         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CP-01803-COA

JAMES GANDY JR. A/K/A JAMES GANDY                                            APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           10/03/2013
TRIAL JUDGE:                                HON. BILLY JOE LANDRUM
COURT FROM WHICH APPEALED:                  JONES COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     JAMES GANDY JR. (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF ATTORNEY GENERAL
                                            BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                         CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DENIED MOTION FOR POSTCONVICTION
                                            RELIEF
DISPOSITION:                                AFFIRMED - 12/08/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND JAMES, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    James Gandy Jr. was convicted in the Jones County Circuit Court of kidnaping in

1985 and sentenced as a habitual offender to life in prison. Almost three decades later,

Gandy filed a motion for postconviction relief (PCR) claiming he was illegally sentenced as

a habitual offender. After finding that the three-year statute of limitations on his PCR motion

had expired and that there was no evidence to suggest that an exception to the statute was

applicable, the circuit court denied Gandy’s motion as being time-barred. Aggrieved, Gandy

appeals. Finding no error, we affirm.

                                STATEMENT OF FACTS
¶2.    In 1985, after a jury trial on the matter, Gandy was convicted of kidnaping. During

the sentencing phase of the trial, the circuit court reviewed Gandy’s criminal record and

determined that he qualified as a habitual offender. The circuit court subsequently sentenced

Gandy as a habitual offender to life in the custody of the Mississippi Department of

Corrections (MDOC).

¶3.    In July 2013, Gandy filed a PCR motion in the circuit court, arguing that to be

sentenced as a habitual offender the State had to prove that he served at least one year in

prison and that one of the prior convictions was for a violent crime. He argued that he only

served nine months in prison and that neither of his prior convictions, burglary or receiving

stolen property, was a violent crime.

¶4.    The circuit court determined that Gandy’s PCR motion was time-barred because it fell

outside of the three-year statute of limitations. Nonetheless, Gandy argues that the three-year

statute of limitations should not apply because his sentence was illegal and deprived him of

due process. The State argues that despite Gandy’s claim that his sentence is illegal because

it deprived him of due process, he provided no evidence, affidavits, or other information to

support his proposition.

                                        DISCUSSION

¶5.    A clearly-erroneous standard of review applies to our review of the circuit court’s

denial of Gandy’s PCR motion. Moore v. State, 986 So. 2d 928, 932 (¶13) (Miss. 2008).

The standard of review is de novo when questions of law are raised by the motion. Lambert

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



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¶6.    Mississippi Code Annotated section 99-39-5 (Rev. 2015) governs PCR motions. The

statute provides that a prisoner has three years to request postconviction relief. After that

time, only certain cases are excepted from the procedural bar. Exceptions to the three-year

statute of limitations are as follows:

       That there has been an intervening decision of the Supreme Court of either the
       State of Mississippi or the United States which would have actually adversely
       affected the outcome of [the movant’s] conviction or sentence or that [the
       movant] has evidence, not reasonably discoverable at the time of trial, which
       is of such nature that it would be practically conclusive that had such been
       introduced at trial it would have caused a different result in the conviction or
       sentence; or [t]hat, even if the petitioner pled guilty or nolo contendere, or
       confessed or admitted to a crime, there exists biological evidence not tested,
       or, if previously tested, that can be subjected to additional DNA testing that
       would provide a reasonable likelihood of more probative results, and that
       testing would demonstrate by reasonable probability that the [movant] would
       not have been convicted or would have received a lesser sentence if favorable
       results had been obtained through such forensic DNA testing at the time of the
       original prosecution. Likewise excepted are those cases in which the [movant]
       claims that his sentence has expired or his probation, parole or conditional
       release has been unlawfully revoked. Likewise excepted are filings for post-
       conviction relief in capital cases which shall be made within one (1) year after
       conviction.

Miss. Code Ann. § 99-39-5(2)(a)-(b).

¶7.    Gandy heavily relies on Ivy v. State, 731 So. 2d 601, 603 (¶14) (Miss. 1999), which

held that when a defendant alleges that he is serving an illegal sentence, his claim is not

subject to the procedural time-bar. In that case the petitioner was serving a life sentence for

capital murder and sought postconviction relief nineteen years after his conviction. Id. at 601

(¶2). The supreme court held that the trial court erred in applying the procedural bar because

the right to a legal sentence was a fundamental constitutional right excepted from the time-

bar. Id. at 603 (¶13).

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¶8.     While we recognize that an illegal sentence is an exception to the time-bar, Gandy’s

sentence was not illegal. Gandy stated in his PCR motion that the State failed to prove

beyond a reasonable doubt that he had served one year or that one of his prior convictions

was a violent crime. This is irrelevant. The circuit court sentenced Gandy as a habitual

offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015), which 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).

¶9.     The State was not required to prove that Gandy had served one year or that his prior

conviction was for a violent crime. Rather, under the habitual-offender statute, the State only

had to prove that Gandy had been previously convicted of two felonies and that he had been

sentenced to separate terms of at least one year. In the sentencing order, the circuit court

held:

        [T]he defendant has been previously convicted of two separate felonies upon
        charges separately brought and arising out of separate incidents and at
        different times, and the defendant having been sentenced previously to a term
        of three years in the penitentiary for the crime of burglary on the [second] day
        of October, 1981, and having been sentenced to a term of four years in the
        penitentiary for the crime of receiving stolen property on the [first] day of
        April, 1983, the [c]ourt therefore finds that the defendant is a[] habitual
        criminal . . . under the provisions of Sec[tion] 99-19-81, Miss[issippi] Code of
        1972 . . . .

¶10.     Gandy improperly cites to the requirements under Mississippi Code Annotated

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section 99-19-83 (Rev. 2015) for convicting a defendant as a habitual offender. Section 99-

19-83 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 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, as defined by Section 97-3-2,
       shall be sentenced to life 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].

¶11.   While Gandy was, in fact, sentenced to life in the custody of the MDOC, he was

sentenced as such because the maximum sentence available for the crime of kidnaping is life

in prison. See Miss. Code Ann. § 97-3-53 (Rev. 2014). Accordingly, Gandy’s assertion that

he was illegally sentenced as a habitual offender is baseless, and his PCR motion is subject

to the time-bar. We affirm the judgment of the circuit court.

¶12. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT DENYING
THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO JONES COUNTY.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, MAXWELL,
FAIR, JAMES AND WILSON, JJ., CONCUR.




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