IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-CP-01318-COA JIMMY POWELL A/K/A JAMEL HOBSON A/K/A JIMMY HOBSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/30/2018 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: COPIAH COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIMMY POW ELL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY JR. NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/26/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:
C ONSOLIDATED WITH
N O. 2018-CP-01361-COA JIMMY POWELL A/K/A JAMEL HOBSON A/K/A JIMMY HOBSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/30/2018 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: COPIAH COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIMMY POW ELL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY JR. NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/26/2019 MOTION FOR REHEARING FILED:MANDATE ISSUED:

BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ. LAWRENCE, J., FOR THE COURT: ¶1. Jim m y P owell appeals the sum m ary dism issal of what essentially am ounts to his third

set of m otions 1 f

or post-conviction relief ( PCR) challenging his t wo 1983 convictions f or

arm ed robbery

. The C opiah County Circuit Court dism issed Powell’s PC R mo t ions as successive and noted that the i ssues raised in the m ost r ecent set o f PCR m otions were the

sam e issues t h a t P o w e l l had raised bef ore. Powell n ow appeals a nd raises sim ilar issues concerning his i ndictm ent. W e agree with the circuit court and hold that Powell’s m otions

are tim e barred and successive-writ barred. W h ile we brief ly discuss Powell’s indictm ent brief ly , we hold that h is i ssues on appeal have no m erit and that t he circuit court did not err. FACTS ¶2. Powell pled guilty t o t w o c o u n t s o f a r med robbery in Decem ber 1 983. He was sentenced to serve f

if teen y ears f

or the f irst count and twenty y ears f or the second count. The sentences were set to run consecutively

. ¶3. On Decem

ber 1, 1994, Powell f

iled his f irst se t o f P C R m o t i o n s t o v a c a t e his

sentences. These m otions presented f our separate grounds f

or relief : (1) that P owell was not advised he had w aived his p rivilege against s e l f

- i n c r im ination; (2) that Powell’s counsel provided inef

f e c t i ve assistance; (3) that P owell was not advised of the m i nim um and

1 P o w ell f

iled s ep arate b u t p ractically i d e n t ical P C R m o tio n s ch allen g in g e a c h co n v ictio n , an d th e circu it co u rt su b seq u en tly en tered o n e j u d g m e n t ad d ressin g b o th P C R m o tio n s. 2m axim

u m sentences f

or his crim es; and (4) that his two g uilty pleas violated his right to a f air and public trial. His m o tions were dism issed as untim ely under M ississippi C ode Annotated section 99-39-5(2) (Rev. 1994). Powell f iled a second set of PCR m otions o n A u g u s t 2 6, 1996. His second set of m otions were dism issed on Novem ber 13, 1997. ¶4. Powell f

iled his third set of PCR m otions, the subject of t h i s a p p e a l , o n August 13,
2018. The circuit court dism i ssed Powell’s PCR m otions with p rejudice as a successive writ, and f ound that it was “based u pon the sam e issues a s was f iled in [ Powell’s] previous [ p]etitions.” On appeal, Powell ar g u e s t h at both of t he indictm ents are void because they
f ailed to s et out “an essential elem ent of the of f ense.” Additionally , P owell a rgues they are void b ecause t here is no known of f ense codif

i ed as “arm ed robbery ,” which also leaves the indictm ents void. W e d isagree and af f irm the decision of the Copiah County C ircuit Court because Powell’s PCR m otions are tim e barred and successive-writ barred.
STANDARD OF REVIEW ¶5. “W hen reviewing a lower court’s decision to deny a p etition f or post-conviction relief this C ourt will not disturb t he trial court’s f actual f indings unless they are f

ound to be clearly
erroneous.” Brown v. State , 731 So. 2d 595, 5 98 (¶6) (Miss. 1999) (citing Bank of Miss. v. S. Mem’l Park I

nc. , 6 77 So. 2d 186, 191 (Miss. 1996)). Questions of l aw are reviewed de

novo. I d

. ANALYSIS ¶6. W i thout a doubt, Powell’s third PCR m otions were tim e barred and successive-writ barred. A def

e ndant w ho p leads guilty t o a charge has three y ears af ter entry of the j udgm ent

3of conviction to apply f or relief under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). Powell pled guilty in 1983. Because Powell’s convictions predated the PCR statute, he had until the end of 1987 to collaterally challenge his convictions. E dmond v. State , 845
So. 2d 701, 702 (¶4) (Miss. Ct. App. 2003) (citing Odom v. State , 483 So. 2d 343, 344 (Miss. 1986)). Powell f

iled his f irst PCR m ot i o n s in 1994, ten y e ars af ter the PCR statute was enacted. Any s u

bsequen t P C R motions were a lso tim e barred b ecause Powell’s last opportunity to seek relief under t he PCR statute ended in 1987. M ississippi C ode Annotated section 99-39-5(2) (Rev. 2015) provides several exceptions t o the t ime b a r s . None of the exceptions apply

. ¶7. P o well’s claim s are a lso barred as successive. Mississippi Code Annotated sectio n 99-39-23(6) (Rev. 2015) provides t hat “any order dism i ssing the p etitioner’s m o t i o n or otherwise deny ing r elief un der this article is a f inal judgm ent and

. . . shall be a bar to a second o r successive m otion under this article.” This is Powell’s third set of PCR m otions concerning his Copiah County convictions. T hey h ave all been d ism issed. Accordingly , the circuit c o urt correctly dism issed his instant PCR m otions as successive based on section 99- 39-23(6). ¶8. Powell claim s that the procedural bars d o not apply t o him because “h e r e t a ins the constitutional right to be heard on an illegal sentence.” The suprem e cour t h a s h e l d t hat
“errors af f ecting f undam ental constitutional r ights are e xcepted f rom the procedural bars of the [ Unif orm Post-Conviction Collateral Relief Act].” Rowland v. State , 42 So. 3d 503, 508 (¶16) (Miss. 2010). This C ourt has r ecognized that “ [ t ] h e r i g h t to be f ree f rom an illegal

4s e n t ence is a f undam ental right

. . . .” Alexander v. State , 879 So. 2d 512, 514 (¶9) (Miss.
Ct. App. 2004). “A def

endant’s f undam ental right of f

reedom f r o m a n illegal sentence is violated when the sentence im poses an undue burden on the def e ndant

. . . .” Pruitt v. State , 846 So. 2d 271, 274 ( ¶9) (Miss. Ct. App. 2 002). But the “m ere assertion of a constitutional violation is not enough to clear the procedural hurdle.” Johnston v. State , 1 72 So. 3d 756,
759 (¶7) ( Miss. Ct. App. 2012). Powell’s issues do n ot addr e s s a n i l l egal sentence but instead attack the i ndictm ents f or his convictions. Powell is unable to “ clear the p rocedural hurdle” t hat his claim s f

a ce because he m erely asserts a constitutional violation. Procedural bars notwithstanding, we brief l y discuss Powell’s claim s concerning his indictm ents. ¶9. Powell f

i rst claim s that the indictm ents are void because they allege “arm ed robbery ” instead of the words in the t itle of the s t a t u t e “ R o b b e r y : u se of a deadly weapon.” Powell

was indicted pursuant to Mississippi Code Annotated section 97-3-79 (Supp. 1983). Cases are tried across this State daily that use “arm ed robbery ” to describe the of f ense laid out in section 97-3-79. See Lenoir v. State , 224 So. 3d 85, 93 (¶27) ( Miss. 2017) (hold i n g t h a t a conviction of “arm ed robbery ” under section 97-3-79 was supported by credible evidence);

see a lso Burgin v
. State , 1 80 So. 3d 725, 731 ( ¶25) (Miss. Ct. App. 2 0 1 5 ) (af f irm ing a conviction of “arm ed r obbery ” pursuant to se c t i o n 9 7

- 3-79). W hen analy zing the plain language of the s t a t u t e , t he title of the statute does not c ontrol. Powell’s issue is without

m erit. ¶10. Powell also a rgues that his indictm e nts lacked the w ords “by violence to their person.” This o m i ssion, he c laim s, voids his indictm ents b e c a u s e he was unaware of the charges

5against him

. “The rule in this [ S]tate is that an indictm ent which states the statutory language

is generally suf

f icient to inf

orm the accused of

the charge against him .” State v. Hawkins , 145 S o. 3 d 636, 6 39-40 (¶8) (Miss. 2014) (quoting King v
. State , 580 So. 2d 1182, 1185 (Miss. 1991)). “ The [ Mississippi Suprem e] Court has held repeatedly that, s o long as a f air reading of

the indictm ent, taken as a whole, clearly d escribes the n ature of t he cause of the charge against the accused, the indictm ent is legally suf f icient.” I d

. a t 640 (¶9) (internal quotation m ark om itted). In order t o prove arm e d robbery , the State m ust p rove these essential elem ents: “(1) a f e lonious taking o r attem

pt to take, (2) f

rom the p erson or f

rom the
presence, (3) the personal property of a n o t h e r , ( 4) against his will, (5) by violence to his
person or by putting s uch person in f ear of i m m ediate injury to his person by t he exhibition of a deadly weapon.” O liver v
. State , 234 So. 3 d 443, 445 (¶11) (Miss. Ct. App

. 2017) (quoting W

ales v. State , 73 So. 3d 1113, 1122 (¶27) (Miss. 2011)). The c hoice to allege in the indictm ent t hat the t aking was either “by v iolence t o h i s p e rson,” or “ b y putting such
person in f

ear of im m ediate inj u r y , ” i s d e t e rm ined by the f act of e ach particular case. Id

. Here, the grand jury

returned two practically

identical indictm e nts. The f irst i ndictm ent in
Cause Num

ber 13,388 read as f

ollows: [ O]n or about the 7 th day of June, 1 983, in the county af oresaid and within the jurisdiction of this Court, with the unlawf ul and f elonious intent t o take, steal and carry a way f

rom the p resence of Lorine P itts and Ly nn Chee k s , h um an beings, p ersonal propert y , o f v alue, of Bank of Hazlehurst, a Mississippi banking corporation, then and ther e doing b usiness as Gallm an Branch of Bank of Hazlehurst, he, the said Jim m y Powell, alias Jam el Hobson alias Jim m y Hobson, did t hen and th e r e , by putting the said Lorine P itts and Ly nn C heeks, in fear o f im m e diate injury to their persons by the display and e x hibition of a certain firearm a nd deadly w eapon , to-wit: a handgun, take, steal a nd carry away f rom the presence of the said Lorine Pitts and Ly nn
6Cheeks, approxim ately $12,000.00 in g ood a n d l a w f u l m oney of the U nited States o f Am erica [

. . .] contrary to and in violation of Section 97-3-79 of the Mississippi Code of 1972. (Em phasis added). Powell’s second indictm e n t in Cause Num ber 13,389 stated: [ O]n or about the 27th day of April, 1983 in t he county af oresaid and within the jurisdiction of t his Court, with the unlawf ul a n d f elonious i ntent to take, steal and carry away f

rom the presence of Montora McDonald, h um an beings, personal property , of value, of the M ississippi B ank, a M i ssissippi banking co r p o r a t i on, then and there doing business a s Hwy

. 51 Branch of The Mississippi Bank, he, the said Jim m y Powell, alias J a m el Hobson alias Jim m y Hobson, d id then and there, by putting the said Montora McDonald, i n f ear of im m e d i a te injury to her person by the display and ex hibition o f a certain firearm and deadly w eapon , to-wit: a h andgun, t ake, steal a nd c arry away f r om the presence of the said M ontora McDonald, approxim ately $12,377.00 i n good and lawf ul m o ney of the U nited Stat e s o f A m e rica [

. . .] contrary to and in violation of Section 97-3-79 of the Mississippi Code of 1972. (E m phasis added). Powell’s a rgum ent that an “essential elem ent” is m issing f rom the indictm ents is incorrect. In this case, Powell was indicted f or “putting s uch person in f ear of im m ediate i nju ry to his person by the exhibition of a deadly weapon.” The indictm ents in this case were suf

f icient to charge the c rim e of arm ed r o b b e r y b ecause each essential elem ent was set f

orth. ¶11. The circuit c ourt correctly determ ined that Powell’s third set o f P CR m otions should be dism issed with prejudice because they were tim e barred. Additionally , Powell’s m otions

are successive-writ barred, and he f ailed to overcom e those procedural bars with any of the statutory exceptions. Finally , P owell’s i n d i c t ments s uf f iciently set f

orth the essential elem ents of arm ed robbery f or which he was c harged. Theref ore, t h is Court af

f irm s the decision of

the Copiah County

Circuit Court.

7¶12. AFFIRMED.

BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS , TINDELL, McDONALD, McCARTY AND C. WILSON, JJ., CONCUR.

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