IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-CP-00753-COA ELIAS GUNN A/K/A ELIAS SCOTT GUNN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/24/2017 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ELIAS GUNN (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 06/05/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ. CARLTON, J., FOR THE COURT: ¶1. Elias Gunn was arrested and indicted f or p os s e s s i o n o f c o c a i n e w hile he was on probation f

or arm ed robbery

. T he State petitioned t o r evoke h is p r o b ation, listing Gunn’s cocaine-possession indictm ent as a violation of the term s o f Gunn’s probation. Gunn f iled

a m otio n f

o r postconviction relief (PCR) in t he Madison County Circuit C o urt, seeking to have his probation reinstated based upon a lleged def ec t s a nd errors occurring at his revocation hearing. The circuit court f o un d that this was Gunn’s s econd PCR m otion challenging the sam e probation-revocation decision and dism i ssed Gunn’s PCR m otion as a successive writ. ¶2. On appeal, Gunn seeks reversal of the circuit court’s dismi s s a l o f h is second PCRm otion, asserting that he was denied d ue process at his revocation hearing because he was

not provided with the evidence relied upon to revoke his probation. Gunn f u rther asserts that the cocaine-possession indictm ent against h im was an in s u f f icient basis f

o r revoking his probation. ¶3. W e f

ind no error i n t he circuit court’s dism i ssal of Gunn’s second PCR m otion as a successive writ, and we f

urther f ind, based upon our r eview of the record and the a pplicable law, that Gunn has raised no error af f ecting h is f

undam ental constitutional r ights that would

serve a s an exception to the s uccessive-writ procedural bar. W e theref ore af f irm the circuit court’s dism issal of

Gunn’s second PCR m otion.
FACTS AND PROCEDURAL HISTORY ¶4. On Novem

ber 16, 2001, Elias Gunn p leaded guilty to arm ed robbery

. Af ter accepting
G u nn’s guilty plea, t he M adison County Circuit Court sentenced G unn to serv e a 2 0

- y e a r
sentence in the custody of the Mississippi Departm ent of Corrections (MDOC), with the last eight y ears suspended o n conditions specif ied in t he Judgm ent of Conviction a n d Sentence Instanter, and with f

ive y ears of probation to begin at the expiration of the u n s u s pended portion of the sentence. ¶5. On May 4, 2015, w h i l e h e w a s o n probation, Gunn was arrested f or possession of cocaine in Hinds County , M ississippi, and was indicted on that charge on February 26, 2016. On March 29, 2016, the MDOC probation departm ent f iled a petition f

or revocation based

on that i ndictm ent. The record contains the petition f or r evocation, which was acknowledged and signed by

Gunn on April 7, 2016.

2¶6. A revocation h earing was held on May 16, 2016. Gunn was represented by counsel.
G u nn’s counsel also set f or hearing Gunn’s m o tion f o r disclosure o f evidence see k i n g a n order f or the State to disclose its e vidence against Gunn concerning the cocaine-possession charge, which was the basis f o r the State’s petition f

or r evocation. Af

t er hearing a rgum ent

on t he m otion f

o r d isclosure of evidence, the c ircuit court proceeded with the revocation hearing. ¶7. T h e S t a t e ’ s w i t n e s s was Gunn’s p robation of f icer, Of f icer Rico M a z i q u e , w h o testif i ed that h e w a s s u p e rvising Gunn when he was arrested f or possession of cocaine on May 4, 2015. The hearing t ranscript f urther r ef lects that Of

f icer Mazique f

i led h is petition
f or revocation af

ter he f ound out about G u n n ’ s February 2016 i ndictm ent on the cocainepossession c harge. A copy of the indictm ent was entered as an exhibit a t t he revocation hearing. ¶8. Af ter O f f i c e r M a z i q u e ’ s d i r e c t e xam ination, the circuit court addressed Gunn’s

m ot i o n f or disclosure o f evidence, f irst stating that in the petition f or revocation, the probation departm ent “alleged t hat the Def endant [ Gunn] had been indicted in Hinds County

cause N o. 16-121JAW f

or t he new crim e of possession of [ a] controlled substance, that being cocaine.” The circuit court observed that t he State was m oving f orward only on that violation a s the b asis f

or r evocation and then stated that Of f icer M azique, w ho testif

ied about the cocaine-possession violation, was p r e s e n t f or the d ef ense to c ross-exam ine. Def ense counsel stated that he had no q u estions f or Of f icer Mazique. The circuit court denied the

m otion f or disclosure of evidence to the extent Gunn sought a dditional evidence, h olding that

3the State had disclosed the e vidence against Gunn supporting the revocation petition relating

to the cocaine-possession indictm ent through the testim ony of Of f icer Mazique. ¶9. Gunn then took t he stand at his revocation hearing. Gunn testif i ed that he understood what wa s c h a r g e d against him under the indictm ent, but he denied that h e com m itted the crim e. The def

ense did not put on any

other witnesses or evidence. ¶10. Af ter hearing t he testim ony and the argum ent of the parties, the circuit court observed

on the record t hat the applicable standard f o r r evocation i s whether it is m ore likely than not that the def

endant violated one o f the term s a n d conditions of his probation. The circuit court held that “an i n dictm ent, which is a f inding of probable cause, is s uf f icient.” In its order of revocation, the cir c u it c ourt also f ound that it had jurisdiction over the def endant and the subject m atter of

the proceeding; that Gunn had been tim ely served w ith true copies of the petition f or revocation, the supporting af f idavit, and a disclosure of the evidence; that Gunn

was f u lly a dvised of and understood the allegations, a s well a s the evidence, against him ; and that t he allegations c ontained in the petition w ere supported by s u bstantial evidence to prove that Gunn c om m i t t e d t he f ollowing acts and om issions constituting a violation of his probation: an i n dictm ent in Hinds County Case N um b er 16-121 JAW f

o r com m itting the new crim e of possession of cocaine. The circuit court f ound th a t t h e p e tition f

or revocation should be granted; f

ully revoked G unn’s probation, allowing 21-day s credit f o r pre-hearing detainm ent; and ordered Gunn to pay court cost s , f e e s , and a s sessm ents. The order of revocation was entered on May 19, 2016. ¶11. Gunn f

i led his f i rst PCR m otion in Madison County Circuit Court on Septem ber 15,

42016, in Civil Action No. 45CIl:16-cv-00183-c. 1 Gunn argued t hat h is d u e p r o cess rights

were violated under the order of revocation because his suspended sentence was im posed; and because revocation w as im p osed bef ore Gunn was lawf

ully convicted of the cocainepossession charge a gainst him

. Based upon i ts review o f the M ay 16, 2 016 revocation hearing transcript, as well as the petitioner’s crim inal f ile (Cause N o. 2001

- 0 0 0 9

- C ) , the circuit court determ ined t hat Gunn was not entitled to any relief under his f i rst PCR m otion. The circuit court sum m arily d ism issed G unn’s f irst P CR m otion u nder M i s s i s s i ppi Code Annotated section 99-39-11(2) (Rev. 2015) by j udgm ent entered October 10, 2016. Gunn did not appeal the circuit court’s judgm ent dism issing his f irst PCR m otion. ¶12. On April 17, 2017, G unn f i led a second P CR m otion in Madison C o unty Circuit Court bef ore the sam e judge that h eard his f i r s t PCR m otion. Gunn again challenged the circuit
court’s revocation of his probation. Gunn claim ed that his due process rights were violated because he was “coerced” i n t o signing a waiver of his p relim inary h earing; t he cocainepossession indictm e nt was def e ctive and was an insuf

f i cient basis f

or revoking his p robation; he was not provided evidence supporting revocation of his probation; and he w as denied the opportunity

to present witnesses or docum e n tary evidence at his revocation hearing. ¶13. The circuit court s u m m arily dism i ssed Gunn’s second PCR m otion as a successive writ on April 24, 2017, as f o llows: [ T]h e C o urt being a ware that petitioner previously f iled a Motion f

or

1 In th e circu it co u rt’s o rd er th at is th e su b j ect o f th is ap p eal, t h e circu it co u rt relied o n G u n n ’s f

irst P C R m o tio n in d ism i ssin g G u n n ’s seco n d P C R m o tio n a s a su c cessiv e w rit. U p o n t h is C o u rt’s o rd er, t h e reco rd w as su p p lem en ted w ith th e p lead in g s f ro m C i v il A ctio n N o . 4 5 C Il:1 6

- cv -0 0 1 8 3

- c o n A p r il 5 , 2 0 1 8

. 5P ost-Conviction Collateral Relief in C ivil Action No. 45CIl:16-cv-0018 3

- c

that was dism i ssed on O ctober 10, 2016, the Court f inds that the petition does not f all within the exceptions to [ section] 99-39-23(6) and should be dism issed as a successive writ. [2] ¶14. I n t h i s a p p e a l c o ncerning the circuit court’s dism issal of his second PCR m otion , Gunn asserts that h is due process rights were v iolated when his p robation w a s revoked because ( 1) he was not provided w ith the evidence relied upon to revoke his probation; and (2) t he cocaine-possession indictm ent against him was an insuf f icient basis f

or revoking his probation.
STANDARD OF REVIEW ¶15. “W hen reviewing a circuit court’s denial or d i s mi s s a l o f a P C R motion, we will

reverse the j u d g me n t of the circuit c ourt only if its f actual f indings are clearly erroneous; however, we review the c ircuit court' s legal conclusions under a de novo standard of review.” Berry v. State , 230 So. 3d 360, 362 (¶3) (Miss. Ct. App. 2017).
DISCUSSION
I. Successive-W

rit Procedural Bar ¶16. In its order dism i ssing Gunn’s second PCR m o tion, the circuit court he l d t h a t the

m otion w as barred as a successive writ. The Unif orm Post-Conviction Collateral Relief Act (UPCCRA) im

poses a bar against successive wri t s . See Miss. C ode A nn. § 99-39-23(6) (Rev. 2 015) (“[ A ]ny order d ism issing the petitioner’s m otio n o r otherwise deny ing relief

2 T h e circu it co u rt a lso f o u n d t h at “ in relatio n to p et i t i o n er’s g u ilty p lea an d sen ten cin g f

o r a rm e d ro b b ery o n N o v em b er 1 6 , 2 0 0 1 , th e C o u rt f

in d s t h at th e p etitio n d o es n o t f all w ith in t h e ex c ep tio n s t o [ secti o n ] 9 9 -3 9 -5 (2 ) an d sh o u ld b e d ism issed as tim eb arred .” G u n n d o es n o t ad d ress th is h o ld in g o n ap p eal; w e th eref o re d o n o t ad d r ess it in o u r o p in i o n . 6under t his article i s a f inal judgm ent and shall be conclusive until r eversed. It shall be a bar

to a second or successive m otion under this article.”). The UPCCRA, h owever, provides a

num ber of exceptions t o the successive-writ b ar, including, in relevant p art, “those cases in which the petitioner claim s tha t his sentence has expired or his probation, p arole or conditional release has been u n lawf ully revoked.” Id. Gunn, a s t h e mo v a nt, b ears “the burden of proving by a preponderance of the evidence that his claim [ ] [ is] not barred as [ a] successive writ[ ].” Grogan v. State , 89 So. 3d 617, 621 (¶10) (Miss. Ct. App. 2011) (internal quotation m ark om itted). ¶17. Gunn asserts that his probation w a s u n l a w f u l l y revoked in this case, but h e did not raise this point bef

ore t he circuit c o u rt or this Court a s an e xception to the successive-writ bar as provided by section 99-39-23(6). H e theref ore waived this issue. F

l uker v. State , 17 So. 3d 181, 182-83 (¶¶4-5) (Miss. Ct. App. 2009). ¶18. E v e n i f h e h a d r a ised this issue, however, a review of Gunn’s f i rst PCR m otion in Civil Action N o. 45CIl:16-cv-00183-c shows that Gunn challenged the sam e revocation decision that he now attacks in h is second PCR m otion. As the Mississippi Suprem e Court unequivoca l l y r e c o g n i zed in Fluker v. State , 1 70 So. 3d 471, 475 (¶10) (Miss. 2015), “a second o r subsequent challenge t o t he sam e revocation decision is barred as a successive

m otion under Section 99-39-23(6).” Apply ing that principle to the case bef o re it, the Court held that, a lthough bas e d u p o n d i ffe r e n t g r ounds, “Fluker’s second post-conviction challenge

to the sam e revocation decision that he attacked in his f irst m otion f

or PCR was b arred as a successive pleading under Section 99-39-23(6).” Id. The sam e principle applies h ere. Based

7upon the record and the a pplicable law, w e af

f irm the circuit court’s d e t erm ination that
Gunn’s second P CR m otion challenging the s am e revocation d ecision that he challenged in his f irst PCR m otion w as procedurally barred as a successive writ u nder section 99-39-23(6).
II. Fundamental Rights Exception to the UPCCRA’s Procedural Bar ¶19. W e r e c o g n i z e t h a t e r r o r s a f f e c t i n g f u n d am e ntal rights are excepted f rom the
UPC C R A ’ s p r ocedural bars. Rowland v. State , 4 2 So. 3d 503, 507 (¶9) (Miss. 2010); see Fluker , 170 S o. 3d at 475 (¶11). “ [ O ] n l y f o ur ty pes of ‘f undam ental r ights’ have been expressly f

ound to s urvive PCR proc e d u r a l bars: ( 1) t he r ight against double jeopardy ; (2) the right to b e f

ree f rom an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post f acto laws.” Salter v. State , 1 8 4 S o . 3 d 9 44, 950 (¶22) (Miss. Ct. App. 2015). Gunn, as the m o vant, bears t he burden of proving an e xception applies to the UPCCRA’s procedural bars. B r andon v. S tate , 108 So. 3d 999, 1 004 n.3, 1006 (¶¶12, 23) (Miss. Ct. App. 2013). The record ref l ects that Gunn f

a iled to m e et this burden. ¶20. Based upon the f

oregoing, we af

f irm the circuit court’s dism i ssal of G unn’s second
PCR m otion because it is barred as a successive writ. 3 ¶21. AFFIRMED. LEE, C.J., IRVING AND G RIF F I S , P.JJ., BARNES, FAIR, GREENLEE, WESTBROOKS A N D T I NDELL, JJ., CONCUR. WILSON, J., C ONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION.

3 S ee M iss. C o d e A n n . § 9 9 -3 9 -2 3 (6 ); F lu ker , 1 7 0 S o . 3 d at 4 7 5 (¶1 0 ). 8