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Hooghe v. State

Court of Appeals of Mississippi

October 3, 2017

THOMAS J. HOOGHE A/K/A THOMAS HOOGHE A/K/A THOMAS JAMES HOOGHE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 07/07/2016

         MADISON COUNTY CIRCUIT COURT HON. JOHN HUEY EMFINGER

          ATTORNEY FOR APPELLANT: THOMAS J. HOOGHE (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

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

          IRVING, P.J., FOR THE COURT.

         ¶1. 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.

         FACTS

         ¶2. Many facts of this case were presented in Hooghe v. State, 187 So.3d 682, 82-83

         (¶¶2-3) (Miss. Ct. App. 2016). We cite relevant facts from that case and supplement them as needed.

         ¶3. 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).[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.

         ¶4. 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.

         ¶5. 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).

         ¶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.

         DISCUSSION

         ¶7. "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.

         1. Preliminary Hearing

         ¶8. 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.

         ¶9. 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."[2] "[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.

         ¶10. 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 ...


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