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Sellers v. State

Court of Appeals of Mississippi

June 9, 2015

CHRISTOPHER B. SELLERS A/K/A CHRIS SELLERS A/K/A CHRISTOPHER SELLERS A/K/A CHRISTOPHER BRIAN SELLERS, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 03/05/2014. TRIAL JUDGE: HON. LEE J. HOWARD. TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-CONVICTION RELIEF.

CHRISTOPHER B. SELLERS, APPELLANT, Pro se.

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

BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

OPINION

Page 269

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

IRVING, P.J.

[¶1] In this appeal, this Court is asked to decide whether the Circuit Court of Oktibbeha County erred in denying Christopher Sellers's pro se motion for post-conviction relief (PCR), wherein he alleged that his sentence was illegal and his trial counsel was ineffective.

[¶2] Finding that the circuit court committed no error, we affirm.

FACTS

[¶3] On July 13, 2012, a grand jury indicted Sellers for malicious mischief in violation of Mississippi Code Annotated section 97-17-67 (Rev. 2006), and the circuit court later appointed counsel to represent him. On October 16, 2012, the State filed a motion to amend the indictment to charge Sellers as a habitual offender under Mississippi Code Annotated section 99-19-81 (Supp. 2014). That same day, Sellers filed a petition to enter a guilty plea, and the circuit court held a plea hearing. The record reveals that a stand-in attorney[1] represented Sellers during the hearing.[2]

[¶4] After accepting Sellers's guilty plea, the circuit court sentenced him to a term of five years in the custody of the Mississippi Department of Corrections (MDOC), imposed a $10,000 fine, and ordered him to pay restitution. On January 8, 2014, Sellers filed his PCR motion in the circuit court, and after the court denied the motion, he perfected this appeal.

Page 270

DISCUSSION

[¶5] The standard of review of a circuit court's denial of a PCR motion is limited. On appeal, this Court must reverse the circuit court's judgment " only if [the circuit court's] factual findings are clearly erroneous; however [this Court] review[s] the circuit court's legal conclusions under a de novo standard of review." Beal v. State, 58 So.3d 709, 710 (¶ 2) (Miss. Ct.App. 2011) (citing Doss v. State, 19 So.3d 690, 694 (¶ 5) (Miss. 2009)).

I. Illegal Sentence

[¶6] Sellers argues that the circuit court lacked the authority to impose the maximum sentence because he could have received the maximum sentence only if he had stood trial. He also argues that Luckett v. State, 582 So.2d 428 (Miss. 1991) (overruled on other grounds by Rowland v. State, 42 So.3d 503 (Miss. 2010)), required the circuit court to impose a lesser sentence. Sellers also argues that the circuit court erred in sentencing him as a habitual offender because the evidence was insufficient to: (1) establish his prior convictions and (2) prove that he served a sentence of one year or more for those convictions. He contends that the evidence of his prior convictions consisted solely of handwritten notes, which were unreliable and constituted inadmissible hearsay because they were written by the victim in this case.

[¶7] Sellers further contends that the circuit court violated Rule 11.03 of the Uniform Rules of Circuit and County Court Practice by: (1) failing to file an order amending the indictment,[3] and (2) granting the motion to amend absent sufficient proof of (i) his " previous convictions[,] (ii) the nature or description of the offense constituting the previous convictions, (iii) the state or federal jurisdiction of [the] previous conviction[s], and (iv) the date of the judgment."

[¶8] In response, the State argues that the applicable habitual-offender sentencing statute, section 99-19-81, required the circuit court to impose the maximum sentence prescribed for malicious mischief. The State also argues that Luckett is inapplicable because Luckett applies only to those cases where only the jury is authorized to give a life sentence but has failed to do so. The State further argues that there was sufficient evidence to establish Sellers's habitual-offender status. Additionally, the State argues that although " [n]o order [amending the indictment] was ever entered on the record[,]" Sellers did not preserve this issue for appeal because he failed to object during his plea hearing.

[¶9] In the motion to amend the indictment, the State alleged that Sellers had been convicted of felony driving under the influence (DUI) and aggravated battery of a pregnant woman. In the plea petition, Sellers: (1) admitted that he had received the two convictions identified by the State in the motion to amend, (2) confirmed that he had been fully advised by his attorneys regarding the nature of his case and the legal ramifications of his guilty plea, and (3) acknowledged that " if [he pleaded] '[g]uilty[,]' the [c]ourt [could] impose the same punishment as if [he] had [pleaded] '[n]ot [g]uilty[,]' [had stood] trial[,] and [had] ...


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