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Duncan v. State

Court of Appeals of Mississippi

August 15, 2017

WENDELL DUNCAN A/K/A WENDELL AVERY DUNCAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/14/2015

         WASHINGTON COUNTY CIRCUIT COURT TRIAL HON. W. ASHLEY HINES, JUDGE

          ATTORNEY FOR APPELLANT: WENDELL DUNCAN (PRO SE).

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON.

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

          LEE, C.J.

         ¶1. Wendell Duncan appeals the dismissal of his fifth motion for postconviction relief (PCR) by the Washington County Circuit Court. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In 1994, Duncan was convicted of conspiracy to commit burglary of a business and burglary of a business. He was sentenced as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev. 2007) to serve five years for the conspiracy conviction and seven years for the burglary conviction in the custody of the Mississippi Department of Corrections (MDOC). The sentences were ordered to run consecutively for a total of twelve years.

         ¶3. In 1995, Duncan was convicted of armed robbery. Duncan was indicted as a habitual offender for two prior convictions-shooting into an occupied dwelling and aggravated assault. However, he was not sentenced as a habitual offender for the armed-robbery conviction because the circuit judge found that the State failed to prove Duncan's habitual-offender status. Instead, Duncan was sentenced as a nonhabitual offender to thirty years in the custody of the MDOC, with the sentence ordered to run consecutively to the previously imposed sentence as a habitual offender of twelve years for the burglary and conspiracy convictions.

         ¶4. Duncan filed his first PCR motion in 1996, which was dismissed by the circuit court. The Mississippi Supreme Court affirmed the circuit court's judgment in 1998 in an unpublished opinion in docket number 96-CA-01017-SCT. In 2005, Duncan filed numerous motions and other documents in both the circuit court and the supreme court. The motions were denied, and Duncan was sanctioned by the supreme court for frivolous filings and barred from filing any further documents until he had paid the sanctions. In 2008, Duncan filed a motion in the circuit court to vacate his convictions and sentences, which the circuit court treated as Duncan's second PCR motion and dismissed as time-barred and successive-writ barred. This Court affirmed the trial court's dismissal in Duncan v. State, 28 So.3d 665, 667 (¶7) (Miss. Ct. App. 2009).

         ¶5. In 2011, the supreme court denied Duncan's motion for leave to proceed in the circuit court, noting that Duncan had failed to file a direct appeal of his convictions and sentences. Duncan filed a motion in the circuit court to correct his sentence, which the circuit court treated as Duncan's third PCR motion and dismissed as successive-writ barred. This Court affirmed the circuit court's dismissal in Duncan v. State, 100 So.3d 996, 999 (¶13) (Miss. Ct. App. 2012). Duncan filed a fourth PCR motion, which was again dismissed by the circuit court. This Court again affirmed the circuit court's dismissal in Duncan v. State, 170 So.3d 579, 582 (¶11) (Miss. Ct. App. 2014), finding that the PCR motion was both time-barred and successive-writ barred.

         ¶6. In November 2015, Duncan filed a fifth PCR motion in the circuit court, alleging an illegal sentence and ineffective assistance of counsel for the conspiracy and burglary convictions. The motion was dismissed as both time-barred and successive-writ barred. Duncan now appeals the dismissal of his fifth PCR motion.

         STANDARD ...


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