IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-CP-00243-COA JEFFERY E. ARNOLD A/K/A JEFFERY EUGENE ARNOLD A/K/A JEFFREY E. ARNOLD A/K/A JEFF ARNOLD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/27/2016 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JEFFERY E. ARNOLD (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 08/22/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ISHEE AND GREENLEE, JJ. ISHEE, J., FOR THE COURT: ¶1. In August 2013, Jef f rey Arnold pleaded guilty in the Rankin County C ircuit Court f or

one count of t he s ale o f a l p r azolam , and one count of c onspiracy to sell hy drocodone and

acetam inophen. T he circuit c ourt sentenced A r n o l d t o f if teen y ears in the custody of the Mississippi Departm ent of Corrections (MDOC) f or Count I ; and a c onsecutive twenty y ears in the custody of the MDOC f or C ount II, with all b ut o ne day suspended, f ollowed by f

ive
y ears of postrelease supervision. Arnold was also assessed with various costs and f ines. ¶2. In January 2016, Arnold f iled a m otion f

or postconviction relief (PCR). The circuitcourt dism iss e d A r nold’s m otion as a successive writ. A rnold now appeals. Finding no

error, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶3. On March 21, 2 013, Arnold was indicted by a Rankin County grand jury f o r one count of the sale of alprazolam , a Schedule IV controlled substance under M ississippi l aw, and one
count of conspiracy to sell hy drocodone and acetam inophen, S chedule III controlled substances under Mississippi law. 1 ¶4. On August 4, 2 0 1 3 , A rnold pleaded guilty to both counts of the indictm ent. The circuit court f

o u nd t h a t Arnold’s pleas of guilty were f reely , v oluntarily , knowingly , and intelligently m ade and entered. The circuit court f urth e r f o u n d t h a t each p lea had its own f actual b asis. Theref

ore, the circuit court accepted Arnold’s plea—adjudicating him guilty

on both counts. The circuit court then sentenced Arnold to f if t een y ears in t he custody of the MDOC f or Count I; and a consecutive twenty y ears i n the c u stody of t he MDOC f or Count II, with all but one day suspended, f ollowed b y f

i ve y ears o f p ostrelea s e s u p e r v i s ion. Additionally , Arnold was assessed with costs and f ines as to Count I ; the m inim um f ine f or Count II was suspended. ¶5. On January

25, 2016, Arnold f

iled a m otion f

or PCR in the Circuit Court of Rankin County . On January

27, 2016, the circuit court dism issed Arnold’s m otion as a successive writ. In dism i s sing Arnold’s m otion, the circuit court em phasized the f

act that Arnold had

1 A lp razo lam is a S ch e d u l e IV co n tro lled su b stan ce p u rsu an t to M ississip p i C o d e A n n o tated sectio n 4 1 -2 9 -1 1 9 (R e v . 2 0 1 3 ); h y d ro co d o n e an d acetam in o p h en are S ch ed u le III co n tro lled su b stan ces p u rsu an t to M i ssissip p i C o d e A n n o tated sectio n 4 1 -2 9 -1 1 7 (R ev . 2 0 1 3 ). 2three previous P C R a c t ions in the circuit court i n the m a t ter of this conviction. Also, the

circuit court f

ound Arnold’s m otion to be f rivolous, and so the circuit court ordered that at least sixty day s of Arnold’s accrued earned tim e were to b e f o rf eited pursuant to Mississippi Code Annotated section 47-5-138(3) (Rev. 2015). Arnold now appeals. DISCUSSION I. Dism issal of PCR Motion as Successive Writ ¶6. This Court will not disturb a circuit court’s d i s mi s s a l o f a PCR m otion unless the decision i s f

ound to be clearly e rroneous. W illiams v. State , 110 S o. 3 d 8 40, 842 (¶11) (Miss. Ct. App. 2 013). Q uestions of la w are reviewed de novo. Id

. Under the Unif orm PostConviction Collateral Relief Act (UPCCRA), an order “deny ing relief

. . . is a f inal j udgm ent and s hall be conclusive until reversed. It shall be a bar to a second or successive m otion under this article.” Miss. Code Ann. § 99-39-23(6) (Rev. 2 011). In order t o proceed, the

m ovant m

ust show—by a preponderance of the evidence—tha t his claim s are not barred. Ratcliff v. State , 120 So. 3d 1058, 1060 (¶5) (Miss. Ct. App. 2013). ¶7. Yet there are exceptions to the successive-writ bar. Id

. at (¶6). For instance, “[ e]rrors af f ecting f undam ental c onstitutional rights are e xcepted f r om the p rocedural b ar . . . .” Bell

v. State , 95 So. 3d 760, 7 6 3 (¶12) (Miss. Ct. A pp. 2012) (reversed in part) (citation om itted). Also, there is an exception if “there has been an intervening decision of the Suprem e Court of either the State of Mississippi or the United States which would have actually a dversely af f ected the outcom e of his conviction or sentence .

. . .” Miss. Code Ann. § 99-39-23(6). ¶8. In his brief

, Arnold argues that th e l a t t e r e x ception applies—that there has been an

3intervening decision by e ither the Suprem e Court of Missi s sippi or the United States that

would h ave adversely af

f ected the outcom e of his conviction. But in m aking t his a rgum ent, Arnold f ails to point to any intervening c aselaw to support this em pty assertion. The record shows that Arnold has f

i led three previous PCR actions in the sam e m atter. W hat is m ore, Arnold has f

a i l e d t o o f

f er any m e ritorious reasons why the successive-writ b ar should not apply

. Though h e does not rely o n them as his vehicle around the procedural bar, Arnold
argues that his right against double jeopardy and h is r ight to e f f ective assistance of counsel

were violated. It is true that erro r s t hat af f ect f u ndam ental constitutional rights are an exception f

rom t he procedural bar, but “m ere assertions o f constitutional-rights violations do

not suf f ice to overcom e the p rocedural bar.” W hite v. S tate , 59 S o. 3d 633, 636 (¶11) (Miss. Ct. App. 2011). Theref

ore, we f ind that t he circuit court correctly dism issed A rnold’s PCR

m otion as a successive writ. This issue is without m erit.
II. Double Jeopardy and Ineffective Assistance of Counsel ¶9. In h is m otion, A rnold raised two a dditional issues: f irst, a violation of h is right against double jeopardy and, second, that he received inef f ective assistance of counsel. W hile we f ind that the m o tion was b arred as a successive writ, because t hese additional issues arguably im p licate Arnold’s f

undam ental rights, we will brief ly address each of them in turn. See Bell , 95 So. 3d at 763 (¶12). ¶10. First , A r n o l d a r gues that the conviction f or one count of t he sale of a controlled substance and one count o f conspiracy to sell a controlled substance violated his right against double jeopardy

. W e disagree. The Fif th A m endm ent to the United States Constitution

4af

f ords a person a right to not b e prosecuted twice f or t he sam e of

f ense. U.S. Const. am end. V; Harden v. State , 4 6 0 So. 2d 1194, 1200 (Miss. 1984). It i s well e s tablished that the crim e of conspiracy does n ot m erge with the crim e com m itted pursuant to the conspiracy

. Norman

v. S tate , 381 So. 2d 1024, 1028 (Miss. 1980). “ [ A ] conspiracy to c om m it a crim e is dif f erent f rom t he c rim e that is the object of the c onspiracy [ ;] the f irst n ecessarily involves joint action while the other does not.” Moore v. State , 290 So. 2d 603, 605 (Miss. 1974). ¶11. Here, Arnold was charged and tried on two separate counts. He was indicted under Mississippi Code Annotated section 41-29-139 f or o n e c o u n t o f the sale o f alprazolam , a Schedule IV c ontrolled substance, a n d one count of conspiracy t o sell hy drocodone and

acetam inophen, Schedule III substances. Indeed, the crim e of conspiracy in Count II of the indictm ent is a separate and distinct crim e f r om the sale of a lprazolam c harged in Count I. And so, we f

ind that Arnold’s right against double jeopardy w as not violated by t he circuit court’s acceptance of

his guilty pleas on both counts. This issue is without m erit. ¶12. Second, Arnold argues that the circuit court erred in deny ing postconviction relief on the g rounds of inef

f ective assistance of counse l

. A r n o l d ’s argum ent under t his issue is closely t i e d t o t h e issue of d o uble jeopardy —in that Arnold a rgues t hat his counsel was inef f ective by f

ailing to advis e h i m t hat the indictm ent a nd subsequent conviction would violate his right against double jeopardy . W e disagree. ¶13. “An inef

f ective-assistance claim requires showing: ( 1) counsel’s perf or ma n c e was def i c i e n t a n d ( 2) prejudice resulted.” W illiams , 110 So. 3d a t 844 ( ¶21) (citing S trickland

v. W ashington, 466 U .S. 668, 687 ( 1984)). A ccor d i n g t o Strickland , there is a strong

5presum

ption t h at c ounsel’s perf

orm ance f

alls within the range of reason a b l e p r of essional assistance. Hooghe v. S tate , 1 3 8 S o . 3 d 2 40, 247 (¶31) (Miss. Ct. App. 2014) (citing Strickland , 466 U.S. at 687). ¶14. Here, Arnold c annot m eet e ither prong of Strickland

. A s stated above, Arnold’s claim of double jeopard y is without m erit, a nd so he cannot m eet the f irst prong of Strickland

—requiring h im to s how that his counsel was def icient in s om e way . There can be little doubt that Arnold’s counsel was not def icient by f ailing to inf

orm him of a doublejeopardy def

ense where it was i napp licable under the law and f acts of his particular case. W h at is m ore, Arnold c annot show any harm due to this alleged error. And so, Arnold has f ailed to m eet his b urden in proving inef f e ctive assistanc e o f counsel. This issue is also without m erit. CONCLUSION ¶15. Af ter reviewing the record, w e f i n d t hat Arnold’s m otion i s b arred as a successive writ. W e f

urther f ind that t he i ssues raised by Arnold, w hich arguably i m plicate f undam ental rights, are without m erit. Theref ore, we af

f irm the circuit court’s sum m ary di s m i s s a l of Arnold’s m otion. ¶16. AFFIRMED. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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