        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CP-00411-COA

JAMES RAY SANDERS A/K/A JAMES R.                                         APPELLANT
SANDERS A/K/A JAMES SANDERS

v.

STATE OF MISSISSIPPI                                                       APPELLEE


DATE OF JUDGMENT:                        03/05/2014
TRIAL JUDGE:                             HON. JOHN ANDREW GREGORY
COURT FROM WHICH APPEALED:               LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  JAMES RAY SANDERS (PRO SE)
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LADONNA C. HOLLAND
NATURE OF THE CASE:                      CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                 MOTION FOR POST-CONVICTION RELIEF
                                         DENIED
DISPOSITION:                             AFFIRMED - 06/09/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.

      BARNES, J., FOR THE COURT:

¶1.   James Sanders appeals the Circuit Court of Lafayette County’s summary denial of his

pro se motion for post-conviction relief (PCR). Finding no error, we affirm.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.   In May 1999, a grand jury indicted Sanders for capital murder under Mississippi Code

Annotated section 97-3-19(2)(e) (Rev. 2014) for the killing of Charles Kenneth Maness

during the commission of an armed robbery. Ultimately, Sanders, represented by appointed

counsel, pleaded guilty to the lesser offense of simple murder. The plea petition Sanders
executed stated the maximum punishment the court may impose was death and the minimum

punishment was “life with parole.” The petition also stated that as a result of the plea

bargaining, the State would recommend to the trial court that he receive a sentence of “life

with parole possible.”1

¶3.    During the guilty-plea hearing, the trial judge questioned Sanders to determine

whether his plea was voluntarily and knowingly made. The judge determined it was, and

Sanders testified he committed the crime. Sanders also stated that no promises had been

made to him “other than possible life without parole,” which was part of the plea agreement

with the State. During the sentencing hearing, the trial judge asked Sanders if he understood

that once the charge is reduced from capital murder to simple murder, “there is no discretion

for the sentence” because “the statute provides for the imposition of a life sentence.”

Sanders responded that he understood, and he was sentenced to life in the custody of the

Mississippi Department of Corrections.

¶4.    In October 2001, Sanders filed his first pro se PCR motion, which the trial court

dismissed in May 2002. In August 2002, Sanders requested “work product” from his former

defense counsel, who had terminated services in July 2000. During this time, Sanders also

filed a complaint with the Mississippi Bar Association against his attorney; however, his

attorney claimed he sent Sanders all of the records to which he was entitled regarding his



       1
         While Sanders’s 1999 conviction of murder bars his eligibility for parole (see Miss.
Code Ann. §§ 47-7-3(g) (Rev. 2000) & 47-7-3(f) (Supp. 2014)), he may, at the age of sixty-
five, petition the sentencing court for conditional release if he has served at least fifteen
years of his sentence. See Miss. Code Ann. § 47-5-139(1)(a) (Rev. 2011). Had he been
convicted of capital murder, he would not have been eligible for such consideration. See id.

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case.

¶5.     Sanders appealed the dismissal of his first PCR motion, raising the following issues:

his guilty plea was involuntary, as the trial court failed to inform him of the mandatory

minimum sentence he would receive for simple murder; he received ineffective assistance

of counsel; and he was improperly denied a preliminary hearing. This Court found Sanders’s

arguments without merit and affirmed the dismissal. See Sanders v. State, 847 So. 2d 903,

907 (¶23) (Miss. Ct. App. 2003).

¶6.     Subsequently, in February 2014, Sanders filed with the trial court the PCR motion

currently before this Court, entitled “Motion to Vacate, Set Aside, or Correct the Judgment

or Sentence.” In this second motion, Sanders argued that his counsel was ineffective for

various reasons, and such ineffectiveness rose to the level of violating his constitutional

rights, thereby excepting his motion from any procedural bars. The trial court denied

Sanders’s motion, finding it successive and time-barred. The trial court also found Sanders

was not entitled to any relief on the merits. Sanders timely appealed, making the same

arguments as in his PCR motion regarding procedural bars and ineffective assistance of

counsel.

                                STANDARD OF REVIEW

¶7.     When reviewing the denial of a PCR motion, the appellate court “will not disturb the

trial court’s factual findings unless they are found to be clearly erroneous.” Presley v. State,

48 So. 3d 526, 528-29 (¶10) (Miss. 2010) (quoting Brown v. State, 731 So. 2d 595, 598 (¶6)

(Miss. 1999)). Questions of law are reviewed de novo. Id. at 529 (¶10).



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                                        ANALYSIS

¶8.    Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order

denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann.

§ 99-39-23(6) (Supp. 2014). Additionally, a PCR motion challenging a guilty plea must be

filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-

5(2) (Supp. 2014). Sanders admits this motion is his second PCR motion, and it was filed

nearly fourteen years after he pleaded guilty; thus, it is barred unless excepted.

¶9.    Sanders claims his various ineffective-assistance-of-counsel claims rose to a violation

of his fundamental constitutional rights, and thus his motion should be excepted from

procedural bars under Rowland v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010). It is true that

“errors affecting fundamental constitutional rights are excepted from the procedural bars of

the UPCCRA” as the Mississippi Supreme Court held in Rowland, 42 So. 3d at 507 (¶¶9, 12).

However, the supreme court has not held that ineffective-assistance-of-counsel claims in

noncapital cases invoke a fundamental right that eludes the UPCCRA’s procedural bars.

Compare Grayson v. State, 118 So. 3d 118, 126 (¶14) (Miss. 2013) (holding there is a

fundamental constitutional right to effective assistance of post-conviction-relief counsel in

death-penalty cases) with Boyd v. State, 155 So. 3d 914, 918 (¶13) (Miss. Ct. App. 2014)

(identifying four types of “fundamental rights” recognized by the Mississippi Supreme Court

to survive procedural bars).2



       2
          In Smith v. State, 149 So. 3d 1027, 1031 (¶9) (Miss. 2014), the supreme court
reiterated that there is no substantive res judicata bar to a second PCR motion, and the
successive-pleadings bar is procedural rather than substantive.

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¶10.   In this case, the same evidence and arguments are raised, discussed, and found without

merit as in Sanders, 847 So. 2d at 907 (¶¶19-20). While Sanders’s executed plea petition

stated the minimum sentence was “life with parole,” at the plea hearing he was told no

promises had been made “other than possible life without parole.” Further, at the sentencing

hearing the trial judge explained “there is no discretion in the sentence” and “the statute

provides for the imposition of a life sentence.” Sanders responded that he understood. As

we determined on the appeal of Sanders’s first PCR motion, he was fully “informed of the

statutory maximum and minimum penalties allowable.” Id. at 905 (¶13). We see no reason

to come to a different result here where Sanders has merely reworked his argument as an

ineffective-assistance-of- counsel claim in order to attempt to overcome the procedural bar.

Neither the law nor the facts have changed. Sanders has failed to present a case sufficient

to overcome the procedural bars. The trial court’s denial of his second PCR motion is

affirmed.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

   LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON,
MAXWELL, FAIR AND JAMES, JJ., CONCUR.




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