        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CP-00913-COA

JAMES HILLIARD A/K/A JAMES STEPHEN                                          APPELLANT
HILLARD

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          05/23/2016
TRIAL JUDGE:                               HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED:                 LAFAYETTE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES HILLIARD (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 09/26/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., BARNES AND CARLTON, JJ.

       BARNES, J., FOR THE COURT:

¶1.    James Hilliard, appearing pro se, appeals the Lafayette County Circuit Court’s denial

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

              STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    In February 2011, Hilliard was indicted for one count of conspiracy to sell cocaine,

and one count of possession of cocaine with intent to sell. In July 2012, the State filed a

motion to amend Hilliard’s indictment to include habitual-offender status due to prior felony

convictions in California for possession of a controlled substance. The trial court granted

the motion.
¶3.    On October 8, 2012, Hilliard pleaded guilty to conspiracy to sell cocaine. As a result

of the State’s recommendation and the plea agreement, the trial court dismissed the count

of possession of cocaine with intent to sell. At Hilliard’s plea hearing, the State explained

that it had two motions to amend the indictment. One motion was to sentence Hilliard as a

subsequent offender, which the State withdrew due to the plea agreement. The other ore

tenus motion was to enhance his sentence as a habitual offender under Mississippi Code

Annotated section 99-19-81 (Rev. 2015). The State pointed to two prior convictions in

California, both for felony possession of a controlled substance in 1998 and 2000,

respectively. Hilliard did not object to the enhancement, as it was part of the plea

agreement. The trial court found Hilliard qualified for habitual-offender status under section

99-19-81. He was sentenced to seventeen years for the conspiracy charge, with four years

suspended and thirteen to serve as a habitual offender.1

¶4.    On May 3, 2016, Hilliard filed an untimely PCR motion, claiming that his enhanced

sentence as a habitual offender was improper because one of his felony convictions from

California was subsequently redesignated as a misdemeanor. He claims his sentence as a

habitual offender is now invalid and requires him to be resentenced as a nonhabitual

       1
          The trial court ordered Hilliard’s indictment amended to habitual status under
Mississippi Code Annotated section 99-19-83 (Rev. 2015), mandating a life sentence for
violent offenders, in supposed response to the State’s motion of July 12, 2012; however, this
motion is not included in the record on appeal. Obviously, since Hilliard did not commit any
violent felonies, he would not be eligible for this enhancement. However, at the plea
hearing, the State moved to amend the indictment under the proper section 99-19-81. Under
this section, Hilliard should have been sentenced to the maximum prison term, twenty years.
As he was only sentenced to seventeen years and four years suspended, Hilliard apparently
received an illegally lenient sentence. This, of course, is no basis for him to complain.
Chambliss v. State, 188 So. 3d 1262, 1266 (¶17) (Miss. Ct. App. 2016) (citations omitted).

                                              2
offender. The trial court summarily denied his PCR motion, and Hilliard timely appealed.

                                        ANALYSIS

¶5.    Hilliard seeks to be resentenced as a nonhabitual offender. He argues that his

sentence as a habitual offender under his plea agreement should be set aside after a prior

felony conviction from California was amended to a misdemeanor. This issue is a question

of law, which is reviewed de novo. See Doss v. State, 19 So. 3d 690, 694 (¶5) (Miss. 2009).

¶6.    First, this PCR motion is untimely and thus procedurally barred. A PCR motion

challenging a guilty plea must be filed within three years of the entry of the judgment of

conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Hilliard pleaded guilty in July

2012, and his PCR motion was filed in May 2016, nearly one year late. Further, no

exception to the three-year statute of limitations applies.

¶7.    Second, Hilliard’s argument for resentencing is without merit. Hilliard references a

procedure under California statute whereby certain felony convictions may be reclassified

and resentenced as misdemeanors. The pertinent statute, California Penal Code section

1170.18,2 became effective on November 5, 2014, approximately two years after Hilliard

pleaded guilty to the instant charge. In February 2016, Hilliard requested the Superior Court

       2
           The statute reads in part:

       A person who, on November 5, 2014, was serving a sentence for a conviction,
       whether by trial or plea, of a felony or felonies who would have been guilty
       of a misdemeanor under the act that added this section (“this act”) had this act
       been in effect at the time of the offense may petition for a recall of sentence
       before the trial court that entered the judgment of conviction in his or her case
       to request resentencing . . . .

Cal. Penal Code § 1170.18(a).

                                              3
of Santa Clara County, California, to redesignate and resentence his prior felony in 1998 as

a misdemeanor. In March 2016, the court granted the request, two months before Hilliard

filed his PCR motion. Hilliard claims that due to the redesignation of one of his felonies,

he is no longer eligible to be sentenced in Mississippi as a habitual offender under section

99-19-81.3 We disagree.

¶8.    The United States Court of Appeals for the Ninth Circuit has carefully analyzed and

rejected this argument. In United States v. Diaz, 838 F.3d 968 (9th Cir. 2016), the defendant

received a life sentence mandated by federal statute4 for those defendants who have two or

more felony drug offenses. The defendant successfully petitioned the Los Angeles County

Superior Court that his two prior drug convictions be reclassified as misdemeanors under

section 1170.18. The defendant then appealed his federal life sentence, arguing that his

federal enhancement should be invalidated because of the post-conviction reclassification

of his two prior drug-related felonies. The court of appeals affirmed, holding that section

1170.18 “does not change the historical fact that [the defendant] had violated section 841

after two or more prior convictions for felony drug offenses had become final.” Id. at 971.


       3
           Section 99-19-81 reads:

       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.
       4
           See 21 U.S.C. § 841(b)(1)(A) (2012).

                                             4
The court continued that, even if a state were to eradicate fully a conviction by dismissing

or expunging it – a much more drastic change than merely reclassifying it as a misdemeanor

– the defendant still would have committed the federal crime “after a prior state felony

conviction” had become final. Thus, under the plain statutory language of section 841,

enhancement would be appropriate. Id. at 974 (citation omitted).

¶9.    We find the situation here analogous. Hilliard’s reclassification of one prior

California felony to a misdemeanor does not change “the historical fact” that he was

convicted of two felonies in the past, for purposes of section 99-19-81’s sentence

enhancement. Further, under the plain statutory language of section 99-19-81, Hilliard, at

the time of his conviction and sentence, had been “convicted twice previously of any felony

. . . and . . . sentenced to separate terms of one (1) year or more.” At the plea hearing,

Hilliard told the court that he understood and stipulated to two prior felony convictions in

California, which qualified him for habitual-offender status. He stated that he understood

that his plea agreement would result in his being sentenced as a habitual offender. The

subsequent amendment to California’s sentencing scheme does not change Hilliard’s

qualification for habitual-offender status. We find this argument without merit.

¶10.   The judgment of the circuit court denying Hilliard’s PCR motion is affirmed.

¶11.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




                                             5
