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Forkner v. State

Supreme Court of Mississippi, En Banc

January 17, 2019

WINFRED FORKNER
v.
STATE OF MISSISSIPPI

          ATTORNEY FOR APPELLANT: WINFRED FORKNER (PRO SE)

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

          CHAMBERLIN, JUSTICE

         ¶1. This matter arises from the State's motion for rehearing of a panel order of this Court granting Winfred Forkner's Application for Leave to Proceed in the Trial Court. On reconsideration, we vacate the panel order and dismiss Forkner's Application for Leave to Proceed. We also deny Forkner's Motion to Remand Petitioner to the Wilkinson County Jail and his Petition for Immediate Release.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On February 26, 2001, a Wilkinson County jury convicted Winfred Forkner of the crime of burglary of a storehouse. See Miss. Code Ann. § 97-17-33 (Rev. 2014). Forkner was sentenced to life without the possibility of parole as a habitual offender pursuant to Mississippi Code Section 99-19-83 (Rev. 2015). Aggrieved, Forkner appealed his conviction and sentence, and the Court of Appeals affirmed. Forkner v. State, 902 So.2d 615, 626 (Miss. Ct. App. 2004) (Forkner I).

         ¶3. Aside from the current motion, Forkner has filed three prior motions for post- conviction relief ("PCR") with this Court. Forkner v. State, 227 So.3d 404, 405 (Miss. 2017) (Forkner III). The Court denied Forkner's first motion and dismissed his two subsequent motions as statutorily barred.[1] Id.

         ¶4. Forkner filed the current PCR motion on January 18, 2018. He argued that his conviction and sentence were void and illegal because the indictment had not charged all of the essential elements of the crime of burglary of a storehouse. Specifically, Forkner alleged error concerning the second element of the crime: "in which any goods, merchandise, equipment or valuable thing shall be kept for use, sale, deposit, or transport." Miss. Code Ann. § 97-17-33(1) (Rev. 2014) (emphasis added). He argued that the indictment did not allege that items were kept in the storehouse "for use, sale, deposit, or transport." Miss. Code Ann. § 97-17-33(1). On April 4, 2018, a panel of this Court granted Forkner's petition and found that Forkner's indictment was defective.

         ¶5. The State now seeks en banc rehearing of the panel's April 4 panel order. Forkner opposes the State's motion and has filed a Motion to Remand Petitioner to the Wilkinson County Jail and a Petition for Immediate Release. After due consideration, the Court grants the State's motion for rehearing, vacates the April 4 panel order and dismisses Forkner's Application for Leave to Proceed in the Trial Court. Also, Forkner's Motion to Remand Petitioner and his Petition for Immediate Release are denied.

         ANALYSIS

         ¶6. First and foremost, Forkner's Application for Leave to Proceed in the Trial Court is time-barred. The UPCCRA provides, "A motion for relief under this article shall be made within three (3) years after the time in which the petitioner's direct appeal is ruled upon . . . ." Miss. Code. Ann. § 99-39-5(2) (Rev. 2015). The Court of Appeals issued its mandate in Forkner's appeal on November 30, 2004. Forkner I, 902 So.2d at 626. Forkner's current motion was filed over thirteen years after the mandate issued in his appeal.

         ¶7. Further, Forkner's arguments concerning his indictment are waived. The UPCCRA states:

Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.

Miss. Code Ann. § 99-39-21(1) (Rev. 2015). Forkner objects that his indictment failed to allege an element of the crime, but the applicable statutory language has not changed since his indictment, trial, conviction and appeal.[2] Yet Forkner did not previously raise this error at trial or on appeal. Instead, he raises it for the first time now. This, though, is not the first time that Forkner has attacked his indictment. The Court of Appeals rejected his argument on direct appeal that the indictment's lack of a date rendered it insufficient. Forkner I, 902 So.2d at 620. Also, Forkner, as discussed below, has not and cannot show cause and actual prejudice in order to overcome his waiver of the issue.

         ¶8. In addition to the time bar and waiver issues, Forkner's motion is barred as a successive motion. "The dismissal or denial of an application under this section is a final judgment and shall be a bar to a second or successive application under this article." Miss. Code. Ann. § 99-39-27(9) (Rev. 2015). The Court denied Forkner's first PCR motion on July 19, 2005. It also dismissed Forkner's two subsequent motions as successive. Thus, Forkner's current motion is also barred under Section 99-39-27(9).

         ¶9. While we normally refrain from addressing the merits of a dismissed PCR motion, we take this opportunity to address Forkner's alleged error in light of the April 4 panel order granting the motion. "[W]hether an indictment is defective is an issue of law and therefore deserves a relatively broad standard of review, or de novo review . . . ." Colburn v. State, 201 So.3d 462, 469 (Miss. 2016) (quoting State v. Hawkins, 145 So.3d 636, 638 (Miss. 2014)). "This Court has made it clear that the ultimate test, when considering the validity of an indictment on appeal, is whether the defendant was prejudiced in the preparation of his defense." Id. (quoting Byrom v. State, 863 So.2d 836, 867 (Miss. 2003)).

         ¶10. Uniform Circuit and County Court Rule 7.06, then in effect, governed Forkner's indictment. URCCC 7.06.[3] Rule 7.06 provided, in part:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed ...

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