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Freeman v. State

Court of Appeals of Mississippi

May 30, 2017

ELLIOTT FREEMAN A/K/A ELLIOTT ANTHONY FREEMAN A/K/A ELLIOTT A. FREEMAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/20/2016

         DESOTO COUNTY CIRCUIT COURT HON. ROBERT P. CHAMBERLIN, Judge

          ATTORNEY FOR APPELLANT: ELLIOTT FREEMAN (PRO SE)

          ATTORNEY FOR APPELLEE: KAYLYN HAVRILLA MCCLINTON

          BEFORE IRVING, P.J., FAIR AND WILSON, JJ.

          WILSON, J.

         ¶1. Elliott Freeman appeals from the summary dismissal of his second motion for post- conviction relief (PCR). Freeman pled guilty but now alleges that his indictment failed to charge the crime of burglary of a dwelling. Freeman's claim is barred because his motion is an impermissible successive PCR motion filed well beyond the three-year statute of limitations of the Uniform Post-Conviction Collateral Relief Act (UPCCRA). Moreover, even if Freeman's claim were not procedurally barred, it is wholly without merit. Freeman's appellate brief raises additional issues that were not presented to the circuit court; however, these issues are also procedurally barred and without merit. Therefore, we affirm.

         FACTS

         ¶2. In 2009, Freeman pled guilty as a habitual offender to conspiracy to commit burglary of a dwelling, burglary of a dwelling, and petit larceny. In connection with Freeman's plea, the district attorney agreed to allow him to plead guilty as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015) rather than under section 99-19-83. The court imposed consecutive sentences of five years for conspiracy and twenty-five years for burglary and a concurrent sentence of six months for petit larceny.

         ¶3. In 2011, Freeman filed a PCR motion in the trial court. The motion was denied, and Freeman's appeal was dismissed as untimely. Freeman v. State, No. 2011-TS-00747-COA (Miss. Ct. App. July 26, 2011).

         ¶4. In 2016, Freeman filed a second PCR motion in which he alleged that his indictment failed to charge a crime. The circuit court reviewed Freeman's motion and determined that it was time-barred, an impermissible successive writ, and without merit. Accordingly, the circuit court summarily dismissed the motion. Freeman filed a timely notice of appeal.

         DISCUSSION

         ¶5. On appeal, Freeman repeats his challenge to the sufficiency of the indictment. He also raises new claims that his plea was not voluntary and that he received ineffective assistance of counsel, and he argues that his claims are not subject to the procedural bars of the UPCCRA.

         ¶6. A movant "who fails to raise an issue in his [PCR] motion . . . before the trial court may not raise that issue for the first time on appeal." Fluker v. State, 17 So.3d 181, 183 (¶6) (Miss. Ct. App. 2009) (citing Gardner v. State, 531 So.2d 805, 808-09 (Miss. 1988)). Therefore, Freeman's claims of ...


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