OF JUDGMENT: 01/03/2018
COUNTY CIRCUIT COURT HON. STEVE S. RATCLIFF III TRIAL JUDGE
ATTORNEY FOR APPELLANT: DANIEL CHRISTOPHER JONES
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
ABBIE EASON KOONCE
GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ.
Chad Hamilton Magee appeals from an order of the Rankin
County Circuit Court denying his petition for post-conviction
relief. On appeal, Magee argues that all four of his
sentences should run concurrently and that the circuit court
erred by ordering two of the sentences to run consecutively
to each other and to his first two sentences. We find no
error and affirm.
In May 2009, Magee pled guilty to grand larceny and was
sentenced to ten years in the custody of the Mississippi
Department of Corrections (MDOC) with nine years and 97 days
suspended. In June 2010, Magee pled guilty to aggravated
assault and was sentenced to ten years in MDOC custody with
seven years suspended. The court ordered the sentence to run
concurrently to Magee's sentence on his 2009 conviction.
In May 2011, Magee pled guilty to two counts of conspiracy to
commit kidnapping and was sentenced to five years in MDOC
custody with four years and 364 days suspended on each count.
The court ordered the sentences to be served consecutively to
each other and consecutively to Magee's sentences on his
2009 and 2010 convictions. Magee was later released but
failed to report to his probation officer from September 2015
to August 2016, when he was arrested in Alabama and returned
to Mississippi. Based on Magee's failure to report, the
circuit court revoked Magee's post-release supervision
and suspended sentences and remanded him to MDOC custody to
serve the remainder of his sentences.
On August 31, 2017, Magee filed a petition for
post-conviction relief in the circuit court. Magee alleged
that his guilty pleas (entered in 2009, 2010, and 2011) were
not voluntary and that the attorney who negotiated the pleas
was ineffective. He also alleged that he was denied a fair
revocation hearing. After reviewing Magee's petition and
exhibits, the transcripts of his three plea hearings, and the
transcript of his revocation hearing, the circuit court found
that "it plainly appear[ed] that Magee [was] not
entitled to any relief." Therefore, the circuit court
denied Magee's petition. See Miss. Code Ann.
§ 99-39-11(2) (Rev. 2015) (providing that a motion for
post-conviction relief should be summarily dismissed
"[i]f it plainly appears from the [record] that the
movant is not entitled to any relief"). Magee then filed
a timely notice of appeal.
Magee's claim on appeal is different from the claims
asserted in his petition for post- conviction relief. On
appeal, he contends that his two sentences for conspiracy to
commit kidnapping should run concurrently to each other and
concurrently to his prior sentences for grand larceny and
aggravated assault. Magee relies on the circuit judge's
remark during his revocation hearing that his sentences
should run concurrently. However, Magee did not raise this issue
in his petition for post-conviction relief. He raised the
issue for the first time in a "Motion to Add Missing
Exhibit Page to Petition for Post Conviction Relief,"
which he filed thirty-six days after his petition.
Magee's motion asked the court to "allow him to
place [an additional transcript page] into the record,"
but he never requested leave to amend his original petition
for post-conviction relief.
Magee's argument on appeal is without merit. The issue is
procedurally barred because Magee failed to raise the issue
in his petition for post-conviction relief and failed to
request or obtain leave to amend his petition. See,
e.g., Gardner v. State, 531 So.3d 805, 808-09
(Miss. 1988) (stating that issues "not raised in [a]
motion for post-conviction relief . . . may not be
raised" for the first time on appeal); Williams v.
State, 98 So.3d 1090, 1092 (¶11) (Miss. Ct. App.
2012) (holding that if a petitioner desires to amend his
petition for post-conviction relief, he must do so within
thirty days or request and obtain permission of the circuit
court). In addition, the circuit court's remarks during
the revocation hearing are not controlling. Rather, the
court's subsequent written decision is
controlling. See Hill v. Hinds County, 237
So.3d 838, 844 (¶21) (Miss. Ct. App. 2017), cert.
denied, 237 So.3d 1269 (Miss. 2018); Shinn v.
State, 74 So.3d 901, 905 (¶13) (Miss. Ct. App.
2011). The court's revocation order clearly and
accurately reflects that the kidnapping sentences run
consecutively to each other and consecutively to Magee's
Magee only briefly mentions two other issues in his appellate
brief. He alleges that his revocation hearing was held
twenty-seven days after he was arrested in Alabama, and he
alleges that he was never afforded a preliminary hearing.
However, Magee failed to raise these issues during his formal
revocation hearing. Therefore, the issues are procedurally
barred. See Britton v. State, 241 So.3d 639, 643
(¶11) (Miss. Ct. App. 2018) (citing Presleyv. State, 48 So.3d 526, 528 (¶9) (Miss. 2010)).
These issues are also without merit, as Magee "failed to