IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-CP-00726-COA CHARLES DOUGLAS OWENS II A/K/A CHARLES DOUGLAS OWENS A/K/A CHARLES OWENS A/K/A CHARLES D. OWENS II APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 01/06/2017 TRIAL JUDGE: HON. LISA P. DODSON COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, SECOND JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: CHARLES DOUGLAS OW ENS II (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 01/22/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GREENLEE, J., FOR THE COURT: ¶1. The H arrison County Circuit Court d e n i e d C h a r l e s D o u g l a s O w e n s ’ s m otions for postconviction relief (PCR). Owens appeals, asserting t h at h i s m o tions are n ot tim e o r successivewrit barred. W e af

f irm the circuit’s order and f

ind the PCR m o tions were properly denied. Additio n a l l y , w e render sanctions in the am o unt of $100 f or the repetitive and f

rivolous f ilings of m otions, to be paid bef ore Owens m ay f

ile an y subsequent PCR m otions in f orm a pauperis under section 47-5-76(1) of Mississippi Code Annotated (Rev. 2015). FACTS AND PROCEDURAL HISTORY¶2. Owens d i s c u s s e d h i s w a g e s w i t h h i s e mp l o y e r , R aleigh Richard Carter. The

conversation b ecam e heated, and Owens hit C arter on the head with a hamm er, shot Carter in the chest, then taped his hands and stole $1,400 f rom him

. Carter, s till living, m anaged to f ind help. Owens f

led to Texas. ¶3. The grand jury indicted Owens on charges of arm ed robbery and aggravated assault.
He pled guilty in March 2003, and the Harrison County Circuit Court sentenced him to thirty
y ears f or arm ed r obbery and t en y ears f or aggravated assault in the custody of the Mississippi Departm ent of

Corrections (MDOC), with his sentences running consecutively

. ¶4. Owens then b egan f iling PCR m otions. Three have been denied by this Court. Owens

v. State , 996 So. 2d 85 ( Miss. C t. App. 2008); Owens v. State , 17 S o. 3 d 628 ( Miss. Ct. App. 2009); Owens v. State , 150 So. 3 d 114 (Miss. Ct. App. 2 014). His current appeal is f rom the denial by the Harrison County Circuit Court of two s eparate PCR m otions. T hey are his sixth and seventh PCR m otions. ¶5. H e a r gues that his m otions are not t im e o r successive-writ barred. W e a f f i r m t h e circuit court’s denial o f Owens’s requests f or PCR and s anction h im f or his repetitive f

ilings. STANDARD OF REVIEW ¶6. This Court reve r s e s d e n i a l s o f requests f o r PCR only w hen w e f

ind the decision “clearly erroneous.” Duncan v
. State , 226 So. 3d 127, 129 (¶7) (Miss. Ct. App. 2017), cert. dismissed , 246 So. 3d 68 (Miss. 2018). But when issues of law are r aised, this Court reviews those issues de novo. Stokes v. State , 199 So. 3d 7 45, 748 ( ¶7) (Miss. Ct. App. 2 016), reh’g denied ( Sept. 13, 2016). Our Code states that “[ i]f i t p l a i n l y a ppears f r om the f ace of the

2m otion, any annexed exhibits and the p rior proceedings in t h e c a s e t h a t the m ovant is not

entitled to any relief

, the judge m ay m ake an o rder f or i ts dism issal and cause the petitioner

to be notif

ied.” Miss. Code A nn. § 9 9

- 3 9

- 1 1 ( 2) (Rev. 2015). W e will af f irm the denial or dism issal of a PCR m otion “if the m ovant f a i ls t o d e mo n strate a claim procedurally alive substantially showing the denial of a state o r f ederal right.” Hughes v. State , 106 So. 3d 836, 839 (¶4) (Miss. Ct. App. 2012). DISCUSSION ¶7. Under the Unif

orm Post-Conviction Collateral Relief A ct (UPCCRA), a PCR m o tion is only tim ely if the m ovant f iles within three y ears af

ter entry of the j udgm ent o f conviction. Smith v. State , 118 S o. 3d 180, 182 (¶7) (Miss. Ct. App. 2013) (citing W atts v. State , 97 So. 3d 722, 725 (¶7) (Miss. Ct. App. 2 012)). T he entry o f the judgm e nt of conviction was f iled in M arch 2003. W ell af

ter three y ears, Owens f

iled these sixth and seventh P CR m otions. Theref ore, they are tim e barred. ¶8. The UPCCRA a lso bars successive P CR m otio n s a f t e r c o u r t d i sm issal of a PCR

m otion. Duncan , 226 So. 3d at 1 29 (¶9). “ Essentially , an appellant i s granted one b ite at the apple when requesting p ost-conviction relief .” Dobbs v. State , 18 So. 3d 295, 2 98 (¶9) (Miss. Ct. App. 2009). Owens has f iled m any P CR m o tions bef ore, including three of which were denied by this Court. Owens , 996 So. 2d at 85; Owens , 17 So. 3d at 6 28; Owens , 150 So. 3d at 114. Theref

ore, this PCR m otion is successive-writ barred. ¶9. H o w e v e r, our suprem e court has no t e d t h a t “ [ e ] r r o r s a f f e c t i n g f u n d a me n t a l

cons t i tutional rights m ay be excepted f rom procedural bars

. . . .” Luckett v. State , 582 So.

32d 428, 430 (Miss. 1991). But “the m ere assertion of a constitutional right violation does not

trigger the e x c e p t i o n . ” E vans v. State , 115 So. 3d 879, 881 ( ¶3) (Miss. Ct. App. 2013) (internal quotation m arks om itted) (quoting W icker v. State , 16 So. 3 d 706, 708 (¶5) (Miss. Ct. App. 2009)). Owens m akes two claim s: (1) that his Sixth Am endm ent r ight w as violated because he was f

orced to rem ain with his attorney ; and ( 2) that he w as denied due process
at sentencing. W e f

ind that n e ither rises to the level of a f undam ental c o n s titutional right, and, theref

ore, he cannot overcom e the tim e or successive-writ bars. ¶10. Regarding the f

irst claim , Owens argues the f ollowing:
W h en Owens’ appointed counsel m oved to w ithdraw, the m otion s pecif i cally reque sted that Owens b e allowed to hire counsel of h is own choosing. Af ter co n v i n cing Owens that r em oving appointed counsel m ay waive his right to counsel and that he m ay not be allowed t o have another attorney and af ter convincing Owens that no appeals court would h elp him if that happened, the trial c ourt clearly told O wens, “I w a n t y ou to understand y ou d on’t have the right to [ retain] who y o u want.” Owens f urther asserts that he was “bullied and f rightened by the judge into proceeding with said counsel, and s ubsequently lef t the courthouse a convicted f elon.” T he transcript reveals that Owens cons e n t e d t o rem ain with his appointed c o unsel, and, a s the circuit court concluded, he now “m erely argues that he ‘f elt f orced by the Court’ t o g o f orward with counsel.” W e take this, essentially , to be an involuntary -plea argum ent. ¶11. “[ O]nly f

our ty pes of ‘f undam ental r ights’ have been e xpressly f ound t o survive PCR procedural bars: (1) the right against double jeopardy ; (2) the right to b e f ree f rom an illegal sentence; (3) the right to due process at sentencing; and (4) the right n ot t o be subject to ex post f a cto laws.” Gaulden v. Sta t e , 240 So. 3d 503, 507 (¶8) (Miss. Ct. App. 2018).

4Involuntary pleas are not f undam ental rights that can survive P CR procedu r al bars. Notwithstanding this, we have already d eterm ined that Owens f ai led to show that his plea was not voluntarily , intelligently , and knowingly given. As this Court has observed: The transcript f

rom Owens’s plea hearing clearly shows that he testif ied under oath that he had read and understood his guilty plea petition, which stated in pertinent p a r t that the trial judge was not r equired to f o llow the s e ntencing recomm e ndation of the State and could sentence Owens to any term within the statutory lim its. The transcript also shows that Owens was told the m axim um and m inim

u m sentences that he could receive f or the crim e s with which he was charged. Owens af

f irm e d to the trial j udge that he was s atisf ied with the advice and c ounsel of his attorney

. Im portantly , the record sh o w s that Owens was inf orm e d of his constitutional r ights that he was waiving by pleading guilty

. Owens told the trial court that he understood that he w as waiving those rights. Owens signed the petition to plead g uilty and told the trial c ourt that h e was in f act g u i l t y of the two charges. W e f i nd that Owens has f

ailed to c arry his burden of proof to show that h is plea was not voluntarily , i ntelligently , and knowingly

given. This issue is without m erit. Owens , 996 So. 2d at 94 (¶32). ¶12. Owens’s second argum ent is that he was denied due process at sentencing. He claim s that h e “was led t o believe the sentence would be 2 5 y e ars, led to believe he’d be parole eligible, and f

rightened by the judge into not s peaking up f o r him s elf as to why he was p l e a d ing guilty .” The right to due process at s entencing i s a f undam ental r ight that ca n survive PCR procedural b ars. Gaulden , 240 S o . 3 d at 507 (¶8). “[ M ]ere assertions of constitutional-rights v iolations do not suf f i ce to overcom e the procedural bar.” Stokes , 199 So. 3d at 749 (¶10). Owens has done nothing m o re than m erely assert a violation. ¶13. Notwithstanding this, y et again, this Court has already addressed his argum ent in our prior ruling: [ I]n his March 20, 2003, pro se m otion f or reconsideration, Owens recognized

5that: “The Def endant’s sentence

. . . will require the Def endant t o serve 100% of the sam e w ithout eligibility f or p arole or early r elease because Mississippi law prohibi t s t h e e l igibility of an individual convicted of arm e d robbery f or parole and/or ERS.” A ccordingly , Owens k new f rom an early date that he was not eligible f

or parole. Having f

ailed to i nclude the issue i n his earlier m otion f or post-conviction relief

, Owens is procedurally barred f rom doing so now. Owens , 17 So. 3d at 635 (¶19) (Miss. Ct. App. 2009). ¶14. W e have addressed both of his argum ents bef o re, a n d n e i ther rises to the level of a f undam ental c o n s t itutional right. Neither, theref ore, o vercom e the tim e or successive-writ bars. Thus, we f

ind his claim s without m erit. ¶15. The State has asked this C o u r t t o s a nction Owens “f or continuing to f

ile f rivolous

m otions and appeals that have absolutely no basis in f

act or law.” ¶16. W e m ay im

pose sanctions on pro se litigants f or f rivolous f ilings. W alker v. State , 35 So. 3d 555, 560 ( ¶21) (Miss. Ct. Ap p . 2 0 1 0 )

. “An appeal is f rivolous when, objectively speaking, the appellant has no h ope of success.” McGriggs v
. State , 117 S o . 3 d 6 2 6, 629 (¶12) (Miss. Ct. App. 2012). It was apparent that Owens was tim e and successive-writ barred f rom m oving f

or PCR. Furtherm ore, the issues he raises are issues that this Court has already addressed. Theref

ore, we r e nder sanctions against Owens in the am o unt of $100 f or the repetitive and f

rivolous f ilings of m otions. W e f

urther adjudge that this am ount m ust be paid bef ore Owens m ay f

ile any subsequent PCR m o tions in f orm a pauperis under section 47-5- 67(1) of the Mississippi Code Annotated (Rev. 2015). See H aynes v. State , 174 S o. 3d 953, 954 (¶3) ( M i s s . C t

. App. 2 015) (citing court order sanctioning a pro se appellant $100 f or f rivolous f

ilings). The Mississippi Suprem e Court Clerk a nd MDOC ar e to m ake all
necessary accom m odations f

or the proper receipt of

the sanctioned am ount.

6CONCLUSION

¶17. W e f

i nd that Owens’s m o tions are tim e an d successive-writ barred. Furtherm ore, we previou sly addressed his current f undam e ntal-right argum ents and continue to f ind that neither overcom es the tim e or successive-writ bars. Thus, we r ender sanctions in the am ount of $100 f or the repetitive and f

r i volous f i lings of m otions t o be paid bef o re Owens m ay f

ile
any additional PCR m otions in f orm a pauperis. ¶18. AFFIRMED. GRIFFIS, C.J., BARNES AND CARLTON, P.JJ., WESTBROOKS AND TINDELL, JJ., CONCUR. W ILSON, J . , C O N C U R S I N P ART A ND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. McDONALD, LA WRENCE AND McCARTY, JJ., NOT PARTICIPATING.

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