Roy Lee Johnson a/k/a Roy L. Johnson v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2021-CP-00970-COA

ROY LEE JOHNSON A/K/A ROY L. JOHNSON APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/27/2021
TRIAL JUDGE: HON. CALEB ELIAS MAY
COURT FROM WHICH APPEALED: NESHOBA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ROY LEE JOHNSON (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ASHLEY LAUREN SULSER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 10/04/2022
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE CARLTON, P.J., WESTBROOKS AND SMITH, JJ.

WESTBROOKS, J., FOR THE COURT:

¶1. Roy Lee Johnson appeals from the Neshoba County Circuit Court’s order denying his

motion for post-conviction collateral relief (PCR). After a review of the record, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On May 4, 2015, Johnson was indicted by a Neshoba County grand jury for sexual

battery in violation of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014). On

March 16, 2016, Johnson pled guilty to sexual battery of a four-year-old girl. After a

hearing, the circuit court accepted Johnson’s guilty plea. According to public judicial

records, Johnson was sentenced to twenty-two and one-half years in the custody of the
Mississippi Department of Corrections (MDOC), with five years suspended and seventeen

and one-half years to serve, followed by five years of supervised probation. Johnson was

also required to pay various court fees as a condition of his probation and to register as a sex

offender pursuant to Mississippi Code Annotated section 45-33-21 (Rev. 2011) upon his

release from MDOC’s custody.1

¶3. Before filing the motion at issue on this appeal, Johnson filed at least three previous

PCR motions after his March 16, 2016 conviction. The record on appeal does not contain

a complete copy of Johnson’s prior PCR-related filings, but “we may take judicial notice of

a circuit court’s orders . . . .” Mangum v. State, 333 So. 3d 634, 637-38 (¶14) (Miss. Ct. App.

2022). We do not know when Johnson’s first motion was filed, but the Neshoba County

Circuit Court denied the motion on July 31, 2017,2 and his subsequent appeal to the

Mississippi Supreme Court was ultimately dismissed as untimely.3

¶4. Sometime thereafter, Johnson filed a “Motion for Post-Conviction Collateral Relief

to Vacate, Set Aside Illegal and Unlawful Conviction and Sentence” in the Neshoba County

Circuit Court.4 On December 19, 2018, Johnson filed a “Motion to Quash the Indictment”

in the same court.5 The circuit court treated both of these motions as requests for post-

conviction relief and denied them on May 29, 2019, finding that they were successive. With

1
Trial Court Order, Johnson v. State, Appeal No. 2017-TS-01248 (Sept. 7, 2017).
2
Cause No. 17-CV-0161-NS-C.
3
Order, Johnson v. State, Appeal No. 2017-TS-01248 (Miss. Mar. 27, 2018).
4
Cause No. 18-CV-0240-NS-CC.
5
Cause No. 19-CV-0090-NS-CC.

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regard to the first motion (Cause No. 18-CV-0240-NS-CC), the circuit court noted that

because the second page of the indictment was signed by the grand jury foreman, Johnson’s

argument that the indictment was flawed was incorrect. The circuit court also stated that it

could not grant the “Amended Petition for Post Conviction Relief” that Johnson filed in the

same cause number because the circuit court could not approve his request for unspecified

documents. With regard to the “Motion to Quash the Indictment” (Cause No. 19-CV-0090-

NS-CC), the circuit court held that Johnson’s claim of ineffective assistance of counsel was

legally and factually impossible, as it stemmed from his attorney’s alleged failure to

challenge the indictment. Johnson appealed, and this Court again dismissed the appeal as

untimely.6

¶5. On May 24, 2021, Johnson filed the current PCR motion, in the Neshoba County

Circuit Court.7 On July 7, 2021, the circuit court denied the relief requested and dismissed

the motion (which again challenged the sufficiency of the indictment) for failure to state

grounds upon which post-conviction relief could be granted and because the motion was

successive. Johnson appeals alleging that (1) his indictment was defective; (2) he was

entitled to an evidentiary hearing; (3) the circuit court erred by refusing to admit hearsay

statements by the sexual-assault nurse examiner into evidence; (4) he should have been

6
See Order, Johnson v. State, Appeal No. 2019-TS-01510 (Miss. Ct. App. Apr. 14,
2020).
7
Cause No. 21-CV-0062-NS-CM.

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granted a continuance to examine newly discovered evidence;8 and (5) DNA evidence that

would have proved his innocence was destroyed by the State in bad faith.

STANDARD OF REVIEW

¶6. The standard of review for the denial of PCR motions is well settled; we will only

disturb a decision that was clearly erroneous. Kirksey v. State, 728 So. 2d 565, 567 (¶8)

(Miss. 1999) (citing State v. Tokman, 564 So. 2d 1339, 1341 (Miss. 1990)). Questions of law

are reviewed de novo. Rice v. State, 910 So. 2d 1163, 1164 (¶4) (Miss. Ct. App. 2005)

(citing Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999)).

DISCUSSION

I. Johnson’s motion is barred as successive.

¶7. Johnson’s motion was successive because he filed at least three previous PCR motions

after his March 16, 2016 conviction.9 Miss. Code Ann. § 99-39-23(6) (Rev. 2015). On

multiple occasions, Johnson has submitted a PCR motion containing the argument that his

indictment was defective. And, for the second time, he alleges that the indictment was

defective because it was not signed by the grand jury foreman. Section 99-39-23(6), which

bars successive motions, states that “any order dismissing the petitioner’s motion or

otherwise denying relief under this article is a final judgment and shall be conclusive until

reversed. It shall be a bar to a second or successive motion under this article.” In other

8
Johnson does not describe or otherwise provide any details about the newly
discovered evidence.
9
As discussed in the “Facts” section above, motions were filed in cause numbers 17-
CV-0161-NS-C; 18-CV-0240-NS-CC; and 19-CV-0090-NS-CC.

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words, when a movant requests post-conviction collateral relief that the court denies, he

cannot resubmit the same request and argument. “When a subsequent PCR motion is filed,

the burden falls on the movant to show he has met a statutory exception.” Stokes v. State,

199 So. 3d 745, 749 (¶10) (Miss. Ct. App. 2016) (quoting Williams v. State, 110 So. 3d 840,

843 (¶13) (Miss. Ct. App. 2013)). In Johnson’s case, this is the third PCR motion he has

filed since the denial of his initial PCR motion in 2017. We have reviewed Johnson’s

submissions and find that none of the allegations raised involve fundamental rights that

would give rise to an exception from the statutory bar on successive motions. Thus, the

circuit court appropriately denied Johnson’s requested relief in the PCR motion, and

dismissed the motion as successive.

¶8. We also call attention to the fact that (1) in the May 8, 2018 denial of two of

Johnson’s prior PCR motions, the circuit court states that the second page of the indictment

was signed by the grand jury foreman, and (2) Johnson waived this argument by pleading

guilty. See Reeder v. State, 783 So. 2d 711, 720 (¶36) (Miss. 2001). Thus, even if this filing

were not barred as a successive motion, his arguments have no merit.

II. Johnson’s motion was filed after the expiration of the statute of
limitations.

¶9. The record identifies March 16, 2016, as the date by which Johnson pled guilty and

the circuit court entered its judgment of conviction and sentence against him. Johnson filed

the PCR motion that is presently before us in May 2021. The current motion was filed

outside of the three-year window for PCR motions provided by the Uniform Post-Conviction

Collateral Relief Act. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (“A motion for relief

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under this article shall be made within three (3) years after the time in which the petitioner’s

direct appeal is ruled upon by the Supreme Court of Mississippi . . . .”); Id. § 99-35-101

(Rev. 2015) (prohibiting direct appeal “where the defendant enters a plea of guilty and is

sentenced”). Thus, Johnson’s motion was also time-barred.

III. Johnson was not entitled to an evidentiary hearing.

¶10. Johnson argues that the circuit court should have held an evidentiary hearing.

Evidentiary hearings are not required in all circumstances. We previously held that it is

proper for a circuit court to “dismiss a [PCR] motion . . . without an evidentiary hearing

where it plainly appears from the face of the motion, any annexed exhibits and the prior

proceedings in the case that the movant is not entitled to any relief.” Pickle v. State, 115 So.

3d 896, 899 (¶12) (Miss. Ct. App. 2013); accord Miss. Code Ann. § 99-39-11(2) (Rev.

2015). Johnson submitted his PCR motion to the circuit court and had the opportunity to

include any evidence he deemed relevant. Johnson did not provide proof of “extraordinary

circumstances” that would have necessitated an evidentiary hearing. Chapman v. State, 167

So. 3d 1170, 1174 (¶12) (Miss. 2015). The circuit court’s decision not to have an evidentiary

hearing was appropriate.

IV. Johnson’s issues raised for the first time on appeal are waived.

¶11. Johnson argues for the first time in his brief on appeal that the circuit court (1) erred

by refusing to admit hearsay statements by the sexual-assault nurse examiner into evidence

and (2) failed to grant him a continuance to examine newly discovered evidence.10 Johnson

10
See supra note 8.

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also contends DNA evidence that would have proved his innocence was destroyed by the

State in bad faith. We are not required to rule on these issues. Generally, the “failure to raise

an issue in the circuit court operates as a waiver and renders that issue procedurally barred

on appeal.” Bass v. State, 174 So. 3d 883, 885 (¶6) (Miss. Ct. App. 2015) (citing Miss. Code

Ann. § 99-39-21(1) (Rev. 2007)). Johnson did not present these arguments in the PCR

motion that was before the circuit court, and as discussed, there has been no showing of any

error that affected his fundamental rights.

CONCLUSION

¶12. Johnson has failed to demonstrate that any exception exists to either the time-bar set

forth in Mississippi Code Annotated section 99-39-5(2) or the successive motions bar set

forth in Mississippi Code Annotated section 99-39-23(6). Notwithstanding the procedural

bars, we also find that his arguments are without merit. The circuit court properly denied

Johnson’s PCR motion.

¶13. AFFIRMED.

BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, McDONALD,
LAWRENCE, McCARTY AND SMITH, JJ., CONCUR. EMFINGER, J., CONCURS
IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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