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Hilliard v. State

Court of Appeals of Mississippi

September 26, 2017

JAMES HILLIARD A/K/A JAMES STEPHEN HILLARD APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/23/2016

         COURT FROM WHICH APPEALED LAFAYETTE COUNTY CIRCUIT COURT HON. ANDREW K. HOWORTH TRIAL JUDGE.

          ATTORNEY FOR APPELLANT: JAMES HILLIARD PRO SE

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART

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

          BARNES, JUDGE.

         ¶1. James Hilliard, appearing pro se, appeals the Lafayette County Circuit Court's denial of his motion for post-conviction relief (PCR). Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. In February 2011, Hilliard was indicted for one count of conspiracy to sell cocaine, and one count of possession of cocaine with intent to sell. In July 2012, the State filed a motion to amend Hilliard's indictment to include habitual-offender status due to prior felony convictions in California for possession of a controlled substance. The trial court granted the motion.

         ¶3. On October 8, 2012, Hilliard pleaded guilty to conspiracy to sell cocaine. As a result of the State's recommendation and the plea agreement, the trial court dismissed the count of possession of cocaine with intent to sell. At Hilliard's plea hearing, the State explained that it had two motions to amend the indictment. One motion was to sentence Hilliard as a subsequent offender, which the State withdrew due to the plea agreement. The other ore tenus motion was to enhance his sentence as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). The State pointed to two prior convictions in California, both for felony possession of a controlled substance in 1998 and 2000, respectively. Hilliard did not object to the enhancement, as it was part of the plea agreement. The trial court found Hilliard qualified for habitual-offender status under section 99-19-81. He was sentenced to seventeen years for the conspiracy charge, with four years suspended and thirteen to serve as a habitual offender.[1]

         ¶4. On May 3, 2016, Hilliard filed an untimely PCR motion, claiming that his enhanced sentence as a habitual offender was improper because one of his felony convictions from California was subsequently redesignated as a misdemeanor. He claims his sentence as a habitual offender is now invalid and requires him to be resentenced as a nonhabitual offender. The trial court summarily denied his PCR motion, and Hilliard timely appealed.

         ANALYSIS

         ¶5. Hilliard seeks to be resentenced as a nonhabitual offender. He argues that his sentence as a habitual offender under his plea agreement should be set aside after a prior felony conviction from California was amended to a misdemeanor. This issue is a question of law, which is reviewed de novo. See Doss v. State, 19 So.3d 690, 694 (¶5) (Miss. 2009).

         ¶6. First, this PCR motion is untimely and thus procedurally barred. A PCR motion challenging a guilty plea must be filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Hilliard pleaded guilty in July 2012, and his PCR motion was filed in May 2016, ...


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