OF JUDGMENT: 05/02/2018
COUNTY CIRCUIT COURT, HON. PAUL S. FUNDERBURK JUDGE.
ATTORNEY FOR APPELLANT: JUAN MORALES (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
JEFFREY A. KLINGFUSS.
CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.
A Lee County Grand Jury indicted Juan Morales
("Morales") on two counts of sexual battery (Counts
I & III) and one count of fondling (Count II). At the
time of trial in February 2007, Morales failed to appear. The
circuit court found that Morales had willfully, voluntarily,
and deliberately avoided trial and therefore would be tried
in absentia. The jury returned a guilty verdict on all three
counts. Regarding Count I, the court sentenced Morales to
serve twenty-five years in the custody of the Mississippi
Department of Corrections (MDOC) with five years suspended
followed by five years of post-release supervision. Regarding
Count II, the court sentenced Morales to serve fifteen years
in the MDOC's custody, to be served concurrently with
Count III. Regarding Count III, the court sentenced Morales
to serve twenty years in the MDOC's custody, to be served
consecutively to Count I.
In 2012, the United States Marshals Service found Morales in
Mexico and returned him to the United States to be placed in
MDOC's custody. In September 2017, Morales filed a
petition for post-conviction collateral relief (PCR). In May
2018, the circuit court entered an order granting in part,
and denying and dismissing in part, Morales's petition.
The court granted relief to amend Morales's sentencing
order to correctly reflect the sentences relative to the
specific counts in the indictment.
On appeal, Morales asserts the same issues he raised before
the circuit court, namely that (1) the circuit court erred by
allowing him to be tried in absentia; (2) he was given an
illegal sentence; and (3) he received ineffective assistance
of counsel. After a thorough review of the record, we affirm.
In August 2005, a grand jury indicted Morales on two counts
of sexual battery (Counts I & III) and one count of
fondling (Count II). The indictment charged that, on June 20,
2005, Morales fondled and penetrated (anally and vaginally) a
young girl. Count I charged Morales with sexual
battery upon the female victim by performing the sexual act
of anal penetration via insertion of an "object and/or
device in the victim's rectum." Count II charged
Morales with "handl[ing], touch[ing] or rub[bing] with
his hands or other parts of his body, the body of [the
victim]"-specifically, the victim's vagina-for the
purpose of "gratifying his lust or indulging his
depraved licentious sexual desires." Count III charged
Morales with sexual battery by performing the sexual act of
digital penetration via insertion of his finger and/or
fingers in the victim's vagina.
Morales pled not guilty at his arraignment, and the court
released him on a $50, 000 bond. After several continuances
by Morales, the court set the cause for trial on February 7,
2007. When the trial date arrived, Morales failed to appear.
On the morning of the scheduled trial, the court questioned
Morales's attorney, Robert Laher, regarding Morales's
whereabouts. Laher responded that he had spoken to Morales
several times in the weeks leading up to the trial. In fact,
Laher had been in contact with Morales the day before the
trial on February 6, 2007. Laher was unaware if Morales had
fled. The court asked Laher if Morales was aware
that the trial was scheduled for February 7, 2007, at 9:00
a.m. in the Lee County Justice Center located in Tupelo,
Mississippi. Laher confirmed that Morales understood the
correct trial date. Based on counsel's representations,
the court entered a warrant for Morales's arrest.
The circuit court also found that Morales had willfully,
voluntarily, and deliberately avoided trial and decided to
proceed without Morales. Despite Morales's absence,
Morales's counsel had the opportunity to cross-examine
witnesses and present a defense. The circuit court also
instructed the jury that they were not to draw any inference
from Morales's absence. On February 9, 2007, the jury
returned a guilty verdict on all three counts. In Count I,
the court sentenced Morales to twenty-five years with five
years suspended followed by five years of post-release
supervision. In Count II, the court sentenced Morales to
fifteen years to be served concurrent to Count III. In Count
III, the court sentenced Morales to twenty years to be served
consecutively to Count I.
In 2012, the United States Marshals Service located Morales
living in Mexico and returned him to Mississippi to be placed
in the custody of the MDOC to serve his sentence. In
September 2017, Morales filed a PCR petition. In May 2018,
the circuit court entered an order granting in part, and
denying and dismissing in part, the relief requested.
Specifically, the circuit court found that (1) Morales
willfully, voluntarily, and deliberately avoided trial with
no prejudice resulting from his absence; (2) the sentencing
order should be amended to align each count with the correct
sentence; and (3) ...