IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2018-CA-00117-COA CHAD HAMILTON MAGEE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/03/2018 TRIAL JUDGE: HON. STEVE S. RATCLIFF III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: DANIEL CHRISTOPHER JONES ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 10/30/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., WILSON AND WESTBROOKS, JJ. WILSON, J., FOR THE COURT: ¶1. Chad Ham ilton Magee appeals f rom an order o f t h e R a n k in C ounty Circuit Court deny ing his petition f

or post-conviction relief

. On a p peal, Magee argues that all f our of his

sentences should run concurrently and that the circuit c o u r t e r r ed by ordering two of the

sentences to run consecutively to each other and to his f irst two sentences. W e f

ind no error and af f irm

. ¶2. In May 2009, Magee pled guilty to grand larceny and was s e n t enced t o t en y ears in the custody

of the Mississippi Departm ent of Corrections (MDOC) with nine y ears and 97 day s suspended. In June 2010, Magee p led guilty to aggravated assault and was sentencedto t en y ears in MDOC custody with seven y ears suspended. The court ordered the sentence

to run concurrently to Magee’s sentence on his 2009 conviction. In May 2011, Magee pled guilty to t wo c ounts of conspiracy to com m it kidnapping and was sentenced to f ive y ears in
MDOC custody with f

our y e ars and 364 d ay s suspended on each count. T he court ordered the sentences to be served c onsecutively to each o ther and consecutively to Magee’s sentences on his 2009 and 2010 convictions. Magee was later released but f ailed to report

to his probation of

f icer f rom Septem

ber 2015 to A ugust 2016, when h e w a s a r r e s ted in Alabam a and returned t o Mississippi. Based on M agee’s f ailure to report, the circuit court revoked M agee’s post-release supervision and suspended sentences and rem and e d him to MDOC custody

to serve the rem ainder of his sentences. 1 ¶3. O n A u g u s t 3 1, 2017, Magee f iled a p etition f

or p ost-conviction relief in the circui t
court. Magee alleged t hat his guilty pleas (entered in 2009, 2010, and 2011) w e r e not voluntary and t hat the attorney who negotiated the pleas w as inef f ective. He a lso alleged that he was denied a f

air revocation hearing. Af ter reviewing M agee’s petition and e xhibits, the transcripts of his three p lea hearings, and the transcript of h is revocation hearing, the circuit

court f ound that “it p lainly appear[ ed] tha t M a g e e [ was] not entitled to any relief .” Theref ore, t he circuit c ourt de n i e d Magee’s petition. See Miss. Code Ann. § 99-39-11(2) (Rev. 2015) ( p roviding t hat a m otion f or post-conviction relief should be sum m arily

1 S ee M i ss. C o d e A n n . § 4 7 -7 -3 7 .1 (R ev . 2 0 1 5 ) (“N o tw ith stan d in g an y o th er p ro v isio n o f law to th e co n trary , if a co u rt f i n d s b y a p rep o n d eran ce o f t h e ev id en ce, th at a p ro b atio n er o r a p e rso n u n d er p o s t

- r e l e a s e su p erv isio n h as . . . a b sco n d e d , th e co u rt m ay rev o k e h is p ro b atio n an d im p o se an y o r all o f th e sen ten ce. F o r p u rp o ses o f th is sectio n , ‘ab sco n d in g f

ro m su p erv isio n ’ m ean s th e f ailu re o f a p ro b a tio n er to rep o rt to h is su p erv isin g o f f icer f o r six (6 ) o r m o re co n secu tiv e m o n th s.”). 2dism issed “[ i]f it plainly ap p e a r s f r o m the [ r ecord] that the m ovant is not entitled to any relief ” ). Magee then f

iled a tim ely

notice of appeal. ¶4. Magee’s claim on appeal is dif f erent f rom the claim s asserted in his petition f or postc onviction relief

. On a ppeal, he contends that his t wo sentences f or conspiracy to com m it kidnapping should run concurrently to each other and c oncurrently to his prior sentences f or grand larceny and aggravated assault. Magee relies on the c ircuit judge’s rem ark during his revocation hearing that his s entences should run concur r e n t l y . 2 However, Magee did not raise this issue i n h is p etition f o r post-conviction relief

. He raised the issue f

or the f irst t im e in a “Motion to Add Missing Exhibit Page to Petition f or Post Conviction Relief ,” which he
f iled thirty -six day s af

ter his petition. Magee’s m otion asked the court to “allow him to place [ an additional transcript page] into the r e c o rd,” b ut he never requested leave to am end his original petition f

or post-conviction relief

. ¶5. Magee’s a r g u me n t o n a p p e a l i s w ithout m erit. The issue i s procedurally barred because Magee f

ailed to raise the issue in his petition f or post-conviction relief and f ailed to request or o b t a in leave to am end his petition. See, e.g. , Gardner v. S tate , 5 31 S o. 3d 805,
808-09 ( Miss. 1988) (stating that issues “not raised in [ a] m otion f or post-conviction relief

. . . m ay not be raised” f

or the f irst tim e on appeal); W

illiams v. State , 98 So. 3d 1090, 1092 (¶11) (Miss. C t

. A p p . 2 0 1 2) ( holding t hat if a petitioner desires t o am end his petition f or post-conviction relief

, he m ust do so within thirty day s o r request and obtain perm ission of

2 T h e c i rcu it j u d g e’s rem ark w as b a s ed o n a m isu n d erstan d in g o f th e term s o f M ag ee’s p rio r sen ten cin g o r d ers. T h e circu it j u d g e m i stak en ly th o u g h t th at M ag e e’s p rio r sen ten ces w ere all o rd ered to ru n co n cu rren tly

. 3the circuit court). In a ddition, the circuit court’s rem arks during the revocation h earing are

not controlling. Rather, the court’s subsequent writte n d e c i s i o n is controlling. See Hill v. Hinds County , 2 37 So. 3d 838, 844 (¶21) (Miss. Ct. App. 2017), cert. d enied , 237 So. 3d
1269 (Miss. 2018); Shinn v. S tate , 74 So. 3d 9 01, 905 ( ¶13) ( Miss. Ct. A p p . 2011). The
court’s revocation order clearly a nd accurately ref l ects that t he kidnapping s e n t e n c es run consecutively

to each other and consecutively to Magee’s prior sentences. 3 ¶6. Magee only

brief ly m entions two other issues in his appellate brief

. He alleges that his r evocation hearing w as held t wenty -seven day s a f ter he was arrested in Alabam a, and he alleges that he was never af f orded a prelim inary hearing. H owever, Magee f ailed to raise these i s sues during his f

orm al revocation hearing. Theref o re, the issues are procedurally barred. See Britton v. State , 241 So. 3d 6 39, 643 (¶11) (Miss. Ct. App. 2018) (citing Presley

v. State , 48 So. 3d 526, 5 2 8 (¶9) (Miss. 2010)). These issues are also without m erit, as Magee “f a iled t o show any p r e

j u dice r esulting f

r om the lack of a prelim inary revocation hearing” or the slight delay in his f orm al revocation hearing. Id. ¶7. AFFIRMED. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNE S, CARLTON, FAIR, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

3 M o reo v er, a circu it co u rt ca n n o t alter th e c o n cu rren t o r co n secu tiv e n atu re o f a d ef en d a n t ’s sen t en ces a t a s u b s eq u en t rev o catio n h e arin g . S h in n , 7 4 S o . 3 d at 9 0 4

- 0 5 (¶¶1 1

- 1 2 ). “ [ O ] n ce t h e c i r c u it j u d g e p ro n o u n ces a sen ten c e in a f elo n y case, a sen ten cin g o rd er is en tered o f

reco rd , an d th e term

o f co u rt ex p ires, th e c i rcu it j u d g e is w ith o u t j u r isd ictio n to c h a n g e o r m o d if

y t h at sen ten ce at a later tim e.” Id

. at 9 0 4 (¶1 1 ). T h eref o re, th e circu it j u d g e w h o in 2 0 1 6 r ev o k ed M ag ee’s su sp en d ed sen ten ces c o u ld n o t h av e altered M ag ee’s 2 0 1 1 sen ten ces f

o r co n sp iracy

to co m m it k i d n a

p p in g . 4