IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2019-CP-00299-COA MATTHEW EVANS A/K/A MATTHEW STANFORD EVANS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 12/20/2018 TRIAL JUDGE: HON. THOMAS J. GARDNER III COURT FROM W HICH APPEALED: MONROE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MATTHEW EVANS (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 - 03/17/2020 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE J. WILSON, P.J., TINDELL AND C. WILSON, JJ. C. WILSON, J., FOR THE COURT: ¶1. More than ten y ears a f ter his conviction, Matthew Evans asked the Monroe County Circuit Court f

or perm ission to proceed with an out-of -tim e direct appeal. The circuit court f ound that Evans’s request was untim ely and denied relief

. Because the c ircuit court did not abuse its discretion, we af f irm

. PROCEDURAL HISTORY ¶2. On October 3 0 , 2008, Evans was convicted of s tatutory r ape. T he f ollowing day , he

was sentenced as a nonviolent h abitual of f ender to serve thirty y e a rs in the custody of theMississippi Departm ent of Corrections (MDOC). 1 O n Septem b e r 2 , 2 0 09, his attorney , Christopher Bauer, f

iled w hat he sty l ed as a n “out-of -tim e ” mo tion f

or j udgm ent notwithstanding the verdict or, alternatively , a new trial. The m otion included c hallenges to the suf f iciency and weight of t he evidence, as well as a claim that one of the jurors knew that
Evans h ad previously been convicted of “crim e s sim ilar in n ature t o t h e c r im e f or which [ Evans] stood accused

. . . . ” On July 1 4, 2010, the c ircuit court entered its o rder deny ing the post-trial m otion. Neither Bauer nor Evans f i led a notice of

appeal. ¶3. On Decem

ber 3 , 2018, Evans f

iled a pro se m otion in t h e c i r c u i t c o u r t , s eeking “perm ission to proceed out of tim e.” According t o E vans, he told Bauer that he wanted to appeal on the sam e day that the circuit court s entenced him and that B auer said “ he would do so im m ediately a f

ter he f iled a [ post-trial m otion] and the court d en[ ied] it.” Evans also said that af

ter waiting t e n y e ars, he learned through a “jailhouse lawy e r” that “he could appeal his own case, and that his trial counsel did not perf ect an appeal on his behalf because had he d one so, . . . [ he] woul d h ave . . . received a court d ecision.” Additionally , Evans asserted that he did “nothing to delay the perf e ction of his appeal.” ¶4. C i t i n g R

ule 4(g) of t he Mississippi R ules of Appellate Procedure, the circuit co u r t denied Evans’s m otion. Evans appeals.
S TANDARD OF REVIEW

1 In 1 9 9 9 , E v a n s p led g u ilty to sex u a l b attery

. H e w as sen t e n c e d t o ten y ears in M D O C cu sto d y , b u t th e circu it c o u rt su sp en d ed all t en y ears o f th at sen ten ce a n d p laced h im o n p r o b atio n f

o r f iv e y ears. In 2 0 0 2 , E v an s p led g u ilty to f o n d l in g . H e w as sen ten ced to tw elv e y ears in M D O C cu sto d y , an d th e circu it co u rt ag ain su sp e n d ed th e en tire b alan ce o f th e sen ten ce an d p laced h im o n f i v e y ears o f

p o st-release su p e r

v isio n . 2¶5. “W hen a circuit court s u mma r i l y denies or dism isses a request f or an out-of

-tim e appeal, we r e v i e w t he decision f or abuse of discretion.” Pulliam v
. State , 282 So. 3d 734, 736 (¶7) (Miss. Ct. App. 2019).
DISCUSSION ¶6. Because Bauer did not f i le Evans’s post-trial m otion within ten day s of the October 30, 2008 judgm ent of c onviction, th e p o s t

- t r ial m otion did not toll the d eadline to appeal.
See Conwill v. State , 168 So. 3d 1080, 1084 (¶19) (Miss

. C t

. A p p . 2 0 13). Consequently , Evans had until Monday , D ecem ber 1, 2008, t o f

ile a tim ely notice of direct appeal. M.R.A.P. 4(a), 26(a). ¶7. T h e c e rtif

icate of service attached to Evans’s m otion f or a n out-of

-tim e appeal is date d
Novem ber 27, 2018. Assum i ng t hat he d elivered h is m otion to prison authorities f or m ailing

on that d ate, 2 Evans m i ssed the d e adline to f ile a n otice of direct appeal by nearly ten y ears. Rule 4(g) provides that a “trial court m ay extend the tim e f or f iling a notice of appeal upon

m otion f i led not later than 30 d a y s af ter the expiration of the t im e o therwise prescribed by ” Rule 4(a). Because Evans did not request an extension within that t im e, the circuit court was
correct t hat it could not grant p e rm ission to f ile an out-of

-tim e notice of appeal under Rule 4(g). ¶8. There was no e xpress indication in his 2018 m otion t hat Evans was seeking a n out-of

tim e appeal under the Mississippi U nif orm Post-Conviction Collate r a l R elief Act

2 “[ A ] n in m a te’s c ertif

icate o f serv ice w ill n o t su f f i ce as p r o o f

” o f t h e d ate o f f

ilin g in t h e co n t ex t o f th e p riso n -m a ilb o x ru le. S ykes v. S ta te , 7 5 7 S o . 2 d 9 9 7 , 1 0 0 1 (¶1 4 ) (M iss. 2 0 0 0 ). 3(UPCCRA). See Miss. Code A nn. § 99-39-5(1) (Rev. 2015). A circuit court’s a u thority to grant an out-of

- tim e appeal u n d e r t h e U PCCRA is not im plicated if the m otion does not invoke the Act or m ake any attem pt to com ply w ith its pleading requirem ents

. D o r sey v. State , 986 So. 2d 1080, 1083 (¶10) (Miss. Ct. App. 2008). ¶9. W e a r e m i n d f

u l that “[ a ] pro se com

plaint is held ‘to less stringent standards than
f orm al pleadings draf

ted by lawy ers.’” McFadden v. State , 5 8 0 S o . 2d 1210, 1214 (Miss. 1991) ( quoting Haines v. Kerner , 404 U.S. 519, 529 (1972)). “[ W ]here a prisoner is
p r o c e e d i n g pro se, t he f

a ct that the com

plaint is not p recisely stated

. . . will not h a r m h i s case.” I d

. H o w e v er, e ven c onstrued liberally , Evans’s m otion f or an out-of

-tim e appeal

c o n t ains n o m ention of the U PCCRA. There was no attem pt to m eet any of the ple a d i n g requirem ents in Mississippi Code Annotated section 99-39-9(1)(c)-(f ) (Rev. 2015 ) , 3 a nd
Evans expressly argued that he was entitled to an out-of -tim e a ppeal under Rule 4(h). One

3 S ecti o n 9 9

- 3 9

- 9 (1 ) p ro v id es, in relev an t p art, t h at a m o tio n f o r p o st-co n v ictio n co llateral relief (P C R ) “sh all co n tain all o f th e f o llo w in g ”: (c) A co n cise statem en t o f t h e c l a im s o r g ro u n d s u p o n w h ich th e m o tio n is b ased

. (d ) A sep arate [ (sw o rn ) ] statem en t o f th e sp e c if ic f acts w h ich are w ith in th e p erso n al k n o w l ed g e o f

th e p etitio n er . . . . (e) A s p ecif

ic statem en t o f th e f

acts w h i ch are n o t w i t h in th e p etitio n e r’s p erso n al k n o w led g e. T h e m o t io n sh a ll state h o w o r b y w h o m said f acts w ill b e p ro v en . A f

f id av i ts o f th e w itn esses w h o w ill testif y an d co p ies o f d o cu m en ts o r reco rd s th at w ill b e o f f ered sh all b e attach ed to th e m o tio n [ (ab sen t a sh o w in g o f

g o o d cau se)]

. . . . (f ) T h e id en tity o f an y p rev io u s p ro ceed in g s in f ed eral o r state c o u rts th at th e p etitio n er m ay

h av e tak en to secu r e relief f ro m h is co n v ictio n an d sen ten ce. 4of the cases that Evans cited in his m otion, Minnifield v. State , 585 So. 2d 723, 725 (Miss.

1991), involved a prisoner’s request f or an out-of

-tim e appeal u nder the UPCCRA. But
Evans m erely ref

e renced Minnifield af

ter stating that “[ t]hrough n o f ault of t he Petitioner, Attorney Bauer f ailed to perf

ect an appeal.” That is not enough to invoke the UPCCRA. ¶10. In Pulliam v. State , 2 82 So. 3d 734 (Miss. Ct. A pp. 2019), t h i s C o u r t a d d r e s sed a

som ewhat sim ilar set of circum stances. As in t his case, a prisoner requested an out-of -tim e direct a ppeal, and t he c ircuit court f ound that it had no authority to extend the appeal deadline under Rule 4 (g). Pulliam , 2 82 So. 3d at 736 ( ¶8). The circuit c ourt “did not address whether Pulliam was entitled to an out-of -tim e appeal under the UPCCRA.” Pulliam , 282 So. 3d at 737 (¶13); see Miss. Code Ann. § 99-39-5(1)(i). Consequently , we reversed the circuit

c o u r t ’ s judgm ent and rem anded the case so the circuit court could “determ ine whethe r Pulliam ’s petition [ m et] the r equirem ents of section 99-39-9 and state[ d] a ground f o r relief .” Pulliam , 282 So. 3d at 737 (¶13). ¶11. There is one very signif icant dif f erence between Pulliam a nd this case. In Pulliam , the judgm ent of conviction and the sentencing order were entered o n August 24, 2016, and Pulliam f iled his request f

or a n out-of

-tim e appeal on S eptem

ber 19, 2017. Id

. at 735 (¶¶3-4). Thus, Pulliam f

i led his m otion well within t he t hree-y e a r period provided by t he statute of lim itations applicable to a PCR m otion as set f o r t h i n M ississippi Code Annotated section 99-39-5(2). ¶12. That i s c e r t a i n l y n o t the c ase here. A lthough the UPCCRA perm its a prisoner’s request f o r an out-of

- tim e direct appeal, “such a c l aim i s still s u bject to the Act’s three-y ear

5statute of lim itations.” Conner v. State , 230 So. 3d 1 040, 1041 (¶4) (Miss. C t. App. 2017).

Evans had to f

ile a P CR m o tion f

or an out-of

-tim e direct appeal “within three ( 3) y ears af ter the tim e f

or taking an appeal f

r om the judgm ent of conviction or sentence h a s e xpired.” Miss. Code Ann. § 99- 3 9

- 5 ( 2 )

. T hus, Evans had to f ile such a m otion no later than
Decem ber 1, 2011. He m issed the d e a d l i n e b y n early seven y ears. Moreover, Evans has

never identif

ied any statutory exception to t he statute of lim itations, a n d his m otion does not im p licate any “f

undam ental c onstitutional r ights.” Balle v. State , 205 So. 3 d 1 087, 1088 (¶2) ( M i s s . C t. App. 2016). 4 W hether weighed under Mississippi Rule of Appellate Procedur e 4 (g) or t he provisions of the UPCCRA, the circuit court correctly concluded that Ev a n s waited too long to request an out-of -tim e appeal. See Duhart v. State , 981 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2008) (“[ O]n appeal, we will af f irm a decision of the circuit court where the right result is reached even though we m ay disagree with the reason f or that result.”). ¶13. AFFIRMED. BARNES, C.J., C ARLTON AND J. WILSON, P.JJ., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ., CONCUR.

4 “U n d er ‘ex trao rd in ary circu m stan ces,’ in ef f ectiv e a ssistan c e o f co u n s el can [ also ] co n stitu t e an ex cep tio n t o th e statu to ry tim e-b ar.” M o r a les v. S ta te , N o . 2 0 1 8 -C P -0 0 7 3 7

- C O A , 2 0 1 9 WL 3 5 6 2 0 3 1 , at * 5 (¶2 4 ) (M i ss. C t. A p p . A u g . 6 , 2 0 1 9 ) (citatio n s o m itted ), cert. d en ied , 2 0 2 0 WL 1 0 2 6 5 1 3 ( M iss. F eb

. 2 7 , 2 0 2 0 )

. H o w ev er, E v an s h a s n o t alleg ed an in ef f ectiv e-assistan ce-o f

-co u n sel claim

in th is m atter. 6