         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-CP-01366-COA

ANTONIO SCOTT A/K/A ANTONIO J. SCOTT                                           APPELLANT

v.

STATE OF MISSISSIPPI                                                             APPELLEE


DATE OF JUDGMENT:                            07/28/2014
TRIAL JUDGE:                                 HON. MARCUS D. GORDON
COURT FROM WHICH APPEALED:                   LEAKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      ANTONIO SCOTT (PRO SE)
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: BILLY L. GORE
NATURE OF THE CASE:                          CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                     MOTION FOR POST-CONVICTION RELIEF
                                             DISMISSED
DISPOSITION:                                 AFFIRMED: 03/08/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Four years after Antonio Scott pleaded guilty to aggravated assault and carjacking, he

submitted a motion for post-conviction collateral relief (PCCR), challenging his consecutive

sentences. The circuit court dismissed his claim. Not only is Scott’s challenge cut off by

the three-year statute of limitations, but he mistakenly believes the judge had to order that his

sentences be served concurrently. This view is legally wrong, since the Legislature has given

our sentencing judges discretion to impose consecutive sentences for separate convictions

in multicount indictments.
¶2.    We thus affirm.

                                   Standard of Review

¶3.    When considering the dismissal of a PCCR motion, “we review the trial court’s

findings of fact for clear error.” Wilkerson v. State, 89 So. 3d 610, 613 (¶7) (Miss. Ct. App.

2011). We review questions of law de novo. Id. The burden is on the PCCR movant to

show by a preponderance of the evidence he is entitled to relief. Id.

                       Facts, Procedural History, and Discussion

¶4.    On January 14, 2010, Scott entered guilty pleas to aggravated assault and carjacking.

Both counts stemmed from a multicount indictment.            The judge sentenced Scott to

consecutive sentences of twenty years and ten years.1 On July 25, 2014, Scott filed a PCCR

motion, attacking the legality of his sentences. His motion was untimely since it was not

filed within three years after entry of the judgment of conviction. See Miss. Code Ann. § 99-

39-5 (Rev. 2015).

¶5.    But Scott claims his sentence was illegal, and “the right to be free from an illegal

sentence is a fundamental right not subject to the time-bar[.]” Hughes v. State, 106 So. 3d

836, 840 (¶10) (Miss. Ct. App. 2012). However, it is the movant’s burden “to show he has

met a statutory exception.” White v. State, 59 So. 3d 633, 635 (¶8) (Miss. Ct. App. 2011)



       1
        Scott was convicted of aggravated assault under Mississippi Code Annotated section
97-3-7(2)(b) (Rev. 2014), which carries a maximum imprisonment of thirty years. The
maximum penalty for carjacking is fifteen years. Miss. Code Ann. § 97-3-117(1)(a) (Rev.
2014). Thus, Scott was sentenced within the statutory ranges for these offenses.

                                              2
(citing Adams v. State, 954 So. 2d 1051, 1053 (¶7) (Miss. Ct. App. 2007)). And here, Scott

has failed to meet that burden since he merely asserts (but fails to prove) a fundamental-right

violation, which is not enough. Blount v. State, 126 So. 3d 927, 930 (¶14) (Miss. Ct. App.

2013); see also Bailey v. State, 65 So. 3d 349, 350 (¶5) (Miss. Ct. App. 2011) (“[T]he mere

assertion of a constitutional-right violation does not suffice to overcome the three-year time

bar.”).

¶6.       The illegality he asserts is that his sentences should be served concurrently, not

consecutively, because the “charges grew out of the same set of operative fact[s].” As

support, he cites a pre-section 99-7-2 case—Thomas v. State, 474 So. 2d 604, 606 (Miss.

1985) (superseded by statute)—in which the supreme court expressed its disfavor of

multicount indictments. But Thomas and its predecessor cases have been superseded after

enactment of section 99-7-2—the “multicount indictment statute[.]” See Woodward v. State,

533 So. 2d 418, 422 (Miss. 1986) (recognizing Thomas was superseded by statute and

rejecting the argument that the pyramiding of multiple punishments growing out of same set

of operative facts was impermissible in light of the then recently enacted multicount-

indictment statute).

¶7.       The circuit court recognized as much and dismissed Scott’s PCCR motion,

emphasizing Thomas was dated and our Legislature has since enacted a statute permitting

consecutive sentences on multicount indictments. Scott appealed the dismissal, raising the

same argument here. We agree with the circuit court that dismissal was appropriate.


                                               3
¶8.    In 1986,2 our Legislature enacted a statute allowing multicount indictments and

consecutive sentences. The relevant parts of it explain:

       (1) Two (2) or more offenses . . . may be charged in the same indictment with
       a separate count for each offense if: (a) the offenses are based on the same act
       or transaction . . . .

       ....

       (3) When a defendant is convicted of two (2) or more offenses charged in
       separate counts of an indictment, the court shall impose separate sentences for
       each such conviction.

       ....

       (5) Nothing contained in this section shall be construed . . . to prohibit the
       court from exercising its discretion to impose such sentences to run either
       concurrently with or consecutively to each other or any other sentence or
       sentences previously imposed upon the defendant.

Miss. Code Ann. § 99-7-2 (Rev. 2015); see also Eason v. Epps, 32 So. 3d 538, 540 (¶8)

(Miss. Ct. App. 2009) (trial judges have authority and discretion to impose penalties within

statutory range, and sentences for multiple offenses may run concurrently or consecutively

as determined by trial judge); Bailey, 65 So. 3d at 351 (¶6) (trial judges have discretion to

decide whether to impose sentences consecutively).

¶9.    Because multicount indictments are allowed and sentencing judges are given

discretion to fashion their sentences to run concurrently or consecutively, Scott’s sentences

were not “illegal.” We thus find his claim is both untimely and without merit. We affirm.



       2
           This statute became effective July 1, 1986, not in 2013 as Scott claims.

                                               4
¶10. THE JUDGMENT OF THE LEAKE COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE
COUNTY.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES AND
WILSON, JJ., CONCUR. GREENLEE, J., NOT PARTICIPATING.




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