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Marshall v. State

Court of Appeals of Mississippi

September 3, 2013

WILLIE MARSHALL, JR. A/K/A WILLIE MARSHALL, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: BOLIVAR COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/02/2012. TRIAL JUDGE: HON. CHARLES E. WEBSTER. TRIAL COURT MOTION FOR POST-CONVICTION RELIFE DENIED.

FOR APPELLANT: WILLIE MARSHALL JR. (Pro se).

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: W. GLENN WATTS.

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

OPINION

Page 444

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

BARNES, J.

¶1. Willie Marshall Jr. was indicted by a Bolivar County grand jury on April 29, 1986, for possession of cocaine with intent to sell pursuant to Mississippi Code Annotated section 41-29-139 (Supp. 1985). The indictment noted that Marshall was to be charged as a habitual offender under Mississippi Code Annotated section 99-19-81 (Supp. 1985) and listed twenty prior convictions with sentences of one year or more to support the classification. On September 22, 1986, Marshall pleaded guilty to the charge, and the circuit court sentenced him to the maximum penalty of thirty years in the custody of the Mississippi Department of Corrections and a $1,000,000 fine.

¶2. On December 15, 2011, Marshall filed a motion for post-conviction relief (PCR) with the Bolivar County Circuit Court. In the PCR motion, Marshall claimed: (1) he was denied due process, as the indictment failed to specifically provide the amount of cocaine and, therefore, failed to allege an essential element of the crime; (2) he was denied due process because the habitual-offender language in the indictment was preceded by the phrase " against the peace and dignity of the State" ; and (3) his sentence exceeds the maximum allowed by law. As observed by the circuit court in its order, Marshall has sought relief from his 1986 conviction " in almost every possible legal forum during the past twenty-five years," which normally would procedurally bar the claims in his PCR motion from review. See Miss. Code Ann. § 99-39-23(6) (Supp. 2012). He is

Page 445

also well outside the three-year statute of limitations for filing a PCR motion. See Miss. Code Ann. § ,99-39-5(2) (Supp. 2012). However, the circuit court declined " to apply procedural bars to any claim that involve[d] a fundamental right" and addressed the merits of Marshall's claims. The circuit judge concluded that " all of Marshall's claims are either without merit, have been waived, or are procedurally barred." Accordingly, the circuit court denied the PCR motion on February 6, 2012.

¶3. On appeal, Marshall cites fourteen assignments of error; however, as noted above, only three issues were contained in his PCR motion before the circuit court. " [A] defendant who fails to raise an issue in his motion for post-conviction relief before the trial court may not raise that issue for the first time on appeal." Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss. Ct. App. 2009) (citing Gardner v. State, 531 So.2d 805, 808-09 (Miss. 1988)). Therefore, we will review only those issues addressed by the circuit court.

STANDARD OF REVIEW

¶4. " When reviewing a denial of a PCR motion, this Court will not reverse the circuit court's factual findings unless they are clearly erroneous." Bell v. State, 105 So.3d 401, 403 (¶ 5) (Miss. Ct. App. 2012) (citing Smith v. State, 12 So.3d 563, 564 (¶ 4) (Miss. Ct. ...


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