Opinion
NO. 2018-CP-00324-COA
12-11-2018
KEITH LA'DALE PORTER A/K/A KEITH PORTER APPELLANT v. STATE OF MISSISSIPPI APPELLEE
ATTORNEY FOR APPELLANT: KEITH LA'DALE PORTER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER
DATE OF JUDGMENT: 02/20/2018 TRIAL JUDGE: HON. ROGER T. CLARK COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: KEITH LA'DALE PORTER (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KATY TAYLOR GERBER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED: 12/11/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., CARLTON AND FAIR, JJ. FAIR, J., FOR THE COURT : ¶1. Keith Porter pleaded guilty to armed robbery and unlawful possession of a firearm by a convicted felon. For his armed-robbery conviction, the court sentenced him to twenty-five years, with twenty years suspended and five years to serve, in the custody of the Mississippi Department of Corrections (MDOC). As for the unlawful-possession-of-a-firearm conviction, the court sentenced him, as a habitual offender, to serve ten years in the custody of the MDOC. The circuit court also sentenced Porter to five years of post-release supervision and ordered his sentences to run consecutively. ¶2. Since his conviction, Porter has filed four motions for post-conviction relief (PCR). In his fourth PCR motion—the subject of this appeal—he attacks his guilty plea to possession of a firearm as a convicted felon. Finding the petition successive-writ barred, the circuit court dismissed the petition without an evidentiary hearing. Porter now appeals. Finding no error in the circuit court's dismissal, we affirm.
STANDARD OF REVIEW
¶3. A circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief . . . ." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). And "this [C]ourt will affirm the summary dismissal of a PCR motion if the movant fails to demonstrate a claim is procedurally alive substantially showing the denial of a state or federal right." Pinkney v. State, 192 So. 3d 337, 341-42 (¶13) (Miss. Ct. App. 2015) (internal quotation marks omitted). ¶4. "[T]he right to an evidentiary hearing is not guaranteed." Id. at 341 (¶12). "A [circuit] court enjoys wide discretion in determining whether to grant an evidentiary hearing." Id.
DISCUSSION
¶5. To determine whether the circuit court erred in summarily dismissing Porter's petition, this Court must look to the merits of the petition. Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), the dismissal of a PCR motion is a final judgment and acts as a bar to a second, or successive, motion raising the same issue or issues. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). "Essentially, [a movant] is granted one bite at the apple when requesting post-conviction relief." Dobbs v. State, 18 So. 3d 295, 298 (¶9) (Miss. Ct. App. 2009). Because Porter previously filed two PCR motions attacking his guilty plea to possession of a firearm as a convicted felon, his current claim is successive-writ barred. ¶6. We acknowledge that "errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA." Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010). "Only four fundamental-rights exceptions have been expressly found to survive procedural bars: (1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws." Carter v. State, 203 So. 3d 730, 731 (¶7) (Miss. Ct. App. 2016) (internal quotation mark omitted). The Mississippi Supreme Court has clarified that "merely asserting a constitutional-right violation is insufficient to overcome the procedural bars." Fluker v. State, 170 So. 3d 471, 475 (¶11) (Miss. 2015). Additionally, "there must at least appear to be some basis for the truth of the claim of a fundamental-constitutional-rights violation." Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013) (internal quotation marks omitted). ¶7. Porter's claims do not implicate any fundamental-constitutional-rights violations. Thus, the circuit court did not abuse its discretion in dismissing Porter's PCR motion. ¶8. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, WILSON, GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.