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Conwill v. State

Court of Appeals of Mississippi

October 17, 2017

SAMUEL CONWILL A/K/A SAMUEL B. CONWILL A/K/A SAMUEL BRENT CONWILL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/21/2016

         CLAY COUNTY CIRCUIT COURT HON. LEE J. HOWARD JUDGE

          ATTORNEY FOR APPELLANT: SAMUEL CONWILL (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

          BEFORE IRVING, P.J., BARNES AND WESTBROOKS, JJ.

          WESTBROOKS, J.

         ¶1. Samuel Conwill appeals the dismissal of his petition for postconviction relief (PCR) in the Clay County Circuit Court. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶ 2. Conwill was indicted on one count of possession of methamphetamine precursors and one count of possession of methamphetamine. Conwill pled guilty to possession of methamphetamine in exchange for the State retiring the possession-of-precursors count. Following his conviction and sentence, Conwill filed a motion to correct the Mississippi Department of Correction's record of a parole to a detainer, as to another charge and another sentence. The trial court dismissed that motion. Conwill subsequently filed a petition to "vacate [the] illegal sentence." The trial court dismissed that petition. Conwill then filed a motion to appeal out-of-time and his notice of appeal. The trial court granted his motion to appeal out-of-time.

         ¶3. On appeal, Conwill argues that he was denied due process and the right to confrontation. He claims that during his sentencing hearing, the records of his previous convictions, known as "pen packs, " were admitted into evidence without foundational testimony to certify their accuracy. He asserts that the admission of the pen packs was reversible error. We find this argument to be without merit.

         STANDARD OF REVIEW

         ¶4. "Circuit courts may summarily dismiss a PCR motion 'if it plainly appears from the face of the motion, any annexed exhibits[, ] and the prior proceedings in the case that the movant is not entitled to any relief.'" Dixon v. State, 52 So.3d 1254, 1254 (¶2) (Miss. Ct. App. 2011) (quoting Robinson v. State, 19 So.3d 140, 141-42 (¶6) (Miss. Ct. App. 2009)). In reviewing the circuit court's dismissal of a PCR motion, the circuit court's factual findings will not be disturbed unless clearly erroneous. Mann v. State, 2 So.3d 743, 745 (¶5) (Miss. Ct. App. 2009).

         DISCUSSION

         ¶5. At Conwill's guilty-plea hearing, the State moved to amend the indictment to reflect Conwill's habitual offender status and entered the pen packs into evidence as proof of his status as a habitual offender. Conwill's trial counsel did not object to the motion, and the trial court granted the State's motion to amend. During the hearing, Conwill's trial counsel stated that Conwill was aware that the indictment could be amended any time prior to trial and did not contest the amendment, because the habitual offender stipulation was part of the plea agreement. "When an accused fails to object to the habitual offender issue during the sentencing phase, he is procedurally barred to do so the first time on appeal." Reed v. State, 180 So.3d 755, 756 (ΒΆ4) (Miss. ...


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