IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2012-CP-01485-COA SHAWN ANTONIO JACKSON A/K/A SHAWN JACKSON A/K/A SHAWN A. JACKSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/11/2013 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: SHAW N ANTONIO JACKSON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: POST-CONVICTION-RELIEF MOTION DENIED DISPOSITION: REVERSED AND REMANDED - 05/05/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES, CARLTON AND JAMES, JJ. BARNES, J., FOR THE COURT: ¶1. Shawn Antonio J ackson pled g u i l t y t o s e v e ral counts of transf e r o f a controlled substance and possession with intent to d istribute a controlled s ubstance. He was originally sentenced to twenty y e ars to serve. This sentence was s u bsequently reduced to twelve y ears
to s er v e . The State convinced the circuit court that the c ourt lacked j urisdiction to reduce Jackson’s sentence a nd that Jackson’s only recourse w as t o seek the reduction through a postconviction-relief (PCR) m otion. The c i r c u i t court then reinstated Jackson’s twenty -y ear sentence, and Jackson f

i led the PCR m otion.¶2. This m otion w as i gnored f or over eleven y ears u n t i l J a c k s o n a me n d e d a n d /or supplem ented it with the specif ic argum ent that the circuit c ourt had possessed jurisdiction
to reduce his sentence. Rather than address the m erits of this argum ent, the State argued that Jackson had not o b tained perm ission to supplem ent his PCR m otion and that i t was u ntim ely

. The circuit court agreed and denied the m otion a nd supplem e n t al m otion o n p rocedural grounds. It is f

rom this order that Jackson appeals. ¶3. We f

i n d that the am e nded and/or s upplem ental m otion raised an issue u n d e r t h e intervening decision in Presley v. State , 792 So. 2d 9 50 (Miss. 2001), that should have been considered o n the m e rits. W e rem and f or a d e t e r mi n a t i o n o f w hether the circuit court’s decision to reduce Jackson’s sentence to twelve y ears should be reinstated.

STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶4. On March 3 0 , 2 0 0 1 , Jackson pled guilty and was sentenced in the H arrison County Circuit Court to twenty

y ears to s erve f

o r transf er of a controlled substance a nd possession with intent to distribute a c ontrolled s ubstance. That sam e d ay , the last day of that term of court, Jackson m oved to reduce his sentence and to carry the m o tion f rom term to term

. The circuit court granted the m otion to carry the m o tion f

r om term to term

. ¶5. On June 1 4, 2001, the M ississippi Suprem e Court issued its opinion in Presley , 792 So. 2d a t 953 (¶13), h olding that a circuit court retains jurisdiction, a f t er a term of court has ended, to rule on m otions f iled during that term

of court. Thereaf

ter, on July

16, 2001, the circuit court r educed Jackson’s sentence to twelve y ears to s e r v e . T he S tate m oved to reconsider a nd convinced the circuit court that the court lacked juris d i c t i on to reduce

2Jackson’s sentence, since the term of court had ended, and that J a ckson’s only r ecourse was

to f i le a PCR m otion. ¶6. On July 27, 2 001, the c i r c u i t c o u r t s e t a s i d e t h e July 1 6 order and re-im posed Jackson ’ s twenty -y ear sentence. Jackson then p rom ptly f iled a PCR m otion o n August 2, 2001. A m otion f

or rehearing in P r esley was denied, and the suprem e court’s decision becam e f inal on August 3 0, 2 001. 1 No action was taken on Jackson’s m otion f or over eleven
y ears. ¶7. On Septem

ber 10, 2012, Jackson am ended and/or s upplem e n ted h is post-conviction

m otion and argued, f

or the f irst tim e, that the circuit court d id have jurisdiction to reduce his
sentence. On J une 11, 2013, the circuit court denied the m otion. The c ircuit c ourt declined
to address the m erits of Jackson’s claim and adopted the S tate’s argum ent that J ackson had f ailed to o btain p erm ission to am end his p ost-conviction m otion, and that it was tim e-barred as it was not f

i led within three y ears of Jackson’s resentencing. ¶8. Am ong Jackson’s argum ents on appeal is the argum e nt that Presley gave the circuit
court j urisdiction, af

ter the term of court h ad expired, t o rule o n his m otion, which was f iled during tha t t e r m of court. The State now concedes on a p peal that the circuit court had jurisdiction to reduce Jackson’s sentence, but argues that this Court should ignore the m erits of Jackson’s claim and adopt the circuit court’s rationale that the m otion i s p r o c e d u r ally barred. DISCUSSION

1 A t im ely f

iled m o tio n f

o r reh e arin g s t ay s th e su p r em e c o u rt m an d ate u n til d isp o sitio n o f

th e m o tio n . M

. R .A .P . 4 1 (a). 3¶9. On review of a trial court’s rulings relati n g t o a p o s t-conviction m otion, we review

f indings of f

act u nder the clearly erroneous standard a nd review conclusions of law de novo. Purnell v. State , 126 So. 3d 949, 951 (¶4) (Miss. Ct. App. 2013). ¶10. C o n t r a r y t o t h e position it took in opposing the reduction of sentence in 2001, t h e State now concedes that the circuit court had jurisdiction to reduce Jackson’s s entence. See Presley , 7 92 So. 2d at 953 (¶13). I n Presley , the Mississippi Suprem e Court o verruled prior precedent and held that a circuit court r e tains j urisdiction, af ter a term of court ends, to rule

on m otions f

iled during that term of court. Id. T h a t i s p r e c i sely what happened here. Jackson’s m otion to reduce his sentence was f iled on March 30, 2 001, the last day o f the term of court. That sam e day , the circuit court entered an order carry ing the m otion f rom term to
term

. W h en it reduced Jackson’s sentence to twelve y ears o n July 16, 2 001, the c ircuit court had the jurisdiction to do so. ¶11. Although the State now c oncedes that Presley gave the circuit court the authority to reduce J ack s o n ’ s s entence, the State argues that Jackson is procedurally barred f rom obtaining this reduction b ecause: (1) he did not obtain perm ission t o am end his PCR m otion
to m ake this argum ent as required by Mississippi Rule of Civil Procedure 15(d), and (2) his

am en d e d P C R m o tion was not f iled within three y ears as required by M ississippi Code Annotated section 99-39-5(2) (Supp. 2014). W e reject both of these contentions. 1. Perm ission to Am end ¶12. Af ter the State c o n v i n c e d the circuit c ourt that Jackson’s only avenue to obtain a reduction of sentence was to f ile a PCR m otion, Jackson did so within six d ay s of the order

4taking away his reduced sentence. Af ter eleven y ears without a response, in 2012, Jackson f iled a pro se am ended and/or supplem ental m otion t o his PCR m oti o n a s k i n g that his reduced sentence be reinstated. W hile it is true that Jackson did not f ile a s e parate m otion requesting perm ission t o f ile the am ended or supplem ental pleading, our suprem e court has held that where a prisoner is proceeding pro s e, “his inartf u lly draf ted pleadings w ill not be held to def

eat a m eritorious c o mp l a int.” McCreary v. S tate , 5 82 So. 2d 425, 426 (Miss. 1991); see also Sanders v
. S t a t e , 7 6 0 So. 2d 839, 840 (¶4) ( Miss. C t. A pp. 2000) (sam e). Here, where the State was given the opportunity to respond t o the p leading, we f ind that the trial court abused its discretion in dism issing the pleading based upon the pro se prisoner’s f ailure to include a separate m otion f or leave to am end. Rather, the trial court should have analy zed the pleading to determ ine whether leave to am end should have been granted. ¶13. Mississippi Rule o f Civil Procedure 15(a) states leave to am end a pleading “ shall be f reely given when justice s o requires.” (Em p hasis added.) R

ule 15(d), however, states that where the party is s e e k i ng to supplement his pleadings with “events which h ave happened since the date of the pleading , ” the court “m ay ” grant the party ’s m otion “upon such term s

as are just.” (Em

phasis added.) In Rule 15(a), the language is m andatory , while that of Rule 15(d) is discretionary

. See Y oung v. Smith , 6 7 So. 3d 732, 739 (¶1 4 ) ( M i s s . 2011) (in construing the Mississippi Rules of Civil Procedure, “m a y ” is discretionary w hile “shall” is considered m andatory )

. Analy sis is com plicated i n this case as J a c k son’s original PCR

m otion was f

iled af t er the Presley opinion h ad been r endered but bef ore the decision becam e f inal. J ackson’s am ended pleading, to the extent it raises the f acts of the Presley opinion,

5would thus b e a naly zed under R

ule 15(a). However, a s the suprem e court m andate in Presley issued a f ter Jackson h ad f

iled h is PCR m otion, Jackson’s pleading would be a supplem ental pleading a naly

zed under Rule 15(d) to the extent it d iscusses the ef f ect of t h e Presley decision. ¶14. Regardless o f whether Rule 15(a ) o r (d) is applied, under the u nique circum stances of this case and the tim ing o f the P r e sley decision, we see no justice in ref u sing to allow
J a c k s o n t o am end a nd/or s upplem ent his PCR m otion to challenge the reinstated sentence under Presley

. W right and Miller’s Federal Practice and Procedure , a leading treatise on the com parable Federal Rules of

Civil Procedure, states: Perhaps the m ost im

portant f actor listed by the Court f or deny ing leave to am end is that the opposing party will be prejudiced if the m ovant is perm itted to alter a pleading. Conversely , if the court is p ersuaded that n o prejudice will accrue, the am endm ent should be allowed. T hus, the f acts o f e ach c a se m

ust be exam ined t o d eterm ine if the threat of prejudice is suf f icient to justif

y deny ing leave to am end. 6 C harles Alan W right & Arthur R. Miller, Federal Practice & P rocedure § 1487, at 701 (3d ed. 2000). Here, the State has not alleged a ny prejudice will result f rom a llowing Jackson
to am end and/or supplem ent his PCR m otion. Nothing has changed in the eleven y ears since the original PCR m otion was f iled. ¶15. Theref

ore, on these f

acts, we f ind the trial court abused its discretion in f ailing to grant Jackson perm ission to f

ile his am ended (or supplem ental) pleading. 2. Tim eliness of the Claim ¶16. Und e r R

u l e 1 5 (c), if the pleading is am e nded, i t relates back t o the original, tim ely PCR m otion f

iled on August 2, 2001. See M.R.C.P. 1 5(c) ( “W henever the c laim

. . . asserted

6in the am ended pleading arose out of the conduct, transac t i on, or o ccurrence set f orth or
attem pted to b e set f

orth in the original pleading, the am e ndm ent relates back to the date of the original pleading.”). However, Rule 15 does not indicate whether or under what c ircum s tances a supplemental pleading will relate back to the date of the o riginal pleading to avoid the ef f ect of the governing statute of lim itations. [ F e d e r a l ] Rule [ of Civil Procedure] 15(c), w hich p rovides g e nerally f or the relation back o f a me nded pleadings, does not specif

i cally ref er to supplemental pleadings

. Nor does Rule 15(d) ma ke any m ention of relation back; i ndeed, the A dvisory Com m ittee Note accom pany ing th e 1 963 am endm e nt of [ F ederal] Rule 15(d) states that the Com m ittee d id not attem pt t o d e al w ith the interrelationship between the statutes of

lim itations and supplem e n tal pleadings. 6 A C h arles A lan Wrig h t & A rth u r R

. M iller, F ed era l P ra c tice & P ro ced

u re § 1 5 0 8 , at 2 7 4

- 7 5 (3 d ed

. 2 0 0 0 ) (em

p h a sis ad d ed ). ¶17. Again, un d e r t h e u n u s u a l circum stances of this case, it is a distinction without a dif f erence. If Jackson’s pleading is am ended under Rule 15(a), the am e n ded pleading relates back to t h e o r i g inal PCR m otion and is t im ely u nder section 99-39-5(2). However, if Jackson’s pleading is considered supplem e n ted under Rule 15(d), the claim f alls within an exception to the three-y e ar-lim itation period of section 99-39-5(2). “Excepted f r o m this three-y ear statute of lim itations are those cases in which the petitioner can dem onstrate

. . . [ t]hat there has b een a n interv e n i ng decision of the Suprem e C ourt of

. . . the State of Mississippi

. . . which would have actually a dversely af f e c ted the outcom e of his

. . . sentence . . . .” Miss. Code Ann. § 99-39-5(2)(a)(i). ¶ 18. Presley becam e f

inal on August 30, 2001, less than a m onth a f ter Jackson’s reduced
sentence was vacated a nd he f iled h is original PCR m otion, and y ears b ef o r e the circuit

7court’s d enial of his supplem ental PCR m otion. Theref o re, u nder section 99-39-5(2)(a)(i), it constitutes a n intervening decision, m aking Jackson’s claim tim e ly

. See Foster v. S t ate , 848 S o. 2d 172, 1 75 (¶12) ( Miss. 2003) (“W e f ind that Atkins [ v. Virginia , 536 U.S. 304 (2002),] i s an intervening decision . . . , such that the procedural bars . . . of tim eliness and successive application, are not applicable . . . .”). ¶19. Because the trial c ourt ordered t h a t t h e a ppellate record be l im ited to the pleadings f iled in the PCR p roceedings, the present record does not contain t h e o r d e r reducing Jackson’s sente n c e f

r om twenty y ears to twelve y ears, or the reasoning u pon which it was based. Som ething c onvinced the circuit c ourt to reduce Jackson’s sentence t o twelve y ears. Because of Presley , we now know that the reason f or r e-im posing the twenty -y ear sentence

was legally incorrect. W e rem and this case f or the circuit court to consider, on the m erits, Jackson’s claim

that his twelve-y ear sentence should be reinstated. ¶20. THE JUDGMENT O F THE CIRCUIT COURT OF HARRISON C OUNTY IS REVERSED, AND THIS C ASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS O PINION. A L L C OSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, MAX WELL, F AIR AND JAMES, JJ., CONCUR. IRVING, P.J., AND CARLTON, J., CONCUR IN RESULT ONLY.

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