IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-CP-01212-COA DOMIANO RATCLIFF A/K/A DOMIANO LATORIAN RATCLIFF APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/29/2014 TRIAL JUDGE: HON. ROBERT B. HELFRICH COURT FROM W HICH APPEALED: FORREST COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DOMIANO RATCLIFF (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/21/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. Dom iano Ratclif

f appeals t he sum m ary dism issal of his s econd postconviction-relief (PCR) m otion. W e f

ind no error and af

f irm

. FACTS ¶2. On April 12, 2004, Ratclif f , Channin W ilson, and Jessie W ilson entered t he hom e of Steve a nd Renee Spencer in Forrest County , M ississippi, with the intent to rob them

. Mark Turner, the driver, waited in a car outside. I nside the hom e , Channin held a gun to Steve’s head and dem a nded m oney . Ratclif f held a gun to Renee’s head and dem a nded her purse. Steve and Renee com

plied. J essi e went into the Spencers’ teenage daughter’s bedroom ,grabbed her by the a rm , and b r ought her into the room w ith her parents. The S pencers’ twoy ear-old nephew was also i n the house. W hen Jessie realized that he went to school with the daughter, he ran out of the house. Ratclif f a nd Channin ordered the f am ily to t he back of the house. As the f

am ily entered a back bedroom , Ratclif f and C hannin shot Steve f ive tim es in the back and legs, with at least o n e shot being f ired af t er Steve f

ell to the ground. Ratclif f and Channin then f

l ed. ¶3. Ratclif

f , C hannin, J essie, and Turner were each charged in the F orrest County Circuit Court with two counts of arm e d robbery and o ne count o f aggravated assault. On Novem ber 5, 2004, R atclif

f entered a blind guilty plea to all t hree counts. H e w as sentenced to twenty
y ears f or the f i r st arm ed-robbery count, twenty y ears with ten y ears suspended f or the second

arm ed-robbery

count, and twenty

y ears f or the aggravated-assault count, f or a total of

f if ty
y ears to be served consecutively in the custody of the Mississippi Departm ent of Corrections. ¶4. I n 2 0 06, Ratclif

f f iled a PCR m otion, w hich was sum m arily dism issed. I t does not
appear t hat Ratclif

f appealed the decision. On May 8, 2013, Ratclif f f iled a second PCR

m otion, arguing that his sentence w as disproportion a te to two of his codef e ndants’ sentences,

a nd seeking to be resentenced accordingly

. The circuit c ourt sum m arily dism issed t h e m o t i o n as successive-writ barred and tim e-barred. Ratclif f now appeals. STANDARD OF REVIEW ¶5. “W hen reviewing a trial c ourt’s denial or dism issal of a m otion f or PCR, w e will only d i s t u r b the trial court’s f

actual f indings i f t hey are c learly erroneous; however, we review legal conclusions under a d e novo standard of review.” Chapman v
. State , 1 67 So. 3d 1170,

21172 (¶3) (Miss. 2015). DISCUSSION

¶6. A PCR m otion mu s t b e f i l e d w i t h i n t h r e e y e ars of the judgm ent of conviction f ollowing a guilty plea. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Ratclif f ’ s judgm ent of conviction was e ntered on Novem ber 5 , 2004, and his second P CR m otion was f iled on May 8, 2013, well outside the three-y ear tim e lim i t. Thus, his m otion is tim e-barred. His m otion is a lso p rocedurally barred as a successive writ, as it is his second PCR m otion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). An exception to t h e procedural bars is m a d e f or errors af f ecting f undam ental c onstitutional rights. Rowland v. State , 42 So. 3d 503, 506 (¶9) (Miss. 2010). However, “m erely asserting a constitutional-right violation i s insuf f icient to

overcom e the procedural b ars. T here m ust at least appear to be som e basis f o r the truth of the claim bef

ore the p rocedural bar will be waived.” F luker v. Sta t e , 170 S o. 3d 471, 475 (¶11) (Miss. 2015) (internal citation and quotation m a rks om itted). ¶7. Ratclif

f arg u e s t h a t h i s r i g h t s t o e qual protection a nd d ue process were violated because he received a longer sentence than two of his codef e ndants, T u r n e r a nd Jessie. According to Ratclif

f , Turner and Jessie received t en-y ear sentences, while h e and Channin received f

if ty -y ear s entences. The record contains no evidence to support Ratclif f ’s claim that Turner and Jessie received ten-y ear sentences. But even assum ing Ratclif f ’s claim is true, it does not e stablish a constitutional-rights v iolation. “ T here are n o statutes o r case law stating that a def

endant m ust receive a sentence p roportionate to a sentence im posed on an

accom plice.” Y oung v. State , 919 So. 2d 1047, 1049 ( ¶7) (Miss. Ct. Ap p . 2 0 0 5 ) ( quoting

3Booker v
. State , 840 S o. 2d 801, 805 (¶9) (Miss. Ct. App. 2003)). Rather, the circuit judge

is to exam ine e ach case independently

. Id. a t 1050 (¶7). “ Sentences between co[ ]def endants are, of ten tim es, dif

f erent.” Id. at 1049 (¶7). ¶8. Sentencing is within the circuit court’s discretion, as l o n g a s t h e sentence im posed f alls within t he s tatutory lim it. King v
. State , 857 So. 2d 702, 731 ( ¶106) (Miss. 2003). The

m axim u m sentence f

or arm e d robbery

is a sentence less than lif e, if not im posed by a jury

. Miss. Code A nn. § 97-3-79 ( Rev. 2014). Ratclif f was sentenced t o twenty y ears e a ch on the
two arm ed-robbery counts, with ten y ears suspended. He was n ineteen y ears o ld at the t im e of sentencing, and th e r e i s n o e vidence that either sentence was a lif e sentence, based on Ratclif f ’ s age and lif

e expectancy

. The m axim um sentence f

or aggravated assault is twenty
y ears. M iss. Code Ann. § 97-3-7(2)(a) (Supp. 2016). R atclif f w as sentenced to twenty y ears on the aggravated-assault count. The circuit court will generally n ot be held in error if the
sentence im

posed is within the s tatutory lim i ts. King , 857 So. 2d a t 731 (¶107). W e f ind no error in Ratclif

f ’s sentence. ¶9. Further, the circuit court had valid reasons f or sentencing Ratclif

f and Channin to a greater term than T urner and Jessie. Ratclif f and Channin shot one of the victim s f ive tim es, while T urner waited in the car, and af ter Jessie had run out o f the house. Also, a ccording to Ratclif f , Turner and Jessie pleaded guilty to only one count of arm ed robbery , a n d the other
counts against them were dropped in exchange f or their agreem ent to t estif y a gainst the other codef endants. W e f

ind no m erit to this issue. See Y oung , 919 So. 2d at 1049 (¶7) ( af f irm ing greater sentence of codef

endant who was a habitual o f f ender); B ooker , 840 S o. 2d at 805 (¶9)

4(af

f irm ing greater sentence of codef endant when the t rial judge conside r e d t he num ber of charges against each c o d e fe n d a n t , t h e i r c r im inal records, the seriousness of the of f enses, their roles in the of

f enses, and the prosecutor’s sentencing recom m endations). ¶10. W e af

f irm the circuit court’s sum m ary dism issa l o f R a t c l i f f ’ s P C R mo t i o n as procedurally

barred. ¶11. AFFIRMED. LEE, C . J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.

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