IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 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 WHICH 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 years after his conviction, Matthew Evans asked the Monroe County

Circuit Court for permission to proceed with an out-of-time direct appeal. The circuit court

found that Evans’s request was untimely and denied relief. Because the circuit court did not

abuse its discretion, we affirm.

PROCEDURAL HISTORY

¶2. On October 30, 2008, Evans was convicted of statutory rape. The following day, he

was sentenced as a nonviolent habitual offender to serve thirty years in the custody of the
Mississippi Department of Corrections (MDOC).1 On September 2, 2009, his attorney,

Christopher Bauer, filed what he styled as an “out-of-time” motion for judgment

notwithstanding the verdict or, alternatively, a new trial. The motion included challenges to

the sufficiency and weight of the evidence, as well as a claim that one of the jurors knew that

Evans had previously been convicted of “crimes similar in nature to the crime for which

[Evans] stood accused . . . .” On July 14, 2010, the circuit court entered its order denying the

post-trial motion. Neither Bauer nor Evans filed a notice of appeal.

¶3. On December 3, 2018, Evans filed a pro se motion in the circuit court, seeking

“permission to proceed out of time.” According to Evans, he told Bauer that he wanted to

appeal on the same day that the circuit court sentenced him and that Bauer said “he would

do so immediately after he filed a [post-trial motion] and the court den[ied] it.” Evans also

said that after waiting ten years, he learned through a “jailhouse lawyer” that “he could

appeal his own case, and that his trial counsel did not perfect an appeal on his behalf because

had he done so, . . . [he] would have . . . received a court decision.” Additionally, Evans

asserted that he did “nothing to delay the perfection of his appeal.”

¶4. Citing Rule 4(g) of the Mississippi Rules of Appellate Procedure, the circuit court

denied Evans’s motion. Evans appeals.

STANDARD OF REVIEW

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In 1999, Evans pled guilty to sexual battery. He was sentenced to ten years in

MDOC custody, but the circuit court suspended all ten years of that sentence and placed him

on probation for five years. In 2002, Evans pled guilty to fondling. He was sentenced to

twelve years in MDOC custody, and the circuit court again suspended the entire balance of

the sentence and placed him on five years of post-release supervision.

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¶5. “When a circuit court summarily denies or dismisses a request for an out-of-time

appeal, we review the decision for abuse of discretion.” Pulliam v. State, 282 So. 3d 734,

736 (¶7) (Miss. Ct. App. 2019).

DISCUSSION

¶6. Because Bauer did not file Evans’s post-trial motion within ten days of the October

30, 2008 judgment of conviction, the post-trial motion did not toll the deadline to appeal. 

See Conwill v. State, 168 So. 3d 1080, 1084 (¶19) (Miss. Ct. App. 2013). Consequently,

Evans had until Monday, December 1, 2008, to file a timely notice of direct appeal. 

M.R.A.P. 4(a), 26(a). 

¶7. The certificate ofservice attached to Evans’s motion for an out-of-time appeal is dated

November 27, 2018. Assuming that he delivered his motion to prison authorities for mailing

on that date,2 Evans missed the deadline to file a notice of direct appeal by nearly ten years. 

Rule 4(g) provides that a “trial court may extend the time for filing a notice of appeal upon

motion filed not later than 30 days after the expiration of the time otherwise prescribed by”

Rule 4(a). Because Evans did not request an extension within that time, the circuit court was

correct that it could not grant permission to file an out-of-time notice of appeal under Rule

4(g).

¶8. There was no express indication in his 2018 motion that Evans was seeking an out-oftime appeal under the Mississippi Uniform Post-Conviction Collateral Relief Act

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“[A]n inmate’s certificate of service will not suffice as proof” of the date of filing

in the context of the prison-mailbox rule. Sykes v. State, 757 So. 2d 997, 1001 (¶14) (Miss.

2000).

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(UPCCRA). See Miss. Code Ann. § 99-39-5(1) (Rev. 2015). A circuit court’s authority to

grant an out-of-time appeal under the UPCCRA is not implicated if the motion does not

invoke the Act or make any attempt to comply with its pleading requirements. Dorsey v.

State, 986 So. 2d 1080, 1083 (¶10) (Miss. Ct. App. 2008). 

¶9. We are mindful that “[a] pro se complaint is held ‘to less stringent standards than

formal pleadings drafted by lawyers.’” McFadden v. State, 580 So. 2d 1210, 1214 (Miss.

1991) (quoting Haines v. Kerner, 404 U.S. 519, 529 (1972)). “[W]here a prisoner is

proceeding pro se, the fact that the complaint is not precisely stated . . . will not harm his

case.” Id. However, even construed liberally, Evans’s motion for an out-of-time appeal

contains no mention of the UPCCRA. There was no attempt to meet any of the pleading

requirements in Mississippi Code Annotated section 99-39-9(1)(c)-(f) (Rev. 2015),

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and

Evans expressly argued that he was entitled to an out-of-time appeal under Rule 4(h). One

3 Section 99-39-9(1) provides, in relevant part, that a motion for post-conviction

collateral relief (PCR) “shall contain all of the following”:

(c) A concise statement of the claims or grounds upon which the motion is

based.

(d) A separate [(sworn)] statement of the specific facts which are within the

personal knowledge of the petitioner . . . .

(e) A specific statement of the facts which are not within the petitioner’s

personal knowledge. The motion shall state how or by whom said facts will

be proven. Affidavits of the witnesses who will testify and copies of

documents or records that will be offered shall be attached to the motion

[(absent a showing of good cause)] . . . .

(f) The identity of any previous proceedings in federal or state courts that the

petitioner may have taken to secure relief from his conviction and sentence.

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of the cases that Evans cited in his motion, Minnifield v. State, 585 So. 2d 723, 725 (Miss.

1991), involved a prisoner’s request for an out-of-time appeal under the UPCCRA. But

Evans merely referenced Minnifield after stating that “[t]hrough no fault of the Petitioner,

Attorney Bauer failed to perfect an appeal.” That is not enough to invoke the UPCCRA.

¶10. In Pulliam v. State, 282 So. 3d 734 (Miss. Ct. App. 2019), this Court addressed a

somewhat similar set of circumstances. As in this case, a prisoner requested an out-of-time

direct appeal, and the circuit court found that it had no authority to extend the appeal deadline

under Rule 4(g). Pulliam, 282 So. 3d at 736 (¶8). The circuit court “did not address whether

Pulliam was entitled to an out-of-time 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

court’s judgment and remanded the case so the circuit court could “determine whether

Pulliam’s petition [met] the requirements ofsection 99-39-9 and state[d] a ground for relief.” 

Pulliam, 282 So. 3d at 737 (¶13).

¶11. There is one very significant difference between Pulliam and this case. In Pulliam,

the judgment of conviction and the sentencing order were entered on August 24, 2016, and

Pulliam filed his request for an out-of-time appeal on September 19, 2017. Id. at 735 (¶¶3-4). 

Thus, Pulliam filed his motion well within the three-year period provided by the statute of

limitations applicable to a PCR motion as set forth in Mississippi Code Annotated section

99-39-5(2).

¶12. That is certainly not the case here. Although the UPCCRA permits a prisoner’s

request for an out-of-time direct appeal, “such a claim is still subject to the Act’s three-year

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statute of limitations.” Conner v. State, 230 So. 3d 1040, 1041 (¶4) (Miss. Ct. App. 2017).

Evans had to file a PCR motion for an out-of-time direct appeal “within three (3) years after

the time for taking an appeal from the judgment of conviction or sentence has expired.” 

Miss. Code Ann. § 99-39-5(2). Thus, Evans had to file such a motion no later than

December 1, 2011. He missed the deadline by nearly seven years. Moreover, Evans has

never identified any statutory exception to the statute of limitations, and his motion does not

implicate any “fundamental constitutional rights.” Balle v. State, 205 So. 3d 1087, 1088 (¶2)

(Miss. Ct. App. 2016).4 Whether weighed under Mississippi Rule of Appellate Procedure

4(g) or the provisions of the UPCCRA, the circuit court correctly concluded that Evans

waited too long to request an out-of-time appeal. See Duhart v. State, 981 So. 2d 1056, 1058

(¶7) (Miss. Ct. App. 2008) (“[O]n appeal, we will affirm a decision of the circuit court where

the right result is reached even though we may disagree with the reason for that result.”). 

¶13. AFFIRMED.

BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,

WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ.,

CONCUR.

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“Under ‘extraordinary circumstances,’ ineffective assistance of counsel can [also]

constitute an exception to the statutory time-bar.” Morales v. State, No. 2018-CP-00737-

COA, 2019 WL 3562031, at *5 (¶24) (Miss. Ct. App. Aug. 6, 2019) (citations omitted), cert.

denied, 2020 WL 1026513 (Miss. Feb. 27, 2020). However, Evans has not alleged an

ineffective-assistance-of-counsel claim in this matter. 

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