IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-CP-00755-COA ERIC DENORRIS KENNEDY A/K/A ERIC D. KENNEDY A/K/A ERIC KENNEDY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/15/2016 TRIAL JUDGE: HON. W INSTON L. KIDD COURT FROM W HICH APPEALED: HINDS COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: ERIC DENORRIS KENNEDY (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W AKELAND BYRD NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 01/09/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND WILSON, JJ. CARLTON, J., FOR THE COURT: ¶1. F o l l o w i n g t h e H i n d s C o u n t y C i r c u i t C ourt’s order deny ing hi s mo t i o n f o r postconviction relief (PCR), Eric Kennedy f iled a mo t i o n r e q u e sting that the circuit court
reopen the tim e t o f

i le a n o tice of a p p e a l

. The circuit court denied Kennedy ’s m otion. Kennedy now appeals. ¶2. Af ter our review, w e f

i n d n o a b u s e o f d i s c r e tion in the circuit court’s denial of Kennedy ’s m otion f

o r an out-of

-tim e appeal. W e theref ore af f i r m the circuit court’s judgm ent. FACTS¶3. In 1997, a H inds County grand jury indicted Kennedy and Nakiea Sutton f or capital

m urder, in violation of Mississippi Code Annotated section 97-3-1 9 ( 2 ) (Supp. 1997),

stem m ing f

rom the burglary

and subsequent m

urder of Thom as W ard. ¶4. On June 10, 1 9 98, Kennedy pleaded guilty to the lesser-included of f ense of m urder. The record ref

lects that in exchange f o r Kennedy pleading g u i l t y , t he State would

recom m end that Kennedy receive a sentence of lif e in prison. The plea p etition ref lects that the S tate would also agree not to seek adjudication of Kennedy ’s guilt in another m atter that was then pending. ¶5. At the plea hearing, Kennedy testif ied that he h ad reviewed his plea petition with his attorney , and that he understood it. Kennedy testif i ed that he also u nderstood the allegations set f orth against him , and he adm itted that he did com m i t the alleged crim e. ¶6. The circuit court explained that by ple a d i n g g u i l t y , Kennedy waived the right to appeal his conviction, and Kennedy testif ied t hat he u nderstood t h a t f a ct. Kennedy also

swore that he had not been threatened or prom i sed any thing i n exchange f

o r his guilty plea. Kennedy assured the circuit court that he was s a t isf ied with his counsel’s s ervices, and thought he had been properly advised and represented. Kennedy ’ s counsel stated that, based

on his conversations w ith Kennedy , he thought Kennedy f ully understood the c onsequences of pleading g uilty

. A f

ter questioning K ennedy and his counsel, the circuit court accordingly
f ound that Kennedy ’s guilty plea was “intelligently and understandingly ” m a de and accepted the plea. The circuit court sentenced Kennedy to s erve lif e in the custody of the Mississippi Departm ent of

Corrections.

2¶7. The record ref lects tha t K e n n e d y f

i led his f irst PCR m otion in 1 998. The record
f urther ref lects t hat the circuit court denied Kennedy ’s P CR m otion in an order e n t e r ed
Decem ber 3, 2002. ¶8. In i ts appellate brief , the State quotes K ennedy ’s assignm ents of error set f orth in his
f irst PCR m otion. The State a ls o d i s c u s s e s several other subsequent m otions f iled by Kennedy

. T he dates that Kennedy f i led these m otions a re ref lected on the circuit-court docket sheet contained i n t h e record. However, the actual docum ents cited t o and quoted
f rom by the State do not appear in the record bef ore us on appeal. ¶9. On Decem

ber 16, 2013, Kennedy f

iled a second PCR petition, arguing that the statute under which he was convicted was uncon s t i t u tional; that his co-indictee’s “recanted testim o ny ” showed that Kennedy was not g uilty ; and that the evidence that was collected in the original investigation showed that he was not guilty

. ¶10. On June 25, 2 0 14, Kennedy f iled a petition f

o r a writ of m andam

us in t he Mississippi Suprem e Court requesting that t he suprem e court com p el the circuit c o u r t t o rule on Kennedy ’s PCR m otion. On August 2 9, 2014, the c i rcuit court entered a n o rder deny ing Kennedy ’s PCR m otion af ter f inding that “th e m o t i o n has no m erit.” T he suprem e court subsequently e ntered an order o n N o v e m b e r 5, 2 014, dism issing K ennedy ’s petition f or a writ of m andam us as m oot. ¶11. On Novem

ber 18, 2014, Kennedy f

iled a m o tion asking the suprem e court to im pose sanctio n s on the circuit c ourt f o r not providing its order deny i ng his PCR m otion to h im within the tim e allowed f or him to f

ile an appeal. Kennedy a lso requested that the suprem e

3c ourt t reat his June 25, 2014 petition f or a w rit of m andam

us as a notice of appeal, o r

m andate that the circuit court reopen his tim e to appeal. ¶12. The record ref

lects t hat on Novem

ber 1 8, 2014, Kennedy also f iled a notice of

appeal in the c ircuit court, as well as a m otion f or an out-of

-tim e appeal. Kennedy claim ed that he

never r eceived a copy of the circuit court’s August 29, 2014 order deny ing his PCR m otion. ¶13. On June 9, 2015, the suprem e court entered an o rder dis missing Kennedy ’s m otion to im pose sanctions on the circuit court. The suprem e court explained as f ollows: Rule 4(h) of t h e M i s s issippi Rules of Appellate Procedure allow[ s] a p arty such as Kennedy to request the relief he now seeks d irectly f rom the [ c ircuit] court. Kennedy has f

a iled to show that he m ade such a request of the [ c ircuit] court. Accordingly , we f ind that t he m atter is not properly bef ore this Court and it should be dism issed to be re-f i led in the [ circuit] court.
On March 15, 2016, the c ircuit c ourt entered an order deny ing Kennedy ’s m otion to reopen the tim e to f

ile a notice of

appeal. Kennedy

now appeals.
STANDARD OF REVIEW ¶14. W e recognize that “[ t]he party seekin g a n o u t

- o f

- tim e appeal carries the burden of persuasion r egarding the lack of a tim e ly notice.” W illiams v. State , 24 So. 3d 3 60, 363 (¶8) (Miss. C t

. A p p . 2 0 0 9 ) (quoting Andrews v. State , 932 So. 2d 61, 62 (¶5) (Miss. Ct. App. 2006)). ¶15. On appeal, we review a c ircuit court’s denial or dism issal of a request f or an out-of

tim e appeal f

or an a buse of discretion. Johnson v. State , 137 So. 3d 336, 338 (¶7) (Miss. Ct. App. 2014).
DISCUSSION

4¶16. Kennedy ’s appellate brief only addresses the m e r its of his PCR m otion. 1 Bef ore we

can conduct an a

ppellate review o f the circuit court’s denial of Kennedy ’s P CR m otion, we

m ust f irst, as a prelim inary m a tter, discuss whether the circuit court a bused its discretion in deny ing Kennedy ’s m o tion f or an out-of

-tim e appeal. In so doing, we r e c o g n i z e that the
PCR m otion at issue was not Kennedy ’s f irst PCR m o tion. ¶17. The record ref

l ects that on August 29, 2014, the circuit c ourt entered i ts order deny ing Kennedy ’s instant PCR m otion a f ter f inding that “the m otion has no m erit.” Kennedy f ailed

to f ile an a ppeal o f this order until Novem ber 18, 2014, at which tim e Kennedy also f iled a

m otion f or an out-of

- t im e a ppeal. The circuit court denied K ennedy ’s r equest f o r an out-of

tim e appeal af

ter determ ining that his m otion lacked m erit. ¶18. Mississip p i R u l e o f A p p e l l ate Procedure 4(a) p rovides the t im e l im it f or f iling an appeal: “[ T]he notice of appeal

. . . shall be f iled with the clerk of the [ circuit] court within 30 day s af

ter the date of entry of t he judgm ent or order appealed f rom .” Kennedy f

iled his notice of appeal approxim ately eighty -one day s af ter the circuit c ourt denied his PCR m otion, clearly outside of the thirty -day tim e lim it set f orth in Rule 4(a). Furtherm o re, the circui t
court expr e ssly denied Kennedy ’s m otion f or an out-of

-tim e appeal. Mississippi Rule of
A p pellate Procedure 2(a) requires that an appeal “be dism issed if the notice o f appeal wa s not tim ely

f iled pursuant to Rules 4 or 5.” ¶19. H o wever, Mississippi Rule of Civil Procedure 4 (h) sets f orth an excepti o n t o t h e thirty -day tim e lim it f

or appealing a judgm ent and provides as f ollows:

1 We reco g n ize t h at th e su p rem e co u r t h as h eld t h a t “ p r o s e p lead in g s m u st b e co n stru ed lib erally

. ” E va n s v. S ta te , 7 2 5 S o . 2 d 6 1 3 , 6 7 8 (¶2 8 0 ) (M iss. 1 9 9 7 ). 5The trial court, i f i t f inds ( a) that a party entitled to notice of the e n t ry o f a judgm ent or order did n ot receive such notice f r om t h e c l e r k o r any p arty within 21 day s o f i ts entry and (b) that no party would be p r e j u d i c e d , m ay , upon m otion f

iled within 180 day s of e ntry of the j udgm ent or order or within 7 day s of recei p t o f s u c h notice, whichever is earlier, r eopen the tim e f or appeal f o r a p eriod of 14 day s f

r om the date of entry of t he order reopening the tim e f or appeal. ¶20. Additionally , we recognize that “[ w]e m ay suspe n d R u l e s 2 a n d 4 w hen justice dem ands t o allow an o ut-of -tim e appeal in crim inal cases.” E d mond v. State , 991 So. 2d 588,
591 (¶10) (Miss. 2 008) (citation and internal quotation m arks om itted); J ohnson , 137 So. 3d

at 339 (¶9); see M .R.A.P. 2 (c) (Upon a showing of good cause, this Court “m ay suspend the requirem ents or provisions of any of these rules in a particular case o n application of a party

or on its own m o tion and m ay order proceedings in accordance with its d irection[ .]”). This
Court w ill grant a n out-of

-tim e appeal “where a person is convicted o f a crim e and[ ,] through

no f ault of his own[ ,] is ef

f e ctively denied his right to perf ect his a p p eal within the t im e prescribed by law by the acts of his attorney or the trial court.” Edmond , 991 So. 2d at 591 (¶10). ¶21. As stated, we review a circuit court’s denial or dism issal of a request f or an out-of

tim e a p peal f or an a buse of d iscretion. Barnes v. State , 151 So. 3 d 220, 221 (¶6) (Miss. Ct. App. 2014). In his m otion f or an out-of

-tim e appeal, Kennedy a r gued that h e never received

a c opy of the circuit court’s o rder deny ing his P C R m o tion; theref ore, it was t hrough “no f ault” of his own that “he did not [ tim ely ] perf e c t his appeal.” Kennedy claim ed that he sent

a l etter to the circuit-court c lerk on October 7, 2014, r equesting a copy o f the circuit court’s order deny ing his PCR m otion. Kennedy a rgued th a t t h i s l e t t er shows that he “had not

6k n o w n of any ruling” by the circuit court. Kennedy also claim ed in his m otion that t h e

circuit-cour t d o c k e t f

ailed t o ref

lect that he received the circuit court’s order. Kennedy argued that the record thus contains “nothing to indicate that [ Kennedy ] did receive [ a] copy of an o rder dism issing his [ PCR] m otion.” Kennedy f urther s tated that at the tim e of f iling his m otion f

or an out-of

-tim e appeal, he still had not received t he circuit c o u r t ’ s order. Additionally , in his reply brief on appeal, Kennedy alleges that “good cause was s hown when the circuit court clerk adm itted that [ she] had not m ailed [ Kennedy his] decision.” ¶22. Kennedy bears the burden of showing h e f ailed to tim ely appeal “through no f ault of his own.” Barnes , 151 So. 3 d at 222 (¶7) (qu o ting H avard v. State , 911 So. 2 d 991, 993 (¶10) (Miss. Ct. App. 2005)). Our review of the record reveals that Kennedy presented no credible e videntiary proof showing that he f ailed to receive notice of the circuit c ourt’s order deny ing his PCR m o tion. Kennedy also provides no evidence in support of h is allegation that the circuit-court clerk a dm itted that she f ailed to m ail to Kennedy the circuit c o urt’s order deny ing Kennedy ’s PCR m otion. As acknowledged, the S tate subm its that the instant PCR

m otion was succ e s sive a nd t hat t he alleged claim s w ere raised in Kennedy ’s prior PCR

m otion and prior m otions. In B arnes , 151 So. 3d at 222 (¶7), this C ourt af f irm ed the circuit
court’s denial of a n out-of -tim e appeal where the appellant “presented no proof other than

m ere allegations that he f ailed to receive notice of the trial court’s order.” Additionally , in Johnson , 1 37 S o. 3d at 339 (¶10), this Court a f f irm ed the cir c u i t court’s dism issal of the appellant’s m o tion f

or an out-of

-tim e appeal where the appellant f ailed to s h ow that “justice dem ands suspension of the rules or to prof f er that any good cause exists to explain the reason

7f

or the delay

of his appeal.” ¶23. Af ter our review of t h e r e c o r d , w e f ind that Kennedy h as f

a iled to show that good

cause exists f

o r h is f ailure to tim ely perf

ect an appeal of t he circuit c ourt’s order deny ing his
PCR m otion. Accordingly , we f ind no abuse of d i s c r e t i o n b y the circuit c ourt in deny ing Kennedy ’s m otion f

or an out-of

-tim e appeal. ¶24. AFFIRMED. LEE, C.J., I RVING AND GRIFFIS, P.JJ., BARNES, F AIR, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

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