IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2018-CP-00626-COA MICHAEL HERRIN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/15/2018 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: MICHAEL HERRIN (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 05/07/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., GREENLEE, WESTBROOKS AND McDONALD, JJ. GREENLEE, J., FOR THE COURT: ¶1. The Circuit Court f or the F irst Judicial District of Hinds County dism issed Michael Herrin’s m otion f

o r post-conviction relief

(PCR). 1 W e af

f irm the c ircuit court’s order and f ind that Herrin’s PCR m otion was properly dism issed. FACTS AND PROCEDURAL HISTORY ¶2. In February 1994, a grand j ury f or the F irst Judicial D istrict of Hinds C ounty indicted

1 T h e co u rt’s o rd er is sty led as an o rd er d en yin g p o st-co n v i ctio n relief

. B u t w e b eliev e th e o rd er is actu ally a n o rd er f o r d i sm issa l o f H e rrin ’s P C R m o tio n . S ee M iss. C o d e A n n . § 9 9 -3 9 -1 1 ( 2 )-(3 ) (R ev . 2 0 1 5 ).Michael Herrin f or rape, burglary of a dwelling, and arm ed robbery

. Th e i n d i c t m ent also charged H errin as being a non-violent habitual of f ender under Mississippi Code Annotated section 99-19-81 ( Rev. 1976). Herrin had previously been convicted of grand larceny and possession of

cocaine in Lef

lore County

. ¶3. In Septem

ber 1994, H errin pled guilty to all three counts a n d w a s s e n t e n c ed, as a habitual of

f e nder, to serve twenty y ears f or rape, twenty y e ars f

or arm ed robbery , and f

if teen
y ears f or burglary of a dwelling in the custody of the Mississippi Departm ent of Corrections. ¶4. On March 31, 2016, H errin wrote a l etter to i nf orm the L ef

l ore County Circuit Clerk that his 1993 sentencing o rder erroneously stated that he had been convicted f or the “sale of cocaine” instead of the “possession of cocaine.” In April 2016, the Lef lore County Circuit Court treated Herrin’s l etter as a P CR m otion and f ound that he was entitled to relief

. And in February 2017, the court entered a nunc pro t unc order, correcting t he charge to “possession of

cocaine.” ¶5. Subsequently , in A ugust 2 0 17, Herrin f iled a PCR m otion in t he Circuit C ourt f or the First Judicial D i s t r i c t of H inds County , claim ing that he was im properly sentenced as a habitual of

f e nder in 1994 because a “possession of cocaine” conviction was used t o enhance his sentences. Herrin asserted in t his PCR m otion that he was actually convicted o f “sale of cocaine.” On M arch 15, 2018, the court dism issed Herrin’s PCR m o tion, and on April 20, 2018, Herrin f

iled his notice of

appeal. ¶6. On appeal, Herrin claim s he was entitled to post-conviction r elief and that the circuit court erred by f

ailing to m a ke any

f indings of

f a ct or conclusions of

law bef ore dism issing

2his PCR m otion. STANDARD OF REVIEW

¶7. “W e review the dism issal or denial of a P CR m otion f or a buse o f d iscretion. W e w ill only reverse if the [ ruling] court’s decision is clearly erroneous.” H ughes v. State , 106 So. 3d 836, 838 (¶4) (Miss. 2012) (citing Crosby v. State , 16 So. 3d 7 4, 77 (¶5) (Miss. Ct. App. 2009)). DISCUSSION ¶8. Bef

ore we analy

ze Herrin’s claim s, we m ust f irst address t h e i s s u e of whether this Court h as proper authority to consider t his appeal. Although neither party has questioned this Court’s jurisdiction, “it is i ncum bent upon this Court t o assure that such jurisdiction exists.”
Jones v. State , 95 So. 3d 672, 675 (¶5) (Miss. Ct. App. 2011) (quoting R oss v. State , 16 So. 3d 47, 52 (¶6) (Miss. C t. App. 2009)). The Mississippi Rules of Appellate Procedure require that t he notice of a

ppeal “shall be f

iled with the clerk of

the trial court within 30 d ay s af ter the date of entry o f the judgm ent or order appealed f rom .” M.R.A.P. 4(a). Th e t r i al court dism issed Herrin’s PCR m otion on March 15, 2018. And Herrin’s notice of a ppeal was f

iled

on April 20, 2018 – 36 day s later. Generally , an appeal shall be dism issed unless t he notice of appeal is tim e ly

f iled. See M.R.A.P. 2(a). ¶9. But “[ t]he prison m ail-box rule states that in pro se post-conviction relief proceedings, the prisoner’s m o t ion is con s i d e r e d d e livered f o r f iling when the p risoner gives the docum ents to prison of

f icials f or m ailing.” Lott v. State , 115 So. 3d 903, 907 (¶10) (Miss. Ct. App. 2013). This Court has h e ld that “[ t]he p rison m ailbox rule [ also] a pplies to appeals

3f

rom the denial of post-conviction relief .” Melton v
. State , 930 S o. 2d 452, 454 (¶7) (Miss. Ct. App. 2006). ¶10. Herrin dated his notice of appeal April 12, 2018, and South Mississippi Correctional Institution stam

ped the envelope as “Approved Legal Mail” the sam e day

. Further, postage

on t he envelope indicates that the notice of appeal was m ailed via U nited S tates Postal Service on April 13, 2018. B ecause Herrin delivered his notice of appeal to prison authorities f

or m ailing within the t h i r ty -day period, his appeal was tim ely

. See id. Accordingly , we f

ind jurisdiction is proper a nd proceed to address H e r r i n ’ s a p p eal on the

m erits.
I. WHETHER H E RRIN WAS ENTITLED TO POST-CONVICTION R ELIEF. 2 ¶11. Herrin claim s h e w a s i mp r o p e r l y s e n t e n c e d a s a h abitual of f ender because a “possession of cocaine” conviction was u sed to e nhance his sentences. Herrin claim s he was actually convicted of “sale o f cocaine.” W e note the i n c o n s i stency in H errin’s positions. However, we have reviewed the record. ¶12. A review o f the record shows that in 1993 Herrin w as indicted f or p o s s e s s i o n of cocaine. H i s prisoner com m itm ent notice indicated that he pled guilty to possession of cocaine. H errin has also previously adm itted that he was c o nvicted of possession of cocaine. In his 1994 guilty

plea, Herrin stated: 17. I have not p reviously been convicted of any f e lony , except, POSS. OF

2 In h is A p p ellan t’s B r ief , H errin cla i m s h e w as en titled to p o st-co n v ictio n relief b e c a u s e ( 1 ) h e w as d en ied d u e p r o cess at sen ten cin g , (2 ) h is sen ten ce w as illeg al, an d (3 ) h is sen ten ce v io lated h is f u n d am en tal co n stitu tio n al rig h ts. B ecau se th e su b stan ce o f h is arg u m en t is th e sam e f

o r each issu e, w e ad d ress H errin ’s issu es to g eth er.

4C.S. ; GRAND LARCENY; CREDIT CARD FRAUD.

(Em phasis added). And in h is letter d ated March 3 1, 2016, to the L e f l o r e C o u nty Circuit Clerk, Herrin s t ated, “I h ave NEVER been arrested nor i ndicted nor convicted o f s a l e o f cocaine.” ¶13. In April 2016, the Lef lore County Circuit Court f o und t hat Herrin’s 1993 sentencing order err o n e o u s ly stated that he had been indicted f or and pled g uilty to “sale of cocaine.” And i n February 2 0 17, t he court entered a nunc pro tunc o r d er, correcting the charge to “possession of cocaine.” Accordingly , we f ind that the 1994 H inds County i n d ictm ent correctly ref erred to Herrin’s prior conviction as “possession of cocaine.” ¶14. Furtherm ore, whether the conviction was f or possession of cocaine or sale of cocaine is irrelevant f

o r purposes of sentencing Herrin under section 99-19-81. The f act rem ains that Herrin h ad two prior f

elony s entences and received a s eparate sentence on e ach f or a y ear or

m ore. S ee Black v. S

tate , 7 24 So. 2d 996, 1003 (¶29) (Miss. C t

. A pp. 1998). 3 Theref ore, the trial court did not abuse its discretion in dism i ssing Herrin’s PCR m otion.
II. WHETHER THE TRI A L J U DGE WAS REQUIRED TO M AKE FINDINGS OF FACT AND CONCL U S I O N S O F L A W B E F O R E D I S M I S S I NG HERRIN’S PCR MOTION. ¶15. Her r i n c l a i m s the trial judge was required to m ake f indings of f

a ct and conclusions of law b ef

o re d ism issing his PCR m otion. Herrin cites t o Mississippi Rule of Civil

3 P o ssessio n o f c o cain e is a f elo n y u n d er M ississip p i C o d e A n n o tated sectio n 4 1 -2 9

- 1 3 9 (R ev . 1 9 9 3 )

. A n d s ale o f c o cain e is a f elo n y u n d er M ississip p i C o d e A n n o tated sectio n 4 1 -2 9 -1 3 9 (R e v . 1 9 9 3 )

. In a d d i tio n t o h is d ru g co n v i ctio n , H errin w a s a lso p rev io u sly co n v icted o f g ran d larcen y , w h ich is a f elo n y u n d er M ississip p i C o d e A n n o tated sectio n 9 7

- 1 7 -4 1 (S u p p . 1 9 9 3 )

. 5Procedure 52(a) in s upport of his claim

. This rule “perm its the trial court to use i ts discretion

when deciding whether to issue f indings of

f act and conclusions of

law.” Culbert v. State , 800 So. 2 d 546, 549 (¶8) (Miss. Ct. App. 2 001) (citing Tricon Metals and Se r v s
. I n c
. v. Tropp , 516 So. 2 d 236, 239 ( Miss. 1987)). “However, when a party requests the t rial court
to render f

indings of f

act and conclusions of law, t he t rial court’s duty becom es obligatory .” Id

. at 549-550 (¶8) (citing Blevins v. Bardwell , 784 So. 2d 166 , 174 (¶30) ( Miss. Ct. App. 2001)). ¶16. Although a p ost-conviction relief suit is a c ivil action, m ost of the procedural rules are statutory

. Id

. a t (¶9). This Court has stated, “To a lim ited extent, nam e ly w hen not displaced by specif ic statutory

provisions, the provisions of the M ississippi Rules of Civil Procedure can apply

. ” Id . (quoting Craft v. State , 766 So. 2d 92, 94 (¶7) (Miss. Ct. App. 2000)). ¶17. Our post-conviction statutes contain the f ollowing provision: If it plainly appears f

r om the f ace of the m otion, any annexed exhibits and the prior proceedings in t his case that the m o vant is not entitled to a n y relief , the judge m ay m ake an order f or its dism issal and cause the prisoner to be notif ied. Miss. C ode Ann. § 99-39-11(2) ( Rev. 2015). This Court h as stated, “A c l o s e r e a d i ng of section 99-39-11 r eveals that the trial court ha[ s ] two obligations when dism i ssing a claim f or post-conviction relief

: 1) m ake an o rder o f dism issal a n d 2 ) c a u s e t he prisoner to be notif ied.” C u l b e r t , 8 0 0 So. 2d at 550 (¶10). A nd t his Court has held, “To the extent that Rule 52(a) im

poses extra obligations on the trial court, we hold that the trial court is under

no obli g a t i o n to render f indings of f

act and conclusions of law where i t h as dism issed a

m otion f or post-conviction collateral relief under section 99-39-11.” Id

.

6CONCLUSION

¶18. The Circuit Court f or the First Judicial District of Hinds County properly dism issed Herrin’s PCR m otion. Accordingly , we af f irm

. ¶19. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P .JJ., WESTBROOKS, T I N D E L L , M c D O N A L D , L A W R E N C E , M c C A R T Y A N D C . W I L S O N , J J . , C O N C U R .

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