         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-CP-00737-COA

JUAN MORALES A/K/A JUAN LUIS MORALES                                         APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           05/02/2018
TRIAL JUDGE:                                HON. PAUL S. FUNDERBURK
COURT FROM WHICH APPEALED:                  LEE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     JUAN MORALES (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                         CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                                AFFIRMED - 08/06/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE CARLTON, P.J., LAWRENCE AND C. WILSON, JJ.

       C. WILSON, J., FOR THE COURT:

¶1.    A Lee County Grand Jury indicted Juan Morales (“Morales”) on two counts of sexual

battery (Counts I & III) and one count of fondling (Count II). At the time of trial in February

2007, Morales failed to appear. The circuit court found that Morales had willfully,

voluntarily, and deliberately avoided trial and therefore would be tried in absentia. The jury

returned a guilty verdict on all three counts. Regarding Count I, the court sentenced Morales

to serve twenty-five years in the custody of the Mississippi Department of Corrections

(MDOC) with five years suspended followed by five years of post-release supervision.

Regarding Count II, the court sentenced Morales to serve fifteen years in the MDOC’s

custody, to be served concurrently with Count III. Regarding Count III, the court sentenced
Morales to serve twenty years in the MDOC’s custody, to be served consecutively to Count

I.

¶2.    In 2012, the United States Marshals Service found Morales in Mexico and returned

him to the United States to be placed in MDOC’s custody. In September 2017, Morales filed

a petition for post-conviction collateral relief (PCR). In May 2018, the circuit court entered

an order granting in part, and denying and dismissing in part, Morales’s petition. The court

granted relief to amend Morales’s sentencing order to correctly reflect the sentences relative

to the specific counts in the indictment.

¶3.    On appeal, Morales asserts the same issues he raised before the circuit court, namely

that (1) the circuit court erred by allowing him to be tried in absentia; (2) he was given an

illegal sentence; and (3) he received ineffective assistance of counsel. After a thorough

review of the record, we affirm.

                                            FACTS

¶4.    In August 2005, a grand jury indicted Morales on two counts of sexual battery (Counts

I & III) and one count of fondling (Count II). The indictment charged that, on June 20, 2005,

Morales fondled and penetrated (anally and vaginally) a young girl.1 Count I charged

Morales with sexual battery upon the female victim by performing the sexual act of anal

penetration via insertion of an “object and/or device in the victim’s rectum.” Count II

charged Morales with “handl[ing], touch[ing] or rub[bing] with his hands or other parts of

his body, the body of [the victim]”—specifically, the victim’s vagina—for the purpose of

       1
        At the time of the crime, Morales was approximately thirty years old, and the young
girl was approximately ten.

                                              2
“gratifying his lust or indulging his depraved licentious sexual desires.” Count III charged

Morales with sexual battery by performing the sexual act of digital penetration via insertion

of his finger and/or fingers in the victim’s vagina.

¶5.    Morales pled not guilty at his arraignment, and the court released him on a $50,000

bond. After several continuances by Morales, the court set the cause for trial on February

7, 2007. When the trial date arrived, Morales failed to appear.

¶6.    On the morning of the scheduled trial, the court questioned Morales’s attorney, Robert

Laher, regarding Morales’s whereabouts. Laher responded that he had spoken to Morales

several times in the weeks leading up to the trial. In fact, Laher had been in contact with

Morales the day before the trial on February 6, 2007. Laher was unaware if Morales had

fled.2 The court asked Laher if Morales was aware that the trial was scheduled for February

7, 2007, at 9:00 a.m. in the Lee County Justice Center located in Tupelo, Mississippi. Laher

confirmed that Morales understood the correct trial date. Based on counsel’s representations,

the court entered a warrant for Morales’s arrest.

¶7.    The circuit court also found that Morales had willfully, voluntarily, and deliberately

avoided trial and decided to proceed without Morales. Despite Morales’s absence, Morales’s

counsel had the opportunity to cross-examine witnesses and present a defense. The circuit

court also instructed the jury that they were not to draw any inference from Morales’s

absence. On February 9, 2007, the jury returned a guilty verdict on all three counts. In

Count I, the court sentenced Morales to twenty-five years with five years suspended followed

       2
          A taped telephone conversation between Morales and his wife revealed the
possibility that Morales had fled to Mexico.

                                              3
by five years of post-release supervision. In Count II, the court sentenced Morales to fifteen

years to be served concurrent to Count III. In Count III, the court sentenced Morales to

twenty years to be served consecutively to Count I.

¶8.    In 2012, the United States Marshals Service located Morales living in Mexico and

returned him to Mississippi to be placed in the custody of the MDOC to serve his sentence.

In September 2017, Morales filed a PCR petition. In May 2018, the circuit court entered an

order granting in part, and denying and dismissing in part, the relief requested. Specifically,

the circuit court found that (1) Morales willfully, voluntarily, and deliberately avoided trial

with no prejudice resulting from his absence; (2) the sentencing order should be amended to

align each count with the correct sentence; and (3) Morales’s ineffective-assistance-of-

counsel claim was barred by the statute of limitations. It is from this order that Morales

timely filed his notice of appeal.

¶9.    On appeal, Morales asserts that (1) the circuit court erred by allowing trial in absentia;

(2) he was given an illegal sentence; and (3) he received ineffective assistance of counsel.

We address each issue in turn.

                                 STANDARD OF REVIEW

¶10.   When reviewing a trial court’s decision to deny or dismiss a petition for PCR, this

Court will not disturb that court’s factual findings unless they are found to be clearly

erroneous. However, when questions of law are raised, the applicable standard of review is

de novo. Lambert v. State, 941 So. 2d 804, 807 (¶14) (Miss. 2006).

                                        DISCUSSION



                                               4
I.     Whether trial in absentia was proper and the circuit court was correct in
       denying relief on that claim.

¶11.   Morales first contends that the circuit court erred by allowing him to be tried in

absentia, because it prevented him from cross-examining witnesses. We find Morales’s PCR

petition is time-barred with regard to this assignment of error.

¶12.   Under the Uniform Post-Conviction Collateral Relief Act (“UPCCRA”), a motion for

relief must be made within three years after the time for taking an appeal from the judgment

of conviction or sentence has expired if no appeal is taken, or in case of a guilty plea, within

three years after the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2)

(Rev. 2015). Morales filed his petition for PCR on September 11, 2017, more than a decade

after his conviction on February 9, 2007. Morales is thus well outside the statutory

limitations imposed for filing such a petition.

¶13.   Further, Morales has not demonstrated that any of the exceptions to the procedural bar

found in section 99-39-5(2) are relevant or applicable.3 “[M]ere assertions of constitutional-

rights violations do not suffice to overcome the procedural bar.” White v. State, 59 So. 3d

633, 636 (¶11) (Miss. Ct. App. 2011) (citing Chandler v. State, 44 So. 3d 442, 444 (¶8)

(Miss. Ct. App. 2010)). “[T]he movant[] bears the burden of proving an exception applies

to the UPCCRA’s procedural bars.” Gunn v. State, 248 So. 3d 937, 942 (¶19) (Miss. Ct.

       3
         Errors affecting certain fundamental rights are excepted from PCR procedural bars.
Carter v. State, 203 So. 3d 730, 731 (¶7) (Miss. Ct. App. 2016). “[F]our types of
‘fundamental rights’ have been expressly found to survive PCR procedural bars: (1) the right
against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due
process at sentencing; and (4) the right not to be subject to ex post facto laws.” Green v.
State, 235 So. 3d 1438, 1440 (¶9) (Miss. Ct. App. 2017) (quoting Salter v. State, 184 So. 3d
944, 950 (¶22) (Miss. Ct. App. 2015)).

                                               5
App. 2018) (citing Brandon v. State, 108 So. 3d 999, 1004 n.3, 1006 (¶12) (Miss. Ct. App.

2013)). While Morales takes issue with various aspects of his trial, he fails to show how the

circuit court’s decision to proceed with trial in his absence implicates a fundamental right

that would survive the time-bar provided by section 99-39-5(2). As such, we find that the

circuit court should have dismissed Morales’s PCR petition as to this ground as time-barred.

¶14.   Notwithstanding, we find no error in the circuit court’s determination that a trial in

absentia was proper in this case. In Jefferson v. State, 807 So. 2d 1222, 1224 (¶7) (Miss.

2002), the Mississippi Supreme Court “carved out an exception” to allow felony trials to

proceed without the defendant being present. The Mississippi Legislature codified the

Jefferson exception in 2005:

       In criminal cases the presence of the prisoner may be waived (a) if the
       defendant is in custody and consenting thereto, or (b) is on recognizance or
       bail, has been arrested and escaped, or has been notified in writing by the
       proper officer of the pendency of the indictment against him, and resisted or
       fled, or refused to be taken, or is in any way in default for nonappearance, the
       trial may progress at the discretion of the court, and judgment made final and
       sentence awarded as though such defendant were personally present in court.

Miss. Code Ann. § 99-17-9 (Rev. 2015). Section 99-17-9 permits a court, in its discretion,

to allow a trial in absentia when the prisoner has notice of the allegations against him but has

nonetheless voluntarily fled. See also Haynes v. State, 208 So. 3d 4, 6 (¶11) (Miss. Ct. App.

2016) (finding a defendant who takes “willful, voluntary, and deliberate actions to avoid

trial” has “waived the right to be present at trial and may be tried in absentia”).

¶15.   In Jefferson, the defendant “was present for his arraignment, though it [had been]

waived, at which time his trial was set.” 807 So. 2d at 1226 (¶14). The defendant was again



                                               6
present at his omnibus hearing. Id. Following this hearing, the defendant spoke directly with

his attorney numerous times—notably just a week prior to his trial date. Id. Beyond that, the

most glaring evidence of the defendant’s deliberate intent to evade was the unrefuted

testimony of his longtime acquaintance, whom the defendant had informed of his plan to run

and avoid trial. Id. Thus, the trial court found the defendant “knowingly, willingly, freely,

voluntarily and intentionally . . . absented himself from a trial in this cause without reason

or justification after receiving proper and direct notification of the date, place and time of his

trial, all for the specific purpose of escaping prosecution.” Id.

¶16.   Here, as in Jefferson, the facts demonstrate that Morales had notice of the allegations

against him and voluntarily fled. During the arraignment, Morales appeared in open court

in the presence of his attorney and the District Attorney and was served with a copy of the

indictment. He entered a plea of not guilty. The court released Morales on the condition he

obtain a $50,000 appearance bond for the trial—All-Pro Bail Bonds contributed the surety,

and Morales signed the agreement. And, as discussed above, Morales’s attorney, Laher,

confirmed to the court that Morales was fully aware of the time, date, and location of his trial

even as close as a day before the trial date. Moreover, a taped telephone conversation

between Morales and his wife revealed the possibility that Morales had fled or was thinking

about fleeing to Mexico. In fact, almost five years after Morales’s trial, the United States

Marshals Service located Morales living in Mexico.

¶17.   The facts thus demonstrate that Morales, with sufficient notice of the allegations

against him, willfully, voluntarily, and deliberately avoided trial by leaving the country.



                                                7
Even though Morales was absent, his counsel participated in the trial, and the court instructed

the jury not to make any assumption or draw any inference from Morales’s absence. The

circuit court therefore did not abuse its discretion by allowing Morales to be tried in absentia,

and Morales suffered no prejudice because of his absence. We find that this assignment of

error is without merit.

II.    Whether the circuit court properly granted Morales’s petition and amended the
       sentencing order to correct a clerical error.

¶18.   Morales next contends that he was given an illegal sentence for his conviction under

Count II. We find that the circuit court properly granted Morales’s PCR motion in part to

amend the sentencing order to correct a clerical error in the recording of the sentences.4

¶19.   Morales’s indictment charged him in Count I with sexual battery, Count II with

fondling, and Count III with sexual battery. The arraignment order arranged the three counts

in the same numerical order. But the sentencing order entered February 9, 2007, transposed

the titles of Counts II and III, such that Count II was titled “Sexual Battery” and Count III

was titled “Fondling.” That order sentenced Morales to “fifteen (15) years on count II” and

“twenty (20) years [on] count III,” with the “[s]entence imposed in count II . . . to run

concurrent with sentence imposed in count III,” and the “[s]entence imposed in count III . . .

to run consecutive with sentence imposed in count I. . . .”5 Morales contends that based on


       4
       Unlike Morales’s other assignments of error, this allegation implicates one of the
fundamental rights found to survive the PCR procedural bars, see, supra, n.3, such that this
assignment of error is not time-barred.
       5
         A separate sentencing order, also entered February 9, 2007, sentenced Morales
under Count I to serve twenty-five years with five years suspended followed by five years
of post-release supervision.

                                               8
a literal reading of the sentencing order, his Count III sentence of twenty years is illegal,

because the maximum period of incarceration for one found guilty of fondling a child is

fifteen years. See Miss. Code Ann. § 97-5-23 (Rev. 2014).

¶20.   In weighing Morales’s PCR motion, the circuit court found that the sentencing order

mistakenly transposed the titles of Counts II and III, such that Count II was titled “Sexual

Battery” and Count III was titled “Fondling.” The court granted Morales’s requested relief,

in part, to correct the sentencing order to mirror the substantive counts as recorded in the

indictment and arraignment order. Thus amended, Morales’s sentence for fondling (Count

II) is fifteen years and is within the maximum sentence prescribed by the statute for fondling

a child.6

¶21.   We find no error in the circuit court’s amendment of the sentencing order.

“Sentencing is within the complete discretion of the trial court and not subject to appellate

review if it was within the limits prescribed by statute.” Hoops v. State, 681 So. 2d 521, 537

(Miss. 1996). Further, “[t]he trial court [is] within its inherent power to direct the entry of

nunc pro tunc sentencing orders to correct what plainly was a clerical error by the court.”

Yeatman v. State, 142 So. 3d 1091, 1094 (¶8) (Miss. 2014). The circuit court properly

granted Morales’s PCR motion in part and amended the sentencing order to correct a clerical

error regarding Counts II and III.

III.   Whether the ineffective-assistance-of-counsel claim is procedurally time-barred.

¶22.   Lastly, Morales asserts that he received ineffective assistance of counsel. Because we

       6
       All other terms and conditions of the February 9, 2007, sentencing orders remained
unmodified.

                                              9
find Morales’s ineffective-assistance-of-counsel claim to be procedurally time-barred and

without merit, we affirm.

¶23.   Under the UPCCRA, a motion for relief must be made within three years after the

time for taking an appeal from the judgment of conviction or sentence has expired if no

appeal is taken, or in case of a guilty plea, within three years after the entry of the judgment

of conviction. Miss. Code. Ann. § 99-39-5(2). See also Kirk v. State, 798 So. 2d 345, 346

(¶6) (Miss. 2000) (holding that the three-year limitation set out in Mississippi Code

Annotated section 99-39-5(2) applies to claims for ineffective assistance of counsel).

¶24.   Morales filed his petition for PCR on September 11, 2017, more than a decade after

his conviction on February 9, 2007. Morales is thus well outside the statutory limitations

imposed for filing such a petition. Further, Morales has not presented any argument that any

of the exceptions to the procedural bar found in section 99-39-5(2) are relevant or applicable

to this assignment of error. Under “extraordinary circumstances,” ineffective assistance of

counsel can constitute an exception to the statutory time-bar. Brown v. State, 187 So. 3d 667,

670-71 (¶7) (Miss. Ct. App. 2016) (quoting Chapman v. State, 167 So. 3d 1170, 1173-74

(¶¶10-13) (Miss. 2015)). Here, however, Morales has “failed to establish a basis for his

claims of ineffective assistance of counsel” that would constitute such an exception. Id. at

671 (¶8). Because this claim is procedurally time-barred, we affirm.

                                       CONCLUSION

¶25.   We affirm the circuit court’s order granting relief in part to correct the sentencing

order and denying and dismissing all other post-conviction claims.



                                              10
¶26.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND McCARTY, JJ.,
CONCUR.




                           11
