THOMAS J. HOOGHE A/K/A THOMAS HOOGHE A/K/A THOMAS JAMES HOOGHE APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 07/07/2016
COUNTY CIRCUIT COURT HON. JOHN HUEY EMFINGER
ATTORNEY FOR APPELLANT: THOMAS J. HOOGHE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
IRVING, P.J., FAIR AND WILSON, JJ.
IRVING, P.J., FOR THE COURT.
Thomas Hooghe appeals the Madison County Circuit Court's
summary denial and dismissal of his motion for
post-conviction relief (PCR). After a consideration of the
many issues raised by Hooghe, pro se, and discussed later in
this opinion, we find no error. Therefore, we affirm.
Many facts of this case were presented in Hooghe v.
State, 187 So.3d 682, 82-83
(Miss. Ct. App. 2016). We cite relevant facts from that case
and supplement them as needed.
Hooghe was arrested on April 24, 2014, in connection with
various thefts that had occurred at the Baptist Healthplex in
Madison County, Mississippi, where someone had stolen
patrons' keys out of their gym lockers and then used
those keys to steal a motor vehicle and items out of other
vehicles in the gym parking lot. On June 12, 2014, a Madison
County grand jury indicted Hooghe for three counts, stemming
from a common scheme and plan occurring on April 22, 2014:
(1) theft of a motor vehicle in violation of Mississippi Code
Annotated section 97-17-42 (Rev. 2006), as a subsequent
motor-vehicle- theft offender due to a previous conviction of
the crime in Texas, and therefore subject to enhanced
punishment pursuant to Mississippi Code Annotated section
97-17-42(4); (2) grand larceny for the theft of a bicycle and
a sum of cash in the amount of $500 or more, in violation of
Mississippi Code Annotated section 97-17-41(1) (Rev. 2006);
and (3) grand larceny for the theft of a sum of cash in the
amount of $500 or more, in violation of section
97-17-41(1).On September 18, 2014, Hooghe was indicted
for another single count of grand larceny: theft, on April
19, 2014, of a men's Rolex watch and a money clip
containing $500 or more, in violation of section 97-17-41(1).
This second indictment also charged Hooghe as a habitual
offender in violation of Mississippi Code Annotated section
99-19-81 (Rev. 2015), due to a 2012 conviction of
motor-vehicle theft in DeSoto County, Mississippi, and a 1996
conviction of burglary in Ohio.
On September 22, 2014, the circuit court conducted a plea
hearing, wherein Hooghe entered a plea of guilty to all four
of the charges against him. During the plea hearing, the
State informed the court that it was abandoning the
prosecution of Hooghe as a habitual and subsequent offender,
in exchange for his guilty plea. On September 29, 2014, the
court sentenced him to a total of forty-five years: fifteen
years as a subsequent offender under count one for
motor-vehicle theft, ten years under count two for grand
larceny, ten years under count three for grand larceny, and
ten years for the second indictment's single count of
grand larceny, all to run consecutively.
On December 30, 2014, Hooghe, acting pro se, filed an unsworn
PCR motion in the circuit court, alleging multiple errors. On
February 9, 2015, he filed an amended version of that PCR
motion, still unsworn. On March 4, 2015, the circuit court
summarily dismissed Hooghe's PCR motion. On March 29,
2016, this Court affirmed the circuit court's dismissal
of Hooghe's PCR motion because it did not contain a sworn
statement of facts or a verified oath as required by
Mississippi Code Annotated section 99-39-9(1)(d) and (3)
(Rev. 2015), but did so without prejudice, so that Hooghe
could file a procedurally proper motion. Hooghe, 187
So.3d at 683 (¶6).
On May 19, 2016, Hooghe filed a new PCR motion with a
properly sworn statement of facts and verified oath attached.
In this PCR motion, Hooghe asserted the following bases for
post-conviction relief: (1) the State denied him preliminary
hearings; (2) his first indictment was multiplicitous; (3)
both indictments failed to allege the "proximate
cause" element of larceny; (4) he was illegally
sentenced due to an amendment of the larceny statutes; (5)
the circuit court was without jurisdiction to accept his
guilty plea as to the second indictment; (6) the auto-larceny
statute under which he was convicted is unconstitutionally
vague; (7) there was no factual basis for his convictions;
(8) he received ineffective assistance of counsel; and (9)
these cumulative errors prejudiced him. Hooghe made no
mention of the argument he makes on appeal, that his
excessive sentence violated his right to be free from cruel
and unusual punishment. On July 7, 2016, the circuit court
denied Hooghe's PCR motion. Hooghe timely filed a notice
of appeal and was allowed to proceed in forma pauperis.
"When reviewing a lower court's decision to deny a
petition for post[-]conviction relief [appellate courts] will
not disturb the trial court's factual findings unless
they are found to be clearly erroneous. However, where
questions of law are raised the applicable standard of review
is de novo." Brown v. State, 731 So.2d 595, 598
(¶6) (Miss. 1999) (citations omitted). Mississippi Code
Annotated section 99-39-23(7) (Rev. 2015) provides that
post-conviction relief shall not be granted unless a
petitioner proves by a preponderance of the evidence that he
is entitled to such relief.
Hooghe maintains that he was wrongly deprived of preliminary
hearings for all charges brought against him, despite his
repeated requests while in custody. Further, Hooghe contends
that he was denied his right to due process, as he was not
served with the first indictment until July 11, 2014, nearly
three months after his arrest, and he was not served with the
second indictment until September 18, 2014, five months after
his arrest. In response, the State argues that Hooghe's
right to a preliminary hearing was waived once he had been
indicted by a grand jury.
Rule 6.05 of the Uniform Rules of Circuit and County Court
Practice provides, "A defendant who has been indicted by
a grand jury shall not be entitled to a preliminary
hearing." "[O]nce the indictment occurs, even
had a preliminary hearing not been provided, that question
becomes moot." Sanders v. State, 847 So.2d 903,
907 (¶22) (Miss. Ct. App. 2003) (citation omitted).
"The indictment by a grand jury removes the purpose of
the hearing and none need thereafter be conducted."
Id. (citation omitted). As Hooghe was formally
indicted by the Madison County Grand Jury, his argument that
he was denied a preliminary hearing is without merit.
Likewise, Hooghe's argument that he was denied his right
to due process because of the length of time between his
arrest and his indictments is without merit. In Beal v.
State, 118 ...