Decisions – COA -May 19, 2015 – part 2

Billy Dale Hill v. State –   timeliness of appeal of MDOC admin. decision – Hill pleaded guilty to the offenses of murder and rape in 1977 and was two life sentences to run consecutively. In 2011, the Mississippi Supreme Court held that  Hill’s life sentence for rape was illegal. On remand, resentenced Hill to serve forty-four years for his rape conviction to run consecutively.  Hill sought to have the time he served prior to the circuit court’s order applied to his new sentence as earned-time credit.  MDOC, though,  held that Hill was ineligible to receive earned-time credit on his rape conviction for the time he served before the circuit court’s April 2012 resentencing order since he was then serving his life sentence for murder.  Hill challenged MDOC’s decision through the agency’s Administrative Remedy Program (ARP).  MDOC issued a “Second Step Response Form” containing its final decision denying Hill’s appeal.  Hill then had 30 days to seek judicial review.  He did not file it, though, for two months.  The circuit court held that since Hill had not yet begun to serve his separate forty-four-year sentence for rape, he was ineligible to receive earned-time credit for that sentence.  The COA dismisses the appeal because Hill’s appeal to the circuit oourt was not timely.

Quincy Clayton v. State –  Apprendi applies to firearm enhancement –  Clayton was convicted of manslaughter in the killing of his wife and sentenced to twenty years with five more for a firearm enhancement.  Clayton argues that the trial court erred in not applying the Weathersby rule (defendant entitled to acquittal if  his witnesses are the only witnesses to the homicide and if their version of what happened is both reasonable and consistent with innocence and if  there is no contradiction of that version in the physical facts) and was wrong to apply a firearm enhancement.  The COA reverses on the firearm enhancement.  “As the Supreme Court explained in Apprendi, because the application of section 97-37-37 increased Clayton’s sentence for manslaughter beyond the statutory maximum of twenty years, a jury would have to decide whether the State proved each element of section 97-37- 37(1) beyond a reasonable doubt. This included whether Clayton used or displayed a firearm during the commission of the felony.”

Elizabeth Domino v. Judith Braswell –   modification of trust statute of limitations –  Ophelia Braswell executed a trust in 1994.  It included land, cds, cash, other funds, and stock.  At the time she had 4 children and one deceased child.  The trust was to be divided with each child receiving one fifth of the trust and teh deceased child’s children would each get 1/10th.  In 1997, Ophelia, the four co-trustees, and the beneficiaries,  executed a modification to the trust agreement to correct an error in the trust. The modification provided that in the event that a beneficiary predeceased Ophelia, “that beneficiary’s interest shall be administered for and distributed to such person or persons as such beneficiary shall by Will designate and appoint and in such amounts of proportions and upon such terms and provisions (out-right or in trust), as such beneficiary shall prescribe in his or her Will.”  After this modification was executed and before Ophelia died, two more of her children died.   When Ophelia died, a dispute arose regarding Ralph’s share between his widow, Judy, and his children and grandchildren. A dispute also arose over Charles’s share between his widow, Ann, and his children.  In 2013, the three surviving co-trustees filed an interpleader with regard to Charles’s and Ralph’s interests in the trust which amounted to  $80,110.40 each. The chancellor found that the modification of the trust agreement was valid and to be construed as written. The children filed this appeal and the COA affirms.

We find that we cannot ignore the ten-year statute of limitations in this case, and we agree with the chancery court that the statute of limitations began running on the day that the modification was filed as a public record on or about July 7, 1997. Accordingly, any action regarding the legality of the modification should have been filed within ten years of that date. Because this action is barred by the statute of limitations, we find that the other issues brought forth in this appeal are moot.

Kim Wade v. Mississippi Real Estate Commission –  dismissal for failure to file a brief –  Real estate agent Wade was disciplined for telling a client he was a member of the MLS when he was not.  Wade failed to file a brief and the circuit court dismissed his appeal.  The COA affirms.  TBA covers it here. 

James McKnight v. State –  object at trial or waive the issue – McKnight was convicted of murder  of Derrick Witherspoon and possession of a firearm by a convicted felon and was sentenced to life as a habitual offender without possibility for parole.  He argues sufficiency of the evidence, that the id. from the photo lineup should have been suppressed, that there was insufficient cause to search his vehicle and phone, ineffective assistance,and the court’s failure to have him undergo a mental exam before he was sentenced.  The COA finds most of the issues procedurally barred and affirms.

Davarious Talley v.State –  hearsay – Talley was convicted of burglary of a dwelling house and sentenced to twelve years.  On appeal he argues that the court should have stricken some hearsay that was adduced during the cross examination of one of the state’s witnesses. That witness testified that she had seen Talley enter and exit the house.  On cross, though, she admitted she could not seethe back door and knew that Talley had exited the back door when two of her friends yelled out that that was what he was doing.  The COA affirms.  “Undoubtedly, the statements made by Prayer about her friends seeing Talley leave the house are hearsay. However, “a defendant cannot complain on appeal concerning evidence that he himself brought out at trial.” Rogers v. State, 85 So. 3d 293, 296 (¶13) (Miss. 2012) (quoting Fleming v. State, 604 So. 2d 280, 289 (Miss. 1992)). This rule includes evidence introduced as a result of cross-examination by defense counsel. Id. at (¶12).”

Tommy Hamberlin v. State –   SOL for pcr –  Hamberlin pleaded guilty to  possession of a controlled substance in 2000.  He got a  sentence of six years, with 180 days to serve, and the remainder of the sentence suspended. Before Hamberlin completed his post-release-supervision conviction, he was arrested and indicted for the sale and delivery of a controlled substance in July  2006.  Hamberlin pleaded guilty to the reduced charges of possession of a controlled substance and was sentenced to  seven years for one count of possession of controlled substance, eight years for one count of possession of a controlled substance as a habitual offender, and five years and 180 days for the revocation of his prior suspended sentence from the 2001 conviction, all to run consecutively. Hamberlin filed a motion to vacate the judgment of conviction and sentence, which the circuit court considered as one for post-conviction collateral relief, and dismissed as time-barred.  The COA finds the time bar to apply since Hamberlin filed his pcr some six years after he pleaded guilty. Hamberlin does not meet any of the exceptions to the time bar.  He makes allegations regarding his attorney’s ineffectiveness but did not support them with affidavits or other evidence.

Charles and Anita Gallagher v. City of Waveland –  bill of exceptions – The Gallaghers objected to the City’s approval of a plan by KBM LLC to build a subdivision and filed a bill of exceptions.  On appeal they argue  that  (1) the bill of exceptions adopted by the circuit court was inadequate; (2) the Board’s approval of the preliminary plat was arbitrary and capricious; (3) the Board improperly rezoned two residential lots; (4) the Board improperly approved a deficient proposed preliminary plat; and (5) the Board’s decision deprived the Gallaghers of  their statutory and constitutional due-process rights.  The COA affirms.

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