ATTORNEY FOR APPELLANT: WINFRED FORKNER (PRO SE)
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
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.
AND PROCEDURAL HISTORY
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).
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. Id.
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.
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.
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.
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. 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.
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).
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)).
Uniform Circuit and County Court Rule 7.06, then in effect,
governed Forkner's indictment. URCCC 7.06. 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 ...