IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2017-CP-01027-COA
JEROLD WAYNE SMITH A/K/A JEROLD SMITH A/K/A GERALD WAYNE SMITH A/K/A JEROLD W. SMITH APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/24/2017 TRIAL JUDGE: HON. DALE HARKEY COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JEROLD W AYNE SMITH (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 10/09/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND CARLTON, JJ. CARLTON, J., FOR THE COURT: ¶1. Jerold W ay

ne S m i th appeals the Jackson County Circuit C ourt’s denial of his m otion
f or p ostconviction relief (PCR). On appeal, Sm ith argues that: (1) his sentence has expired, (2) he was subjected to double jeopardy , and (3) he was denied ef f ective counsel. ¶2. Af ter our review, we f

i nd t hat Sm ith’s double jeopardy and inef f ective assistance of counsel claim s are p rocedurally barred. W e also f ind that Sm ith’s expired sentence claim is without m erit and also tim e-barred. W e theref ore af f i rm the trial court’s denial of Sm ith’s
PCR m otion.
FACTS¶3. In Septem ber of 1 985, Sm ith was convict e d o f b u r g l a r y o f a business in Harrison County a nd sentenced t o serve seven y ears as a h abitual o f f ender. In March of 1986, Sm ith was convicted of

possession of

a schedule II controlled substance in Harrison County , and the t rial court sentenced him to lif e without e l i g i b i l ity f

o r parole. The suprem e court af f irm ed Sm ith’s conviction o f possessi o n o f a controlled substance and sentence to lif e im p risonm ent on direct a

ppeal. Smith v. State , 527 So. 2 d 660, 665 ( Miss. 1988). Then, in
June of 1986, Sm ith pled guilty to arm ed robbery in Jackson County

. T h e t r i a l court sentenced Sm ith to serve a term of ten y ears, w ith the sentence to run concurrently with
S mi t h’s s even y ear sentence f or burglary of a business and consecutive to Sm ith’s l i f e sentence f

or possession of a controlled substance. ¶4. On October 7, 2016, Sm ith f iled a PCR m otion r equesting that the trial c ourt enter an order f inding that his ten-y e ar sentence f o r arm ed robbery had e xpired. 1 On February 9, 2017, S m ith f

i led a m otion f

o r leave to f

ile additional and s upplem ental pleadings in support of his PCR m otion. That sam e day , and despite f ailing to receive perm ission f rom the trial court, Sm ith also f

iled his supplem ental p leadings in support of his PCR m o tion, a r g u i n g : (1) that he was s ub

j e c t e d t o double jeopardy because “[ he] w as t ried, convicted, and sentenced f

or both arm e d robbery

and possessing the proceeds of that robbery ,” and (2) “it

s h ould be inf

erred that [ he] was denied inef f ective assistance of counsel” based on the alleged double jeopardy

violation.

1 I n h is P C R m o t io n , S mi t h r e c o g n ized th e th r ee-y ear t im e l im it f o r f i lin g a P C R m o tio n u n d er M is s i s s i p p i C o d e A n n o tated sectio n 9 9 -3 9

- 5 (2 ) (R ev
. 2 0 1 5 ) , b u t h e arg u ed th at a claim o f an e x p ired sen ten ce is an ex cep t io n to th e th ree-y ear tim e lim it. We ad d ress th is arg u m en t b e lo w . 2¶5. On May 2 4, 2 0 17, the trial court entered an o rder deny ing Sm ith’s PCR m otion. T he

trial court f

ound no m erit to S m ith’s claim that his sentence f or his a r m ed robbery conviction had expired and explained as f ollows:
Part of Sm ith’s sentence was to be served concurrently with Harrison County Cause Num

ber 20 , 4 9 3 [ ( b urglary o f a business)]. A f ter the sentence in Harrison County C ause N um b er 2 0,493 e x p ired, Sm ith had three ( 3) y ears r e maining on
. . . [ his arm ed robbery ] sentence[ , ] [ w]hich was t o r u n consecutively w i th his s entence in Harrison County Cause N um b er 20,705 [ (possession of a controlled substance)]. The rem aining three (3) y ears w ould not begin to run until af

ter com pletion of his l if

e sentence i n Harrison County Cause Num

ber 20,705. As such his sentence has not expired[ .] ¶6. On June 14, 2 0 17, Sm ith f iled his notice o f appeal. 2 On J uly 14, 2017, Sm i th f iled a

m otion f or reconsideration, in w hich he also as k e d t he trial court to r ule o n the double j e o pardy claim and inef

f ective a ssistance o f c ounsel claim raised in his February 9, 2 0 1 7 supplem ental pleadings. On October 1 1 , 2 0 1 7 , the trial court entered an order deny ing
Sm ith’s m otion f

or reconsideration. The trial court held that “[ i]t plainly appears f rom the

2 S m ith attach ed a D ecem b er 7 , 2 0 1 6 o rd er f

ro m th e M ississip p i S u p rem e C o u rt to h is ap p ellate b rief in th i s case. In th e o rd er, th e s u p rem e co u r t d en ied i n p a r

t a n d d ism issed in p art S m ith ’s ap p l icatio n f o r leav e to p ro ceed in th e trial co u rt. T h is o rd er d o es n o t ap p ear in th e r eco rd f

ro m th e trial co u rt. H o w ev er, “th is C o u rt certain ly can tak e j u d icial n o tice o f [ s] u p rem e [ c] o u rt f

i les.” M itch ell v. S ta te , 2 1 8 S o
. 3 d 2 7 8 , 2 8 3 (¶1 6 ) (M iss. C t

. A p p
. 2 0 1 7 ). A d d i tio n ally , “[ a] co u rt m ay lo o k to an y so u r ce it d eem s h elp f u l an d ap p ro p riate, in clu d i n g o f f icial p u b lic d o cu m en ts, reco rd s[ ,] an d p u b licatio n s.” E n ro th v. M em ’l H o sp
. a t G u lfp o rt , 5 6 6 S o
. 2 d 2 0 2 , 2 0 5 (M iss. 1 9 9 0 ). T h e r e f o r e , w e lo o k t o S m i th ’s m o tio n f o r leav e to p ro ceed i n th e trial co u rt, w h ich h e f iled in th e su p rem e co u r

t o n Ju n e 8 , 2 0 1 6

. C

ra w fo rd v. F ish er , 2 1 3 S o
. 3 d 4 4 , 4 7 -4 8 (¶1 0 ) (M iss. 2 0 1 6 ). S m ith ’s m o tio n f o r leav e to p ro ceed in th e trial co u rt a d d resses S m i th ’s claim s reg ard in g h is arm ed ro b b e ry co n v i ctio n i n F o rrest C o u n ty

. In S

m ith v. S ta te , N o
. 2 0 1 7

- C P -0 0 2 5 9 -C O A , 2 0 1 8 WL 7 1 8 4 3 3 , at * 1 (M iss. C t. A p p
. F eb

. 6 , 2 0 1 8 ), cert. d en ied , 2 5 0 S o
. 3 d 1 2 7 0 (M iss. A u g
. 2 3 , 2 0 1 8 ), th i s C o u rt d isp o sed o f S m ith ’ s P C R claim s s tem m in g f ro m h i s co n v ictio n an d sen ten ce f o r arm ed ro b b ery in F o rrest C o u n t y . T h eref o re, th e su p rem e co u rt’s D e cem b er 7 , 2 0 1 6 o rd er h as n o b earin g o n th e p resen t case, w h ere S m ith ch allen g es h is co n v i ctio n an d sen t en ce f o r arm ed ro b b ery in Jack so n C o u n ty

. 3[ m ] otion that [ Sm ith] is not entitled to any relief as he has f a i led to bring any n ew f

acts or law that this [ c]ourt should consider.”
STANDARD OF REVIEW ¶7. “W hen reviewing a trial court’s denial o r di s mi s s a l o f a PCR m o tion, we will only disturb the trial c ourt’s decision i f it is clearly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Sims v. State , 227 So. 3d 1167, 1168 (¶5) (Miss. Ct. App. 2017).
DISCUSSION ¶8. In his October 7, 2016 PCR m otion, Sm ith argued that his ten-y ear sentence f or arm ed robbery had expired. The record ref lects that on February 9 , 2017, f o ur m o nths af

ter f iling his PCR m otion, S m i th f

iled a m otion f

or leave to f

ile a dditional or supplem ental pleadings

to set f orth additional PCR claim s of double jeopardy and inef f ective assistance o f counsel. ¶9. W e have held that “[ a] p ris o n e r mu s t m o ve to am end his PCR m otion within thirty day s of f iling.” W

illiams v
. State , 98 So. 3d 1 090, 1092 (¶11) (Miss. C t

. A p p. 2012). Mississippi Rule of

Civil Procedure 15(a) states that “[ a] party m ay am end a pleading as a

m atter of course at any

tim e bef ore a responsive pleading is served, or, if a pleading is one

to which no responsive pleading is perm itted and the action has n ot been placed upon the trial calendar, the party

m a y so am end it at any t im e within thirty day s af ter it is served.” 3 ¶10. The record r e f

lects that the trial court never r uled on Sm i th’s m otion f

or leave to f

ile

3 In S m ith ’ s m o tio n f

o r leav e to f

ile ad d i tio n al o r s u p p lem en tal p lead in g s, h e cites to M ississip p i R u l e o f C iv il P r o ced u re 1 5 (b ). H o w ev er, it ap p ears th at S m ith ’s m o tio n actu ally f alls w ith in su b sectio n (a) o f R u le 1 5

. 4additional or supplem ental pleadings. “It is the duty of the m ovant, when a m o tion or other

pleading is f

iled,

. . . to pursue said m otion to hearing and decision by the court.” URCCC 2.04; see also Ryan v. State , 245 S o. 3d 491, 498 ( ¶20) (Miss. Ct. App. 2017). In W illiams , 98 So. 3d at 1092 (¶12), the petitioner, W illiam s, f iled his m otion to am end his PCR m otion

m ore than thirty day s af

ter he f iled his PCR m otion. W illiam s also “f ailed to secure a ruling

on his m otion to am end.” Id

. T h is Court theref o re held that W illiam s ’s PCR claim set f orth
in his m otion to am e nd “[ wa]s not properly bef ore this Court” and thus procedurally barred. Id

. ¶11. In the present case, because Smi t h f i l e d his m otion f

or leave to f

ile additional or supplem ental p leadings outside of the thirty day tim e lim it, and because he f a iled to secure

a ruling on his m otion, we f ind that Sm ith’s claim s of double j eopardy and inef f e c t i v e assistance of

counsel are procedurally barred f r om our review. ¶12. Turning to his rem aining PCR claim , Sm i th argues that his ten-y e ar sentence f or his Jackson County arm ed robbery c onviction had expired. As stated, the trial court ordered that
Sm ith’s ten-y ear sentence f or arm ed robbery was to r

un c oncurren t l y w i t

h S m i th’s seven-y ear
sentence f

or burglary o f

a business and consecutive to S m ith’s l if e sentence f

or p ossession of a controlled substance. ¶13. In its order deny ing Sm ith’s PCR m otion, t he trial court f ound that S m ith’s ten-y ear sentence had not expired. The trial court explained as f ollows:
Part of Sm ith’s sentence was to be served concurrently with Harrison County Cause Num

ber 20 ,493 [ (burglary o f a b usiness)]. Af ter the sentence in Har r ison County Cause Num ber 2 0,493 expired, Sm ith had three ( 3) y ears rem aining on
. . . [ h i s a rm ed robbery ] sentence[ , w]hich was to r un

5consecutively with his sentence in Harrison C ounty Cause Num ber 2 0 ,705 [ (possession of a controlled substance)]. T he r em aining three (3) y ears w ould not begin to run until af

ter com pletion of his lif

e sentence in Harrison County Cause Num

ber 20,705. ¶14. In Smith , 2018 W L 718433, at * 1, w e addressed a s i m ilar claim by Sm ith where he argued that his f

if t een-y ear sentence f

or a n a r m ed robbery c onviction in F orrest County had expired. This Cour t h eld t hat “[ b]ecause S m ith’s f if teen-y ear sentence is being served consecutively to a prior lif e s entence, h e cannot successf ully argue that his sentence is expired.” Id

. at (¶5). This Court also held that although cases where a petitioner claim s that his s entence has expired a re excepted f rom the three-y ear tim e lim it f o r f i ling PCR m otions,
Sm ith cannot successf

ully argue that his senten c e i s e x pired s ince his sentence is being served consecutively to a prior l if e sentence

. I

d

. ; M i s s
. Code Ann. § 9 9-39-5(2)(b) (Rev. 2015). This Court f

urther f ound that Sm ith’s claim s a m ounted t o nothing m ore than “m ere assertions” of constitutional-rights violations. I d

. at (¶6) (“[ M ]ere assertions of constitutional-rights violations do not suf f ice to ov e r c o me the procedural bar[ s]” of the Unif orm Post[ ]Conviction Collateral Relief A ct.). Theref o re, Sm ith’s claim of an expired sentence was tim e-barred. Id

. ¶15. For these s am e reasons, w e s i m i l a rly f ind t hat Sm ith’s present claim of an expired

sentence is tim e-barred and without m erit. W e theref ore af f irm the t r i a l court’s denial of
Sm ith’s PCR m o tion. ¶16. AFFIRMED. LEE, C.J., I RVING AND GRIFFIS, P.J J ., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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