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Wheeler v. State

Court of Appeals of Mississippi

May 5, 2015

JOHNNIE WHEELER A/K/A JOHNNIE E. WHEELER A/K/A JOHNNIE EARL WHEELER, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 02/03/2014. TRIAL JUDGE: HON. MICHAEL M. TAYLOR. TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-CONVICTION RELIEF.

JOHNNIE WHEELER, APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER.

BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ. IRVING, P.J., BARNES, ISHEE AND JAMES, JJ., CONCUR. ROBERTS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J., GRIFFIS, P.J., MAXWELL AND FAIR, JJ.

OPINION

Page 502

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

CARLTON, J.

[¶1] Johnnie Wheeler appeals the Lincoln County Circuit Court's denial of his motion for post-conviction relief (PCR) that he filed upon the revocation of his parole. In his PCR motion, Wheeler claims that his parole was unlawfully revoked.

[¶2] The relevant procedural history in this case reflects that, while on parole for a 1970 murder conviction, Wheeler pled guilty on January 15, 2013, to felony shoplifting, and this felony-shoplifting conviction resulted in the revocation of his parole.[1] Wheeler argues that he failed to receive the due process owed him when the parole board revoked his parole. In support of his appeal, Wheeler raises the three following assignments of error, arguing that: (1) his due process was violated because a clerical error existed regarding his name and birth date; (2) the parole board denied him a preliminary revocation hearing; and (3) the trial court failed to provide him notice of the date of his evidentiary hearing on his PCR motion.

[¶3] Wheeler fails to present any evidence of the violation of any constitutional right, whether State or federal, upon which post-conviction relief could be granted. See Miss. Code Ann. § 99-39-5(1) (Supp. 2014). We find that section 99-39-5(1)(h) and (2)(b) establishes the trial court's jurisdiction to consider Wheeler's post-conviction claim that his parole was

Page 503

unlawfully revoked. See Walters v. State, 21 So.3d 1166, 1168-69 (¶ 9) (Miss. 2009); Ragland v. State, 586 So.2d 170, 173 (Miss. 1991) (petition challenging legality of parole revocation was direct attack upon administrative board's order on which there had been no court review; such challenge was not a collateral attack upon a terminated court case).[2] Upon review of this appeal and Wheeler's assignments of error, we affirm the trial court's denial of Wheeler's PCR motion, and in so doing, we find no abuse of discretion in the trial court's determination that Wheeler failed to show a violation of a federal or state right. See Walters, 21 So.3d at 1169-70 (¶ 11); Morgan v. State, 995 So.2d 787, 790-91 (¶ ¶ 8-10) (Miss. Ct. App. 2008).

FACTS

[¶4] In September 1970, a Lincoln County jury convicted Wheeler of murder, and the trial court sentenced Wheeler to life in the custody of the Mississippi Department of Corrections (MDOC).[3] While still on parole for the 1970 murder, Wheeler was indicted for third-offense shoplifting, a felony, and while in jail awaiting trial on this felony-shoplifting charge, Wheeler's parole officer filed a warrant for a parole violation on January 11, 2013. Wheeler then pleaded guilty to the felony of third-offense shoplifting, and on January 15, 2013, the trial court sentenced Wheeler for this conviction to serve five years in the custody of the MDOC, with the balance suspended for time served, and with four years of post-release supervision.

[¶5] The procedural history reflects that Wheeler's shoplifting conviction constituted the basis upon which his parole was revoked. See Miss. Code Ann. § 47-7-27 (Supp. 2014)[4] (establishing the parole board's authority to immediately revoke parole upon presentation of a certified copy of the commitment order for an offender convicted of a felony while serving parole). See also Williams v. State, 158 So.3d 309, 311-12 (¶ 7) (Miss. 2015) (no leave from supreme court required to file an appeal where petitioner is challenging a conviction that has not been appealed). Wheeler argues, however, that his parole officer unlawfully placed the hold on him by filing the warrant for a probable parole violation upon his indictment for felony shoplifting and that his parole was also unlawfully revoked by the parole board on April 4, 2013.

Page 504

[¶6] The record reflects that Wheeler's parole officer issued the warrant for a parole violation upon Wheeler's confinement in the Lincoln County jail and that Wheeler was convicted only a few days later upon his plea of guilty. After a hearing on the matter, the parole board found that pursuant to section 47-7-27, Wheeler violated the terms and conditions of his parole by being convicted of a felony, and therefore revoked his parole on April 4, 2013.

[¶7] On January 31, 2013, Wheeler filed a petition for a writ of habeas corpus,[5] asserting that his right to due process was violated because he did not participate in a preliminary hearing before the parole board. Wheeler also claimed that he was convicted for felony shoplifting under the wrong name. The trial court stated that " the claims raised are properly raised as post-conviction relief, and for that reason, the court will construe the pleading as a motion for post-conviction relief." [6] The trial court held an evidentiary hearing on Wheeler's PCR motion on September 23, 2013, and heard oral argument from Wheeler and from the State. Wheeler's former attorney on the felony-shoplifting charge was also present. The trial court denied Wheeler's request for relief. Wheeler now appeals the trial court's denial of his PCR motion.

STANDARD OF REVIEW

[¶8] " A [trial] court's denial of post-conviction relief will not be reversed absent a finding that the court's decision was clearly erroneous. However, when issues of law are raised, the proper standard of review is de novo." Morris v. State, 66 So.3d 716, 719 (¶ 13) ...


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