         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CP-01621-COA

ARMSTRONG KNIGHT A/K/A ARMSTRONG                                             APPELLANT
JACOB KNIGHT A/K/A A.J. KNIGHT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                           09/09/2013
TRIAL JUDGE:                                HON. LISA P. DODSON
COURT FROM WHICH APPEALED:                  HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     ARMSTRONG KNIGHT (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                         CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                    MOTION FOR POSTCONVICTION RELIEF
                                            DENIED
DISPOSITION:                                AFFIRMED - 04/26/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GREENLEE, J., FOR THE COURT:

¶1.    In 2003, Armstrong Knight negotiated a plea deal to avoid a murder conviction and

the possibility of spending the rest of his life in prison. He pled guilty to manslaughter, two

counts of felon in possession of a firearm, and one count of carrying a concealed weapon

after a felony conviction. His combined sentences essentially operated as thirty years in the

custody of the Mississippi Department of Corrections (MDOC). Approximately ten years

later, he claimed that one of his convictions for felon in possession of a firearm must be

vacated because he has been subjected to double jeopardy. But we find that Knight waived
the issue through his negotiated plea deal. Accordingly, we affirm the Harrison County

Circuit Court’s judgment denying Knight’s motion for postconviction relief (PCR).

                          FACTS AND PROCEDURAL HISTORY

¶2.    In 2003, Knight was facing a murder charge. If convicted, he would have received

a mandatory life sentence. Miss. Code Ann. § 97-3-21 (Rev. 2006). He would not have been

eligible for parole. Miss. Code Ann. § 47-7-3(1)(g) (Supp. 2006). And the prosecution had

been building its case.

¶3.    The prosecution’s theory was that while beginning his return trip to California, Knight

had emptied two firearms into a mobile home, killing Charles Dawson in the process. When

authorities first investigated the scene, Dawson’s wife implicated Knight based on his

ongoing dispute with someone other than the victim. A pistol had been recovered at the

scene, and it had been identified as Knight’s. When he was arrested in Texas, Knight had

four other firearms, including an SKS semiautomatic rifle. Shell casings recovered at the

scene were consistent with those used in the pistol and the SKS.

¶4.    Additionally, Knight’s sister had been charged as an accessory to murder, but she took

a plea deal to a lesser charge as an accessory after the fact. Her plea deal was contingent on

her testimony against Knight, which would place him directly at the scene. And the circuit

court had denied Knight’s motion to suppress the firearms seized when he was arrested.

Considering the apparent strength of the prosecution’s case, Knight chose to take a plea deal.

¶5.    Knight agreed to plead guilty to manslaughter and three other charges. He filed a


                                              2
guilty-plea petition to that effect. In furtherance of the plea agreement, Knight also filed a

“waiver of indictment and agreement to prosecution by information.” He attached a bill of

information specifically charging him with felon in possession of a firearm – the SKS. He

then filed a second waiver of indictment, and attached a bill of information charging him

with possession of a shotgun that had been recovered when he was arrested. Finally, he took

similar steps to plead guilty to carrying a concealed weapon – the pistol – after a felony

conviction.

¶6.    In exchange, the prosecution agreed to recommend sentences of twenty years for

manslaughter, two and one-half years for each count of felon in possession of a firearm, and

five years for carrying a concealed weapon after a felony conviction. The sentences would

all run consecutively, equivalent to a combined thirty-year sentence. The prosecution

fulfilled its end of the bargain. The circuit court accepted Knight’s guilty pleas and

sentenced Knight consistent with the prosecution’s recommendation.

¶7.    Knight subsequently filed an unsuccessful PCR motion. Knight v. State, 983 So. 2d

348, 350 (¶3) (Miss. Ct. App. 2008). On appeal, this Court vacated Knight’s conviction for

carrying a concealed weapon after a felony conviction. Id. at 352 (¶¶13-14). But there was

no merit to Knight’s claim that he had not been previously convicted of a felony. Id. at 354

(¶24). And there was no merit to his claim that he received ineffective assistance of counsel

when he pled guilty to two counts of felon in possession of a firearm. Id. at (¶25).

¶8.    In February 2013, Knight filed another PCR motion. In his second PCR motion, he


                                              3
claimed his two convictions for felon in possession of a firearm violate the prohibition

against double jeopardy.     According to Knight, he can only be convicted once for

simultaneous possession of multiple firearms. Knight reasoned that because the SKS and the

shotgun were both in the same U-Haul when he was arrested, he had been punished twice for

the same offense, so one of his convictions had to be vacated. The circuit court found that

Knight’s 2013 PCR motion was time-barred and successive-writ barred. Notwithstanding

the procedural bars, in a thorough and detailed analysis, the circuit court found that Knight’s

claim had no merit. Accordingly, the circuit court denied Knight’s 2013 PCR motion.

Knight appeals and reiterates his double-jeopardy claim.

                                STANDARD OF REVIEW

¶9.    We will not disturb a circuit court’s decision to deny a PCR motion unless the

decision was clearly erroneous. Id. at 350 (¶4). However, a double-jeopardy claim is a

question of law, which we review de novo. Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss.

1999). Statutory interpretation is also a matter of law. Lewis v. Hinds Cty. Circuit Court,

158 So. 3d 1117, 1120 (¶6) (Miss. 2015).

                                        ANALYSIS

¶10.   The circuit court found that Knight’s double-jeopardy claim was both time-barred and

procedurally barred as a successive writ. Without question, Knight filed his 2013 PCR

motion well beyond the three-year statutory deadline that began to run when he entered his

guilty pleas in 2003. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015). And Knight’s


                                              4
unsuccessful 2006 PCR motion would generally render his 2013 PCR motion barred as a

successive writ. See Miss. Code Ann. § 99-39-23(6) (Rev. 2015).

¶11.   But in Rowland v. State, 42 So. 3d 503, 508 (¶15) (Miss. 2010), the Mississippi

Supreme Court held that double-jeopardy claims “are excepted from the procedural bars” in

the Uniform Postconviction Collateral Relief Act. This is an absolute matter not subject to

an appellate court’s discretion. Id. at 507 (¶12). The supreme court has also “held that

neither the common law nor our own constitutional law applies the doctrine of res judicata

to constitutional claims.” Smith v. State, 149 So. 3d 1027, 1032 (¶11) (Miss. 2014).

Consequently, Knight’s current claim is not barred by time or the fact that he raised it in a

successive PCR motion. But whether Knight waived it by pleading guilty is a more

complicated issue.

¶12.   “The most basic rights of criminal defendants are . . . subject to waiver.” Peretz v.

United States, 501 U.S. 923, 936 (1991). “[T]he Constitution affords no protection to a

defendant who waives these fundamental rights.” Id. at 937. Broadly speaking, the United

States Supreme Court has further held:

       [A] guilty plea represents a break in the chain of events which has preceded it
       in the criminal process. When a criminal defendant has solemnly admitted in
       open court that he is in fact guilty of the offense with which he is charged, he
       may not thereafter raise independent claims relating to the deprivation of his
       constitutional rights that occurred prior to the entry of the guilty plea.

Tollett v. Henderson, 411 U.S. 258, 267 (1973). This broad principle has been extended to

numerous constitutional rights. More specifically, a valid guilty plea operates as a waiver


                                              5
of one’s rights related to a speedy trial, refusal of self-incrimination, confrontation of

accusers, cross-examination of witnesses, a jury trial, and the State’s obligation to prove guilt

beyond a reasonable doubt. See Anderson v. State, 577 So. 2d 390, 391 (Miss. 1991)

(regarding waiver of the right to a speedy trial); Jefferson v. State, 556 So. 2d 1016, 1019

(Miss. 1989).

¶13.   Characterizing a constitutional right as “fundamental” does not mean it is impossible

to waive it by pleading guilty. Along with double jeopardy, three other claims have been

included in the “fundamental” label: (1) illegally harsh sentencing; (2) denial of due process

during sentencing, and (3) ex post facto claims. Boyd v. State, 155 So. 3d 914, 918 (¶13)

(Miss. Ct. App. 2014). The Mississippi Supreme Court has held that an ex post facto claim

may be waived through a negotiated guilty plea. See Twillie v. State, 892 So. 2d 187, 190

(¶11) (Miss. 2004). As our supreme court has stated:

       If a defendant in a criminal case can waive the constitutional right to remain
       silent and give an incriminating confession [that] eventually places [him] on
       death row, it logically follows that a defendant . . . can waive his ex post facto
       rights and knowingly enter into an agreement to be sentenced to life without
       parole in order to avoid the death penalty.

Id. And under certain circumstances, the United States Supreme Court has held that a

double-jeopardy claim may be waived through a guilty plea. United States v. Broce, 488 U.S.

563, 573 (1989).

¶14.   Noting previous decisions to the contrary under different circumstances, the Broce

Court reiterated that a guilty plea “does not waive a claim that – judged on its face – the


                                               6
charge is one [that] the State may not constitutionally prosecute.” Id. at 575. But prisoners

who plead guilty to “indictments that on their face described separate” crimes essentially

waive the right to contradict “the admissions inherent in their guilty pleas.” Id. “[C]onscious

waiver” of double jeopardy is not required. Id. at 573. “Relinquishment derives not from

any inquiry into a defendant’s subjective understanding of the range of potential defenses,

[including one based on double jeopardy,] but from the admissions necessarily made upon

entry of a voluntary plea of guilty.” Id. at 573-74.

¶15.   So far, our supreme court has not addressed circumstances in which a guilty plea

operated as a waiver of a double-jeopardy claim. See Matlock v. State, 732 So. 2d 168, 171

(¶11) (Miss. 1999); Rush v. State, 749 So. 2d 1024, 1027 (¶9) (Miss. 1999). The fact remains

that the waiver question turns on the nature of the double-jeopardy claim. Those involving

charges that are facially duplicative of an earlier crime are not waived by pleading guilty.

Menna v. New York, 423 U.S. 61, 62 (1975). The same is true with claims involving merged

crimes – a “constitutional infirmity in the proceedings” that impacts the “State’s power to

bring any indictment at all.” Blackledge v. Perry, 417 U.S. 21, 30 (1975). But a guilty plea

does waive a double-jeopardy claim that cannot be proven without contradicting the

indictments under which a prisoner pled guilty. Broce, 488 U.S. at 576.

¶16.   Knight pled guilty to two separate bills of information. In each separate waiver of

indictment, Knight demanded to be prosecuted for a different unindicted offense. One bill

of information charged him with possession of the SKS, and the other charged him with


                                              7
possession of a shotgun. On their face, the two bills of information describe separate crimes.

So per Broce, Knight waived his current double-jeopardy claim by pleading guilty to the

charges.

¶17.   What is more, Knight benefitted from his guilty pleas because he avoided the

possibility of being convicted of murder and sentenced to life in MDOC custody without

eligibility for parole. “[T]he Double Jeopardy Clause . . . does not relieve a defendant from

the consequences of his voluntary choice.” Ricketts v. Adamson, 483 U.S. 1, 11 (1987). In

Novaton v. State, 634 So. 2d 607, 608 (Fla. 1994), a prisoner argued that although he had

negotiated a plea agreement to avoid the possibility of a life sentence without the possibility

of parole, he experienced double jeopardy based on two of the charges. Relying on Broce,

the Florida Supreme Court held that because the prisoner “entered into a bargained plea with

the State, . . . [he] waived any double jeopardy claim that may affect either his convictions

or his sentences . . . .” Id. at 609.

¶18.   Although Novaton is not binding, we find that its reasoning is persuasive; particularly

given that Knight seeks to selectively dismantle the plea agreement from which he benefitted.

He does not ask to withdraw his guilty plea to manslaughter, but vacating one of his

convictions for felon in possession of a firearm would require vacating all of his guilty pleas

under the agreement. In Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995), the supreme

court held that a prisoner experienced double jeopardy because he had pled guilty to felony

murder and the underlying felony. The Fuselier court vacated both convictions, because the


                                              8
prisoner “should not be allowed to benefit from an invalid plea bargain” that the State

entered in good faith. Id. at 523. In other words, the proper resolution was to put “both the

State and [the prisoner] in the same position they were in before the plea bargain was made.”

Id. Knight does not seek to return to that position.

¶19.   Even if Knight had not waived his claim by pleading guilty, we find it has no merit.

Article 3, Section 22 of the Mississippi Constitution provides that “[n]o person’s life or

liberty shall be twice placed in jeopardy for the same offense[.]” The prohibition against

double jeopardy “assures three separate protections,” but the one that applies here is the

“protection from multiple punishments for the same offense.” See Graves v. State, 969 So.

2d 845, 847 (¶7) (Miss. 2007) (quoting United States v. Dixon, 509 U.S. 688, 695-96 (1993)).

       To determine whether double-jeopardy protections apply, we look to the
       “same-elements” test prescribed by the United States Supreme Court in
       Blockburger v. United States, 284 U.S. 299, 304 (1932). The Blockburger test
       instructs us to determine whether each offense contains an element not present
       in the other; if not, they are labeled the same offense for double-jeopardy
       purposes, and successive prosecutions and/or punishments are constitutionally
       barred.

Graves, 969 So. 2d at 847 (¶8). Additionally, “the test to be applied to determine whether

there are two offenses or only one, is whether each provision requires proof of a fact which

the other does not.” Watkins v. State, 101 So. 3d 628, 632 (¶12) (Miss. 2012).

¶20.   The statute at issue provides that it is illegal for “any person who has been convicted

of a felony . . . to possess any firearm . . . .” Miss. Code Ann. § 97-37-5(1) (Rev. 2014).

According to Knight, because the statute is ambiguous as to whether he can be convicted


                                              9
once or more than once for simultaneously possessing multiple firearms, we must apply the

most lenient interpretation. Our supreme court has never found double jeopardy in similar

circumstances, or interpreted the statute as Knight suggests. The supreme court has most

recently described the issue as “unsettled and unclear.” Green v. State, 183 So. 3d 28, 30

(¶5) (Miss. 2016) (declining to conduct a plain-error review of a double-jeopardy claim based

on multiple convictions for simultaneous possession of firearms). But there are numerous

Mississippi cases in which a felon had been convicted of multiple offenses related to

possession of multiple firearms. Id. at 31 (¶7) (collecting cases).

¶21.   Still, Knight’s position is not unprecedented. Although it may seem like a semantic

distinction without a real difference, the question turns on the usage of “any firearm” instead

of “a firearm.” In Bell v. United States, 349 U.S. 81, 82-83 (1955), the United States

Supreme Court held that a federal statute prohibiting the transportation of “any woman . . .

for the purpose of prostitution” was ambiguous regarding the allowable “unit of

prosecution.” In other words, the Supreme Court found that it was ambiguous whether

Congress intended for one or more than one conviction to result from simultaneously

transporting multiple women “for the purpose of prostitution.” Id. The Supreme Court

disclaimed the implication that “language used in criminal statutes should not be read with

the saving grace of common sense” or “cast in technical language.” Id. at 83. Even so, the

Supreme Court held that “if Congress does not fix the punishment for a federal offense

clearly and without ambiguity, doubt will be resolved against turning a single transaction into


                                              10
multiple offenses . . . .” Id. at 84.

¶22.   Based on Bell, federal circuit courts have unanimously found that 18 U.S.C. §

922(g)(1) (2012), which provides that it is unlawful for a felon to ship, possess, or receive

“any firearm” through interstate commerce, is ambiguous regarding the allowable “unit of

prosecution.”1 Accordingly, all federal circuits have held that a felon may only be convicted

once for simultaneous possession of multiple firearms. Other states have reached similar

conclusions based on the difference between “a firearm” and “any firearm.” Florida and

North Carolina have interpreted their comparable statutes prohibiting possession of “any

firearm” to mean that only one conviction is permissible for simultaneous possession of

multiple firearms. Hill v. State, 711 So. 2d 1221, 1224-25 (Fla. Dist. Ct. App. 1998); State

v. Garris, 663 S.E.2d 340, 348 (N.C. Ct. App. 2008). But state statutes prohibiting

possession of “a firearm” or “an offensive weapon” have been interpreted to allow multiple

convictions. Taylor v. State, 929 N.E.2d 912, 922 (Ind. Ct. App. 2010); State v. Kidd, 562

N.W.2d 764, 766 (Iowa 1997); State v. Lindsey, 583 So. 2d 1200, 1204 (La. Ct. App. 1991);

State v. Stratton, 567 A.2d 986, 989 (N.H. 1989).


       1
          United States v. Kennedy, 682 F.3d 244, 255 (3d Cir. 2012); United States v.
Richardson, 439 F.3d 421, 422 (8th Cir. 2006); United States v. Buchmeier, 255 F.3d 415,
422 (7th Cir. 2001); United States v. Adams, 214 F.3d 724, 728 (6th Cir. 2000); United
States v. Verrecchia, 196 F.3d 294, 298 (1st Cir. 1999); United States v. Dunford, 148 F.3d
385, 390 (4th Cir. 1998); United States v. Cunningham, 145 F.3d 1385, 1398 (D.C. Cir.
1998); United States v. Hutching, 75 F.3d 1453, 1460 (10th Cir. 1996); United States v.
Berry, 977 F.2d 915, 920 (5th Cir. 1992); United States v. Szalkiewicz, 944 F.2d 653, 654
(9th Cir. 1991); United States v. Grinkiewicz, 873 F.2d 253, 255 (11th Cir. 1989); United
States v. Pelusio, 725 F.2d 161, 169 (2d Cir. 1983).

                                             11
¶23.   But even if we were to find that Knight’s interpretation was correct, it would not end

the analysis. “[S]imultaneous possession of multiple firearms generally constitutes only one

offense unless there is evidence that [they] were stored in different places or acquired at

different times.” Hutching, 75 F.3d at 1460. Whether firearms were stored separately is a

question of fact. Cunningham, 145 F.3d at 1399. “What matters is the defendant’s course

of treatment of the firearms, which may not be viewed in a frozen, momentary state

immediately prior to the seizure.” Kennedy, 682 F.3d at 255-56.

¶24.   Multiple convictions have been upheld when two different firearms were recovered

in two different vehicles. Hutching, 75 F.3d at 1460; Kennedy, 682 F.3d at 256. “The

scattered locations of the guns constituted separate storages that permitted possession of each

firearm to constitute a separate offense.” Hutching, 75 F.3d at 1460. And in Adams, 214

F.3d at 727, the defendant had been apprehended with one pistol, and another had been

recovered in the area where the defendant jumped out of a truck to flee from law-

enforcement officers. Both convictions were permissible because the pistols had been

recovered from different places. Id. at 728.

¶25.   The following matters were all discussed during the guilty-plea hearing or made a part

of the record. Because he had previously been convicted of a felony in California, Knight

essentially used his sister as a broker to buy four firearms. Later, Knight’s sister bought a

van for their return trip to California, and his girlfriend rented a U-Haul trailer. Before they

left Harrison County, Knight told his sister to stop the van. Knight had the SKS in the van


                                               12
with him, and the shotgun was in the trailer. Armed with the SKS and a pistol, Knight

walked to a nearby mobile home and emptied both magazines into it, killing Dawson. Knight

then went back to the van and put the SKS in the trailer with the shotgun. Knight, his sister,

and his girlfriend were later arrested in Texas. Thus, there was evidence that Knight stored

or possessed the SKS and the shotgun separately at times. So even if we adopted Knight’s

interpretation of the statute and the allowable unit of prosecution for simultaneous possession

of multiple firearms, we would still find that his two separate guilty pleas do not result in

double jeopardy. Accordingly, there is no merit to Knight’s claim.

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

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, JAMES
AND WILSON, JJ., CONCUR. BARNES, J., CONCURS IN RESULT ONLY
WITHOUT SEPARATE WRITTEN OPINION.




                                              13
