IN THE SUPREME COURT OF MISSISSIPPI

NO. 96-KP-00246-SCT

JOHNNY WHITE a/k/a JOHNNY LEE WHITE

v.

STATE OF MISSISSIPPI

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,

PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 01/31/96

TRIAL JUDGE: HON. KOSTA N. VLAHOS

COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: BILLY L. GORE

DISTRICT ATTORNEY: CONO CARANNA

NATURE OF THE CASE: CRIMINAL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 10/2/97

MOTION FOR REHEARING FILED: 10/16/97

MANDATE ISSUED: 12/1/97

BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

ROBERTS, JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE

In the present case, Johnny Lee White, presently serving at the Parchman Penitentiary, pled guilty and

was sentenced as an habitual offender by the Harrison County Court to a life sentence without the

benefit of parole on November 5, 1984, after being found guilty of Burglary. White was sentenced

under Miss. Code Ann. § 99-19-83 relying on two prior felonies for which White had been convicted

and the fact that he served at least one (1) year for each. He was first convicted on July 21, 1972, for

burglary. He was later convicted of armed robbery on October 13, 1978.

White appeals from an order entered on January 31, 1996, by the Circuit Court of Harrison County,

Kosta N. Viahos, Circuit Judge, presiding, dismissing as time-barred White's motion to vacate and/or

correct his conviction and sentence as a recidivist filed in the lower court by White on January 19,

1996.
It is from the proceeding below that White brings this matter before this Court on appeal raising the

following:

I. WHETHER INVOCATION OF THE PLAIN ERROR RULE WILL DEFEAT

APPLICATION OF A TIME BAR ACCORDING TO MISS. CODE ANN. §99-39-5(2).

II. WHETHER WHITE'S SENTENCE OF LIFE WITHOUT PAROLE UNDER § 99-19-83

MISS. CODE ANN. IS GROSSLY DISPROPORTIONATE TO THE OFFENSE WHICH

WHITE PLEADED GUILTY AND, THUS, IS IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENT.

III. WHETHER WHITE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

BECAUSE OF COUNSEL'S FAILURE TO OBJECT TO SENTENCE AND TO THE

DEFECTIVE PORTION OF THE HABITUAL INDICTMENT.

IV. WHETHER THE TRIAL COURT WAS WITHOUT AUTHORITY OF LAW TO

SENTENCE WHITE TO LIFE IMPRISONMENT WITHOUT PAROLE AND ERRED IN

FAILING TO CORRECT SENTENCE.

V. WHETHER THE TRIAL COURT HAD AUTHORITY TO SENTENCE WHITE UNDER

§99-19-83 FOR THE CRIME OF BURGLARY WHICH CARRIED A MAXIMUM

PENALTY OF SEVEN YEARS UNDER §97-17-19.

DISCUSSION OF THE ISSUES

I. WHETHER INVOCATION OF PLAIN ERROR RULE WILL DEFEAT THE

APPLICATION OF A TIME BAR ACCORDING TO MISS. CODE ANN. §99-39-5(2).

According to the Post-Conviction Relief Act,

A motion for relief under this chapter shall be made within three (3) years after the time in

which the prisoner's direct appeal is ruled upon by the supreme court of Mississippi or, in case

no appeal is taken, within three (3) years after the time for taking an appeal from the judgment

of conviction or sentence has expired, or in the case of a guilty plea, within three (3) years after

entry of the judgment of conviction.

Miss. Code Ann. § 99-39-5(2), see also Lockett v. State, 656 So.2d 68, 71 (Miss. 1995). In

accordance with § 99-39-5(2), White had three (3) years from the date of his guilty plea, or until

November 5, 1987, within which to file for post-conviction relief. This Court has demonstrated that

this statute requires close adherence. Luckett v. State, 582 So.2d 428 (Miss. 1991).

White filed his PCR Application on January 19, 1996, almost nine years late. Therefore, unless White

has demonstrated an exception to the statute of limitation, his PCR Motion is time barred. Although

White does argue in his Motion that the McNeal case is an intervening decision that would have

adversely affected the outcome of his sentence, White fails to note one major distinguishing fact in his

case as compared to the defendant in the McNeal case. Brandau v. State, 662 So.2d 1051, 1053

(Miss. 1995). McNeal objected to the indictment at his original trial and in his direct appeal. McNeal

v. State, 658 So.2d 1345 (Miss. 1995). White, on the other hand, failed to object to the form of the
indictment at his trial. Thus, the present case would follow the holding in Brandau which prohibits a

defendant from objecting to the form of the indictment where he failed to raise it at trial or in his

direct appeal. Brandau, 662 So.2d at 1053.

As the facts have indicated, White made a valid guilty plea. A valid guilty plea admits all elements of

a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an

indictment against a defendant such as White. Brooks v. State, 573 So.2d 1350, 1352 (Miss. 1990).

Issues regarding form of the indictment are essentially procedural and susceptible of waiver if not

timely preserved and presented on direct appeal. Brooks, 573 So.2d 1350, 1353. The deficiencies

alleged by White are non-jurisdictional defects. They must be timely asserted or they will be deemed

waived. Clearly, they may not be raised for the very first time in an application for post-conviction

relief absent a showing of cause or actual prejudice. Id. Thus, White's belated attempt to raise the

issue almost thirteen years after his guilty plea is simply too late. This claim for relief is time barred

according to § 99-39-5(2).

Furthermore, Miss. Code Ann. § 99-7-21 provides that defects on the face of an indictment must be

presented by way of demurrer. Brandau at 1054. Because the formal defect is curable by

amendment, it follows that it is subject to waiver for the failure to demur to the indictment in

accordance with this statute. Id. at 1055. Therefore, White waived any right to correct indictment by

not demurring to the flawed indictment before trial.

II. WHETHER WHITE'S SENTENCE OF LIFE WITHOUT PAROLE UNDER MISS. CODE

ANN. § 99-19-83 IS GROSSLY DISPROPORTIONATE TO THE OFFENSE WHICH

WHITE PLEADED GUILTY AND, THUS, IS IN VIOLATION OF THE EIGHTH AND

FOURTEENTH AMENDMENT.

"Sentencing is within the complete discretion of the trial court and not subject to appellate review if it

is within the limits prescribed by statute." Hoops v. State, 681 So.2d 521, 537 (Miss. 1996).

"Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it

does not exceed the maximum term allowed by statute." Hoops, 681 So.2d at 538. However, this

Court will use the three-pronged analysis as set forth by the United States Supreme Court in Solem

v. Helm, but only when a threshold comparison of the crime committed to the sentence imposed

leads to an inference of gross disproportionality. Hoops, 681 So.2d at 538. The three factors set out

in Solem for courts to consider when conducting a proportionality analysis are:

(a) gravity of the offense and the harshness of the penalty;

(b) sentences imposed on other criminals in the same jurisdiction; and

(c) sentences imposed for the commission of the same crime in different jurisdictions.

Solem v. Helm, 463 U.S. at 292, 103 S.Ct. at 3010.

In order to be sentenced to life imprisonment as an habitual offender under § 99-19-83, the individual

must have committed two (2) prior felonies, one of which was violent, and must have been sentenced

and served terms of at least one year on each of those prior felonies. Miss. Code Ann. § 99-19-83

(1994). In the present case, the record indicates that White was convicted of burglary on July 21,
1972; of armed robbery on October 13, 1978; and, most recently of burglary on November 5, 1984.

Moreover, this Court has held that armed robbery is a crime of violence per se. Ashley v. State, 538

So.2d 1181, 1185 (Miss. 1989) citing King v. State, 527 So.2d 641, 646 (Miss. 1988). Thus, White

would be classified as a habitual offender according § 99-19-83 and could receive a life sentence

without parole. For crimes classifiable as felonies in which significant terms of imprisonment in the

state penitentiary can be given, the length of the sentence actually imposed is purely a matter of

legislative prerogative. Hopson v. State, 625 So.2d 395, 404 (Miss. 1993). Therefore, as long as the

sentence is within the limits of the statute, the imposition of such sentence is within the sound

discretion of the trial court and this Court will not reverse them. White was sentenced to life in prison

without the possibility of parole under a valid recidivist statute. Thus, his sentence is proportionate

under the three-prong analysis and is not violative of the Eighth Amendment.

III. WHETHER WHITE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL

BECAUSE OF COUNSEL'S FAILURE TO OBJECT TO SENTENCE AND TO THE

ALLEGED DEFECTIVE PORTION OF THE HABITUAL INDICTMENT.

The standard of review for ineffective assistance of counsel is set out in Strickland v. Washington.

"The test to be applied is (1) whether counsel's overall performance was deficient and (2) whether or

not the deficient performance, if any, prejudiced the defense." Taylor v. State, 682 So.2d 359, 363

(Miss. 1996). The defendant has the burden of proving both prongs. Taylorat 363. "The adequacy of

counsel's performance, as to its deficiency and prejudicial effect should be measured by a 'totality of

the circumstances.'" Id. However, there is a strong, yet rebuttable, presumption that the actions by

the defense counsel were reasonable and strategic. Cole v. State, 666 So.2d 767, 775 (Miss. 1995).

"In short, defense counsel is presumed competent." Foster v. State, 687 So.2d 1124, 1130 (Miss.

1996), see also Johnson v. State, 476 So.2d 1195, 1204 (Miss. 1985).

In the present case, White's argument concerning counsel's failure to object to the life sentence

without parole will not meet the two prong test of Strickland. The court had no choice but to follow

the recidivist statute under which White qualified as an habitual offender. The sentence was within

the sound discretion of the trial court and imposed in accordance with the statute. Failure to object to

the imposition of the sentence under these circumstances does not amount to deficient performance

and further, White has not shown prejudice. Thus, this claim should be denied on the merits.

White also asserts that counsel's failure to object to the allegedly defective indictment resulted in

ineffective assistance of counsel. White believes that he was illegally charged as an habitual offender

because the indictment did not conclude with the constitutionally- mandated words "against the peace

and dignity of the State of Mississippi." White states that his indictment was similar in form to the

indictment in the McNeal case, in that the language charging White as an habitual offender came after

these words. McNeal v. State, 658 So.2d 1345, 1349 (Miss. 1995). Thus, White believes that he was

not indicted as an habitual offender and could not be sentenced as such.

However, it appears that White's case is similar to that of the defendant in the Earl case where the

defendant's indictment did contain a phrase to see an attachment which listed prior convictions. Earl

v. State, 672 So.2d 1240, 1244 (Miss. 1996). This Court found such incorporation proper in Earl

because it did effectively charge the defendant as an habitual offender before concluding with the

phrase "against peace and dignity of the State of Mississippi." Earl at 1244. The present case is quite
similar to the Earl case in that it also contained a phrase in the indictment which demonstrated that

the habitual offender charge was continued on to another page but was, none the less, concluded with

the constitutionally-mandated words. This attachment listed a prior conviction and charged White as

an habitual offender who should receive a sentence of life without parole. White's indictment is valid

under the Earl decision. Therefore, counsel's failure to object to the indictment was not ineffective

and as such this argument is denied on the merits.

IV. WHETHER THE TRIAL COURT WAS WITHOUT AUTHORITY OF LAW TO

SENTENCE WHITE TO LIFE WITHOUT PAROLE AND ERRED IN FAILING TO

CORRECT SENTENCE.

White argues that the trial court had no authority to sentence him under Miss. Code Ann. § 99-19-

83. White cites Friday v. State, 462 So.2d 336 (Miss. 1985) as controlling law in his case. In Friday,

the petitioner was wrongfully sentenced to life imprisonment without parole under § 99-19-83.

Friday v. State, 462 So.2d at 338. The petitioner argued that he should have been sentenced under §

99-19-81 which provides that every person convicted of a felony who had been convicted of two

prior felonies in which he served at least one year for each crime shall be sentenced to the maximum

term of imprisonment prescribed for such felony. Friday at 339. The petitioner successfully argued

that the record did not indicate that he served imprisonment for the crimes of violence and he could

not been sentenced under § 99-19-83. Id. In the present case, however, the indictment charged White

as an habitual offender because of two (2) prior felonies he was convicted, one of which was a crime

of violence. The trial court had the authority to impose a life sentence according to § 99-19-83 and

was not in error. Therefore, this argument is without merit.

V. THE TRIAL COURT HAD NO AUTHORITY TO SENTENCE WHITE UNDER MISS.

CODE ANN. § 99-19-83 FOR THE CRIME OF BURGLARY WHICH CARRIED A

MAXIMUM TERM OF SEVEN YEARS UNDER MISS. CODE ANN. § 97-17-19.

This is a restatement of the McNeal argument which states that the trial court could not sentence

White under § 99-19-83. White argued that the indictment did not include the portion charging him

as an habitual offender because it was not concluded with the words "against the peace and dignity of

the State of Mississippi." The case of Earl v. State controls and renders the indictment valid and

thus, White was properly charged as an habitual offender and properly given a sentence of life

imprisonment without parole.

CONCLUSION

Most importantly, White's claim for post-conviction relief was time barred according to Miss. Code

Ann. § 99-39-5(2). White waited almost thirteen (13) years from the date of his conviction to file this

motion. Therefore, all claims pertaining to the sufficiency of the indictment were barred and without

merit.

There is no procedural bar on the issue of ineffective assistance of counsel. However, White has

failed to meet the two-pronged Strickland test regarding his claims of ineffective assistance of

counsel. Accordingly, his claims of ineffective assistance of counsel are without merit. This Court

finds that the Earl decision properly applies to this case the prior 1972 conviction of burglary and the

language charging White as an habitual offender are deemed to have been concluded with the words
"against the peace and dignity of the State of Mississippi."

The sentence given to White was within the limits of the habitual offender statute, the imposition of

the sentence was within the sound discretion of the trial judge and, therefore, this Court will not

reverse the decision.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, SMITH AND

MILLS, JJ., CONCUR.