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Holloway v. State

Court of Appeals of Mississippi

May 28, 2019

JASON HOLLOWAY A/K/A JASON RICKEY HOLLOWAY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 06/22/2016

          ALCORN COUNTY CIRCUIT COURT TRIAL JUDGE: HON. THOMAS J. GARDNER III

          ATTORNEY FOR APPELLANT: JASON HOLLOWAY (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BILLY L. GORE

          BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

          WESTBROOKS, J.

         ¶1. Jason Rickey Holloway, appearing pro se, appeals the Alcorn County Circuit Court's denial of his motion for postconviction relief (PCR). After review of the record, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On July 20, 2015, Holloway pleaded guilty to strong armed robbery under Mississippi Code Annotated section 97-3-73 (Rev. 2006) and was sentenced as a non-violent offender under Mississippi Code Annotated section 99-19-81 (Rev. 2007) to fifteen years in the custody of the Mississippi Department of Corrections in cause number CR2012-251.[1]

         ¶3. On or about September 13, 2015, Holloway filed his first PCR motion in cause number CR2012-251, alleging he was denied his right to a speedy trial, his indictment was improper, his lawyer was ineffective, and his plea was involuntary. Holloway also filed a motion to withdraw his guilty plea and enter a plea of not guilty. On June 15, 2016, the circuit court summarily denied Holloway's PCR motion.[2] That same day, the circuit court entered an order denying Holloway's pro se motion to withdraw the guilty plea and enter a plea of not guilty. On July 11, 2016, Holloway filed an out-of-time appeal, which he called a "motion to proceed to the appeal court." But, that motion was never addressed or forwarded to the Mississippi Clerk of Appellate Courts.

         ¶4. On or about September 13, 2016, Holloway filed his second PCR motion in the same cause number. In an order entered on or about January 3, 2017, the circuit court denied Holloway's second PCR motion finding it barred as a successive writ. On July 25, 2017, Holloway filed a letter deemed as a notice of appeal related to the circuit court's denial of one of the motions filed in June 2016. This Mississippi Clerk of Appellate Courts directed Holloway to show cause why his appeal should not be dismissed as untimely. On December 14, 2017, this Court's clerk received Holloway's motion for an out-of-time appeal stating that he was unaware of the thirty-day deadline to appeal.

         ¶5. On or about March 13, 2018, this Court granted Holloway's out-of-time appeal from the denial of his first PCR motion, finding that Holloway had clearly taken the steps to file the equivalent of a timely notice of appeal. Therefore, this Court will review Holloway's first PCR motion, because it does not appear that Holloway appeals the denial of his second PCR motion.

         STANDARD OF REVIEW

         ¶6. "When reviewing a trial court's denial or dismissal of a motion for PCR, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review . . . legal conclusions under a de novo standard of review." Chapman v. State, 167 So.3d 1170, 1172 (¶3) (Miss. 2015).

         DISCUSSION

         ¶7. Holloway was allowed to appeal the denial of his first PCR motion filed in September, 2015. As a result, we will only address the claims Holloway asserts in his first PCR motion, as those claims are properly before this Court.

         I. Sixth Amendment Right to a Speedy Trial

         ¶8. Holloway asserts that he was denied the right to a speedy trial. It is well established that where a defendant voluntarily pleads guilty to an offense he waives nonjurisdictional rights incident to trial, including the constitutional right to a speedy trial. See Anderson v. State, 577 So.2d 390, 392 (Miss. 1991); Kyles v. State, 185 So.3d 408, 411 (¶5) (Miss. Ct. App. 2016). Therefore, we find that this issue is without merit.

         II. Amended Indictment

         ¶9. Holloway argues that his indictment was improperly amended. "A circuit court's decision to permit the State to amend an indictment to reflect a defendant's habitual-offender status is an issue of law and enjoys a relatively broad standard of review." Curry v. State, 131 So.3d 1232, 1234 (¶5) (Miss. Ct. App. 2013) (quoting Jackson v. State, 943 So.2d 746, 749 (¶11) (Miss. Ct. App. 2006)). Holloway maintains that he would have not pleaded guilty if he would have known that the State would move to indict him as a nonviolent habitual offender. But Holloway did not object at his plea hearing, and the trial court found that Holloway's claim targeting the amendment of his indictment to reflect his status as a habitual offender was in direct contradiction to Holloway's statements under oath. The following is an excerpt of Holloway's statement to the trial court during his plea hearing:

THE COURT: Do I understand correctly that this recommendation is that he be sentenced as an habitual offender in this cause? Is that what I understand?
THE STATE: Yes, Your Honor, it is.
DEFENSE: That's the nonviolent habitual ...

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