IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2013-CP-01789-COA
VICTOR D. JONES A/K/A VICTOR DEWAYNE JONES A/K/A VICTOR JONES APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/02/2013 TRIAL JUDGE: HON. DAVID H. STRONG JR. COURT FROM W HICH APPEALED: PIKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: VICTOR D. JONES (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 SUMMARILY DISMISSED DISPOSITION: AFFIRMED - 04/07/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ROBERTS AND MAX WELL, JJ. ROBERTS, J., FOR THE COURT: ¶1. We a r e p r e s e n t ed, o nce a gain, with reviewing the Pike County C i r c u i t C o u r t ’ s

sum m ary dism issal of Victor D. Jones’s m otion f or post-conviction relief ( P C R), which attacked his 2004 guilty pleas to two counts of sexual battery . W e af

f irm and f i nd that the circuit court properly sum m arily dism issed Jones’s PCR m otion, as i t was tim e-barred and
successive-writ barred.
FACTS AND PROCEDURAL HISTORY ¶2. As this is Jones’s third P CR m otion, the underly ing f acts hav e b e e n d e tailed in ourprior opinions and the Mississippi Suprem e Court’s opinion. 1 See Jones v. State , 119 So. 3d

323 (Miss. 2 0 1 3) (

Jones II-MSSC) ; Jones v. State , 119 S o. 3 d 3 50 (Miss. Ct. App. 2013) (reversed in part) (

Jones II-COA ); and Jones v. State , 962 S o. 2d 571 (Miss. Ct. App. 2006) ( Jones I ). According to Jones’s PCR m otion, he pled guilty t o two counts of sexual battery , wit h a p lea recom m e ndation of twenty y ears, ten y e ars to serve and the rem ainder on probation and/or post-release s u p e r v i s ion. The late Judge Mike Sm ith did not accept the
State’s recom m endation and s entenced Jones to twenty y ears, on each count, to be served in
the custody of the Mississippi Departm ent of Corrections. 2 His sente n c e s were ordered to run consecutively

. ¶3. Jones f

iled his f irst P CR m otion on Decem ber 29, 2004, alleging that h is indictm ent

was f aulty , he received inef

f ective assistance of counsel, his guilty pleas were not voluntary , and he was prejudiced by not having appointed c ounsel prior to his indictm e nt; but the circuit

court sum m arily dism issed his PCR m otion. Jones I , 962 So. 2d at 572 (¶2). On a ppeal, this
Court af f irm ed the circuit court’s sum m ar y d i s mi s s a l

. Id. at (¶3). W e f urther f ound that
“Jones’s plea[ s w ere] v oluntary and that he r eceived ef f ective assistance of counsel.” Id. at 573 (¶6). The m andate issued. ¶4. Jones’s n ext PCR m otion was f iled on Ap r i l 1 1 , 2 0 1 1 , a n d t he circuit court again

sum m arily dism issed the PCR m otion, f inding it was “procedurally barred as a successive

1 T h e U n ited S tates D istrict C o u rt f o r th e S o u th ern D istrict o f M ississ i p p i h as also rev iew ed Jo n es’s claim s. Jo n es v. S ta te , N o
. 3 :0 6 -C V -4 3 8 -H T W-L R A , 2 0 0 8 WL 2 9 4 5 0 5 (S .D . M iss. Jan . 8 , 2 0 0 8 ).

2 We n o te th at Jo n es’s g u ilty -p lea-co llo q u y tran scrip t is n o t p art o f t h e reco rd b ef o re u s. A d d i tio n ally , it h as n o t b een a p art o f t h e reco rd o n h is p rio r P C R m o tio n s. 2writ, a n d is tim e-barred.” Jones II-COA , 119 So. 3d at 351 (¶5). On appeal of that sum m ary

dism issal, Jones argued that the circuit court erred in f inding that h is PCR m otion was tim ebarred an d successive-writ barred because he had alleged h is sentence was illegal, and
because he s hould have had a m ental-health evaluation bef ore he was perm itted t o enter his guilty p leas. Id. at ( ¶2). H e f u rther disputed the c i r c uit court’s f inding that it lacked jurisdiction on the case because Jones had not sought perm ission f r om the suprem e court to
f ile his PCR m otion. Id. This Court again af f ir me d the circuit court’s sum m ary dism issal
of Jones’s PCR m otion. Id. at 352 (¶13). This Court held in Jones II-COA that the circuit

court properly applied the procedural bars because Jones’s s entence was w i t h i n t he
param eters of a l egal sentence f or the crim e of sexual b attery , and that J ones f ailed t o explain
h o w his sentence was otherwise illegal. Id. at 351-52 (¶9). W e a l so f ound tha t J o n e s ’ s
argum ent that h e should h ave been given a m ental evaluation prior to entering his guilty pleas

was not raised in his prior PCR m otion and the claim o f m ental incom petence i s not excepted
f rom the procedural bars. Id. at 352 (¶10). Further, we recognized in our prior opinion that
“Jones’s guilty plea was voluntarily m ade.” Id. This Court also af f irm ed the circuit court’s
f inding t hat it lacked jurisdiction because J on e s f a iled to seek perm ission to f ile his PCR

m otion f rom the suprem e court as required by statute. I d. at (¶12). ¶5. J ones requested certiorari review of this Court’s decision, and th e s u p r e me c o u r t granted it. In Jones II-MSSC , 119 So. 3d at 326 (¶9), the suprem e court reversed o n the issue
of whet h e r J o n e s h a d to seek its perm i ssion bef ore f iling h is PCR m otion. Otherwise, it
af f irm ed “the judgm e nts of

the trial court and the Court of A ppeals that the PCR m otion is

3tim e-barred and also . . . that the m otion is barred based on res judicata.” Id.

¶6. Then, on August 30, 2013, Jones f i led t he PCR m otion at the c e nter of this case. He again argues that he received inef f ective assistance o f counsel, that his p lea was involuntary , that his due-process rights were v i olated by not receiving a com petency h earing, that he was incom petent when he w as coerced i nto pl e a d i n g guilty , that h e did not get to i nspect the
State’s discovery m aterials, and that his plea agreem ent w as not honored b y the circuit court. The circuit court sum m arily dism issed Jones’s P CR m otion, f inding that the P CR m o tion was procedurally b a r r e d a s a s u ccessive writ, and was tim e-barred. It noted: “The m otion is substantively

identical to three previously f iled m otions which have all been denied.” ¶7. Jones f

iled his notice of

appeal, and on appeal, Jones raises the f o llowing issues:
I. W hether the t r ial court erred in deny ing

. . . [ Jones’s PCR m otion] as being t im e[ -]barred pursuant to [ Mississippi Code Annotated section] 99-39-5(2) [ (Supp. 2014)] when

. . . [ J ones] alleged that [ h is] c o urt[

- ]appointed counsel was inef f ective[ .]
II. W hether the trial court erred when it denied

. . . [ Jones’s PCR m otion] because he f

ailed to object d

uring the plea hearing purs u a n t t o
. . . [ Mississippi Code A nnotated section 99-31-21 (Rev. 2007)] that he had not been p r operly exam ined by a [ psy c hiatrist] a s to his m ental history and did deny

him a f air plea hearing[ .]
III. W hether the trial court erred in deny ing [ J ones’s PCR m otion] as being successive under

. . . [ Mississippi Code Annotated section] 99-39-23(6) [ (Supp. 2014).]
IV. W hether the trial court erred in deny ing [ Jones’s PCR m otion] pursuant to

. . . [ Mississippi Cod e A n n o tated section] 99-39-7 [ (Supp. 2014),] because the trial court state[ d] that [ it does not have] jurisdiction to h ear [ Jones’s] claim s [ .]

STANDARD OF REVIEW

4¶8. This Court em p loy s the clearly -erroneous st a ndard of r eview when reviewing a circuit
court' s sum m ary dism issal of a PCR m otion. Johnson v
. State , 31 So. 3d 647, 6 48 (¶5) (Miss.
Ct. App. 2010) (citing Mann v. State , 2 So. 3d 743, 745 (¶5) (Miss. Ct. App. 2 009)). W hen questions of

law are raised, a de novo standard of review is applied. Id. Mississippi Code
Annotated section 99-39-11(2) ( Supp. 2014) states: “If it plainly a p pears f rom the f ace of the

m o t i o n , a n y a n n e xed exhibits and the prior proceedings in the case that the m ovant is not entitled to any relief

, the judge m ay m ake a n o rder f or i ts dism issal and cause t he petitioner
to be notif

ied.”
ANALYSIS
I. Procedural Bars and Res Judicata ¶9. Mississippi Code Annotated section 99-39-5(2), part of the Unif orm Post-Conviction
Collateral Relief

Act (UPCCRA), provides the tim e -bar f or PCR m o tions: (2) A m otion f

or r elief under this article shall be m ade within three (3) y ears a f ter the tim e in which the petitioner' s direct appeal is ruled upon by th e Suprem e Court of Mississippi or, in c ase no appeal is taken, within three (3) y ears af ter the tim e f

or taking a n appe a l f

r o m the judgm ent of conviction or sentence has expired, or in case of a g uilty ple a , within three ( 3) y ears af ter entry of the judgm ent of

conviction. Excepted f

rom this three-y e ar statute of lim itations are those cases in which the petitioner can dem onstrate either: (a)(i) That there has been an interve n i n g d e cision of the Suprem e Court of either the State of Mississipp i o r t he U nited States which would have actually adv e r sely af f ected the outcom e of his conviction o r sentence or t hat he has ev i d e n ce, not reasonably discoverable at the tim e of trial, which is of such nature that it would be practically conclusive that h ad such been introduced at trial it would have caused a dif f erent result in the conviction or sentence; or (ii) That, even if the petitioner pled guilty or n olo contendere, or

5conf essed o r adm i tted t o a crim e, t here exists biological e v idence not tested, o r, if previously tested, that can be subjected to additional DNA tes t i n g that w ould provide a reasonable likelihood of m ore probative results, a n d that testing would dem onstrate by r e asonable probability that the petitioner would n ot have been convicted o r would h ave received a lesser sentence if f

avorable results had been obtained through such f orensic DNA testing at the tim e of the original prosecution. (b) Likewise ex c e p t e d are those cases in which the petitioner claim s that his sentence has expired or his probation, parole or condi t i o n al release has been u nlawf u lly revoked. Likewise excepted are f

ilings f or post-conviction relief i n c a pital cases which shall be m a de within one (1) y ear af ter conviction. Additionally , the UPCCRA provides a bar f o r successive PCR m o tions:
The order a s provided i n subsection (5) o f this section or a ny order dism issing the petitioner' s m otion o r otherwise deny ing relief under this article is a f i nal judgm ent a nd shall be conclusive until reversed. I t shall be a bar to a second or successive m otion under this article.

. . . A dism issal o r denial of a m otion relating to m ental illness under [ s]ection 9 9-19-57(2) shall b e res judicata on the issue and shall likewise bar any second or successive m otions o n the issue. Likewise excepted f

rom this prohibition are t hose cases in which the petitioner can dem onstrate either that there has been an intervening d ecision of the Sup r e me Court of either the State of Mississippi or the United States which would have actually adversely af f e cted the outcom e of his conviction or sentence or that he has evidence, not reaso n a b l y discoverable at the tim e of trial, which is of

such nature that it would be practically conclusive that, if

it h a d b e e n introduced a t trial, it would have c aused a d if f erent result i n t h e conviction o r sentence. Likewise excepted are t hose cases in which the petitioner claim s tha t h i s s e ntence has e x pired or his probation, parole or conditional release has been unlawf ully revoked. L ikewise excepted are those cases in which the petitioner has f iled a prior petition and has requested DNA testing under this article, provided the petitioner asserts n ew o r dif f erent grounds f o r relief relat e d t o DNA testing n ot previously p resented or the availability

of m ore advanced DNA technology

. Miss. Code Ann. § 99-39-23(6). Although the Mississippi Supr e me C ourt has a pplied res judicata to P CR c ases involving f undam ental constitutional rights, including its specif ic

6application of res judicata in Jones II-MSSC , i t now appears that Smith v
. State , 149 So. 3d

1027, 1032 (¶13) (Miss. 2014), stands f or the proposition that res judicata is a procedural bar
that can be overcom e by

claim ing a f

undam ental constitutional-right violation. ¶10. Jones’s appeal centers a round one issue: his c om petency to enter his guilty pleas. He
f irst argues that h is attorney was inef f e c t i ve f or not f iling a m otion to order a m ental
evaluation of Jones. H e also a r g u e s that he was coerced into signing his plea agreem ent because he was i n c o mp e t ent to understand the consequences. As is apparent f rom our recitation of the f

acts, this is not J ones’s f

irst PCR m o tion f

or our review, a nd this is not the
f irst tim e issues of h is com petency , inef

f ective a ssistance of counsel, or the voluntariness of
his guilty pleas h ave been raised i n his P CR m otions. A nd this PCR m otion w as f i led m ore than three y e ars af

ter his guilty

pleas, so ty

pically , such claim s as Jones now m akes would be barred by

the tim e-bar and successive-writ bar. ¶11. However, a s the suprem e court held in Rowland v. State , 4 2 S o
. 3 d 503, 507 (¶12) (Miss. 2010), “errors af

f ecting f undam ental c o nstitutional rights a re excepted f rom the procedural bars of the UPCCRA.” It is elem ental that when a d ef endant t e n d ers a f

ree, voluntary , and intelligent guilty plea, he waives n um erous f undam ental constitutional rights:
the r ight to a trial by j ury , 3 the right to conf r ont accusing witnesses, 4 the right t o com pulsory

3 S ee S cu rlo ck v. S ta te , 1 4 7 S o
. 3 d 8 9 4 , 8 9 6 (¶9 ) (M i ss. C t. A p p
. 2 0 1 4 ) (citin g Jo in er v. S ta te , 6 1 S o . 3 d 1 5 6 , 1 5 8 (¶7 ) (M iss. 2 0 1 1 )).

4 S ee id

. 7process, 5 t he right to a s peedy trial, 6 the right against unlawf ul search and s eizure, 7 the right against self

-incrim i nation, 8 and the r ight to be c o nvicted b y proof b ey ond a rea s o n a ble
doubt. 9 And m ost courts agree the right to not be placed in double j eopardy is also waived by a voluntary

guilty plea. 10 And, although the Mississippi Suprem e Court has a pplied res judicata to P CR c ases involving f undam ental constitutional rights, including its specif ic application of res judicata in Jones II-MSSC , i t now appears that Smith , 1 49 So. 3d at 1032 (¶13), m a y

have m odif

ied that principle. ¶12. Wh i le Jones a rgues that his guilty pleas were involun t a r y a n d h i s a t t o r n e y w a s inef f ective, the suprem e court has held that t hese claim s are not excepted f r om the tim e-bar;
theref ore, even though these c laim s involve f undam ental constitutional r i g h t s, the p rocedural
bars are applicable. Kirk v. State , 798 S o
. 2d 345, 346 ( ¶6) (Miss. 2 000). Previously , in
Jones II-MSSC , the suprem e c ourt determ ined Jones’s f undam ental constitutional claim s to

com petency and to ef f ective representation by

counsel when he pled were tim e-barred and
barred by res judicata. W e detect no logical reason to deviate f rom that sam e determ ination

5 S ee id

.
6 S ee H a r d in v. S ta te , 9 6 6 S o
. 2 d 8 4 4 , 8 4 7 (¶1 1 ) (M iss. C t. A p p
. 2 0 0 7 ) (citin g R o w e v. S ta te , 7 3 5 S o . 2 d 3 9 9 , 4 0 0 (¶3 ) (M iss. 1 9 9 9 )).

7 S ee B u rn s v. S t

a te , 9 8 4 S o . 2 d 1 0 2 4 , 1 0 2 5 (¶¶7 -8 ) (M iss. C t. A p p . 2 0 0 8 ).

8 S ee S cu rlo ck , 1 4 7 S o . 3 d at 8 9 6 (¶9 ).

9 S ee id

.
10 S ee U n ited S ta tes v. H

erzo g , 6 4 4 F

. 2 d 7 1 3 , 7 1 6 (8 th C ir. 1 9 8 1 ); B ro w n v. M a ryla n d , 6 1 8 F .2 d 1 0 5 7 , 1 0 5 9 (4 th C ir. 1 9 8 0 ). S ee a lso A u g u s tin e V

. C h en g , A p p ella te R e view o f D o u b le Jeo

p a rd y C la im s in th e G u ilty P lea C o n t e x t , 5 6 F o rd h a m L

. R ev
. 9 8 3 , n .3 -4 (1 9 8 8 ) h ttp : //ir.law n et.f o rd h am .ed u /f

lr/v o l5 6 /iss5 /5 8on his present, and third, PCR m o tion.

II. Mental Com petency ¶13. Jones’s claim s of inef f ective assistance and the voluntariness of his guilty pleas are subject t o the procedural bars, but in Smith , 149 So. 3d a t 1031 (¶8), the suprem e c ourt f ound
that claim s of m ental c om petency were not subject to the procedural bars or res judicata. The
suprem e court specif

i cally addressed Jones’s claim of m ental c o m petency in J

ones II-MSSC , 119 So. 3d at 326 (¶¶7-8), and f ound:
Jones a rgues that h e was “legally incom petent” to plead g uilty , and he should have b e en evaluated by a m ental-health specialist prior to entering his plea. The issue of Jones' s m ental health was not raised prior to subm itting his guilty plea, nor w as it raised in Jones' s f irst P CR m otion. Jones v. State , 9 62 So. 2d 571, 5 73 (Miss. Ct. App. 2006). However, i n its order deny ing the f irst petition f or p ost-conviction relief

, the t rial court e xplained that it “ personally observed the def

endant' s dem eanor, appearance and m anner in answering the court' s questions and it a

ppeared to the court that the d ef endant w as com

petent to understand and did understand the circum s tances surrounding his guilty plea.” The trial c o u r t f u rther f ound t hat the guilty plea was k nowingly , willingly , f

reely , v oluntarily , and intelligently m ade a n d accepted the plea and f ound the def

endant guilty

. . . . In s upport o f his s ec o n d P C R f iling, Jones subm itted som e o f his m e d ical records, but none appears responsive to his m ental com petency , in general, o r at the tim e of

his plea. Theref

ore, notwithstanding the tim e [

- ]bar, the trial court c orrectly f ound that Jone s ' s second PCR m otion should be dism i ssed.
Additio n a l l y , J o nes’s attorney , in responding to a bar com plaint J ones f

iled against him , stated: “[ I]t is entirely u

p to the judge whether or not a m ental exam i nation is conducted. I
would agree that I never f iled a [ m ]otion requesting such an exam ination. I am bound by [ Mississippi Rule of Civil Procedure 11(a),]

. . . which prevents m e f rom f iling f r i v o l ous

m otions.” He continued:

9Jones was personally observed by m y self and [ the] Honorable Mike S m ith. He

[ (Jones)] answered all q

uestions posed by the [ circuit c]ourt and com pleted his “Know Y our Rights Form [ .]”

. . . I am not a “m otion attorn e y ” a n d will not f ile m eritless pleadings, even if it results in m eritless com plaints being l odged against m e. Thus, it is apparent that J o n e s g a v e neither the circuit c ourt nor his attorney any reason to question Jones’s com

petency at his guilty -plea hearing. ¶14. Smith is distinguishable f rom the present case. In Smith , the circuit court, prior to the guilty p lea, entered an agreed o rder f or Donald Keith Sm ith to receive a m ental e xam ination

at the Mississippi State Hospital at Sm ith’s expense. Smith , 149 So. 3d at 1029-30 (¶2). The
record was unclear as t o w h y t h e c i r c uit court entered the o rder. Id. at 1034 (¶18). The

m ental exam ination was never done, and Sm ith later pled guilty

. I d

. a t 1029-30 (¶2). Here,

we h ave the polar opposite: a f inding by the circuit court that Jones appeared to be, and was,
tot a l l y com

petent w hen h e appeared bef ore the c ircuit c ourt to plead guilty

. As was explained above, Jones’s attorney stated that he did no t f ile a pretrial com

p etency m otion
because to do so would constitute a m eritless and f rivolous f iling. ¶15. W e em

ploy the s am e reasoning in our a f f i r ma n c e o f t h e c ircuit court’s sum m ary dism issal of Jones’s current PCR m otion. W hile Jones did subm it n um erous m e dical records
with his PCR m otion, none relate to his com petency around or at the tim e of his g uilty pleas. As the suprem e court did in Jones II-MSSC , we f ind this issue to be without m erit.
III. Jurisdiction ¶16. Jones a r g u e s t hat the circuit court erred in f i nding that it lacked jurisdiction to hear
his PCR m otion. The circuit court’s order states: “[ T]his court f inds t hat i t has jurisdiction

1 0to hear the subject m otion[ .] ” J o nes' s claim is based on his m istaken interpretation of the

circuit court' s decision. Because there is no basis f or his claim , it has no m erit. ¶17. T H E J U D G M E N T O F T H E C I R C U I T C O U R T O F P I K E C O U N T Y DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO PIKE COUNTY. LEE, C.J., IRVING AND GRIFFIS, P .JJ., ISHEE, CARLTON, M AX WELL, FAIR AND JAMES, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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