IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2018-CP-00593-COA HOWARD HAYS A/K/A HOWARD THURMAN HAYS JR. A/K/A HOWARD HAYES JR. APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/20/2018 TRIAL JUDGE: HON. MARGARET CAREY-McCRAY COURT FROM W HICH APPEALED: LEFLORE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: HOW ARD HAYS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 08/13/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. Howard Hay s appeals f rom the dism is s a l o f his second m otion f or post-conviction relief (PCR). Agreeing with t he circuit court that Hay s’s s econd P C R m otion i s barred as successive, we af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. In 2015, Howard H ay s pled guilty to one count of c om m ercial burglary ( Count I) and

one count of auto thef

t (Count II). The circuit court s entenced Hay s to serve s e ven y ears, day
f or day , as a non-violent habitual of f ender f or Count I a nd f

ive y ears, day f

or day , as a nonviolent habitual of

f e nder f o r Count II. T he circuit court also ordered that Hay s’s sentencesrun consecutively

.

¶3. I n M a r c h 2 0 16, H ay s f iled his f irst PCR m otion in the circuit court, a sserting (1) inef f ective assistance o f counsel, (2) f ailure to provide a t im ely i nitial a p pearance, (3) that the State unlawf

ully detained him f

or m ore than 180 day s without a f orm al charge, and (4) that t he State charged him with grand larceny based upon an af f idavit f or petit larceny

. 1 In July 2017, the circuit court su m m arily denied Hay s’s PCR m o tion, f inding it was not well taken. Hay s did not f

ile a tim ely

notice of appeal. 2 ¶4. Nonetheless, in Septem ber 2017, Hay s f

iled a second PCR m otion, m aking the sam e and additional assertions. The circuit court sum m arily dism issed Hay s’s se c o n d P C R m o t i o n , f inding it was barred as an im perm issible successive writ. Hay s now appeals.
S TANDARD OF REVIEW ¶5. “ Wh e n reviewing a circuit court’s denial or d ism issal of a PCR mo t i o n , w e w i l l

reve r s e t h e judgm ent of the circuit c ourt only if its f actual f indings are clearly erroneous; however, we r e v i e w t h e circuit court’s legal conclusions under a de novo standard of review.” Gunn v. State , 248 So. 3d 937, 941 (¶15) (Miss. Ct. App. 2018) (quoting Berry v. State , 230 So. 3d 360, 362 (¶3) (Miss. Ct. App. 2017)).

1 T h e ap p ellate reco rd in itially d id n o t co n tain an y m aterial th at w as f i led in H ay s’s u n d erly in g crim in al case (C au se N o . 2 0 1 5 -0 1 0 4 ) o r h is f irst P C R actio n (C au s e N o . 2 0 1 6

- 0 0 2 6 )

. A cco r d in g ly , o n its o w n m o tio n , th is C o u rt req u ested th e L e f l o re C o u n t y C i r c u i t C l erk su p p lem en t th e reco rd w ith certif ied co p ies o f all clerk ’ s p ap ers an d tran scrip ts th at w e re f iled in cau se n u m

b ers 2 0 1 5 -0 1 0 4 an d 2 0 1 6 -0 0 2 6

. 2 H ay s f iled an u n tim ely n o tice o f ap p eal in c ircu it co u rt o n D ecem b er 2 1 , 2 0 1 7

. H o w ev er, th ere is n o th in g in th e reco rd in d icatin g th at H ay s w a s g ran t e d p e r missio n to p ro ceed w ith an u n t im e ly n o tice o f ap p eal. S ee M .R .A .P . 2 (c). 2DISCUSSION

¶6. “Under Mississippi’s Unif o rm Post-Convi c t i o n C o l l a t e r a l R e l i e f Act (UPCCRA), any order deny ing or dism issing a PCR m otion is a bar to a second or successive PCR m otion.”
Evans v
. S

tate , 115 So. 3d 879, 880 ( ¶ 2) (Miss. C t

. A p p . 2 013); see also M iss. Code Ann. § 99-39-23(6) (Rev. 2015). On appeal, Hay s d oes not dispute that his claim is procedurally barred. Instead, Hay s raises a numb e r o f i s s u e s regarding his constitutional rights. Hay s
asserts that (1) he was denied a tim ely i nitial a p peara n c e ; ( 2 ) he received inef f ective assistance of counsel; (3) he w as denied his right to cross-exam ine w i t n e s s e s; (4) he was prosecuted on a d e f

ective indictm ent; (5) he was convicted under an unconstitutional statute; (6) he was ordered to serve a n illegal s entence; (7) his F ourth Am endm ent r ights were violated; (8) the State used f raudulent warrants f

or his arrest; (9) his F ourteenth Am endm ent rights were violated; and (10) his sentence m ust be vacated. ¶7. Errors af

f ecting certain f

undam ental rights are excepted f rom PCR procedural bars.
Carter v
. State , 203 So. 3d 730, 731 (¶ 7 ) ( M iss. Ct. App. 2016). “[ F]our ty pes of
‘f u ndam e n tal rights’ h ave been expressly f ound to survive PCR p rocedural bars: (1) the right against double jeopardy ; (2) the right to be f ree f rom an i llegal sentence; (3) t he right to due
process at sentencing; a nd (4) t h e r i g h t n ot to be subject to ex post f a cto laws.” Green v. State , 235 So. 3 d 1 438, 1440 (¶9) (Miss. Ct. App. 2017) (quoting Salter v. State , 184 So. 3d 944, 950 (¶22) (Miss. Ct. App. 2015)). But “me r e a s s ertions of c onstitutional-rights violations do not s uf

f ice to overcom e the procedural bar.” W hite v. State , 59 So. 3d 633, 636 (¶11) (Miss. Ct

. A p p . 2 0 1 1 ) ( citing Chandler v. State , 44 So. 3d 442, 444 (¶8) (Miss. Ct.

3App. 2010)). “There m u st at l east appear to be som e basis f o r the truth of the claim bef ore the procedural bar will be waived.” Id. Further, “the m ovant[ ] bears the burden of proving

an exception applies to the UP C CRA’s procedural b ars.” Gunn , 248 So. 3 d a t 942 (¶19) (citing Brandon v. S

tate , 108 So. 3 d 999, 1004 n.3, 1006 (¶¶12, 2 3) (Miss. Ct. App. 2013)). ¶8. W e address each of Hay s’s contentions in turn. Ultim ately , w e a f f i rm the circuit
court’s dism issal of Hay s ’s second PCR m otion because Hay s has f ailed to dem onstrate that an exception to the successive-writ bar applies.
I. Right to a Tim ely Initial Appearance ¶9. Hay s f

irst c ontends that he was denied a tim ely initial appearance. 3 However, Hay s previously asserted that he w as denied a tim ely initial a p p e a r a nce in his f irst PCR m otion, and he cannot relitigate an issue that was already decided. Lyons v. State , 990 So. 2d 262, 265 (¶13) (Miss. Ct. App. 2008). ¶10. I n d e n y i n g h i s previous PCR m otion, the circuit court f ound that Hay s’s assertio n lacked m erit because Hay s waived his tim e l y initial appearance claim b y pleading guilty

. W e
agree. “The Mississippi S uprem e Court has ‘recognized that a valid guilty plea operates as

a waiver of all non-jurisd i c t i o n a l r i g hts or def ects which are incident to t rial.’” Davis v. State , 954 So. 2d 530, 532 (¶ 8 ) ( M i s s. Ct. App. 2007) (quoting R owe v. S tate , 735 So. 2d 399, 400 (¶4) (Miss. 1999)); s ee also Reeves v. State , 256 So. 3d 632, 635 (¶10) (Miss. Ct. App. 2018) (“[ T]he e ntry o f a valid guilty plea w aives the right to an initial appearance and

3 H ay s’s n in th assertio n , t h at h is F o u rteen t h A m en d m e n t rig h t s w ere v io lated , is lik ew ise p rem ised o n th e p u r p o rted d en ial o f “h i s i n itial ap p earan ce an d p relim in ary h earin g in f r o n t o f a j u d g e.” A s th ese are th e sam e a r g u m en ts, w e w ill n o t sep arately ad d r ess H ay s’s F o u rteen th A m en d m e n t assertio n . 4a p relim inary hearing.”). The record r e f lects that Hay s m ade a knowing and voluntary guilty plea. This issue is presented in a successive m otion that is barred and lacks m erit.
II. Ineffective Assistance of Counsel ¶11. H a y s n e x t c o n t e n d s t hat he received inef f ective assistance o f couns e l

. U n d e r “extraordinary circum stances,” i nef f ective assistance of counsel can constitute an e xception

to the statutory tim e-bar. Brown v. State , 187 S o. 3 d 667, 670-71 (¶7) (Miss. C t. A pp. 2016) (quoting Chapman v. State , 167 So. 3d 1170, 1173-74 ( ¶ ¶ 1 0

- 1 3 ) ( Miss. 2015)). But here, Hay s has “ f

ailed t o e stablish a basis f or his claim s of inef

f e ctive a ssistance of counsel” that would constitute such an exception. Id

. at 671 (¶8). H ay s also asserted inef f ective assistance of counsel in his f

irst PCR m otion, which was denied. Accordingly , Hay s c annot relitigate this issue; his request was p resented i n a successive m otion that is barred. Lyons , 990 So. 2d at 265 (¶13).
III. Right to Cross-Ex am ine ¶12. Hay s asserts that he was denied his right t o cross-exam ine wit n e s s e s . The right to

cross-exam ine witnesses is not a f undam ental right that survives P CR procedural bars. See
W illiams v. State , 228 So. 3d 844, 848 (¶11) (Miss. Ct. App. 2017) ( f i n d i ng trial court’s f a ilure to specif

ically enum erate the def

endant’s right to cross-exam ine adverse witn e s s e s is not a violation of a f

undam ental right that would survive PCR p rocedural bars). Further,
“a v alid guilty plea operates as a w aiver of all non-jurisdictional rights or def e cts w hich are incident to trial.” Davis , 954 So. 2d at 532 (¶8) (quoting R owe , 735 So. 2d at 400 (¶4)). This includes “one’s rights rela t e d t o a speedy trial, ref u sal of self

-incrim ination, conf

rontation

5of accusers, cross-examination of witnesses , a jury trial, and the State’s o bligation to prove

guilt bey ond a reasonable doubt.” Knight v. State , 192 So. 3d 360, 3 64 (¶12) (Miss. Ct. App. 2016) (em

phasis added). ¶13. The r ecord r ef

lec t s t h a t H a y s w a s aware that h e was w aiving his right to crossexam ine witnesses when he m ade his guilty plea. Hay s’s petition to enter a plea of guilty , signed by Hay s on October 9, 2015, specif ically states: By pleading guilty t o the charges against m e, I g ive up the f ollowing r ights guaranteed to m e by the Constitution of the United States of A m erica a nd the Constitution of the State of Mississippi: (a) the right to a speedy and public trial by

jury ; (b) the right to see, hear and f ace i n open court all witnesses called to testif y against m e, a n d the right to cross exam ine those witnesses . . . . I present this petition of

m y own f ree will and accord. Accordingly , the record r e f l e c ts that Hay s voluntarily and k nowingly waived h is right to

cross-exam ine w i t n e s s e s. Hay s’s assertion that he was denied the right to cross-exam ine witnesses thus lacks m erit, and the argum e n t w a s presented in a successive m otion that is barred.
IV. Defective Indictm ent ¶14. Hay s’s f

ourth assertion, that he was prosecuted on a def ective indictm ent, is likewise procedurally b arred

. C laim s alleging def ective i ndictm ent are subject to the UPCCRA’s procedural bars. Stokes , 199 S o . 3 d at 749 (¶13). However, “ i f [ the] indictm e nt f ailed to allege an essential elem ent of t he crim e . . . , [ H ay s] would not be precluded f r om raising that issue now.” W

ilson v. State , 203 So. 3d 762, 765 (¶9) (Miss. Ct. App. 2016). This is not the

6case here.

¶15. Hay s’s indictm ent included one c ount of com m ercial burglary and one count of auto thef t. The indictm ent l isted the sections of the statutes under which Hay s was c harged and tracked the language of

the statutes. 4 “Generally , if an indictm ent tracks the language of a

cr im inal statute, it i s suf

f icient to inf

orm the def

endant of the charged crim e.” Randall v. State , 148 So. 3d 686, 688-89 ( ¶1 0 ) ( M i ss. Ct. App. 2014). W e f ind Hay s’s indictm ent suf f i ciently inf

orm ed Hay s of the c harges against him , and Hay s’s def ective ind ictm ent claim does not otherwise survive the UPCCRA’s procedural bars.
V. Unconstitutional Statute ¶16. In contending that he was convicted u n d e r a n u nconstitutional s tatute, Hay s asserts the State erred by charging him wi t h g r a n d l a rceny rather than petit larceny because “the property value is at $500 in the [ arresting of f i cer’s a f f i davit].” T his assertion does not raise
any constitutional inf

irm i ty regarding the larceny statutes. Moreover, Hay s asserted that the
State charged him with grand larceny based upon an af f i davit f or petit larceny i n h i s f

irst
PCR m otion, which the circuit court denied. Thus, this issue is procedurally barred and lacks

m erit.

4 P u rsu an t to M ississip p i C o d e A n n o tated sectio n 9 7 -1 7 -3 3 (R ev . 2 0 1 5 ), “E v ery p erso n w h o sh all b e co n v icted o f b reak in g a n d e n t e r i n g . . . an y sh o p , sto re, b o o th , ten t, w a reh o u se, o r o th er b u ild in g . . . i n w h ich an y g o o d s, m erch an d ise, e q u ip m en t o r v alu ab le t h i n g s h all b e k ep t f

o r u s e, s ale, d ep o sit, o r tran sp o rtatio n , w ith in ten t to s teal t h erein , . . . sh all b e g u ilty o f b u r g l a ry . . . .” A n d “[ t] h e essen tial e l em en ts o f au to th e f t [ are] th at th e d ef en d a n t (a) w i l l f

u l l y a n d (b ) w ith o u t au th o rity (c) to o k p o ssessio n o f o r to o k aw ay (reg ard less o f w h eth er th e in ten t w as to p erm a n en tly o r t em p o rarily p o ssess o r d i sp o ssess) (d ) a m o to r v eh icle o f an y v alu e b elo n g in g to an o th er.” S p ea rm a n v. S ta te , 8 0 S o . 3 d 1 1 6 , 1 2 1 (¶2 3 ) (M iss. C t. A p p . 2 0 1 1 ). H ay s’s in d ictm en t p ro p erly ch arg ed th e essen tial elem en ts o f co m m ercial b u r g lary

an d au to th ef

t

. 7VI. Illegal Sentence

¶17. Hay s next c o n t e n d s t h a t h i s sentence is illegal. The right to b e f ree f rom an illegal

sentence is a f

u ndam e ntal r ight that has been f ound t o s urvive PCR procedural bars. Green , 235 So. 3d at 1440 (¶9). Still, “[ t]here m ust a t least a

ppear to be som e basis f

or t he truth of the claim bef

ore the procedural bar will be waived

. ” W h ite , 59 So. 3d at 636 (¶11) (citing
C h a n d l e r , 4 4 So. 3d at 444 (¶8)). As the appellant, Hay s “has the duty to m ake m ore than

m ere assertions and should set f orth reasons f

or his argum ents and cite autho r i t i e s i n their support.” W

alker v. State , 823 S o . 2 d 5 5 7 , 5 6 2-63 ( ¶13) (Miss. Ct. App. 2002). And “ this
Court i s under no d

uty to c onsider assignm ents of error when no authority is cited.” Id. (citing
D r e nnan v. State , 695 S o. 2 d 581, 585-86 (Miss. 1997)). In regard to this c lai m, H a y s contends, in the conc l u s i o n of h is brief , that his “sentence i s illegal due to f undam ental

. . . violations of the constitution of the state of Mississippi i n A rticle [ Three] Section[ s ] [ Fourteen, Twenty -Three, and Twenty -Six] and constitutional v iolations of the United States of the [ Fourth, Fif

th, Sixth, and Fourteenth Am endm ents].” Hay s d oes n ot of f er any record support f o r his contention that h i s sentence is illegal. N o r d o e s H a y s cite a ny supporting authority

. Such conclusory allegations are not suf f icient, and we theref

ore do not address the issue of illegal sentence.
VII. Fourth Am endm ent Violation ¶18. Finally , Hay s asserts that the S tate violated his Fourth Am endm ent rights by arresting
him w ithout a warrant. 5 Fourth A m endm ent rights are not one of t he f undam ental rights that

5 H ay s also co n t en d s th at t h e w arran ts u sed f o r h i s arrest w ere f

r au d u l en t. A s th ese issu es o v erlap , w e d o n o t sep arately ad d ress H ay s’s f

r au d u l en t w arran t assertio n . 8have been f ound t o s urvive PCR procedural bars. Further, “[ a] valid [ guilty ] plea waives the def endant’s right t o m ake c ertain constitutional c hallenges, including those u nder the Fourth
Am endm ent.” S

willey v. State , 93 So. 3d 9 01, 904 (¶8) (Miss. Ct. App. 2012). By entering

a v a l i d g u i l ty p l ea, Hay s waived his right to assert that his Fourth A m endm ent rights were violated. A ccordingly , Hay s’s Fourth A m endm ent claim is also procedurally barred and lacks

m erit.
CONCLUSION ¶19. Hay s f

ails to me e t t h e b u r d e n o f proving an exception applies to t he UPCCRA’s successive-writ bar a s to any claim s he raises on appeal. W e theref ore af f irm t he circuit court’s dism issal of

Hay s’s second PCR m otion as im p erm i ssively

successive. ¶20. AFFIRMED. BARNES, C.J., CARLTON A ND J . W ILSO N , P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD AND LAWRENCE, JJ., CON CUR. McCARTY, J., CONCURS IN RESULT ONLY WITH SEPARA T E WRITTEN OPINION, JOINED BY McDONALD, J.; WESTBROOK S AND L AWRENCE, JJ., JOIN IN PART. McCARTY, J., CONCURRING IN RESULT ONLY: ¶21. W h ile I a gree with the result the m ajority reached, I write separately to illustrate that

we s hould not adhere t o a l im i ted list of f undam ental rights as exceptions t o the procedural bar. There are no “lists” of rights that are better than others. W e should strive to ensure that all constitutional rights of all Mississippians—including those incarcerated—are honored. ¶22. Accordingly , R owland does not erect a wooden ceiling over PCR cases, but a concrete f loor undern e a t h

. S

e e R owland v. State , 42 So. 3d 503, 507 (¶12) (Miss. 2 010) (“[ E]rrors

9af

f ecting f undam ental constitutional rights are excepted f rom the proce d u ral b ars of the UPCCRA.”). Apply ing a procedural bar to errors af f ecting f undam ental rights i s a “signif icant

. . . deprivation of liberty

. . . . ” I d. at (¶10). Although not listed by the m ajority here, our Suprem e Court has recently re-af f irm ed that “inef

f e ctive assistance of counsel can constitute an exception to the w aiver and successive-writ bars.” McCoy v. State , N o . 2017-M01735, 2019 W L 1578752, a t *1 (Miss. Mar. 2 6 , 2 019). I n t hat case, the Court then proceeded to the m erits of the claim f or resolution. Id. ¶23. Every person is entitled to a f air and im

partial t r i a l

. A s s u c h , o ur f ederal and state constitutions guarantee the protection of f u ndam ental and constitutional rights. See generally
U.S. Const. am ends. V, VI; Miss. C onst. art. 3, §§ 22, 25, 27. In m ost cases, rather than recite a list of lengthy bars, I would recom m end proceeding on t he m erits. W e should ensure that
any issues regarding f

undam ental constitutional rights a re adequately r eviewed and resolved. McDONALD, J., JOINS THIS OPINION. WESTBROOKS AND LAWRENCE, JJ., JOIN THIS OPINION IN PART.

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