Bruce Calvin McCoy v. State of Mississippi , 230 So. 3d 1090 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-00051-COA
BRUCE CALVIN MCCOY A/K/A BRUCE APPELLANT
MCCOY A/K/A BRUCE C. MCCOY
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/14/2015
TRIAL JUDGE: HON. DAVID H. STRONG JR.
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: BRUCE CALVIN MCCOY (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION
RELIEF DISMISSED
DISPOSITION: AFFIRMED - 03/28/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND FAIR, JJ.
BARNES, J., FOR THE COURT:
¶1. Bruce McCoy, appearing pro se, appeals the judgment of the Circuit Court of Lincoln
County dismissing his motion for post-conviction relief (PCR). While McCoy was
convicted for numerous crimes, this motion challenges only his convictions for burglary of
a dwelling and petit larceny. The circuit court dismissed the motion as successive. Finding
no error, we affirm.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
¶2. On November 10, 2004, McCoy was charged by a Lincoln County grand jury in four
separate indictments for nine different crimes involving four different victims. In the
indictment at issue here, McCoy was charged with burglary of a dwelling house and petit
larceny, as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.
2015).
¶3. The State moved to amend this indictment to charge McCoy under the lesser habitual-
offender statute of Mississippi Code Annotated section 99-19-81 (Rev. 2015), instead of
section 99-19-83, “because of his willingness to enter a blind plea to all of his charges at
arraignment.” On December 6, 2004, McCoy pleaded guilty to two counts of burglary of
a dwelling, one count of burglary of a building, four counts of grand larceny, and two counts
of petit larceny. At his sentencing hearing in January 2005, McCoy was sentenced to the
maximum terms of imprisonment of twenty-five years for both charges of burglary of a
dwelling, seven years for the charge of burglary of a building, five years for each of the four
grand-larceny charges, and six months for each of the petit-larceny charges. All of the
sentences were ordered to run concurrently without the possibility for early release or parole.
¶4. McCoy’s first PCR motion timely challenged all four of his sentences resulting from
his guilty pleas entered on the nine different counts. The circuit court denied relief, and
McCoy appealed to this Court. We dismissed McCoy’s appeal without prejudice for failing
to file separate motions challenging each judgment as required by Mississippi Code
Annotated section 99-39-9(2) (Rev. 2000). McCoy v. State, 941 So. 2d 879, 881 (¶4) (Miss.
Ct. App. 2006). McCoy was then free to file separate PCR motions for relief on each
judgment. McCoy filed another PCR motion in 2007, which the circuit court denied.
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McCoy appealed, but his appeal was dismissed for failure to pay the appeal costs. McCoy
v. State, 2007-TS-00951-COA (Aug. 16, 2007).
¶5. On March 15, 2011, McCoy filed three separate PCR motions challenging his guilty
pleas and sentences. He argued there was newly discovered evidence – that one of the
victims was a court administrator, and the circuit judge should have recused himself.
Additionally, he argued there was an intervening decision by the Mississippi Supreme Court,
his indictments were insufficient, and his defense counsel was ineffective. The circuit court
summarily dismissed each of the PCR motions as untimely and successive. McCoy
appealed, and finding no viable exceptions to the procedural bars, this Court affirmed the
dismissal in McCoy v. State, 111 So. 3d 673, 675 (¶1) (Miss. Ct. App. 2012).1
¶6. On October 8, 2015, McCoy filed the PCR action at issue in this appeal, challenging
only the indictment in Cause No. 2014-312-MS – for burglary of a dwelling and petit
larceny. In his thirty-page motion, McCoy argued that the habitual portion of his sentence
under section 99-19-81 should be vacated because there was no proof presented that he had
been imprisoned over a year. He also claimed his indictment was invalid because it did not
contain the words “against the peace and dignity of the state” required by Uniform Rule of
Circuit and County Court 7.06(7). The circuit court dismissed his PCR motion as
successive, noting that this motion was McCoy’s fourth. McCoy timely appealed.
STANDARD OF REVIEW
1
In April 2013, the Court denied McCoy’s motion for rehearing. In July 2013, the
Mississippi Supreme Court denied certiorari. McCoy v. State, 117 So. 3d 330 (Miss. 2013)
(table).
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¶7. This Court reviews the circuit court’s dismissal of a PCR motion for an abuse of
discretion. Crosby v. State, 16 So. 3d 74, 77 (¶5) (Miss. Ct. App. 2008) (citation omitted).
The dismissal will only be disturbed in cases where the circuit court’s decision was clearly
erroneous. Questions of law are reviewed de novo. Id. at 77-78 (¶5).
ANALYSIS
I. Procedural Bars
¶8. McCoy admits, as the circuit court found, that his PCR motion is a successive writ.
We agree. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order
denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann.
§ 99-39-23(6) (Rev. 2015). This PCR motion is McCoy’s fourth, relating to his December
2004 guilty plea, and it was filed in October 2015, nearly eight years after the statutory
deadline of December 2007 had passed. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015).
¶9. However, McCoy attempts to circumvent the procedural bar by claiming his motion
is excepted due to newly discovered evidence “not reasonably discoverable at the time of
trial . . . which would have caused a different result in the conviction or sentence,” and an
intervening decision of the Mississippi Supreme Court – Rowland v. State, 42 So. 3d 503(Miss. 2010). Rowland held that “errors affecting fundamental constitutional rights are
excepted from the procedural bars of the UPCCRA.” Id. at 506 (¶9). However, the mere
assertion of a constitutional rights violation is not sufficient to overcome the time bar.
Chandler v. State, 44 So. 3d 442, 444 (¶8) (Miss. Ct. App. 2010) (citation omitted). The
burden of proof is on the movant to show any statutory exceptions to the procedural bars
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have been met. White v. State, 59 So. 3d 633, 635 (¶8) (Miss. Ct. App. 2011) (citation
omitted). McCoy argues that his constitutional rights were violated by his “cruel and
unusual” enhanced punishment and invalid indictment, but he provides no valid evidence
of such. He has merely fashioned new arguments in his fourth PCR motion in an attempt
to overcome the procedural bar under section 99-39-23(6).
II. Habitual-Offender Status and Defective Indictment
¶10. McCoy raises four issues on appeal regarding his habitual-offender status – two
related to the “pen-pack,” and two on his indictment. First, he argues that the prosecutor
failed to provide pen-pack documents as proof of his prior convictions for felonies to show
he had served a year or more in prison. Relatedly, McCoy alleges that the circuit court erred
in granting the order to amend the indictment without the pen-pack documents to justify the
enhancement. Third, McCoy claims the prosecutor failed to comply with Rule 7.06(7)
because his indictment did not contain the phrase “against the peace and dignity of the
state,” and similarly, that the circuit court erred in allowing the indictment to be amended
without this phrase.
A. Habitual-Offender Status
¶11. McCoy claims that the prosecutor should have provided a pen-pack of prior
convictions as proof of his habitual status under section 99-19-81. These documents would
have included certified copies of indictments, sentencing orders, commitment papers, and
judgments to prove he served a year or more in prison. He claims that no documents were
provided to show he served over a year in prison for prior convictions.
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¶12. This argument is without merit. First, section 99-19-81 does not require proof that
the defendant served, but that he was sentenced to, a year or more in prison. Additionally,
in order to sentence a defendant as a habitual offender, the State must generally prove the
prior offenses by competent evidence, so the defendant can be given a reasonable
opportunity to challenge the proof. However, when the defendant pleads “guilty and admits
those facts which establish his habitual status, the State has met its burden of proof.”
Wilkins v. State, 57 So. 3d 19, 26 (¶23) (Miss. Ct. App. 2010) (citation omitted). “For this
Court to affirm an enhanced sentence under section 99-19-81, the trial court’s basis for
imposing the sentence must appear in the record on appeal.” Hilliard v. State, 175 So. 3d
554, 561 (¶21) (Miss. Ct. App. 2015) (citation omitted). Here, the indictment satisfies this
requirement.
¶13. During the plea hearing, the circuit judge went over with McCoy the charges and the
maximum sentences for each charge in the indictment. The judge explained that McCoy’s
sentences were being enhanced under section 99-19-81. This Court was only provided a
portion of McCoy’s indictment, but it details four prior felonies for which McCoy was
convicted, each resulting in a sentence of over one year.2 This document justifies habitual-
offender enhancement. McCoy affirmed at the hearing that his attorney had gone over the
indictments and the elements of each crime charged. By pleading guilty, McCoy admitted
2
The copy of the indictment McCoy provided to the Court in the record contains only
the first two pages. Of the four prior felony convictions, three were in Mississippi and one
in Illinois: McCoy was convicted of two separate violations for uttering a forgery in
November 1973 and sentenced to five years in prison, aggravated sexual assault in June
1985 in Illinois and sentenced to six years in prison, and three counts of possession of stolen
property in November 1996 and sentenced to three years in prison.
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under oath to all of the allegations contained in the indictment, including the prior felonies.
Since they were listed in the indictment, McCoy also had sufficient notice. As such, the
prosecutor did not need to provide a pen-pack – McCoy’s admission to his prior convictions
at the plea hearing was sufficient.
¶14. Relatedly, McCoy argues that the circuit court improperly amended his indictment
to the lesser habitual enhancement of section 99-19-81 without a pen-pack. For the same
reasons stated above, this argument is without merit. No pen-pack is needed when McCoy
admitted to his prior convictions at the plea hearing.
¶15. McCoy further complains that his sentence as a habitual offender for twenty-five
years without the possibility of early release or parole violates the Eighth Amendment of the
United States Constitution, as it is “cruel and unusual.” However, as previously noted, the
circuit court granted an amendment to McCoy’s indictment to lessen his habitual status from
section 99-19-83, which requires life in prison, to the less-harsh enhancement of section 99-
19-81, because McCoy agreed to a blind plea. The circuit judge told McCoy at sentencing:
“[I]f there ever was an habitual, you are one of them.” Even so, he gave McCoy the lesser
habitual enhancement. We cannot find the judge abused his discretion in doing so. These
arguments are without merit.
B. Defective Indictment
¶16. McCoy argues that his indictment is invalid because it failed to state “against the
peace and dignity of the state” as required under Rule 7.06(7). As noted above, this Court
has not been provided the entire indictment in the record, but only the first two pages. The
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record is thus insufficient for us to accept McCoy’s representations.3 Further, if such an
error existed, it would be harmless, because “a valid guilty plea admits all elements of a
formal charge and operates as a waiver of all non-jurisdictional defects contained in an
indictment or information against a defendant.” Kennedy v. State, 179 So. 3d 82, 84 (¶9)
(Miss. Ct. App. 2015) (citation omitted). This Court has held that an indictment’s failure
to conclude with the words “against the peace and dignity of the State” is a defect waived
by a guilty plea. Burch v. State, 929 So. 2d 394, 397 (¶9) (Miss. Ct. App. 2006) (citing
Ramage v. State, 914 So. 2d 274, 278 (¶10) (Miss. Ct. App. 2005)). Therefore, McCoy’s
guilty plea waived this issue.
CONCLUSION
¶17. The circuit court did not abuse its discretion in dismissing McCoy’s PCR motion
because it was successive. Further, no statutory exceptions under section 99-39-23(6)
applied. Finally, McCoy’s substantive arguments regarding his sentencing and indictment
are without merit. Accordingly, we affirm the circuit court’s dismissal.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF LINCOLN COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LINCOLN COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.
3
The State attached to its brief McCoy’s entire indictment and plea agreement.
However, we cannot consider these documents as no motion was made to supplement the
record under Mississippi Rule of Appellate Procedure 10(e).
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