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Van v. State

Court of Appeals of Mississippi

October 23, 2018

JEROME VAN JR. A/K/A JEROME VAN APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/31/2017

          MADISON COUNTY CIRCUIT COURTHON. JOHN HUEY EMFINGER JUDGE

          ATTORNEY FOR APPELLANT: JEROME VAN JR. (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. The Madison County Circuit Court dismissed Jerome Van's third motion for post- conviction relief (PCR). Van appeals. He asserts that: (1) he received ineffective assistance of counsel; and (2) his fundamental right to be free from an unlawful sentence was violated. We affirm the circuit court's order and find the PCR motion was properly dismissed.

         FACTS AND PROCEDURAL HISTORY

         ¶2. A grand jury indicted Van for armed carjacking, armed robbery, kidnapping, felony evasion, possession of a stolen firearm, and conspiracy to commit armed robbery. Van avoided jury trial and pled guilty to armed carjacking, armed robbery, and kidnapping. The Madison County Circuit Court sentenced him to concurrent terms of thirty years for armed carjacking, fifty years with twenty suspended for armed robbery, and thirty years for kidnapping in the custody of the Mississippi Department of Corrections. The judgment of conviction was entered in August 2012.

         ¶3. Van began his successive PCR motions shortly after. He filed his first in October 2013. The circuit court denied it. He filed his second in September 2015. Again, the circuit court denied it. This is his third, which he filed in April 2017. The circuit court dismissed this PCR as well. In his appeal, Van claims that procedural bars do not apply because: (1) he received ineffective assistance of counsel; and (2) his fundamental right to be free from an unlawful sentence has been violated. We affirm the circuit court's dismissal of Van's PCR.

         STANDARD OF REVIEW

         ¶4. We reverse PCR dismissals only if we find the decision "clearly erroneous." Duncan v. State, 226 So.3d 127, 129 (¶7) (Miss. Ct. App. 2017), cert. dismissed, 246 So.3d 68 (Miss. 2018). But when the appellant raises issues of law, we review those issues de novo. Stokes v. State, 199 So.3d 745, 748 (¶7) (Miss. Ct. App. 2016), reh'g denied (Sept. 13, 2016). The Mississippi Code states that "[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, the judge may make an order for its dismissal and cause the petitioner to be notified." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). "This Court will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right." Stokes, 199 So.3d at 748 (¶7) (quoting Dickens v. State, 119 So.3d 1141, 1143-44 (¶6) (Miss. Ct. App. 2013)).

         DISCUSSION

         ¶5. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA)-codified in title 99, chapter 39 of our State code-a PCR motion is timely only if filed within three years after entry of the judgment of conviction. Smith v. State, 118 So.3d 180, 182 (¶7) (Miss. Ct. App. 2013) (citing Watts v. State, 97 So.3d 722, 725 (ΒΆ7) (Miss. Ct. App. 2012)). The entry of the judgment of conviction was filed in August ...


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