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Johnson v. State

Court of Appeals of Mississippi

November 28, 2017

EDWARD JOHNSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 11/29/2016

         WASHINGTON COUNTY CIRCUIT COURT HON. W. ASHLEY HINES

          ATTORNEY FOR APPELLANT: EDWARD JOHNSON (PRO SE).

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD.

          BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.

          FAIR, J.

         ¶1. In May 2016, Edward Johnson pled guilty to second degree murder, robbery, and several other felonies pursuant to a plea agreement. The circuit court sentenced Johnson as recommended. Johnson subsequently filed what he styled a petition for habeas corpus, which the circuit court properly took as a motion for post-conviction relief. In Johnson's petition, he contended that his indictment was defective because it did not conclude with the words "against the peace and dignity of the state." The circuit court properly dismissed the petition without an evidentiary hearing, holding that Johnson's indictment was defective, but that it was a defect of form, and that Johnson waived his objection by pleading guilty. Johnson's other contentions are likewise without merit or have been raised for the first time on appeal, and so we affirm the summary dismissal of his petition.

         STANDARD OF REVIEW

         ¶2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f 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." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶9) (Miss. 1999).

         ¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

         DISCUSSION

         1. Indictment - Constitutional Requirements

         ¶4. We combine Johnson's first two issues as he has briefed them together on appeal and they essentially make the same challenge to his conviction.

         ¶5. It is undisputed that Johnson's indictment violated Article 6, Section 169 of the Mississippi Constitution, which provides in relevant part that "all indictments shall conclude 'against the peace and dignity of the state.'" Our courts have enforced this constitutional requirement, even though it has long been called "idle and meaningless." See McNeal v. State, 658 So.2d 1345, 1349 (Miss. 1995) (quoting Love v. State, 8 So. 465, 465 (Miss. 1891)). But while the concluding statement is required, it is a matter of the form of the indictment. Brandau v. State, 662 So.2d 1051, 1055 (Miss. 1995). Challenges to the indictment for defects of form must be raised as a demurrer to the ...


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