        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CP-01351-COA



RICKY LEE SHIES A/K/A RICKY SHIES A/K/A                                   APPELLANT
RICKY SHIELDS

v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                         09/03/2014
TRIAL JUDGE:                              HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                LOWNDES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   RICKY LEE SHIES (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  DENIED MOTION FOR POST-
                                          CONVICTION RELIEF
DISPOSITION:                              AFFIRMED – 02/16/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE IRVING, P.J., MAXWELL AND FAIR, JJ.

       IRVING, P.J., FOR THE COURT:

¶1.    In the Circuit Court of Lowndes County, Ricky Shies was convicted of two counts of

credit-card fraud in case number 2003-0368-CRI and one count of possession of cocaine in

case number 2003-0494-CRI. After the circuit court sentenced him, he filed a motion for

post-conviction relief (PCR), insisting that his sentence in case number 2003-0368-CRI,

which he completed in or around February 2014, was illegal. The circuit court dismissed the

PCR motion as time-barred and without merit, and this appeal resulted.
¶2.    On appeal, Shies reiterates his argument concerning his illegal sentence, which he

now argues excepts the PCR motion from the three-year statute of limitations set forth in

Mississippi Code Annotated section 99-39-5(2) (Rev. 2015). As relief, he asks this Court

to reduce his sentence in case number 2003-0494-CRI, which he is currently serving. Shies

further argues that he received ineffective assistance of counsel.

¶3.    Although we find that the circuit court erred in finding that Shies had not received an

illegal sentence, which exempted his PCR motion from the procedural bar, we also find that

we are unable to grant him any relief. We further find that Shies has failed to prove that he

received ineffective assistance of counsel. Therefore, we affirm.

                                           FACTS

¶4.    On or around May 9, 2003, in case number 2003-0368-CRI, Shies was indicted, as a

habitual offender, for four counts of credit-card fraud. Then, on or around August 11, 2003,

in case number 2003-0494-CRI, he was indicted for possession of cocaine. On February 16,

2004, the State filed a motion to amend the indictment in case number 2003-0494-CRI to

include habitual-offender language pursuant to Mississippi Code Annotated section 99-19-83

(Rev. 2015). However, the record is silent as to whether the amendment was allowed, but

it does not contain an order allowing it. Two days later, on February 18, 2004, Shies,

pursuant to a plea agreement, filed petitions to enter guilty pleas to two counts of credit-card

fraud in case number 2003-0368-CRI and to possession of cocaine in case number 2003-

0494 CRI. His plea petition in case number 2003-0368-CRI provides that he “[was] charged


                                               2
as a habitual criminal pursuant to . . . [Mississippi Code Annotated s]ection 99-19-81 [(Rev.

2015)] or [s]ection 99-19-83 on the credit[-]card[-]fraud charge” and that the district attorney

would not make any recommendation as to sentencing except: “two counts [of] credit[-]card

fraud, five years habitual [for] each.

¶5.    The circuit court accepted Shies’s pleas, adjudicated him guilty of the charges, and

sentenced him, in accordance with the plea agreements, as a section 99-19-81 habitual

offender in case number 2003-0368-CRI on two counts of credit-card fraud to two

consecutive five-year terms, one for each count, all in the custody of the Mississippi

Department of Corrections (MDOC). And in case number 2003-0494-CRI, the circuit court

sentenced Shies to a ten-year term in the custody of the MDOC, with this sentence to run

consecutively to his sentences in case number 2003-0368-CRI, for a total of twenty years,

ten of which were as a habitual offender. After Shies had been sentenced in accordance with

the district attorney’s recommendation in the plea agreement, the district attorney moved that

the remaining two counts of credit-card fraud be retired to the files, and the circuit court

granted the motion.

¶6.    More than ten years later, on July 22, 2014, Shies filed his PCR motion. As discussed,

the circuit court dismissed the motion, concluding that Shies had not received an illegal

sentence and that the motion was time-barred.

                                         DISCUSSION

¶7.    When reviewing a trial court’s dismissal of a PCR motion, an appellate court will


                                               3
reverse as to the factual findings only if they are clearly erroneous. McGriggs v. State, 117

So. 3d 626, 628 (¶5) (Miss. Ct. App. 2012) (citing Bell v. State, 95 So. 3d 760, 763 (¶7)

(Miss. Ct. App. 2012)). An appellate court reviews issues of law de novo. Id.

¶8.    Shies argues that his sentences in case number 2003-0368-CRI were illegal because

they exceeded the statutory maximum and, as stated, that the illegal sentences except his PCR

motion from the provisions of section 99-39-5(2). As noted, he desires to have both of his

sentences in case number 2003-0368-CRI retroactively reduced by two years and to have

these years credited to his sentence in case number 2003-0494-CRI. In other words, he wants

his sentence in case number 2003-0494-CRI reduced to a six-year sentence.

¶9.    Mississippi’s habitual-offender statutes, sections 99-19-81 and 99-19-83, impose

specific penalties for a criminal defendant’s third felony conviction. Section 99-19-81 states:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to separate terms of one (1) year or more in any state
       and/or federal penal institution, whether in this state or elsewhere, shall be
       sentenced to the maximum term of imprisonment prescribed for such felony,
       and such sentence shall not be reduced or suspended nor shall such person be
       eligible for parole or probation.

(Emphasis added). And section 99-19-83 provides:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to and served separate terms of one (1) year or more,
       whether served concurrently or not, in any state and/or federal penal
       institution, whether in this state or elsewhere, and where any one (1) of such
       felonies shall have been a crime of violence, . . . shall be sentenced to life

                                              4
       imprisonment, and such sentence shall not be reduced or suspended nor shall
       such person be eligible for parole, probation or any other form of early release
       from actual physical custody within the [MDOC].

(Emphasis added).

¶10.   The language of Shies’s indictment in case number 2003-0368-CRI is sufficient to

constitute habitual-offender status under section 99-19-83 because it states that Shies had

been convicted of two felonies, one of which was a crime of violence, and that he had served

at least one year for those crimes. More specifically, it provides, in pertinent part:

       [T]he said RICKY SHIELDS alias SHIES was previously convicted in the
       Circuit Court of Lowndes County, Mississippi[,] in cause number 12,255 for
       the crime of Armed Robbery, a felony, and sentenced on August 29, 1991[,]
       to serve a term of [t]wenty (20) years in [MDOC custody], [f]ifteen (15)
       suspended, with five (5) years to serve without parole;

       AND FURTHER that the said RICKY SHIELDS alias SHIES was previously
       convicted in the Circuit Court of Lowndes County, Mississippi[,] in cause
       number 2000-0102-CRI[] for the crime of Possession of Cocaine, a felony, and
       sentenced on September 7, 2000[,] to serve a term of two (2) years in [MDOC
       custody], pay a fine of [t]wo [t]housand [d]ollars ($2,000.00)[,] and be placed
       on [f]ive (5) years [p]ost-[r]elease [s]upervision after release from [MDOC
       custody].

Although the indictment in case number 2003-0368-CRI indicates that Shies was being

indicted as a habitual offender, it fails to specify an applicable habitual-offender code

section. However, the sentencing orders state: “[A] hearing was held . . . on the 18th day of

February, 2004, to determine [Shies’s] status . . . as a habitual offender, and the [c]ourt

having considered same finds that [Shies] is a[] habitual offender within the meaning of

[s]ection 99-19-81[.]” Because the transcripts from that hearing and the plea hearing were


                                              5
not made a part of the appellate record, we have no inclination as to why or how the circuit

court reached that conclusion. Regardless, since the circuit court sentenced Shies under

section 99-19-81, his two five-year sentences in case number 2003-0368-CRI were illegal

because, as explained below, they exceeded the maximum penalty prescribed by statute.

¶11.     Mississippi Code Annotated section 97-19-21 (Rev. 2014), which governs credit-card

fraud, states:

         Whenever the value of the money, goods, property, services[,] or other thing
         of value obtained or attempted to be obtained is . . . $100[] or more, the person
         committing the offense, whether the offense is a first, second[,] or subsequent
         offense, shall be guilty of a felony[,] and such person, upon conviction, shall
         be punished . . . by a fine of not less than . . . $100[] nor more than . . .
         $1,000[], or by imprisonment in the State Penitentiary for a term not to exceed
         three . . . years, or by both such fine and imprisonment.

Miss. Code Ann. § 97-19-21(3)(b) & (c) (Rev. 2014). A circuit judge is required to sentence

a section 99-19-81 habitual offender to the maximum term of imprisonment prescribed for

the felony conviction that gives rise to habitual-offender status. So under sections 97-19-21

and 99-19-81, the maximum sentence that the circuit court was authorized to impose in case

number 2003-0368-CRI was a six-year sentence—three years for each count of credit-card

fraud.

¶12.     In response to Shies’s argument that he received an illegal sentence in case number

2003-0368-CRI, the State points out that because Shies benefitted from the illegal sentences,

he cannot now complain. Since the circuit court found that Shies was a section 99-19-81

habitual offender, not a section 99-19-83 habitual offender, we presume the State is


                                                6
referencing the other sentencing benefits that Shies gained from the plea bargain, that is, the

retiring to the files of two counts of credit-card fraud. Had Shies gone to trial and been

convicted on all of the counts of credit-card fraud, he could have received a maximum

sentence of twelve years instead of the ten years that he received.

¶13.   This Court is well aware that “[a]n accused has a fundamental right to be free from

an illegal sentence.” Grayer v. State, 120 So. 3d 964, 969 (¶16) (Miss. 2013) (citation

omitted). An illegal sentence is “one that does not conform to the applicable penalty statute.”

Id. (citation and internal quotation marks omitted). Therefore, the sentences that Shies

received in case number 2003-0368CRI were illegal. And “the right to be free from an

illegal sentence is a fundamental right not subject to the time-bar” found in section 99-39-

5(2). Hugh v. State, 106 So. 3d 836, 840 (¶10) (Miss. Ct. App. 2012) (citation omitted).

Despite the imposition of Shies’s illegal sentences in case number 2003-0368-CRI, there are

two reasons why this Court cannot grant him any relief. First, Shies has already served the

two consecutive five-year sentences handed to him. See Robinson v. State, 849 So. 2d 157,

158 (¶4) (Miss. Ct. App. 2003) (citations omitted) (finding that a PCR motion is not the

proper avenue to seek reduction of a sentence and that the reduction or reconsideration of a

sentence by a judge must occur prior to the expiration of the sentencing term). The effect of

the grant of such relief would be an amendment of Shies’s sentences in case number 2003-

0368-CRI, and this Court lacks the authority to do that. See id. Moreover, at the time of the

filing of his PCR motion, Shies had already fulfilled a portion of his plea agreement, and we


                                              7
point out, with emphasis, that Shies does not seek to undo his plea agreement—just the

sentences, pursuant to the plea agreement, that he was given in case number 2003-0368-CRI.1

¶14.   Second, Shies was not prejudiced by the illegal sentences that he was given as a part

of the plea bargain. In this regard, we agree with the following assertion in the State’s brief,

quoting Graves v. State, 822 So. 2d 1089 (Miss. Ct. App. 2002): “[A] defendant cannot stand

mute when he is handed an illegal sentence which is more favorable than what the legal

sentence would have been, reap the favorable benefits of that illegal sentence, and later claim

to have been prejudiced as a result.” Id. at 1091 (¶8) (citing McGleachie v. State, 800 So.

2d 561, 563 (¶4) (Miss. Ct. App. 2001)); see also Rivers v. State, 136 So. 3d 1089, 1090 (¶8)

(Miss. App. Ct. 2011). As noted, the State indicted Shies as a habitual offender in case

number 2003-0368-CRI. And while the State did not initially indict Shies as a habitual

offender in case number 2003-0494-CRI, the State moved—on the same day that Shies

pleaded guilty in both cases—to amend the indictment to also charge Shies as a habitual

offender in that cause number. We have already mentioned that the content of both

indictments supported habitual status under section 99-19-83.

¶15.   We now turn to Shies’s final argument: that he received ineffective assistance of



       1
         We note that as of this writing, Shies is no longer listed on the MDOC website as
being incarcerated. According to Pat Ford, administrative assistant to the director of records
at MDOC, Shies is now out on parole. He was released December 8, 2015, and is reporting
on a monthly basis to his parole officer. Nevertheless, we do not consider the claim moot
that he raises in his appeal because, mandating retroactively, a shorter sentence logically
should impact the length of his current parole and probationary period.

                                               8
counsel. “In order to make an ineffective-assistance-of-counsel claim, one must show [that]:

(1) [trial] counsel’s performance was deficient[;] and (2) the deficient performance

prejudiced [him].” McCollum v. State, 81 So. 3d 1191, 1192 (¶8) (Miss. Ct. App. 2012)

(citation omitted). Here, Shies has not met his burden of proof. Without stating any specific

facts, he claims that his trial counsel’s failure to raise certain objections, file certain motions,

and conduct a proper investigation into his case prejudiced his defense. Shies also argues

that he was prejudiced by trial counsel’s failure to object to his sentence in case number

2003-0368-CRI. However, Shies has shed no light on how counsel’s alleged failures to file

motions and conduct an investigation prejudiced his case. And, ordinarily, we do not

“second guess [trial] counsel on matters of trial strategy.” Shorter v. State, 946 So. 2d 815,

818 (¶15) (Miss. Ct. App. 2007) (citation omitted). Moreover, the record does not

conclusively establish that counsel’s failure to object to Shies’s illegal sentence in case

number 2003-0368-CRI was prejudicial, as without the plea bargain, which included the

illegal sentences, Shies was facing a total of twelve years on the four counts of credit-card

fraud.

¶16.     Moreover, it appears from the language included in the indictment in case number

2003-0368-CRI that the State charged Shies as a violent habitual offender under section 99-

19-83, which mandates a life sentence. As discussed, the indictment alleged two prior felony

convictions, one of which was for a crime of violence and both of which resulted in Shies

serving a sentence of one year or more. And, in his plea petitions, Shies admitted that he had


                                                 9
received those convictions. Therefore, it is plausible that as a part of plea the negotiations,

Shies agreed to accept the ten-year sentence as a nonviolent habitual offender—instead of

facing a life sentence—even though the sentence exceeded the statutory maximum. In

making this observation, we note that the sentencing order—which found that Shies was a

section 99-19-81 habitual offender instead of a section 99-19-83 habitual offender—is a form

order, and the language in the order regarding a habitual-offender-determination hearing is

form language. In any event, based on the record before us, we cannot find that trial

counsel’s representation was ineffective.

¶17.   The dissent, contending that “Robinson [is] wholly inapplicable to the present

situation” (Dissenting Op. at (¶20)), proposes to reverse and remand for resentencing on the

two convictions for credit-card fraud in case number 2003-0368-CRI. Also the dissent,

citing cases that it admits have no precedential value, argues, despite clear, unambiguous

Mississippi precedent to the contrary, that a defendant pursuant to a plea bargain cannot

agree to an illegal sentence. In support of its position that we have the authority to grant

Shies the requested relief, the dissent cites Edmondson v. State, 17 So. 3d 591 (Miss. Ct.

App. 2009), which discusses a couple of United States Supreme Court cases holding that

when a defendant is sentenced to consecutive sentences, he has standing to challenge the

legality of any of the sentences at any time while he is in custody because he is in custody

under all of the sentences until all are served. Nothing in our opinion runs counter to that

holding because we are not dismissing Shies’s PCR motion on the basis that he lacks


                                              10
standing to challenge his sentences. Rather, we have considered the substance of his claim

and find his argument—that his sentences must be set aside because they were illegal—lacks

merit.

¶18.     In conclusion, we find that although Shies received illegal sentences in case number

2003-0368-CRI, this Court lacks the authority to grant his requested relief, which is the

reduction of his sentences in case number 2003-0368-CRI so as to allow the commencement

of his sentence in 2003-0494-CRI to begin four years earlier than scheduled. We also find

that Shies has failed to prove that he received ineffective assistance of counsel because he

did not establish that his trial counsel’s alleged failures were outside the ambit of trial

strategy or that he was prejudiced by counsel’s representation. Accordingly, we affirm.

¶19. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

     GRIFFIS, P.J., ISHEE, CARLTON, FAIR AND JAMES, JJ., CONCUR.
WILSON, J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN
OPINION. BARNES, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION, JOINED BY LEE, C.J. GREENLEE, J., NOT
PARTICIPATING.

         BARNES, J., CONCURRING IN PART AND DISSENTING IN PART:

¶20.     I cannot accept the majority’s conclusion that this Court has no power to grant Shies

relief from his illegal sentences and, therefore, dissent in part. The majority cites Robinson

v. State, 849 So. 2d 157 (Miss. Ct. App. 2003), to support its finding that this Court lacks

authority to amend Shies’s sentences. However, I find Robinson wholly inapplicable to the


                                              11
present situation. Robinson did not concern the imposition of an illegal sentence; it simply

addressed a petitioner’s motion to reconsider and reduce his sentence after entering his guilty

plea and after the term of court had ended. Id. at 158 (¶4).

¶21.   While Shies has already served the illegally imposed ten years for the two credit-card-

fraud convictions, he is still in custody serving a ten-year sentence for possession of cocaine,

which was ordered to run consecutively to the sentences challenged in his PCR motion. In

Edmondson v. State, 17 So. 3d 591 (Miss. Ct. App. 2009), this Court addressed whether a

petitioner could challenge a sentence that had expired, if he was still in custody for a

consecutive sentence imposed at the same time as the challenged sentence. We “assume[d],

without deciding” that he could, stating:

       In Peyton v. Rowe, 391 U.S. 54, 67 (1968), the United States Supreme Court
       found that a prisoner, serving consecutive sentences, is considered to be “in
       custody” “under any one of them,” and should not have to wait until he is
       considered “in custody” for a specific sentence in order to obtain federal
       habeas corpus relief. In a later decision, Garlotte v. Fordice, 515 U.S. 39, 41
       (1995), the Supreme Court extended this precedent holding that a prisoner
       serving a series of consecutive sentences “remains ‘in custody’ under all of his
       sentences until all are served, and . . . may attack the conviction underlying the
       sentence scheduled to run first in the series.” Harvey Garlotte, like [William]
       Edmondson, was convicted and sentenced by a Mississippi trial court to three
       years for possession of marijuana. Garlotte, however, also received two
       concurrent life sentences for murder, which were ordered to run consecutively
       to the three-year sentence. Id. After unsuccessfully seeking state post-
       conviction relief with the Mississippi Supreme Court, Garlotte filed a federal
       habeas corpus petition with the United States District Court for the Southern
       District of Mississippi alleging various federal constitutional challenges to the
       marijuana conviction, which was denied on the merits. Garlotte, 515 U.S. at
       43. On appeal, the United States Court of Appeals for the Fifth Circuit ruled
       that the federal district court had no jurisdiction to consider Garlotte’s federal
       habeas corpus petition as he had already served the three-year sentence under

                                              12
       attack and was now in custody serving his life sentences. Id. The United
       States Supreme Court reversed the Fifth Circuit’s decision based upon
       Peyton’s holding that consecutive sentences are to be viewed “in the
       aggregate, not as discrete segments.” Id. at 47. The Supreme Court observed
       “that Mississippi itself has viewed consecutive sentences in the aggregate for
       various penological purposes,” such as, determining parole eligibility or earned
       time allowance, as it would be difficult for the courts to determine when one
       sentence ends and a consecutive sentence begins. Id. at 46 n.5. Therefore,
       Garlotte was allowed to “attack in his habeas corpus petition the conviction
       underlying the sentence scheduled to run first in the series.” Id. at 41.

Edmondson, 17 So. 3d at 594-95 (¶8) (emphasis added). Additionally, Mississippi Code

Annotated section 99-39-5(1) was amended in 2009 to provide that a PCR motion may be

filed by:

       Any person sentenced by a court of record of the State of Mississippi,
       including a person currently incarcerated, civilly committed, on parole or
       probation or subject to sex offender registration for the period of the
       registration or for the first five (5) years of the registration, whichever is the
       shorter period[.]2

Thus, the statute was expanded to include persons feeling the effects of their convictions,

even if they are no longer incarcerated for the crimes. I find no reason why Shies cannot

attack his sentences for cause number 2003-0368-CRI, as he is still in custody serving his

consecutive ten-year sentence for possession of cocaine.

¶22.   The State argues that because Shies benefited from his illegal sentences, he cannot

attack them. Our court has held that “[a] convicted felon may not quietly enjoy the benefits



       2
        Prior to the 2009 amendment, the statute applied only to a “prisoner in custody under
sentence of a court of record of the State of Mississippi[.]” Miss. Code Ann. § 99-39-5(1)
(Rev. 2007).

                                              13
of an illegally lenient sentence, and later attack the sentence when suddenly it is in his

interest to do so.” Crosby v. State, 16 So. 3d 74, 80 (¶12) (Miss. Ct. App. 2009) (quoting

Thomas v. State, 861 So. 2d 371, 374 (¶9) (Miss. Ct. App. 2003)). Further, “a defendant

should not be allowed to reap the benefits of an illegal sentence, which is lighter than what

the legal sentence would have been, and then turn around and attack the legality of the

illegal, lighter sentence when it serves his interest to do so.” Graves v. State, 822 So. 2d

1089, 1092 (¶11) (Miss. Ct. App. 2002).

¶23.   Here, Shies received an illegally harsh sentence, not an illegally lenient one. What

the State is really arguing is that Shies benefited from pleading guilty as a habitual offender

under section 99-19-81 (and allegedly receiving the maximum sentences for those crimes),

rather than as a habitual offender under section 99-19-83 (and being sentenced to life

imprisonment).3 Be that as it may, Shies did not plead guilty as a section 99-19-83 habitual

offender, and he can only receive the maximum sentences for the crimes to which he pled

guilty. For these crimes, the imposed sentences were illegally harsh. The record, on its face,

evidences that Shies’s sentences are illegal.4

       3
          The petition to enter the guilty plea for cause number 2003-0368-CRI stated that the
district attorney recommended “2 counts credit card fraud, five years habitual each,” which
would indicate that Shies was to be sentenced under section 99-19-81.
       4
        Although not precedential authority, other jurisdictions have held that “[a] defendant
cannot by a plea agreement accept a sentence that exceeds the statutory maximum.” See
Adams v. State, 901 So. 2d 275, 277 (Fla. Dist. Ct. App. 2005); see also People v. Ambrose,
9 Cal. Rptr. 2d 812, 816 (Cal. Ct. App. 1992) (“Even if a defendant agrees to such a
negotiated disposition, a trial court should not impose a sentence in excess of the maximum
allowable for the plea entered.”); Hoover v. State, 215 S.W.3d 776, 780 (Tenn. 2007) (noting

                                              14
¶24.   Shies is still suffering the effect of his two illegally imposed sentences; had he been

sentenced according to the statutory maximum amount of three years, he would be eligible

for release from custody in 2018, rather than 2022. Accordingly, I would reverse and remand

for resentencing on the two convictions for credit-card fraud under section 97-19-21.

       LEE, C.J., JOINS THIS OPINION.




“a plea-bargained sentence is legal so long as it does not exceed the maximum punishment
authorized for the plea offense”); State v. Mercado, 326 P.3d 154, 158 (Wash. Ct. App. 2014)
(“A defendant cannot agree to punishment in excess of that which the legislature has
established.”).

                                             15
