IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-CP-00025-COA ALBERT LEWIS WATTS A/K/A ALBERT L. WATTS A/K/A ALBERT WATTS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 12/12/2016 TRIAL JUDGE: HON. CHRISTOPHER A. COLLINS COURT FROM W HICH APPEALED: LEAKE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ALBERT LEW IS W ATTS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: REVERSED AND REMANDED: 04/10/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Albert Lewis W atts f iled a petition f

or post-conviction c ollateral relief (PCCR) in the Circuit C ourt of Leake C ounty

. The circuit c ourt f ound it lacked jurisdiction to entertain the petition due to W atts’s f

ailure t o obtain leave f

rom the Mississippi S uprem e Court t o proceed in the circuit court. Because we f ind the circuit court had jurisdiction t o consider the petition f or PCCR, we reverse and rem and.

FACTS AND PROCEDURAL HISTORY ¶2. In 2012, W atts was convicted of arm ed robbery and sentenced to lif e im prisonm ent

as a h abitual of

f ender pursuant to Mississippi Code Annotated s ection 9 9-19-83 ( Rev. 2007).Wa t t

s v
. S t ate , 132 So. 3d 1 062, 1063-64 (¶¶1, 4) (Miss. C t. App. 2014). On appeal, w e f ound the State f

ailed t o prove bey ond a reasonable doubt that W atts had served a t erm of at least o ne y ear on each sentence, as required under s e ction 99-19-83. Id

. at 1065 ( ¶9). As a result, w e af

f i rm ed W atts’s conviction but reversed and rem anded f or r e s e ntencing under Mississippi Code Annotated section 99-19-81 (Rev. 2007). Id

. ¶3. On rem and, W atts was resentenced as a habitual of f ender under s e ction 99-19-81 to

serve twenty -three y ears in the custody of the Mississippi Departm ent of Corrections. A new sentencing order was entered by the circuit court. W atts did not appeal f rom that order. ¶4. On April 22, 2016, W atts f iled the subject petition f

or P CCR in the circuit court. On
Decem ber 12, 2016, the c ircuit court f ou n d i t w as without j urisdiction to entertain the petition since W atts f

ailed t o obtain leave f

rom the Mississippi S uprem e C ourt prior to f iling his petition in the circuit court. As a result, the circuit court dism issed W atts’s petition f or PCCR. W atts tim ely

appealed. ¶5. In addition to this appeal, W atts a lso f iled w ith the Mississippi S u p r e m e Court an “application f

or leave to proceed in [ the] trial court with petition f or PCCR.” In his application, W atts s ought perm i ssion to f ile his petition f

or PCCR in the circuit court. On February 8, 2017, the Mississippi Suprem e C o urt f ound “that W atts’s current sentence has
not been appealed and that the request f or post-conviction relief should b e dism issed without prejudice to be f

iled in the [ circuit] court.”

S TANDARD OF REVIEW ¶6. W e will n ot disturb a circuit court’s denial of a petition f or PCCR unless the f

actual

2f

indings are clearly e rroneous. Kennedy v. State , 1 79 So

. 3d 8 2, 83 (¶5) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id. ANALYSIS ¶7. Pursuant to Mississippi Code Annotated section 99-39-7 ( Supp. 2009), a petition f or PCCR shall be f

iled a s an original c i v i l a c t i on in the [ circuit] court, except in cases in w hich th e p e t itioner’s conviction and sentence have b een appealed to the Suprem e Court of Mississippi and there af f i r me d o r the a

ppeal dism issed. W h ere the conviction and sentence have b een af f irm ed o n appeal or the appeal has been dism issed, the [ petition f or PCCR] shall not be f

iled in the [ c ircuit] court until the [ petition] shall have f i rst been presented t o a q u o r u m o f the Justices of the Suprem e Court of Mississippi

. . . and a n order g ranted allowing the f i ling of such [ petition] in the [ circuit] court. Thus, unless W atts’s conviction a n d s entence have been appealed and af f i rm ed, or the appeal was dism issed, any

petition f or PCCR m

ust be f iled in the circuit court. ¶8. Here, as the Mississippi Suprem e C ourt noted, W atts’s current s entence has not been appealed. Since his current sentence has not been appealed, W a tts was not required to seek leave to proceed in the circuit court. Thus, W atts’s petition f or PCCR was properly f

iled in the circuit court, which had j urisdiction to entertain the p etition p ursuant to section 99-39-7. ¶9. The dissent agrees that the circuit court h ad jurisdiction to consider W a tts’s petition f or PCCR b u t asserts, “it w ould be a waste of judicial econom y to r em and this case to the circuit court f

o r review and c onsideration.” However, that is exactly what our suprem e court instructed. In the February 8, 2017 order, the suprem e court noted that a “related m atter is pending in Cause N um

ber 2017-TS-00025.” T hat pending m atter is the case bef ore us. Thus, the suprem e court was aware that W atts had f iled h is p etition f

or PCCR in the circuit

3court and that h i s petition h ad been dism issed f o r a l ack of jurisdiction. The s u prem e court could have d enied W atts’s a pplication as m eritless but, instead, f ound that the circuit court had j urisdiction to hear the p e tition and stated “that the request f or post-conviction relief should be . . . f

iled in the trial court.” ¶10. Additionally , the dissent asserts we “m ay af f irm a trial court’s decision if the correct result is reached, even if the trial court r eached the result f or the wrong reason.” W hile we agree with the dissent’s assertion, the dissent ignor e s t h e f act that a dism i ssal and a denial

are dif f erent. Here, the circuit court dismissed the case d ue to a lack of j urisdiction, which does not im

plicate the m erits of the c ase. In other words, the circuit cou r t d i s missed the petition f or PCCR without addressing the issues raised by W atts. Yet, o n appeal, the dissent addresses those issues and f inds them to be m eritless. Thus, assum ing the d issent’s analy sis and conclusions are correct, it would result in a denial of the petition f or P C C R , not dismiss a l

. As the circuit court dism issed the case f or a lack of jurisdiction, we f ind the
correct result was not reached. Accordingly , we reverse the judgm ent of the circuit court and

rem and W atts’s petition f or PCCR to the circuit court f or review and consideration. 1 ¶11. REVERSED AND REMANDED.
LE E , C.J., BARNES, FAIR, WILSON, GREENLEE, W ESTBROOKS AND TINDELL, JJ., CONCUR. I RVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY CARLTON, J. IRVING, P.J., DISSENTING: ¶12. The m ajority reverses the judgm ent of the Circuit C ourt of L e ake County dism issing

1 T h e S tate co n ced es th at th e circu it co u rt h as j u risd i ctio n to co n s id er Watts’s p etitio n f o r P C C R an d ag rees th at w e sh o u ld rem an d th is case to th e circu it co u rt f o r f u rth er rev iew

. 4W a tts’s petition f or post-conviction relief (PCR) because, i n the v iew of the m ajority , W atts

was not required to obtain perm ission f rom the Mississippi Suprem e Court bef ore f iling his PCR petition in the c ircuit court. I agree with t h e m a j o rity that the circuit c ourt erred in f inding that obtaining such p erm ission was a p rerequisite to W atts’s f iling his PCR petition with that court. Consequently , I agree with the m ajority that the circuit c ourt had jurisdiction
to c o n s i d e r W atts’s PCR p e tition. However, I disagree with the m ajority that the circuit court’s erroneous d ecision to dism iss W atts’s P CR p e t i t ion on jurisdictional grounds requires

u s t o r e verse and r em and the case to the circuit court f or review o f W a t ts’s petition

. Theref ore, I dissent. ¶13. The m ajority correctly notes that only W a t ts’s conviction was af f irm ed by this Court

o n a p p eal, and the statutory requirem ent—that a def endant o btain perm ission f rom th e suprem e court bef

ore f i ling a PCR petition in the circuit court—is applicable only in cases where both the conviction a nd sentence of the def endant has been af

f i rm ed or d ism issed on appeal. Nevertheless, I believe to rem and this case to the circuit c ourt is to e xhort f orm over substance. I explain. ¶14. First, I reiterate that W atts’s conviction w as af f irm ed. In h is dir e c t a

p peal of his conviction, he raised only two issues: “(1) the trial court erred in not declaring a m istrial or instructing the jury

to disregard the testim ony o f State witness Judice Eubanks, and (2) the trial court im

properly sentenced him as a habitual o f f ender.” W

atts , 1 32 So. 3d 1062, 1063 (¶1) (Miss. Ct. App. 2014). W e af f irm ed W atts’s conviction b ut rem anded the case f or the
court to resentence W atts. Id

. So the i ssues that w ere raised or could have been raised in his

5direct appeal cannot be r elitigated in a PCR petition. Miss. Code Ann. § 9 9

- 39-21 (Rev.

2015). Second, we r eversed W atts’s sentence not b ecause the State did not prove that he was

a habitual of

f e n d e r , b u t b e cause the State f ailed t o prove that he was a habitual of f ender
pursuan t t o section 1983 of the Mississippi Code of 1972 as am ended and annotated. In other words, the State f

ailed to prove that W atts ha d s e r v e d a term of at least one y ear on each s entence that he h ad received f or the predicate f

elonies g iving rise to his habitual status. W atts , 132 S o. 3 d at 1 065 (¶9). W e f ound the evidence suf

f i cient to prove that Wa t t s was

a habitual of

f ender pursuant to section 99-19-81 of the Mississippi C ode of 1972 as am ended and annotated, a nd rem anded the case to the c ircuit court f or resentencing pursuant to that code section. Id

. ¶15. Af ter W a tts was resentenced on rem and in a ccordance with the provisions of section 99-19-81, he f

iled the PCR petition leading t o this appeal. In his PCR p e tition, he alleged three grounds f

or r elief , w h i c h I quote verbatim (except f or the addition of som e m inor punctuation) because of their im portance to m y v iew of the resolution of the issue b ef ore us, and f or the additional reason of avoiding any chanc e o f i n a d v e r tently m ischaracterizing them

. Those issues are: Petitioner was convicted and is in custody of the M.D.O.C. in violation[ ] of the United States Constitution Laws and Treaties, the M ississippi constitution B ill of Rights by : f

a lse i m p r isonm ent through denial o f d u e p r o c e ss and equal p r o t e c t i o n of laws f

or a f air trial and right to testif y and com

pulsory process to establish a libi def

ense a nd lack of probable cause f or arrest initially through breach of duty to i nvestigate exculpatory evidence a n d racial discrim ination[ ,] m alicious prosecution, selective prosecution, prosecutorial and judicial m isconduct[ ,] ADA discrim inations[ .] Petitioner was convicted and is in custody of the M.D.O.C. in violation[ ] of the

6United States Constitution Laws a nd Treaties[ ,] the Mississippi Constitution

Bill o f Rights and State Laws through denial o f com petent ef f ective counsel and d iscovery of evidence f avorable to def

ense[ ,] f a lse sta t e m e nts of trial counsel[ ,] def

i cient perf

orm ance. Petitioner was convicted and is in custody of the M.D.O.C. in violation[ ] of the U nited States C onstitu t i o n L aws and Treaties[ ,] the Mississippi Constitution B ill of Rights and State Laws throug h d e nial of com petent ef f ective appellate counsel[ ,] and cr u e l and unusual punishm e nt[ ,] i llegal sentence[ ,] double jeopardy [ .] ¶16. I note that W atts’s appellate counsel was dif f erent f rom his trial c o unsel. Theref ore, during his direct appeal, he was required t o raise a ny issues regarding the inef f ectiveness of trial counsel. Ronk v. State , 172 So. 3d 1112, 1130 (¶37) (Miss. 2015). He d id not. Consequently , any issue regarding trial counsel’s perf o rm a n ce is procedurally barred in postconviction proceedings. Id

. So on rem and, the circuit court would not be obligated to hear
any issues that W atts raises regarding his trial counsel’s perf orm ance. It seem s clear to m e that such a bar would cover the f i rst and second issues quoted above. ¶17. In the third issue, W atts, in a rather c onvoluted m anner, states t h a t h e i s in custody “through” the denial of com p etent e f f ective appellate counsel

. He then explains in his recitation of supporting f acts that he had a r ight t o a f a lse-im p r i s o n me n t claim on direct appeal that appellate couns e l f a i l e d to f ile. He continues his f

actual explanation with the f ollowing inexplicable statem ent, which I quote verbatim in an ef f ort to d iscern its contextual

m eaning: “Also rights to access to the records discoveries property stolen by def ense counsel and District Attorney Larry McMurtry

. Petitioner was entitled to a prosecutorial and judicial

m isconduct claim argum ents on d i r ect appeal.” I assum e by the f irst portion of W atts’s

s t a t e me n t , he m eans that appellate counsel should have asserted on direct appeal that tria l

7c o u nsel had not shared discovery with W atts. As to the last portion of t h e q u o t e d

explanation, I cannot f

athom W a tts’s assertion. Finally , W atts claim s that appellate counsel did not raise an argum ent regarding “com pulsory [ -]right s violations,” apparently m eaning that appellate c ounsel di d n o t r a ise an issue regarding trial counsel’s f a ilure to subpoena a witness who allegedly w ould have given testim o ny r ebutting the State’s evidence or would have given m itigating testim ony . However, W atts f ails to give any

specif ics. ¶18. W a tts did not attach any af f idavits in support of t he a llegations m ade i n his PCR petition, nor did he s tate in details in his petition why none c ould b e obtained as required by Mississippi Code Annotated section 99-39-9(1)(e) (Rev. 2015). He stated that m em bers of the jury w ould have to be “subpoenaed f or their ancillary testim ony o n those issues presented

a n d s upplem ental change of heart [ sic] af ter r em and.” He also stated that other w i t n e s s e s would have to be subpoenaed t o v erif y their af f idavits. However, as stated, W atts did not attach any

af f idavits to his PCR petition. ¶19. It is clear t o m e that while W atts’s PCR petition alleges that he is b ei n g u n l a w f ully held in c u stody , it d oes n o t m eet the plea d i n g r e q u irem ents of s ection 99-39-9(1)(e). Theref ore, it would be a waste of judicial econ o m y to rem and this case to the circuit court “f or review and consideration” as directed b y the m ajority

. I would af f irm the dism issal of
W a tts’s petition on the basis that it does not m eet the pleading requirem e nts o f section 99-39- 9(1)(e). “An appellate c ourt m ay af f irm a trial court’s d eci s i o n if the correct result is reached, even if the trial court reached the result f or the wrong reasons.” Boone v
. State , 148 So. 3d 377, 379 (¶7) (Miss. Ct. App. 2014).

8CARLTON, J., JOINS THIS OPINION.

9