         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CA-00403-COA

ABDULHKIM BOROU A/K/A ABDULHAKIM                                             APPELLANT
BOROU

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                           02/21/2014
TRIAL JUDGE:                                HON. LEE J. HOWARD
COURT FROM WHICH APPEALED:                  LOWNDES COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT:                    MARK KEVIN HORAN
                                            HARTWELL VIRGINIA HARRIS
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:                         CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DISMISSED MOTION FOR POST-
                                            CONVICTION RELIEF
DISPOSITION:                                AFFIRMED: 03/17/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.

       FAIR, J., FOR THE COURT:

¶1.    On May 19, 2009, Abdulhkim Borou received a fine and five years of nonadjudicated

probation following his offer of a guilty plea. Borou filed a motion for post-conviction relief

(PCR), after the court dismissed the charge and expunged Borou’s record. The trial court

dismissed his motion, stating it had no jurisdiction because Borou was no longer serving his

sentence. We find, however, that the court lacked jurisdiction since “nonadjudication” of

guilt resulting in dismissal of charges is not a “conviction” or “sentence” within the purview
of the Mississippi Uniform Post-Conviction Relief Act. Therefore, Borou lacks standing to

make any claims under Mississippi Code Annotated section 99-39-5 (Supp. 2014). The

judgment of the trial court is affirmed.

                                            FACTS

¶2.      The facts in this case are almost identical to those in Alsahquni v. State, 150 So. 3d

159 (Miss. Ct. App. 2014). As a result, Alsahquni controls a majority of our analysis. A

legal immigrant to the United States, Borou, like Alsahquni, operated an out-of-state business

that sold, among other things, pseudoephedrine. Borou was indicted in the Circuit Court of

Lowndes County on three charges of sale of pseudoephedrine over the amounts allowed by

law, two of which were dismissed. Borou offered to plead guilty to the third charge on May

19, 2009. The trial court withheld acceptance of Borou’s offered guilty plea and placed him

on nonadjudicated probation for five years pursuant to Mississippi Code Annotated section

99-15-26. He was also assessed a $5,000 fine. On July 27, 2012, Borou was discharged

early from his nonadjudicated probation, and the trial court dismissed the charge against him

on December 18, 2012. An order of expungement was entered two days later. Despite the

dismissal and expungement, Borou’s guilty plea negatively affected his immigration status.

There is no evidence or assertion that deportation proceedings have been commenced against

Borou.

¶3.      Borou filed a PCR motion on January 16, 2014, claiming that his guilty plea was

involuntary and that he received ineffective assistance of counsel. Specifically, he claimed




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his attorney should have advised him of the consequences associated with his guilty plea.1

¶4.      In dismissing Borou’s motion, the court stated it lacked jurisdiction since Borou was

not a prisoner in custody when he filed his PCR motion. Aggrieved, Borou appeals.

                                 STANDARD OF REVIEW

¶5.      When reviewing the dismissal of a PCR motion, an appellate court “will not disturb

the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v.

State, 975 So. 2d 219, 222 (¶8) (Miss. 2008). Our review of the summary dismissal of a PCR

motion, a question of law, is de novo. Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss.

1999).

                                        DISCUSSION

¶6.      The trial court dismissed Borou’s PCR motion, finding it had no jurisdiction. As an

appellate court, it is our affirmative duty to determine whether we have jurisdiction over the

matter before addressing the merits. Winborn v. State, 213 Miss. 322, 323, 56 So. 2d 885,

885 (1952). “A lack of standing ‘robs the court of jurisdiction to hear the case.’” Pruitt v.

Hancock Med. Ctr., 942 So. 2d 797, 801 (¶14) (Miss. 2006) (quoting McNair v. U.S. Postal

Serv., 768 F.2d 730, 737 (5th Cir. 1985)). Therefore, absent standing, the appropriate

disposition would be to dismiss the case.



         1
          Borou offered his guilty plea in 2009. In his PCR motoin, he claimed that the
United States Supreme Court’s recent holding in Padilla v. Kentucky, 130 S. Ct. 1473
(2010), required his attorney to inform him of the immigration consequences of a guilty plea.
The United States Supreme Court has since held that Padilla does not apply retroactively to
cases already final on direct review. Chaidez v. United States, 133 S. Ct. 1103, 1113 (2013).

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¶7.    Borou filed his PCR motion after his charge was dismissed and after his record was

expunged. As we stated in Alsahquni:

       The purpose of the Mississippi Uniform Post-Conviction Relief Act is to
       “streamline and clarify the rules and statutes pertaining to post-conviction
       collateral relief law and procedures, to resolve any conflicts therein and to
       provide the courts of this state with an exclusive and uniform procedure for the
       collateral review of convictions and sentences.” Further, Mississippi Code
       Annotated section 99-39-5 states that “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
       may file a motion to vacate, set aside or correct the judgment or sentence.”

Alsahquni, 150 So. 3d at 162 (¶8) (internal citation omitted); Miss. Code Ann. § 99-39-3

(Rev. 2007).

¶8.    The court did not accept Borou’s guilty plea. Borou instead received five years of

nonadjudicated probation under Mississippi Code Annotated section 99-15-26 (Rev. 2007).

Section 99-15-26 states in relevant part:

       (1) In all criminal cases, felony and misdemeanor, other than crimes against
       the person, the circuit or county court shall be empowered, upon the entry of
       a plea of guilty by a criminal defendant, to withhold acceptance of the plea
       and sentence thereon pending successful completion of such conditions as
       may be imposed by the court pursuant to subsection (2) of this section . . . .

       (2)(a) Conditions which the circuit, county, justice or municipal court may
       impose under subsection (1) of this section shall consist of:

               (i) Reasonable restitution to the victim of the crime.

               (ii) Performance of not more than nine hundred sixty (960) hours of
               public service work approved by the court.

               (iii) Payment of a fine not to exceed the statutory limit.

               (iv) Successful completion of drug, alcohol, psychological or

                                               4
              psychiatric treatment, successful completion of a program designed to
              bring about the cessation of domestic abuse, or any combination
              thereof, if the court deems treatment necessary.

              (v) The circuit or county court, in its discretion, may require the
              defendant to remain in the program subject to good behavior for a
              period of time not to exceed five (5) years . . . .

       ....

       (4) Upon successful completion of the court-imposed conditions permitted by
       subsection (2) of this section, the court shall direct that the cause be dismissed
       and the case be closed.

       (5) Upon motion therefor, the court shall expunge the record of any case in
       which an arrest was made, the person arrested was released and the case was
       dismissed or the charges were dropped or there was no disposition of such
       case.

(Emphasis added).

¶9.    Borou was discharged from his nonadjudicated probation. Thereafter, his charge was

dismissed and his record was expunged.         He was neither convicted nor sentenced in

accordance with Mississippi Code Annotated section 99-39-5. Therefore, Borou lacked

standing to file a PCR motion, and this Court need not address the merits of Borou’s claim

that he received ineffective assistance of counsel. We affirm the trial court’s dismissal of

Borou’s motion.

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


    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS,
CARLTON, MAXWELL AND JAMES, JJ., CONCUR.


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