           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                  NO. 2013-CP-01487-COA




WENDELL DUNCAN A/K/A WENDELL AVERY                                           APPELLANT
DUNCAN

v.


STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                            07/09/2013
TRIAL JUDGE:                                 HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                   WASHINGTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                      WENDELL DUNCAN (PRO SE)
ATTORNEY FOR APPELLEE:                       OFFICE OF THE ATTORNEY GENERAL
                                             BY: BILLY GORE
NATURE OF THE CASE:                          CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                     DISMISSED MOTION FOR POST-
                                             CONVICTION RELIEF
DISPOSITION:                                 AFFIRMED – 11/04/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

          BEFORE IRVING, P.J., BARNES AND CARLTON, JJ.

          IRVING, P.J., FOR THE COURT:

¶1.       Wendall Duncan appeals, for the fourth time, the dismissal of his motion for

post-conviction relief (PCR) by the Washington County Circuit Court. Finding no error, we

affirm.

                                            FACTS

¶2.       The underlying facts leading up to Duncan’s conviction and denial of the first three

PCR motions have not changed. On November 30, 1994, a Washington County jury

convicted Duncan of conspiracy to commit burglary of a business and burglary of a business.
Duncan was sentenced, as an habitual offender under Mississippi Code Annotated section

99-19-81 (Rev. 2007), to serve five years in the custody of the Mississippi Department of

Corrections (MDOC) for the conspiracy count and seven years for the burglary-of-a-business

count. The sentences were set to run consecutively, for a total of twelve years in the custody

of the MDOC. Duncan failed to file a direct appeal after his 1994 conviction and sentence.

¶3.    Duncan was later convicted of armed robbery in March 1995. At the conclusion of

that sentencing hearing, the circuit court found that the State had failed to establish that

Duncan’s two prior convictions arose out of separate incidents at different times. The circuit

court then sentenced Duncan, as a non-habitual offender, to thirty years in the custody of the

MDOC, to run consecutively to the previously imposed sentence for Duncan’s burglary-of-a-

business and conspiracy convictions.

¶4.    Duncan filed his first motion for PCR challenging his conspiracy and burglary

convictions in early 1996. On July 29, 1996, the circuit court dismissed Duncan’s PCR

motion. The Mississippi Supreme Court affirmed the circuit court’s judgment on June 11,

1998. On January 3, 2008, Duncan filed a motion to vacate the convictions of conspiracy

to commit burglary of a business and burglary of a business. The circuit court dismissed that

motion, which the court treated as a motion for PCR, as time-barred and successive-writ

barred. On appeal, this court affirmed the trial court’s dismissal of Duncan’s motion for

PCR. Duncan v. State, 28 So. 3d 665, 667 (¶¶6-7) (Miss. Ct. App. 2009).

¶5.    On January 19, 2011, the Mississippi Supreme Court dismissed Duncan’s motion for

leave to proceed in the trial court pursuant to Mississippi Code Annotated section 99-39-7

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(Supp. 2014), after finding that Duncan had failed to file a direct appeal of his conspiracy-to-

commit-burglary and burglary-of-a-business convictions and sentences.             Nonetheless,

Duncan filed a motion to correct his sentence in the circuit court, which the circuit court

treated as a PCR motion and dismissed as successive-writ barred. This court again affirmed

the circuit court’s dismissal and again acknowledged that the PCR motion was time-barred

and successive-writ barred. Duncan v. State, 100 So. 3d 996 (Miss. Ct. App. 2012).

¶6.    On July 9, 2013, the circuit court dismissed, for the fourth time, a PCR motion filed

by Duncan. This appeal arises from the circuit court’s denial of Duncan’s fourth PCR

motion targeting his twelve-year sentence for conspiracy and burglary imposed in 1994.

                                        DISCUSSION

¶7.    “A trial court’s dismissal of a motion for post-conviction relief will not be reversed

absent a finding that the trial court’s decision was clearly erroneous. However, when issues

of law are raised, the proper standard of review is de novo.” Duncan v. State, 28 So. 3d 665,

666 (¶4) (Miss. Ct. App. 2009) (internal citations omitted).

¶8.    Duncan argues that his twelve-year sentence, as an habitual offender, for conspiracy

and burglary of a business was unlawful, and he asks this court to reverse his sentence and

remand this case back to the trial court for re-sentencing.

¶9.    Mississippi Code Annotated section 99-39-5(2) (Supp. 2014) states:

       A motion for relief under this article shall be made within three (3) years after
       the time in which the petitioner’s direct appeal is ruled upon by the Supreme
       Court of Mississippi or, in case no appeal is taken, within three (3) years after
       the time for taking an appeal from the judgment of conviction or sentence has
       expired, or in case of a guilty plea, within three (3) years after entry of the

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       judgment of conviction. Excepted from this three-year statute of limitations
       are those cases in which the petitioner can demonstrate either:

       (a)(i) 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 his conviction or sentence or that he 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

       (ii) That, 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 petitioner 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.

       (b) Likewise excepted are those cases in which the petitioner 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.

It is clear that the current PCR motion filed by Duncan is time-barred by more than fifteen

years. As noted in Duncan, 28 So. 3d at 666 (¶5), “this is well after his twelve-year sentence

had been served.” As such, even if an error was found regarding his habitual-offender status,

we could not cure the defect since the sentence Duncan complains of is technically over.

Furthermore, Duncan does not state that an exception applies, nor can we find one.

¶10.   Mississippi Code Annotated section 99-39-23(6) (Supp. 2014) states:

       The order as provided in subsection (5) of this section or any order dismissing
       the petitioner’s motion or otherwise denying relief under this article is a final
       judgment and shall be conclusive until reversed. It shall be a bar to a second
       or successive motion under this article. Excepted from this prohibition is a
       motion filed under Section 99-19-57(2), raising the issue of the convict’s

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       supervening mental illness before the execution of a sentence of death. A
       dismissal or denial of a motion relating to mental illness under Section
       99-19-57(2) shall be res judicata on the issue and shall likewise bar any second
       or successive motions on the issue. Likewise excepted from this prohibition
       are those cases in which the petitioner can demonstrate either 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 his conviction or sentence or that he has evidence, not
       reasonably discoverable at the time of trial, which is of such nature that it
       would be practically conclusive that, if it had been introduced at trial, it would
       have caused a different result in the conviction or sentence. Likewise excepted
       are those cases in which the petitioner claims that his sentence has expired or
       his probation, parole or conditional release has been unlawfully revoked.
       Likewise excepted are those cases in which the petitioner has filed a prior
       petition and has requested DNA testing under this article, provided the
       petitioner asserts new or different grounds for relief related to DNA testing not
       previously presented or the availability of more advanced DNA technology.

(Emphasis added). This PCR motion is also barred as a successive writ. Duncan has not

articulated and fails to show any statutorily recognized exception that applies. This issue is

without merit.

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

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




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