         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2017-CP-00025-COA

ALBERT LEWIS WATTS A/K/A ALBERT L.                                             APPELLANT
WATTS A/K/A ALBERT WATTS

v.

STATE OF MISSISSIPPI                                                             APPELLEE

DATE OF JUDGMENT:                            12/12/2016
TRIAL JUDGE:                                 HON. CHRISTOPHER A. COLLINS
COURT FROM WHICH APPEALED:                   LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      ALBERT LEWIS WATTS (PRO SE)
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: LISA L. BLOUNT
NATURE OF THE CASE:                          CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                                 REVERSED AND REMANDED: 04/10/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., WESTBROOKS AND TINDELL, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Albert Lewis Watts filed a petition for post-conviction collateral relief (PCCR) in the

Circuit Court of Leake County. The circuit court found it lacked jurisdiction to entertain the

petition due to Watts’s failure to obtain leave from the Mississippi Supreme Court to proceed

in the circuit court. Because we find the circuit court had jurisdiction to consider the petition

for PCCR, we reverse and remand.

                         FACTS AND PROCEDURAL HISTORY

¶2.    In 2012, Watts was convicted of armed robbery and sentenced to life imprisonment

as a habitual offender pursuant to Mississippi Code Annotated section 99-19-83 (Rev. 2007).
Watts v. State, 132 So. 3d 1062, 1063-64 (¶¶1, 4) (Miss. Ct. App. 2014). On appeal, we

found the State failed to prove beyond a reasonable doubt that Watts had served a term of at

least one year on each sentence, as required under section 99-19-83. Id. at 1065 (¶9). As a

result, we affirmed Watts’s conviction but reversed and remanded for resentencing under

Mississippi Code Annotated section 99-19-81 (Rev. 2007). Id.

¶3.    On remand, Watts was resentenced as a habitual offender under section 99-19-81 to

serve twenty-three years in the custody of the Mississippi Department of Corrections. A new

sentencing order was entered by the circuit court. Watts did not appeal from that order.

¶4.    On April 22, 2016, Watts filed the subject petition for PCCR in the circuit court. On

December 12, 2016, the circuit court found it was without jurisdiction to entertain the

petition since Watts failed to obtain leave from the Mississippi Supreme Court prior to filing

his petition in the circuit court. As a result, the circuit court dismissed Watts’s petition for

PCCR. Watts timely appealed.

¶5.    In addition to this appeal, Watts also filed with the Mississippi Supreme Court an

“application for leave to proceed in [the] trial court with petition for PCCR.” In his

application, Watts sought permission to file his petition for PCCR in the circuit court. On

February 8, 2017, the Mississippi Supreme Court found “that Watts’s current sentence has

not been appealed and that the request for post-conviction relief should be dismissed without

prejudice to be filed in the [circuit] court.”

                                 STANDARD OF REVIEW

¶6.    We will not disturb a circuit court’s denial of a petition for PCCR unless the factual



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findings are clearly erroneous. Kennedy v. State, 179 So. 3d 82, 83 (¶5) (Miss. Ct. App.

2015). However, questions of law are reviewed de novo. Id.

                                         ANALYSIS

¶7.    Pursuant to Mississippi Code Annotated section 99-39-7 (Supp. 2009), a petition for

PCCR

       shall be filed as an original civil action in the [circuit] court, except in cases
       in which the petitioner’s conviction and sentence have been appealed to the
       Supreme Court of Mississippi and there affirmed or the appeal dismissed.
       Where the conviction and sentence have been affirmed on appeal or the appeal
       has been dismissed, the [petition for PCCR] shall not be filed in the [circuit]
       court until the [petition] shall have first been presented to a quorum of the
       Justices of the Supreme Court of Mississippi . . . and an order granted allowing
       the filing of such [petition] in the [circuit] court.

Thus, unless Watts’s conviction and sentence have been appealed and affirmed, or the appeal

was dismissed, any petition for PCCR must be filed in the circuit court.

¶8.    Here, as the Mississippi Supreme Court noted, Watts’s current sentence has not been

appealed. Since his current sentence has not been appealed, Watts was not required to seek

leave to proceed in the circuit court. Thus, Watts’s petition for PCCR was properly filed in

the circuit court, which had jurisdiction to entertain the petition pursuant to section 99-39-7.

¶9.    The dissent agrees that the circuit court had jurisdiction to consider Watts’s petition

for PCCR but asserts, “it would be a waste of judicial economy to remand this case to the

circuit court for review and consideration.” However, that is exactly what our supreme court

instructed. In the February 8, 2017 order, the supreme court noted that a “related matter is

pending in Cause Number 2017-TS-00025.” That pending matter is the case before us.

Thus, the supreme court was aware that Watts had filed his petition for PCCR in the circuit

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court and that his petition had been dismissed for a lack of jurisdiction. The supreme court

could have denied Watts’s application as meritless but, instead, found that the circuit court

had jurisdiction to hear the petition and stated “that the request for post-conviction relief

should be . . . filed in the trial court.”

¶10.   Additionally, the dissent asserts we “may affirm a trial court’s decision if the correct

result is reached, even if the trial court reached the result for the wrong reason.” While we

agree with the dissent’s assertion, the dissent ignores the fact that a dismissal and a denial

are different. Here, the circuit court dismissed the case due to a lack of jurisdiction, which

does not implicate the merits of the case. In other words, the circuit court dismissed the

petition for PCCR without addressing the issues raised by Watts. Yet, on appeal, the dissent

addresses those issues and finds them to be meritless. Thus, assuming the dissent’s analysis

and conclusions are correct, it would result in a denial of the petition for PCCR, not

dismissal. As the circuit court dismissed the case for a lack of jurisdiction, we find the

correct result was not reached. Accordingly, we reverse the judgment of the circuit court and

remand Watts’s petition for PCCR to the circuit court for review and consideration.1

¶11.   REVERSED AND REMANDED.

     LEE, C.J., BARNES, FAIR, WILSON, GREENLEE, WESTBROOKS AND
TINDELL, JJ., CONCUR. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN
OPINION JOINED BY CARLTON, J.

       IRVING, P.J., DISSENTING:

¶12.   The majority reverses the judgment of the Circuit Court of Leake County dismissing

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       The State concedes that the circuit court has jurisdiction to consider Watts’s petition
for PCCR and agrees that we should remand this case to the circuit court for further review.

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Watts’s petition for post-conviction relief (PCR) because, in the view of the majority, Watts

was not required to obtain permission from the Mississippi Supreme Court before filing his

PCR petition in the circuit court. I agree with the majority that the circuit court erred in

finding that obtaining such permission was a prerequisite to Watts’s filing his PCR petition

with that court. Consequently, I agree with the majority that the circuit court had jurisdiction

to consider Watts’s PCR petition. However, I disagree with the majority that the circuit

court’s erroneous decision to dismiss Watts’s PCR petition on jurisdictional grounds requires

us to reverse and remand the case to the circuit court for review of Watts’s petition.

Therefore, I dissent.

¶13.   The majority correctly notes that only Watts’s conviction was affirmed by this Court

on appeal, and the statutory requirement—that a defendant obtain permission from the

supreme court before filing a PCR petition in the circuit court—is applicable only in cases

where both the conviction and sentence of the defendant has been affirmed or dismissed on

appeal. Nevertheless, I believe to remand this case to the circuit court is to exhort form over

substance. I explain.

¶14.   First, I reiterate that Watts’s conviction was affirmed. In his direct appeal of his

conviction, he raised only two issues: “(1) the trial court erred in not declaring a mistrial or

instructing the jury to disregard the testimony of State witness Judice Eubanks, and (2) the

trial court improperly sentenced him as a habitual offender.” Watts, 132 So. 3d 1062, 1063

(¶1) (Miss. Ct. App. 2014). We affirmed Watts’s conviction but remanded the case for the

court to resentence Watts. Id. So the issues that were raised or could have been raised in his



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direct appeal cannot be relitigated in a PCR petition. Miss. Code Ann. § 99-39-21 (Rev.

2015). Second, we reversed Watts’s sentence not because the State did not prove that he was

a habitual offender, but because the State failed to prove that he was a habitual offender

pursuant to section 1983 of the Mississippi Code of 1972 as amended and annotated. In

other words, the State failed to prove that Watts had served a term of at least one year on

each sentence that he had received for the predicate felonies giving rise to his habitual status.

Watts, 132 So. 3d at 1065 (¶9). We found the evidence sufficient to prove that Watts was

a habitual offender pursuant to section 99-19-81 of the Mississippi Code of 1972 as amended

and annotated, and remanded the case to the circuit court for resentencing pursuant to that

code section. Id.

¶15.   After Watts was resentenced on remand in accordance with the provisions of section

99-19-81, he filed the PCR petition leading to this appeal. In his PCR petition, he alleged

three grounds for relief, which I quote verbatim (except for the addition of some minor

punctuation) because of their importance to my view of the resolution of the issue before us,

and for the additional reason of avoiding any chance of inadvertently mischaracterizing them.

Those issues are:

       Petitioner was convicted and is in custody of the M.D.O.C. in violation[] of the
       United States Constitution Laws and Treaties, the Mississippi constitution Bill
       of Rights by: false imprisonment through denial of due process and equal
       protection of laws for a fair trial and right to testify and compulsory process
       to establish alibi defense and lack of probable cause for arrest initially through
       breach of duty to investigate exculpatory evidence and racial discrimination[,]
       malicious prosecution, selective prosecution, prosecutorial and judicial
       misconduct[,] ADA discriminations[.]

       Petitioner was convicted and is in custody of the M.D.O.C. in violation[] of the

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       United States Constitution Laws and Treaties[,] the Mississippi Constitution
       Bill of Rights and State Laws through denial of competent effective counsel
       and discovery of evidence favorable to defense[,] false statements of trial
       counsel[,] deficient performance.

        Petitioner was convicted and is in custody of the M.D.O.C. in violation[] of
       the United States Constitution Laws and Treaties[,] the Mississippi
       Constitution Bill of Rights and State Laws through denial of competent
       effective appellate counsel[,] and cruel and unusual punishment[,] illegal
       sentence[,] double jeopardy[.]

¶16.   I note that Watts’s appellate counsel was different from his trial counsel. Therefore,

during his direct appeal, he was required to raise any issues regarding the ineffectiveness of

trial counsel. Ronk v. State, 172 So. 3d 1112, 1130 (¶37) (Miss. 2015). He did not.

Consequently, any issue regarding trial counsel’s performance is procedurally barred in post-

conviction proceedings. Id. So on remand, the circuit court would not be obligated to hear

any issues that Watts raises regarding his trial counsel’s performance. It seems clear to me

that such a bar would cover the first and second issues quoted above.

¶17.   In the third issue, Watts, in a rather convoluted manner, states that he is in custody

“through” the denial of competent effective appellate counsel. He then explains in his

recitation of supporting facts that he had a right to a false-imprisonment claim on direct

appeal that appellate counsel failed to file. He continues his factual explanation with the

following inexplicable statement, which I quote verbatim in an effort to discern its contextual

meaning: “Also rights to access to the records discoveries property stolen by defense counsel

and District Attorney Larry McMurtry. Petitioner was entitled to a prosecutorial and judicial

misconduct claim arguments on direct appeal.” I assume by the first portion of Watts’s

statement, he means that appellate counsel should have asserted on direct appeal that trial

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counsel had not shared discovery with Watts. As to the last portion of the quoted

explanation, I cannot fathom Watts’s assertion. Finally, Watts claims that appellate counsel

did not raise an argument regarding “compulsory[-]rights violations,” apparently meaning

that appellate counsel did not raise an issue regarding trial counsel’s failure to subpoena a

witness who allegedly would have given testimony rebutting the State’s evidence or would

have given mitigating testimony. However, Watts fails to give any specifics.

¶18.   Watts did not attach any affidavits in support of the allegations made in his PCR

petition, nor did he state in details in his petition why none could be obtained as required by

Mississippi Code Annotated section 99-39-9(1)(e) (Rev. 2015). He stated that members of

the jury would have to be “subpoenaed for their ancillary testimony on those issues presented

and supplemental change of heart [sic] after remand.” He also stated that other witnesses

would have to be subpoenaed to verify their affidavits. However, as stated, Watts did not

attach any affidavits to his PCR petition.

¶19.   It is clear to me that while Watts’s PCR petition alleges that he is being unlawfully

held in custody, it does not meet the pleading requirements of section 99-39-9(1)(e).

Therefore, it would be a waste of judicial economy to remand this case to the circuit court

“for review and consideration” as directed by the majority. I would affirm the dismissal of

Watts’s petition on the basis that it does not meet the pleading requirements of section 99-39-

9(1)(e). “An appellate court may affirm a trial court’s decision if the correct result is

reached, even if the trial court reached the result for the wrong reasons.” Boone v. State, 148

So. 3d 377, 379 (¶7) (Miss. Ct. App. 2014).



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CARLTON, J., JOINS THIS OPINION.




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