner’s behalf. Eric Conner apparently is Conner’s brother, although nothing in the record

on appeal identifies him as such. On March 26, 2009, the court entered an order denying

Conner’s motion for a new trial. The order specifically stated, “Pursuant to Rule 4 of the

Mississippi Rules of Appellate Procedure, Conner shall have thirty (30) days to file his notice

of appeal.” Conner did not file a notice of appeal.

¶3. Almost seven years later, on February 19, 2016, Conner filed a motion for post-

conviction relief requesting leave to file an out-of-time appeal. Conner alleged that his trial

counsel was ineffective because he failed to consult with Conner about an appeal. Conner

also alleged that he is indigent and entitled to representation by the Indigent Appeals

Division of the Office of the State Public Defender. On March 28, 2016, the circuit court

denied Conner’s motion. The court noted that there was no evidence that Conner asked his

attorney to file an appeal or that his attorney had agreed to represent him on appeal. The

court also concluded that Conner offered no evidence as to why he should be granted an out-

of-time appeal after he “waited almost seven years to move for post-conviction relief.”

DISCUSSION

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¶4. The record does not disclose why Conner’s motion for a new trial languished for four-

plus years without a ruling or why Conner did not appeal. But more important at this late

stage, there is nothing in the record to justify Conner’s failure to request an out-of-time

appeal for almost seven years after he failed to file a timely notice of appeal. We recently

addressed a similar request for an out-of-time appeal following years of unexplained delay.

Balle v. State, 205 So. 3d 1087 (Miss. Ct. App. 2016). We observed that the Mississippi

Uniform Post-Conviction Collateral Relief Act expressly permits a prisoner to file a motion

for post-conviction relief requesting an “out-of-time appeal,” Miss. Code Ann. § 99-39-

5(1)(i) (Rev. 2015), “but such a claim is still subject to the [Act’s] three-year statute of

limitations.” Balle, 205 So. 3d at 1088 (¶2); accord Buckley v. State, 919 So. 2d 75, 77 (¶7)

(Miss. Ct. App. 2005); DeLoach v. State, 890 So. 2d 934, 936 (¶7) (Miss. Ct. App. 2004).

As in Balle, Conner’s motion for post-conviction relief is barred by the Act’s statute of

limitations, and he has presented no evidence that would bring his claim within any exception

to the time-bar. Balle, 205 So. 3d at 1088 (¶2).1 Accordingly, we affirm the denial of his

motion for post-conviction relief.

¶5. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-CONVICTION
RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO

1
See also Parker v. State, 921 So. 2d 397 (Miss. Ct. App. 2006), in which this Court
affirmed the denial of a motion for post-conviction relief requesting an out-of-time appeal
ten years after the fact. This Court stated that our Supreme Court’s suggestion “that criminal
defense lawyers obtain a signed writing regarding the client’s decision whether or not to
pursue an appeal” “is sound advice, [but] it is no rule of law from which we can find
reversible error.” Id. at 400 (¶8) (citing Wright v. State, 577 So. 2d 387, 390 (Miss. 1991)).

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HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR,
GREENLEE AND WESTBROOKS, JJ., CONCUR.

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