IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-CP-00602-COA JIMMY CULBERT APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/17/2017 TRIAL JUDGE: HON. M. JAMES CHANEY JR. COURT FROM W HICH APPEALED: W A RREN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIMMY CULBERT (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED: 02/27/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WESTBROOKS, JJ. FAIR, J., FOR THE COURT: ¶1. On Septem

ber 10, 1997, Jim m y Culbert pled guilty to kidnaping and sexual battery

. He was sentenced to s ix y ears f or the kidnaping charge and thirty y e ars f or t he sexual battery charge, to run consecutively

. The record contains a copy of the transcript of the plea-qualif

ication hearing. D uring the hearing, C u l b e r t testif ied t hat h is pleas were f

reely and voluntarily

entered with a f

ull awareness and understanding of his rights. ¶2. In 1 999, he began f iling petitions f

or relief f r om the conviction and sentence. His f if th petition f or post-conviction relief (PCR) is n ow bef ore the Co urt. W e af

f irm its sum m ary dism issal. STANDARD OF REVIEW¶3. “W hen reviewing a trial c ourt’s denial or dism issal of a m otion f or PCR, w e will only disturb t he trial court’s f

actual f indings if they are clearly erroneous; however, we review

. . . legal conclusions under a d e novo standard of review.” Chapman v
. State , 1 67 So. 3d 1170, 1172 (¶3) (Miss. 2015) (citation and quotation om itted). W e will af f i rm a sum m ary dism issal of a PCR m otion i f the m o vant f ails to dem onstrate “ a claim procedurally alive substantially showing the denial of

a state or f

ederal right.” W

i lkerson v. State , 8 9 S o. 3d 610, 614 (¶7) (Miss. Ct. App. 2011). DISCUSSION ¶4. Culbert claim s that his sentence was illegal since he did n ot benef it f rom the am ended
statute that f

ollowed his crim e but preceded h is sentencing. Under the Unif orm PostConviction Collateral Relief Act (UPCCRA), a m otion f or relief f o llowing a guilty

plea is untim e ly unless f

i led within three y ears af

ter entry of the judgm ent of conviction. W atts v. State , 97 So. 3d 7 22, 725 (¶7) (Miss. Ct. App. 2012); see Miss. Code Ann. § 9 9

- 3 9

- 5 (2) (Rev. 2015). The UPCCRA also b ars PCR m otions f rom our review if the m ovant has f iled

a previous PCR m otion. Miss. Code Ann. § 99-39-23(6) (Rev 2015). Culbert f iled his latest PCR m otion nearly

twenty y ears b ey ond the applicable three-y ear lim i tations period. This is also his f

i f th attem pt f or post-conviction relief

. S o his m ot i on is obviously both tim e-barred and successive-writ barred unless he can show an exception to these p rocedural bars. See Bell v. State , 95 So. 3d 760, 763 (¶10) (Miss. Ct. App. 2012) (citation om itted). ¶5. “[ E]rrors af

f ecting f undam ental constitutional rights are e x c e p t e d fr o m t h e procedural

2bars of the UPCCRA.” Rowland v. State , 42 So. 3 d 503, 5 06 (¶9) (Miss. 2010). However,

“the m ere assertion o f a constitutional right violation” does not trigger the exception. W icker

v
. S t a t e , 16 So. 3d 706, 708 (¶5) (Miss. Ct. App. 2009). “There m u st at least appear t o b e

som e basis f

or the t ruth o f t he claim b ef ore th e l i mi t a t i o n p e riod will be waived.” Ross v. State , 87 S o. 3 d 1 0 8 0 , 1082 (¶8) ( Miss. Ct. App. 2 012) (quoting Chandler v. State , 44 So. 3d 442, 444 (¶8) (Miss. Ct. App. 2010)). ¶6. Culbert has f

aile d t o p r o v i d e a n y l egitim ate reason that the successive-writ bar or tim e-bar should n ot a

pply , nor do w e f

ind any . Procedural bars notwithstanding, the trial judge correctly h eld that Daniels v. State , 742 So. 2 d 1 140 (Miss. 1 999), relied on by Culbert, was overruled by W

ilson v. State , 194 So. 3d 855 (Miss. 2016). 1 ¶7. AFFIRMED. LEE, C .J., I RVING AND GRI F F I S , P.JJ., B ARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.

1 D a n iels h eld th at, w h en a statu te is am en d ed b ef o re sen ten cin g an d p ro v id es f o r a lesser p en alty , th e lesser p en alty m u st b e im p o sed . 7 4 2 S o . 2 d at 1 1 4 5 (¶1 7 ). 3