        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CP-00329-COA

ROBERT M. MASSEY A/K/A MATT MASSEY                                         APPELLANT

v.

STATE OF MISSISSIPPI                                                         APPELLEE


DATE OF JUDGMENT:                         02/18/2014
TRIAL JUDGE:                              HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   ROBERT M. MASSEY (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: MELANIE DOTSON THOMAS
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  DENIED PETITION FOR POST-
                                          CONVICTION RELIEF
DISPOSITION:                              AFFIRMED - 04/21/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., CARLTON AND JAMES, JJ.

       JAMES, J., FOR THE COURT:

¶1.    Robert M. Massey (pro se) appeals the judgment of the Circuit Court of Jones County

denying his petition for post-conviction relief (PCR). Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Massey was indicted for sexual battery in violation of Mississippi Code Annotated

section 97-3-95(1)(c) (Rev. 2014). Massey pled guilty to the sexual-battery charge on March

14, 2008. The trial court sentenced Massey to thirty years in the custody of the Mississippi

Department of Corrections, with thirteen years to serve and seventeen years suspended upon
the successful completion of four years of post-release supervision and successful completion

of the assigned community-service program.

¶3.    On January 1, 2014, Massey filed a petition to clarify his sentence, which the trial

court treated as a PCR petition. Massey argued that his sentence of four years of post-release

supervision violated the maximum sentence of thirty years under section 97-3-95(1)(c). The

trial court denied relief. The trial court found that Massey’s sentence was proper and did not

violate any statutory provisions.

¶4.    The trial court stated in its order that the “[p]etitioner claims that the four (4) years of

post-release supervision adds four (4) years to the maximum thirty (30) year sentence.

However, the four (4) years of post-release supervision is included in the 17 year suspended

time, and thus, it does not add to his sentence.” The trial court confirmed that the four-year

term of post-release supervision is a condition of the suspended seventeen years of Massey’s

sentence.

                                 STANDARD OF REVIEW

¶5.    In reviewing trial court's decision to deny a PCR petition, an appellate court will not

disturb the trial court's factual findings unless they are clearly erroneous. Rowland v. State,

42 So. 3d 503, 506 (¶8) (Miss. 2010). We review questions of law de novo. Id.

                                        DISCUSSION

¶6.    Although Massey’s petition is styled as a “Petition to Clarify Sentence,” it takes issue

with the legality of his sentence. Thus, Massey’s claims are considered grounds for relief

under the Mississippi Uniform Post-Conviction Collateral Relief Act. See Johnson v. State,



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31 So. 3d 647, 649 (¶7) (Miss. Ct. App. 2010).

¶7.    Massey argues that he received an illegal sentence that exceeds the thirty-year

statutory maximum of Mississippi Code Annotated section 97-3-101(2)(b) (Rev. 2014)

because the four years of post-release supervision and the community service that were

included in his sentence are added to the total thirty-year sentence. We disagree.

¶8.    We note at the outset that Massey’s petition is untimely because the three-year statute

of limitations for filing a PCR petition from his guilty-plea conviction began to run on the

date of the entry of his guilty plea. Miss. Code Ann. § 99-39-5(2) (Supp. 2014). However,

the right to be free from an illegal sentence is a fundamental right, and the three-year time-

bar to filing a PCR petition is waived when a fundamental constitutional right is implicated.

Desemar v. State, 99 So. 3d 279, 281 (¶7) (Miss. Ct. App. 2012).

¶9.    In Fluker v. State, 2 So. 3d 717, 720 (¶9) (Miss. Ct. App. 2008), we held that the

defendant’s post-release supervision was inherent in the years that the sentence was

suspended and not separate from it. Moreover, in Dickens v. State, 119 So. 3d 1141, 1145

(¶9) (Miss. Ct. App. 2013), we held that the defendant’s sentence of thirty years, with fifteen

years to serve, fifteen years suspended, and five years of post-release supervision, was within

the statutorily authorized maximum sentence of thirty years. See also Hamlett v. State, 134

So. 3d 394, 395 (¶¶4-5) (Miss. Ct. App. 2014) (holding that a sentence of twenty-five years,

with twelve years to serve, thirteen years suspended, and five years of post-release

supervision, did not exceed the statutory maximum of twenty-five years because the five-year

term of post-release supervision was not in addition to the thirteen years suspended, but was



                                              3
included in the suspended portion of the sentence).

¶10.   In the present case, Massey’s successful completion of the post-release supervision

is a condition of the seventeen years of suspended time. Likewise, the successful completion

of the community-service program is a condition of the seventeen years suspended, and is

inherent in the suspended time. Indeed, Massey’s four years of post-release supervision and

community service are not in addition to the seventeen years suspended but are included in

the seventeen years. Massey is not at risk of serving more than the statutory maximum of

thirty years. This issue is without merit.

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

     LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




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