          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2018-CP-00225-COA

JAMES EARNEST WATTS A/K/A SQUIRREL                                       APPELLANT
A/K/A JAMES WATTS

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                         01/19/2018
TRIAL JUDGE:                              HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED:                MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JAMES EARNEST WATTS (PRO SE)
ATTORNEYS FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                          BY: BARBARA WAKELAND BYRD
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.

      IRVING, P.J., FOR THE COURT:

¶1.   James Earnest Watts appeals the judgment of the Marion County Circuit Court,

denying his motion for modification of his sentence.1

                                         FACTS

¶2.   On April 19, 1994, the grand jury of Marion County indicted Watts for killing

Vanessa Nicole Lumpkin, a female child under the age of twelve years old, while in the



      1
        In his motion, which was filed December 17, 2017, Watts sought modification of his
sentence that had been handed down by an order dated June 4, 1999. His motion was denied
by an order dated January 19, 2018. So as discussed later, the circuit court should have
treated Watts’s motion as a motion for post-conviction relief, but it did not.
commission of sexual battery in violation of Mississippi Code Annotated section 97-3-

19(2)(e) (Supp. 2018). In August 1996, a jury convicted Watts of capital murder and decided

that he should receive the death penalty. Watts appealed; the Mississippi Supreme Court

affirmed his conviction but reversed his sentence on the basis that the trial court had not

properly instructed the jury as to the three sentencing options in capital murder cases

provided by Mississippi Code Annotated section 97-3-21(3) (Rev. 2014): death, life in prison

without the eligibility for parole, or life in prison with the eligibility for parole. Rather, the

jury was instructed only that it had two sentencing options: the death penalty or life in prison

without the eligibility for parole.

¶3.    On June 4, 1999, Watts—represented by counsel—appeared before the trial court for

resentencing. The State offered not to seek the death penalty if Watts would agree to waive

his right to pursue a sentence before a jury of life with parole and accept a sentence of life

without parole. After conferring with his counsel, Watts accepted the State’s offer, and the

trial court sentenced him to life without the eligibility for parole.

¶4.    On December 11, 2017, Watts, acting pro se, filed a motion to modify his sentence

to life with the eligibility for parole, wherein he argued that Mississippi Code Annotated

section 97-3-21 (Rev. 2014) permitted the trial court to impose a sentence of only

imprisonment for life; thus, its imposition of a sentence of life without parole exceeded the

statutory maximum. In support of his argument, Watts cited King v. Epps, No. 1:10CV7-A,

2013 WL 1291632, at *1 (N.D. Miss. Mar. 26, 2013), and Bell v. State, 160 So. 3d 188, 189

(¶1) (Miss. 2015), for the proposition that Mississippi Code Annotated section 99-19-107



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(Rev. 2015) is inapplicable because the death penalty was rendered unconstitutional. The

trial court denied Watts’s motion and found that the holding in King v. State, 165 So. 3d

1289, 1289 (¶1) (Miss. 2015),2 did not apply to Watts; the trial court did not address the

holding in Bell. Watts now appeals. On remand, Watts and the State entered into a plea

agreement wherein Watts agreed to be sentenced to life without the possibility of parole.

Watts subsequently filed a motion to modify his sentence, arguing that the trial court had

exceeded its authority with the sentence it imposed. The trial court denied Watts’s motion

and Watts has appealed. We find no error and, therefore, affirm.

                                         DISCUSSION

¶5.    “Our review of motions to reconsider a sentence is made under an abuse-of-discretion

standard.” Ducote v. State, 970 So. 2d 1309, 1312 (¶6) (Miss. Ct. App. 2007). However, as

the State points out, this matter presents itself more so as a petition for post-conviction relief

(PCR) because Watts argues that the trial court was without jurisdiction to impose his

sentence, that his sentence exceeds the maximum authorized by law, and that his agreement

to waive being sentenced by a jury was involuntary. All of these arguments are set forth as

potential PCR claims under the Mississippi Uniform Post-Conviction Collateral Relief Act,

       2
         The fact that the trial court cited King v. State rather than King v. Epps was proper.
The defendant in both matters, King, filed numerous appeals and motions seeking relief from
his conviction and sentence to death. One such motion was a petition for writ of habeas
corpus with the United States District Court for the Northern District of Mississippi, wherein
the court found that King was intellectually disabled and therefore ineligible for execution.
King v. Epps, 2013 WL 1291632, at *1. The district court vacated King’s death sentence and
gave the state courts an opportunity to impose a sentence less than death. Id. at *1,* 12. The
Mississippi Supreme Court considered the matter in King v. State, 165 So. 3d at 1289, and
vacated King’s sentence and remanded to the trial court for King to be resentenced to life
imprisonment.

                                                3
Mississippi Code Annotated section 99-39-5 (Rev. 2015). “Regarding post-conviction relief

appeals, this Court will not disturb the findings of the trial court unless they are found to be

clearly erroneous.” Ducote, 970 So. 2d at 1315 (¶14).

¶6.    Watts makes multiple arguments in his pro se brief on appeal, culminating in his

contention that the trial court was without the discretion to sentence him to life without

parole. First, Watts reiterates the argument he made in his motion for modification that his

sentence should be modified in light of King v. State, 165 So. 3d at 1289. However, as the

trial court properly provided in its order, the facts of King differ from the matter at hand

because in King, the courts found the defendant ineligible for the death penalty due to

intellectual disability. Id. and King v. Epps, 2013 WL 1291632, at *1. Watts has not proven

intellectual disability, nor is he now facing a sentence of death following his resentencing in

1999. Accordingly, the holdings in King v. State and King v. Epps are not relevant to the

matter at hand.

¶7.    Watts also reiterates his argument from his motion for modification, wherein he

maintains that the trial court exceeded the statutory maximum in sentencing him to life

imprisonment without the possibility of parole. In support of his contention, he cites both

Mississippi Code Annotated section 47-7-3 (Supp. 2018) and section 97-3-21. Watts takes

issue with the fact that, prior to July 1, 1994, section 97-3-21 provided two sentences for a

defendant convicted of capital murder: death or life imprisonment with the possibility of

parole. Effective July 1, 1994, the sentencing option of life without parole was added. Watts

argues that he was improperly sentenced because his crime was committed prior to the 1994



                                               4
amendment of section 97-3-21. However, as the State correctly points out, our supreme court

held in Twillie v. State, 892 So. 2d 187, 190 (¶11) (Miss. 2004), that a defendant “can waive

his ex post facto rights and knowingly enter into an agreement to be sentenced to life without

parole in order to avoid the death penalty,” even in instances such as in Twillie where the

defendant committed the crime prior to the 1994 amendment of section 97-3-21 but the

defendant was convicted and sentenced following the 1994 amendment. The record includes

a sentencing order from Watts’s resentencing to life without parole, wherein the trial court

determined that Watts entered his plea voluntarily and intelligently. As such, this issue is

without merit.

¶8.    We note that Watts also makes an argument regarding the issuance of a case plan by

the Mississippi Department of Corrections. However, as this issue was never presented to

the trial court, we are procedurally barred from reviewing it now.

¶9.    We find no error warranting reversal. Therefore, the trial court’s denial of Watts’s

motion for sentence modification is AFFIRMED.

    LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.




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