McCoy v. State

          DATE OF JUDGMENT: 12/14/2015

         LINCOLN COUNTY CIRCUIT COURT HON. DAVID H. STRONG JR., Judge

          ATTORNEY FOR APPELLANT: BRUCE CALVIN MCCOY (PRO SE)

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

          BEFORE LEE, C.J., BARNES AND FAIR, JJ.

          BARNES, J.

         ¶1. Bruce McCoy, appearing pro se, appeals the judgment of the Circuit Court of Lincoln County dismissing his motion for post-conviction relief (PCR). While McCoy was convicted for numerous crimes, this motion challenges only his convictions for burglary of a dwelling and petit larceny. The circuit court dismissed the motion as successive. Finding no error, we affirm.

         STATEMENT OF THE FACTS AND PROCEDURAL HISTORY

         ¶2. On November 10, 2004, McCoy was charged by a Lincoln County grand jury in four separate indictments for nine different crimes involving four different victims. In the indictment at issue here, McCoy was charged with burglary of a dwelling house and petit larceny, as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2015).

         ¶3. The State moved to amend this indictment to charge McCoy under the lesser habitual- offender statute of Mississippi Code Annotated section 99-19-81 (Rev. 2015), instead of section 99-19-83, "because of his willingness to enter a blind plea to all of his charges at arraignment." On December 6, 2004, McCoy pleaded guilty to two counts of burglary of a dwelling, one count of burglary of a building, four counts of grand larceny, and two counts of petit larceny. At his sentencing hearing in January 2005, McCoy was sentenced to the maximum terms of imprisonment of twenty-five years for both charges of burglary of a dwelling, seven years for the charge of burglary of a building, five years for each of the four grand-larceny charges, and six months for each of the petit-larceny charges. All of the sentences were ordered to run concurrently without the possibility for early release or parole.

         ¶4. McCoy's first PCR motion timely challenged all four of his sentences resulting from his guilty pleas entered on the nine different counts. The circuit court denied relief, and McCoy appealed to this Court. We dismissed McCoy's appeal without prejudice for failing to file separate motions challenging each judgment as required by Mississippi Code Annotated section 99-39-9(2) (Rev. 2000). McCoy v. State, 941 So.2d 879, 881 (¶4) (Miss. Ct. App. 2006). McCoy was then free to file separate PCR motions for relief on each judgment. McCoy filed another PCR motion in 2007, which the circuit court denied. McCoy appealed, but his appeal was dismissed for failure to pay the appeal costs. McCoy v. State, 2007-TS-00951-COA (Aug. 16, 2007).

         ¶5. On March 15, 2011, McCoy filed three separate PCR motions challenging his guilty pleas and sentences. He argued there was newly discovered evidence - that one of the victims was a court administrator, and the circuit judge should have recused himself. Additionally, he argued there was an intervening decision by the Mississippi Supreme Court, his indictments were insufficient, and his defense counsel was ineffective. The circuit court summarily dismissed each of the PCR motions as untimely and successive. McCoy appealed, and finding no viable exceptions to the procedural bars, this Court affirmed the dismissal in McCoy v. State, 111 So.3d 673, 675 (¶1) (Miss. Ct. App. 2012).^[1]

         ¶6. On October 8, 2015, McCoy filed the PCR action at issue in this appeal, challenging only the indictment in Cause No. 2014-312-MS - for burglary of a dwelling and petit larceny. In his thirty-page motion, McCoy argued that the habitual portion of his sentence under section 99-19-81 should be vacated because there was no proof presented that he had been imprisoned over a year. He also claimed his indictment was invalid because it did not contain the words "against the peace and dignity of the state" required by Uniform Rule of Circuit and County Court 7.06(7). The circuit court dismissed his PCR motion as successive, noting that this motion was McCoy's fourth. McCoy timely appealed.

         STANDARD ...