        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-01170-COA

DILLON WILLIAMS A/K/A DILLON D.                                            APPELLANT
WILLIAMS A/K/A DILLON DEWAYNE
WILLIAMS A/K/A DILLION WILLIAMS A/K/A
DILLION DEWAYNE WILLIAMS

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         07/11/2014
TRIAL JUDGE:                              HON. ROBERT WILLIAM ELLIOTT
COURT FROM WHICH APPEALED:                MARSHALL COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                  DAVID G. HILL
                                          TIFFANY LEIGH KILPATRICK
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  MOTION FOR POST-CONVICTION RELIEF
                                          DENIED
DISPOSITION:                              AFFIRMED - 03/22/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       WILSON, J., FOR THE COURT:

¶1.    The circuit court denied Dillon Williams’s third motion for post-conviction relief

(PCR) as procedurally barred pursuant to Mississippi Code Annotated sections 99-39-21(1)

and 99-39-23(6) (Rev. 2015). Williams argues that his claim is excepted from the procedural

bars of the Uniform Post-Conviction Collateral Relief Act because his sentence is “illegal.”

See Rowland v. State, 42 So. 3d 503, 507-08 (¶¶12-15) (Miss. 2010). We conclude that

Williams’s sentence is legal. Therefore, his claim is procedurally barred, and we affirm the
circuit court’s denial of his PCR motion.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On the morning of January 26, 2010, Williams knocked on the door of Pasquealeen

Crum’s home in Byhalia. Crum was ninety-one years old at the time. When Crum opened

the door, Williams pushed his way inside and hit her in the head, knocking her to the ground.

After Crum “laid on the floor and made like [she] was dead,” Williams and an accomplice

moved to other rooms of the house looking for things to steal. Crum then crawled to the

porch and tried to use her cell phone to call her granddaughter, but Williams found her there.

He dragged her back inside the house by her neck and beat her severely. He knocked out her

teeth and inflicted numerous injuries. Crum suffered a fractured jaw, a broken eye socket,

and a fractured shoulder. She has permanent nerve damage to her face, can no longer use her

left arm, and has difficulty walking. At Williams’s sentencing hearing, Crum and relatives

testified that the attack changed Crum’s life and that she has not recovered from it

emotionally or physically.

¶3.    The grand jury returned a three-count indictment against Williams. Count I charged

burglary of the home of Crum’s son Johnny, who lives down the road from Crum. Williams

apparently burglarized Johnny’s home just before Crum’s home. Count II charged burglary

of Crum’s home under circumstances likely to terrorize Crum, punishable by imprisonment

for a minimum of ten years and a maximum of twenty-five years. Count II further charged

that Williams committed the offense against a person over the age of sixty-five, thereby

triggering the enhanced punishment provisions of Mississippi Code Annotated sections 99-



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19-351 and 99-19-357 (Rev. 2015), which authorize the court to impose a sentence of twice

the term of imprisonment otherwise authorized by law. Count III of the indictment charged

Williams with aggravated assault of Crum, punishable by imprisonment for a maximum term

of twenty years. Count III also charged Crum under sections 99-19-351 and 99-19-357.

¶4.    On November 10, 2010, Williams pled guilty to counts II and III, and count I was

retired to the files. Before accepting Williams’s plea, the court advised him of his right to

a trial by jury, and Williams confirmed that he understood that he was waiving that right.

The court also questioned Williams as follows:

       Court:        [B]urglary of a dwelling, home invasion carries with it 25 years
                     and if that penalty is enhanced, of course it could be 50 years
                     and with your aggravated assault it carries with it 20 years and
                     if enhanced it could carry with it 40 years; you understand that?

       Williams:     Yes, sir.

With respect to the aggravated assault charge, the court questioned Williams as follows:

       Court:        [I]n Count III [the State] would have to prove that [you] . . . did
                     unlawfully, willfully, feloniously, purposely and knowingly
                     cause serious bodily injury to Pat Crumb [sic] by violently
                     striking, punching Pat Crumb [sic] in violation of the law and
                     against the peace and dignity of the State of Mississippi and that
                     Pat Crumb [sic] at that time was over the age of sixty-five, did
                     you do that?

       Williams:     Yes, sir.

       Court:        Do you know of any reason why I should not accept your plea
                     of guilty?

       Williams:     No[,] sir.

       Court:        Are you telling me that you are pleading guilty because you are
                     guilty and for no other reason?

                                              3
       Williams:      Yes, sir.

The court then accepted Williams’s guilty plea and granted his attorney’s request to continue

sentencing for a month so that a pre-sentence investigation report could be prepared.

¶5.    Williams’s sentencing hearing was held on December 16, 2010. Williams, his

grandmother, Crum, and three of Crum’s relatives testified. When asked if he had anything

to say to Crum or her family, Williams said, “I would just like to say I’m sorry. I ask for

forgiveness. I hope she gets well.” He asked the court for “mercy . . . and . . . one more

chance.” Williams then refused to answer the assistant district attorney’s questions,

seemingly only because he did not want to. Crum and her relatives testified regarding the

attack and its lasting effects on her. Crum and relatives testified that she was ninety-one

years old at the time of the attack.

¶6.    The circuit judge sentenced Williams to twenty-five years’ imprisonment for burglary

and twenty years’ imprisonment for aggravated assault. The judge then observed that both

charges carried the possibility of an enhancement of up to twice the sentence otherwise

authorized, and he applied the enhancement to the aggravated assault sentence, increasing

it to forty years’ imprisonment. The judge ordered the sentences to run consecutively for a

total sentence of sixty-five years’ imprisonment. Williams voiced no objection to the

sentence or the procedures under which it was imposed.

¶7.    The circuit court dismissed Williams’s first PCR motion in 2012 and dismissed his

second PCR motion in 2013. Williams appealed the dismissal of the second motion, and this

Court affirmed. Williams v. State, 126 So. 3d 992, 999 (¶23) (Miss. Ct. App. 2013). In the



                                             4
second motion, Williams alleged that his aggravated assault sentence was illegal, although

on different grounds than in his present motion.

¶8.    In November 2013, Williams filed his third PCR motion and alleged for the first time

that his sentence is illegal because a jury was not impaneled to find that his conviction for

aggravated assault was subject to a sentencing enhancement. Williams relies on Mississippi

Code Annotated section 99-19-355 (Rev. 2015), a somewhat unusual statute that, in relevant

part, provides as follows:

       Upon conviction or adjudication of guilt of a defendant where notice has been
       duly given that an enhanced penalty will be sought as provided in Sections
       99-19-351 through 99-19-357, the court shall conduct a separate sentencing
       proceeding to determine the sentence. . . . [I]f the defendant pleaded guilty,
       the sentencing proceeding shall be conducted before a jury impaneled for that
       purpose. If the defendant enters a plea of guilty and waives trial by jury for the
       sentencing proceeding, the sentencing proceeding shall be conducted before
       the trial judge sitting without a jury.

Miss. Code Ann. § 99-19-355(1). Williams argues that because he never waived a jury for

his sentencing hearing, his constitutional and statutory rights to a jury trial were violated.

The circuit court denied Williams’s motion, finding that it was procedurally barred as a

second or successive PCR motion and because Williams’s claim could have been raised at

the time of sentencing.

                                         ANALYSIS

¶9.    The circuit court correctly denied Williams’s PCR motion as procedurally barred for

two separate reasons. First, Williams’s present claim was “capable of determination” at the

time of his sentencing. Miss. Code Ann. § 99-39-21(1). Williams’s right to a sentencing jury

was plainly stated in the above-quoted statute; thus, the “legal foundation” of the claim was


                                               5
readily available to him when he was sentenced. Id. § 99-39-21(4). Williams’s failure to

raise the issue at that time precludes him from raising the issue in a PCR motion. Id. § 99-

39-21(1). Second, Williams’s claim is barred because it is raised in a second or successive

PCR motion. Id. § 99-39-23(6).

¶10.   Williams argues that he is not subject to these procedural bars because his sentence

is “illegal.” See Rowland, 42 So. 3d at 507-08 (¶¶12-15). However, the Supreme Court has

held that a “sentence is not illegal unless it exceeds the maximum statutory penalty for the

crime.” Foster v. State, 148 So. 3d 1012, 1016 (¶12) (Miss. 2014) (quoting Grayer v. State,

120 So. 3d 964, 969 (¶16) (Miss. 2013)). In Foster, the defendant contended that his forty-

year sentence for armed robbery was “illegal” because it exceeded his life expectancy; and,

under a longstanding interpretation of the armed-robbery statute, unless the jury agrees to

impose a life sentence, the judge must impose a sentence “reasonably expected to be less than

life.” See id. at 1017 (¶14). However, the Supreme Court rejected Foster’s argument that

his sentence was illegal. The Supreme Court emphasized that his “sentence did not exceed

the maximum statutory penalty,” as the statute permitted any sentence “less than life but not

less than three years.” Id. at 1016 (¶12). Thus, Foster’s claim was only that the trial court

had misapplied the statute. That claim was subject to procedural bars and had been waived.

The sentence itself was not “illegal.”

¶11.   The same is true in this case. The maximum statutory penalty for aggravated assault

on an elderly victim is forty years’ imprisonment. See Miss. Code Ann. §§ 97-3-7(2) (Supp.

2015) & 99-19-357. Williams does not dispute that even if he is granted a new sentencing



                                             6
hearing, he may ultimately receive the same forty-year sentence. That alone ought to show

that Williams’s sentence is not “illegal” and that his argument is in reality a procedural

objection to a substantively legal sentence.

¶12.   As set out above, the transcript of Williams’s plea hearing shows that he admitted that

he violently, purposefully, and willfully beat a ninety-one-year-old woman. He pled guilty

to count II and count III, both of which specifically charged that he was subject to the

sentencing enhancement. The court specifically discussed the sentencing enhancement and

its consequences, and Williams confirmed that he understood. Williams never once

suggested, at either his plea hearing or his sentencing hearing a month later, that the

enhancement did not apply to the conduct to which he pled guilty. The statute clearly

provided that Williams could insist on a jury hearing with respect to the enhancement if he

so desired, yet he never asked for a jury. That he did not is certainly understandable given

the facts of the crimes to which he pled guilty and the age of the victim. Moreover, the

statute does not prohibit a sentencing hearing before the judge alone; it only gives the

defendant the option of a jury, which he may waive. From the record, one cannot avoid the

conclusion that Williams intended to waive a jury and intended to plead guilty to both the

substantive offenses of burglary and aggravated assault and the sentencing enhancement.

¶13.   Given the unique procedure set out in section 99-19-355, it would have been better

for the circuit judge to confirm specifically on the record that Williams did not want a

sentencing jury. But this omission does not render Williams’s sentence “illegal.” The

sentence itself is legal because does not “exceed[] the maximum statutory penalty for the



                                               7
crime.” Foster, 148 So. 3d at 1016 (¶12) (quoting Grayer, 120 So. 3d at 969 (¶16)).

Williams only challenges the procedure under which his legal sentence was imposed. That

claim is procedurally barred because Williams sat through his plea hearing and, a month

later, his sentencing hearing without ever mentioning a sentencing jury. See Miss. Code Ann.

§ 99-39-21(1). It is also barred because he failed to raise the issue in either of his first two

PCR motions. See id. § 99-39-23(6). Accordingly, the circuit court properly denied

Williams’s third PCR motion.

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

       GRIFFIS, P.J., BARNES, ISHEE, FAIR AND GREENLEE, JJ., CONCUR.
JAMES, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY LEE,
C.J., IRVING, P.J., AND CARLTON, J.

       JAMES, J., DISSENTING:

¶15.   I would find that the circuit court lacked jurisdiction to enhance the sentence for the

charge of aggravated assault, making the forty-year sentence illegal; therefore, I respectfully

dissent.

¶16.   Successive motions are generally barred under the Mississippi Uniform Post-

Conviction Collateral Relief Act (UPCCRA). Miss. Code Ann. § 99-9-23(6) (Rev. 2015).

Under section 99-39-23(6), all successive motions are barred if the prisoner has previously

filed a PCR motion. Evans v. State, 75 So. 3d 1119, 1120 (¶5) (Miss. Ct. App. 2011).

Because Williams’s present PCR motion is a successive writ, this Court must look to see

whether an exception to the procedural bar applies.



                                               8
¶17.   It is well established that errors affecting fundamental rights are excepted from the

procedural bars of the UPCCRA. Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010).

Williams, however, bears the burden of proving by a preponderance of the evidence that his

claims are not procedurally barred. Adams v. State, 954 So. 2d 1051, 1052 (¶6) (Miss. Ct.

App. 2007). Williams alleges that his sentence for aggravated assault is illegal because the

court did not have jurisdiction to impose the sentence since he never waived his right to a

sentencing jury.

¶18.   The right to be free from an illegal sentence or a sentence imposed by a court lacking

jurisdiction is a fundamental right. See Ivy v. State, 731 So. 2d 601, 603 (¶¶9-17) (Miss.

1999); Kennedy v. State, 626 So. 2d 103, 105 (Miss. 1993). With that in mind, section 99-

19-355(1) of the Mississippi Code Annotated (Rev. 2015) provides in pertinent part:

       If trial by jury has been waived, or if the defendant pleaded guilty, the
       sentencing proceeding shall be conducted before a jury impaneled for that
       purpose. If the defendant enters a plea of guilty and waives trial by jury for the
       sentencing proceeding, the sentencing proceeding shall be conducted before
       the trial judge sitting without a jury. . . . The state and the defendant, or his
       counsel, or both defendant and counsel, shall be permitted to present
       arguments for or against any sentence sought.

Section 99-19-355 states that a sentencing proceeding should not be conducted before the

court unless the defendant waives his right to have the sentencing proceeding conducted

before a jury. Since the State sought to enhance Williams’s sentence due to the advanced age

of the victim, section 99-19-355 applies.

¶19.   Williams’s plea colloquy provides in part:

       THE COURT:            But by signing these petitions here under your oath,
                             telling me under your oath that you have had free

                                               9
                             consultation with your lawyer, telling me under your oath
                             that you are satisfied with what your layer has done for
                             you, you waive or you give up that right to a trial by a
                             jury, do you understand that, Mrs. Drake?1

       DRAKE:                Yes, sir.

       ....

       THE COURT:            Do you understand that Mr. Williams?

       WILLIAMS:             Yes, sir.

¶20.   Williams never waived his right to have a jury empaneled for sentencing purposes as

required by statute. While Williams did waive his right to a jury for purposes of deciding

guilt, he did not do the same for the purpose of being sentenced. The circuit court

consequently lacked jurisdiction to impose any enhancement, rendering Williams’s sentence

illegal. Accordingly, the present PCR is not procedurally barred. I, however, must point out

that only Williams’s sentence for aggravated assault was enhanced. And for these reasons,

I would reverse and remand this matter for a sentencing hearing to be conducted before a jury

only for the aggravated assault charge, if it is not waived by Williams.

¶21.   As such, I find that the judgment of the circuit court dismissing the PCR motion

should be reversed and remanded for a sentencing hearing to be conducted before a jury for

only Count III, aggravated assault.

       LEE, C.J., IRVING, P.J., AND CARLTON, J., JOIN THIS OPINION.




       1
         The record reflects that the trial court heard plea agreements for several defendants,
not just Williams, within this one hearing.

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