                        IN THE SUPREME COURT OF MISSISSIPPI
                                 NO. 94-KP-00592-SCT
JEROLD W. SMITH a/k/a JEROLD WAYNE SMITH
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                            04/20/94
TRIAL JUDGE:                                 HON. JAMES W. BACKSTROM
COURT FROM WHICH APPEALED:                   JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      PRO SE
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL

                                             BY: BILLY L. GORE
DISTRICT ATTORNEY:                           DALE HARKEY
NATURE OF THE CASE:                          CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                 AFFIRMED - 08/14/97
MOTION FOR REHEARING FILED:                  8/28/97
MANDATE ISSUED:                              12/31/97




     BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ.

     SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:


Jerold Wayne Smith was indicted during the April Term of 1975, by the Jackson County Grand Jury
in Cause No. 7444 for aggravated assault on a police officer. Smith and his co-defendants, Joseph
Bruce Phelps and Louis Grant Martin, pled not guilty. Phelps later withdrew his plea of not guilty
and entered a guilty plea. Severance was denied, and Smith and Martin proceeded to trial together
during the May, 1975, term of the Jackson County Circuit Court. The jury found them both guilty as
charged. On May 29, 1975, Circuit Court Judge Merle F. Palmer sentenced Smith and Martin to
serve twenty one years in the custody of the Mississippi Department of Corrections.

On March 19, 1986, Smith was convicted of possession of a controlled substance and sentenced as a
habitual offender, based in part upon his previous conviction for aggravated assault on a police
officer. Smith filed his Motion to Reinstate to Active Docket on February 25, 1994, requesting that
the circuit court place Cause No. 7444 back on the active docket for review of his 1976 request and
petition, as amended in 1994. He also filed a Motion to Correct Record and Judgment and a Motion
to Vacate and Set-Aside Conviction and Sentence or Alternatively Motion for Out of Time Appeal
(hereinafter PCR motion). Smith argued that his conviction in Cause No. 7444 was invalid and could
not be used to enhance his sentence for the possession conviction. Smith asked the court to order
that the record in his case be corrected to show that he was not represented by counsel at trial. In his
motion, Smith asserted that although the docket sheet reflected that he was represented by David
Barnett, he never saw Mr. Barnett again after their initial meeting following Smith's arrest. Smith also
pointed out that Mr. Barnett, licensed to practice in Alabama, has never been licensed to practice law
in Mississippi. Smith also asserted that the State had reneged on their plea agreement in Cause No.
7444, under which Smith agreed not to testify at his co-defendant's trial. He claims that per the
agreement, he sat silently through the trial while Martin testified that Smith was guilty and Martin
was innocent. Smith also set out several general assertions of error regarding his aggravated assault
conviction, mostly centered around his alleged lack of counsel.

Circuit Court Judge James W. Backstrom denied Smith's motion to reinstate, finding that the circuit
court had no jurisdiction to reinstate the case since the twenty year old conviction was a final
judgment. Judge Backstrom also found that there was nothing to reinstate, because the case had been
concluded, Smith having served his sentence. The judge issued a second order denying Smith's
motion to correct record, because again the circuit court lacked jurisdiction over a case with a twenty
year old final judgment. In that order, Judge Backstrom also found that Smith was in fact represented
by counsel, rendering Smith's motion without merit. Judge Backstrom similarly denied Smith's motion
requesting trial transcripts for lack of jurisdiction, and found that no transcript was ever made or
could be made, because no appeal was ever taken and the court reporter had died. Finally, Judge
Backstrom ordered that Smith's PCR motion be denied without an evidentiary hearing, finding that
Smith was plainly not entitled to any relief based upon the pleadings and entire court file. The judge
also found that Smith could not receive post-conviction relief, because his PCR motion was time-
barred, and because he was not in custody for that conviction, having been paroled before 1983 when
he was convicted on another charge. Aggrieved of the lower court's ruling, Smith appeals to this
Court.

                                   STATEMENT OF THE LAW

The trial court denied Smith's PCR motion, finding that the motion was time-barred, that based upon
the pleadings Smith was plainly not entitled to any relief, and that Smith was not entitled to relief
since he was not in custody.

The Mississippi Uniform Post-Conviction Collateral Relief Act became effective on April 17, 1984.
Miss. Code Ann. § 99-39-1 et seq.

     A motion for relief under this chapter shall be made within three (3) years after the time in
     which the prisoner's direct appeal is ruled upon by the Supreme Court of Mississippi or, in case
     no appeal is taken, within three (3) years after the time for taking an appeal from the judgment
     of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after
     entry of the judgment of conviction. Excepted from this three-year statute of limitations are
     those cases in which the prisoner can demonstrate either that there has been an intervening
     decision of the Supreme Court of either the State of Mississippi or the United States which
     would have actually adversely affected the outcome of his conviction or sentence or that he has
     evidence, not reasonably discoverable at the time of trial, which is of such nature that it would
     be practically conclusive that had such been introduced at trial it would have caused a different
     result in the conviction or sentence. Likewise excepted are those cases in which the prisoner
     claims that his sentence has expired or his probation, parole or conditional release has been
     unlawfully revoked.

Miss. Code Ann. §99-39-5(2). For those defendants convicted before the April 17, 1984, enactment
date, the deadline for filing under the statute was April 17, 1987. Campbell v. State, 611 So.2d 209,
210 (Miss. 1992) (citations omitted). Smith was convicted on May 21, 1975, but he waited until
February 25, 1994, to file his PCR motion, some seven years after the deadline. Smith does not assert
any claims falling within the well-defined exceptions to the time limit, so the trial judge properly
dismissed Martin's motion as time-barred. Brown v. State , 643 So.2d 937, 938-39 (Miss. 1994)
(citations omitted); Luckett v. State, 582 So.2d 428, 429-30 (Miss. 1991) (citations omitted).

Smith contends that the time bar should be waived in his case, because to do otherwise would result
in a serious miscarriage of justice, and because he had no meaningful opportunity to present his
claims to the courts. "We tend to disregard procedural niceties where such is necessary to avoid the
possibility of a serious miscarriage of justice." Ferguson v. State, 507 So.2d 94, 96 (Miss. 1987)
(quoting House v. State, 445 So.2d 815, 820 (Miss. 1984)). Where the defendant presents issues
which he "has heretofore had no meaningful opportunity to present, application of the procedural bar
of Section 99-39-21(1) would be inappropriate." Perkins v. State, 487 So.2d 791, 792-93 (Miss.
1986) (citations omitted). In this case, however, Smith has merely made general allegations of error
with no support for his claims. The only two issues which Smith addresses adequately for review by
this Court are his claims that he was denied assistance of counsel and that the State reneged on their
plea agreement.

There is sufficient evidence to support a finding that Smith was in fact represented by David Barnett
at trial, and there is absolutely no evidence available to prove otherwise. The docket sheet from
Cause No. 7444 reflects that Smith was represented by David Barnett. The record also shows that
Smith and Martin were arraigned "in the presence of their counsel" and were tried and sentenced
"accompanied by their counsels." Also included in the record is a requested peremptory jury
instruction filed on behalf of Smith, a document normally written and filed by a defendant's attorney.
Smith provides no proof to show that he was not represented at trial. He points out that Mr. Barnett
has never been licensed to practice law in Mississippi. However, there is proof in the record that Mr.
Barnett was licensed to practice in Alabama at the time of Smith's trial, and it is completely possible
that Mr. Barnett was allowed to appear pro hac vice in Smith's case.

As for the plea bargain, this Court has previously held that because sentencing is discretionary, it will
not be reversible error for a trial judge to sentence a defendant to a longer term than that offered in
plea bargaining so long as the judge remains aloof from the bargaining process. Johnson v. State,
666 So.2d 784, 797 (Miss. 1995) (citations omitted). "Sentencing is within the complete discretion of
the trial court and not subject to appellate review if it is within the limits prescribed by statute."
Hoops v. State, 681 So.2d 521, 537 (Miss. 1996) (citations omitted). Smith does not assert or
provide evidence to show that the trial judge was involved in the plea bargaining. Smith was
sentenced to serve twenty one years for aggravated assault on a police officer, well within the
confines of Miss. Code Ann. § 97-3-7, which sets the maximum sentence at thirty years
imprisonment. Miss. Code Ann. § 97-3-7(2). As a result, the State's alleged reneging on the plea
agreement allows Smith no relief. Smith presents no valid arguments requiring waiver of the time bar
in this case.

This case is a prime example of the need for a time bar in post-conviction relief cases. In the twenty
year lapse between Smith's conviction and the filing of his PCR motion, the court reporter, judge, and
prosecuting attorney all died. Because no appeal was filed in Cause No. 7444, there is no transcript
of the proceedings. As a result, there is very little evidence in existence relating to Smith's claims.
Even if Smith articulated any valid claims in his PCR motion to warrant reversal for an evidentiary
hearing, there would be no evidence to back up his arguments in a hearing.

In order to attack a conviction through a PCR motion, the convicted defendant must be in custody
under the sentence imposed for that conviction. Miss. Code Ann. § 99-39-5. Smith urges this Court
to adopt a definition of "in custody" to include serving a sentence that is consecutive to the expired
sentence, or a sentence that has been enhanced by the expired sentence. He cites Garlotte v. Fordice,
115 S.Ct. 1948, 1952 (1995); Young v. Lynaugh, 821 F.2d 1133, 1136-37 (5th Cir. 1987); and
Allen v. Collins, 924 F.2d 88, 89 (5th Cir. 1991) in support of his argument. In Garlotte, the United
States Supreme Court held that for purposes of federal habeas corpus relief, a prisoner is still "in
custody" for purposes of the challenged conviction when he is serving a consecutive sentence.
Garlotte, 115 S.Ct. at 1948-49. The Fifth Circuit has held that a petitioner was "in custody" for
purposes of federal habeas corpus relief, because he would receive credit in some degree on his
current sentence if the challenged conviction were voided. Young, 821 F.2d at 1136-37. In Allen, the
Fifth Circuit reiterated that a petitioner for habeas corpus relief was "in custody" for purposes of
challenging a previous conviction with an expired sentence, because it was used to enhance the
sentence that he was currently serving. Allen, 924 F.2d 88 at 88-89. While these cases provide some
persuasive support to Smith's theory, they are not binding here, because they apply to federal habeas
corpus relief. This Court has not previously adopted such an expanded definition of "in custody" for
purposes of post-conviction relief, and we do not adopt it today.

Aside from the procedural bars, the trial judge correctly dismissed Smith's PCR motion as meritless.
"If 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, the judge may make an order for its dismissal
and cause the prisoner to be notified." Miss. Code Ann. § 99-39-11(2). This Court has previously
stated:

     We adhere to the principle that a post-conviction collateral relief petition which meets basic
     pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond
     doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him
     to relief. In Moore v. Ruth, 556 So.2d 1059, 1061 (Miss. 1990) we held that where a prisoner
     is proceeding pro se, we take that fact into account and, in our discretion, credit not so well
     pled allegations.

Turner v. State, 590 So.2d 871, 874 (Miss. 1991) (internal citations omitted). Judge Backstrom
properly found that Smith was plainly not entitled to any relief. Due to the incredible time lapse,
Smith would be unable to prove any set of facts to support his claims. Smith is clearly not entitled to
post-conviction relief.
                                           CONCLUSION

Smith filed his PCR motion some twenty years after his conviction, seven years after the three year
time limit for filing had lapsed. As a result, his motion is time barred. Having been released on parole
before filing his PCR motion, he is also barred from filing his petition, because he does not meet the
custody requirement set out in Mississippi's Post-Conviction Relief Act. The lack of a trial transcript,
and the deaths of the court reporter, judge, and prosecutor in Smith's case make it difficult to reach
any solid conclusion on the majority of Smith's claims. However, Smith himself is primarily at fault
for failing to file his petition promptly.

The insufficiency of evidence must weigh against Smith. He has failed to assert any claims requiring
relief from this Court, and as a result we affirm the trial court's denial of post-conviction relief.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, McRAE, ROBERTS, SMITH AND MILLS,
JJ., CONCUR.
