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Ross v. State

Court of Appeals of Mississippi

July 30, 2013

Willie ROSS a/k/a Willie Joe Ross a/k/a Willie J. Ross, Appellant
v.
STATE of Mississippi, Appellee.

Page 1120

Willie Ross, appellant, pro se.

Office of the Attorney General bye Elliott George Flaggs, attorney for appellee.

Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.

CARLTON, J.

¶ 1. Willie Ross appeals the Lowndes County Circuit Court's dismissal of his motion for post-conviction relief (PCR).[1] Ross argues that the trial court erred by: (1) allowing the State to amend the indictment against him after he had entered a plea agreement with the State and during his plea hearing; (2) failing to hold a separate bifurcated trial after he entered his guilty plea prior to sentencing him as a habitual offender; and (3) failing to address

Page 1121

both of the issues presented in his PCR motion and to acknowledge the intervening decisions presented.[2] Finding Ross's PCR motion to be both time-barred and procedurally barred as a successive writ, we affirm the trial court's dismissal.

FACTS

¶ 2. A grand jury before the Lowndes County Circuit Court indicted Ross on February 4, 2002, for two counts of burglary of a dwelling under Mississippi Code Annotated section 97-17-23 (Supp.2012) and one count of receiving stolen property under Mississippi Code Annotated section 97-17-70 (Supp.2012). On May 22, 2002, Ross filed his petition to enter a guilty plea, agreeing to plead guilty to one count of burglary of a dwelling if the State agreed to drop the two other pending charges and recommend a sentence of twenty years. The next day, the same day as Ross's plea hearing, the State filed a motion to amend the indictment to reflect Ross's habitual-offender status under Mississippi Code Annotated section 99-19-81 (Rev.2007). At the start of Ross's plea hearing, the trial court granted the State's motion. Ross then entered his guilty plea. Alterations to Ross's plea petition were made, and authorized by Ross, to reflect his changed status and the required sentence of twenty-five years. The trial court sentenced Ross as a habitual offender to twenty-five years in the custody of the Mississippi Department of Corrections.

¶ 3. On June 1, 2005, Ross filed a PCR motion asserting that he entered an involuntary guilty plea because the district attorney agreed to recommend a twenty-year sentence, but the trial court imposed a twenty-five-year sentence; he was denied transcripts in his preparation of his PCR motion; and that he received ineffective assistance of counsel. The trial court dismissed Ross's PCR motion finding that Ross knew that his habitual-offender status would be considered during sentencing and that he agreed to the twenty-five-year sentence imposed upon him. Ross appealed the trial court's dismissal, and on August 22, 2006, in Ross v. State, 936 So.2d 983, 988 (¶ 13) (Miss.Ct.App.2006), we affirmed the dismissal by the trial court.

¶ 4. On September 10, 2007, Ross filed a second PCR motion claiming that his sentence was illegal pursuant to the Fifth and Fourteenth Amendments to the United States Constitution. On December 4, 2007, the trial court dismissed Ross's second PCR motion finding it time-barred under Mississippi Code Annotated section 99-39-5(2) (Supp.2012) and that it failed to fall under any exception enumerated in section 99-39-5(2) so as to toll the statute of limitations. Ross appealed the trial court's dismissal of his second PCR motion asserting that: (1) the court exceeded its authority in sentencing him as a habitual offender; (2) the habitual-offender portion of his sentence was illegal; and (3) the court failed to conduct an evidentiary hearing before dismissing Ross's PCR motion. On March 24, 2009, we affirmed the trial court's dismissal, finding Ross's second PCR motion to be both time-barred and procedurally barred as a successive writ.

¶ 5. On January 24, 2012, Ross filed the present PCR motion. The trial court dismissed the motion as time-barred.

¶ 6. Ross appeals to ...


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