IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-CP-00114-COA MARSHALL BRIAN CHANDLER A/K/A MARSHALL CHANDLER A/K/A MARSHALL B. CHANDLER APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/16/2014 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MARSHALL BRIAN CHANDLER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED AND DISMISSED DISPOSITION: VACATED; JUDGMENT RENDERED DISMISSING APPELLANT’S MOTION FOR POST-CONVICTION RELIEF - 02/23/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND WILSON, JJ. WILSON, J., FOR THE COURT: ¶1. Marshall Chandler appeals f rom the judgm ent of the Madison County Circuit Court

sum m ar i l y dism issing his m otion f or post-conviction relief (PCR) on the m erits. Because Chandler’s d irect appeal f rom his conviction was d ism issed as untim ely , he was required by law t o request and o b tain leave f rom the M i s s i ssippi Suprem e Court bef ore f iling a PCR

m otion in the circ u it court. B ecause he f ailed to do so, t he circuit court was correct to dism iss h is PCR m o tion but should have dism issed f or lack of jurisdiction rather than on them erits. A ccordingly , we v acate the j udgm ent of the circuit court and render a judgm e nt

dism issing Chandler’s PCR m otion f or lack of jurisdiction.
FACTS AND PROCEDURAL HISTORY ¶2. In J une 2012, a Madison County jury convicted C handler of k idnapping, aggravated assault, and conspiracy

to com m i t aggravated assault. Chandler was indicted as a habitual of f ender under Mississippi Co d e Annotated s ection 99-19-81 (Rev. 2015), but prior to his sentencing hearing, he reached an agreem ent with the State under which he agreed to waive his right to appeal and t estif y against one of his co-con s p i rators, 1 and i n return the State agreed not to pursue an enhanced sentence u nder the habitual of f ender statute. The term s of the agreem ent were announced t o t he c i r c u i t judge at Chandler’s sentencing h earing in August 2012, and the judge questioned Chandler and his attorney on the record to assure that Chandler understood that he was waiving his r ight to appeal, that he had d i s c u s s e d the
agreem ent with his attorney , and that his waiver was knowing a nd voluntary

. T he j udge then im p osed a sentence of f

orty

- f ive y ears to serve with f

ive y ears of post-release supervision. 2
Consistent w ith Chandler’s agreem ent with the S t a t e , t he j udge did not s entence Chandler as a habitual of

f ender. ¶3. I n D e c e m

b e r 2 0 1 2 , C h a n d l e r f

iled a pro s e “ Motion f or New Trial or, i n t h e

1 P rio r to C h an d ler’s s en t en cin g h earin g , th e co -co n sp irato r p led g u ilty , s o C h an d ler d id n o t h av e to testif

y ag ain st h im

. 2 F o r k id n ap p in g , C h an d ler w as sen ten ced to th i rty y e a rs in th e cu sto d y o f th e M ississip p i D ep artm en t o f C o rrectio n (M D O C ), w ith th e f in al f i v e y ears to b e serv ed o n p o st-release su p erv isio n . F o r ag g rav ated assau lt, t h e co u r t im p o sed a co n secu tiv e sen ten ce o f tw en ty y ears i n M D O C cu sto d y . F o r co n sp iracy , th e co u rt im p o sed a co n cu rren t sen ten ce o f f iv e y e ars in M D O C cu sto d y . 2Alternative, f o r Judgm ent Notwithstanding the Verdict” in which he alleged that he was entitled to a judgm ent of a cquittal or a new trial on at l east f i f teen d i s t i n c t grounds. The circuit judge denied the m otion as untim ely

. 3 ¶4. C h a n d l e r then f

iled a notice of appeal “f rom the f inal judgm ent e ntered

. . . o n Decem ber 11, 2012,” and the denial of his untim ely p ost-trial m otion. The State m oved to dism iss Chandler’s appeal as un t i me l y u n d er Rule 4 of the Mississippi Rules of A ppellate Procedure. Chandler, r epresented by t he Of f ice of State Public Def

ender, Indigent Appeals Division, responded that the Court should suspend the rules and allow an o ut-of -tim e appeal. This C o u r t g r a n t e d the State’s m o tion and dism issed the appeal as untim ely

. Chandler v. State , N o. 2012-TS-02047-COA (Miss. Ct. App. Mar. 20 , 2 013). Two m onths later, Chandler wrote to the Suprem e Court C lerk to inquire whether he could “f ile som e kind of

m otion to the Suprem e Court to a ppeal the dism issal [ of his c ase by this C ourt] bef ore [ he] pursue[ d] post-conviction collateral relief

. ” T he Clerk advised t hat he should f ile a m otion

to reinstate h is appeal, which he did. This Court denied Chandler’s m otion to reinstate the appeal, noting that we “previously dism issed the appeal as untim e ly .” Chandler v. S tate , No. 2012-TS-02047-COA (Miss. Ct. App. July 17, 2013). ¶5. In Septem

ber 2013, Chandler f

iled a PCR m otion in the Madison C ounty C i r c u i t C o urt asserting thirteen grounds f or relief , which he later m oved to am end to rai s e a f ourteenth ground. I n Septem

ber 2 014, the circuit judge entered an order addressing Chandler’s claim s

3 S e e M cG ra w v. S ta t e , 6 8 8 S o . 2 d 7 6 4 , 7 6 9 n .1 (M iss. 1 9 9 7 ) (citin g U R C C C 1 0 .0 5 ); B r ew er v. S ta te , 1 7 6 S o . 3 d 1 7 7 , 1 7 7 n .1 (M i ss. C t. A p p . 2 0 1 5 ) ; Wells v
. S ta te , 7 3 S o . 3 d 1 2 0 3 , 1 2 0 6 (¶5 ) (M iss. C t. A p p . 2 0 1 1 ). 3and sum m arily d ism issing his PCR m otion as without m erit. S ee Miss. Code Ann. § 99-39- 19(1) ( Rev. 2015). Chandler subsequently f iled a tim ely notice o f appeal. In his brief on appeal, Chandler raises twelve issues. In response, the S tate a r gues that t he circuit court did

not have jurisdiction t o entertain Chandler’s PCR m otion b ecause Chandler f a i led to request or obtain leave f

rom the Suprem e Court bef

ore f iling the m o tion.
ANALYSIS ¶6. W e agree with the State that the circuit court wa s w i t h o u t j u r isdiction to rule on Chandler’s PCR m o tion because h e never sought or obtained perm ission f rom the Suprem e Court to f ile the m o tion in the circuit c ourt. “W here [ a prisoner’s] c onviction and sentence have b een a f

f irm ed on appeal or the a p p eal has been dismissed , ” t he prisoner is not
perm itted to f

ile a PCR m otion “in t h e t r i a l court until the m o tion shall h ave f irst been presented to a quorum of the Justices of the Suprem e Court o f Mississippi,

. . . and an order granted allowing the f

iling of such m otion in t he tri a l c o u r t

. ” Miss. Code Ann. § 99-39-7 (Rev. 2015) (em

phasis added). “This procedure is n ot m erely advisory , but j urisdictional.” Dunaway v. State , 111 So. 3d 117, 118 (¶ 6 ) ( M i s s. C t. App. 2 013) (quoting Campbell v. State , 75 So. 3d 1160, 1162 (¶7) (Miss. Ct. App. 2011)). ¶7. Furtherm ore, “ [ the Suprem e] Court has held that the d ism issal of an a ppeal ‘because it was not perf

ected in the t im e and m a nner r equired by l aw’ h as ‘the ef f ect of af f irm ing the appellant’s conviction a nd sentence.’” Jones v. State , 64 So. 3d 478, 479 (¶3) (Miss. 2011) (quoting Johnson v. State , 394 S o. 2d 319, 32 0 ( M i s s. 1981)) (brackets om itted). Jones is

on all f o urs with the present case. There, as here, t he prisoner’s direct appeal was dism issed

4as untim ely

. S ee id. at (¶2). T he Suprem e Court squarely held that such a dism issal of the prisoner’s direct appeal requires him to request leave f rom the Suprem e Court bef ore he m ay f ile a PCR m otion in the c ircuit court. Id. at 479-80 (¶4). Unless leave i s granted, the circuit

court is without jurisdiction and m ust dism i ss the PCR m otion. Id. Such a prisoner “is not without rem edy ”—he m a y still p ursue PCR, but he m u st f irst request a nd obtain l eave f rom the Suprem e Court. I

d. at 480 (¶5) (quoting Johnson , 394 So. 2d at 320). ¶8. Chandler argues that Jones is d istinguishable b ecause he d id not a ppeal his conviction and s entence bu t o n l y t h e denial of his post-trial m otion. This argum ent i s unavailing. Chandler’s m otion f

or a judgm ent notwithstanding the verdict (JNOV) or a new trial sought

to set aside his conviction and s e ntence. His appeal f r om the d enial of his m otion sought the

s am e. In a crim inal case, there is no a ppeal f rom the denial of a JNOV/new t ri a l mo t i o n separate and apart f

rom an appeal of the def

endant’s conviction a n d sen t e n c e . A n appeal
f rom the f orm er n ecessarily brings u p f or appellate review the underly ing judgm ent. See M.R.A.P. 4(e).
CONCLUSION ¶9. The c ircuit court should have dism issed t h e c a s e f or lack of jurisdiction rather than addressing Chandler’s c laim s on t he m erits. W e theref ore v acate the j udgm ent of the circuit

court and render a judgm ent dism issing Chandler’s PCR m otion f or f a ilure to obtain leave to f i le in the circuit court. Jones , 64 So. 3d at 480 (¶6). ¶10. THE JUDGMEN T O F T H E CIRCUIT COURT OF MADISON COUNTY IS VACATED, A ND A J U D G M E N T IS RENDERED DISMISSING THE MOTION FOR POST-CONVICTION RELIEF. ALL COSTS O F T H I S APPEAL A RE ASSESSED TO MADISON COUNTY.

5LEE, C .J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE , C A R L T O N , FAIR

AND JAMES, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.

6