         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2016-CP-01377-COA

JOHNNY RAY SIMS A/K/A JOHNNY R. SIMS                                         APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          09/07/2016
TRIAL JUDGE:                               HON. PRENTISS GREENE HARRELL
COURT FROM WHICH APPEALED:                 MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JOHNNY RAY SIMS (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 09/12/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       LEE, C.J., FOR THE COURT:

¶1.    This appeal concerns whether the trial court properly dismissed Johnny Ray Sims’s

third motion for postconviction relief (PCR). Finding no error, we affirm.

                               PROCEDURAL HISTORY

¶2.    In 2005, Sims pleaded guilty to one count of aggravated assault. The charge resulted

from a car chase in which Sims, fleeing the police with his girlfriend, struck two other cars.

Sims was initially charged with three counts of aggravated assault—Counts I and III involved

the car-accident victims, and Count II involved Sims’s girlfriend. The State dismissed

Counts I and II. He was sentenced to twenty years, with one year and two months to serve

and the remainder on postrelease supervision. Sims was also ordered to pay restitution to the
two victims of the car accidents. In 2006, Sims’s postrelease supervision was revoked after

he was charged with capital murder.1

¶3.    Sims filed his first PCR motion in 2007, which the trial court summarily denied. Sims

filed his second PCR motion in 2008, raising several issues, one of which was that ordering

him to pay restitution to the victim in Count I resulted in an illegal sentence. The trial court

dismissed Sims’s PCR motion, finding it was subject to the time bar and successive-writ bar

as well as without merit. See Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (time-bar); Miss.

Code Ann. § 99-39-23(6) (Rev. 2015) (successive-writ bar). This Court affirmed in Sims v.

State, 134 So. 3d 317, 326 (¶44) (Miss. Ct. App. 2013) (Sims I). The Mississippi Supreme

Court granted certiorari and affirmed. Sims v. State, 134 So. 3d 300, 302 (¶1) (Miss. 2014)

(Sims II).

¶4.    Sims filed his third PCR motion in February 2016, arguing one of the same issues

raised in his second PCR motion and ruled upon in Sims I and Sims II—that his sentence was

illegal because he was ordered to pay restitution to the victim in Count I, even though that

count was dismissed. The trial court dismissed Sims’s motion, finding that Sims’s PCR

motion was a successive writ and without merit. Sims now appeals, asserting that the trial

court erred in dismissing his PCR motion.

                                 STANDARD OF REVIEW

¶5.    When reviewing a trial court’s denial or dismissal of a PCR motion, we will only

disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s

       1
        See Sims v. State, 93 So. 3d 37 (Miss. Ct. App. 2011) (affirmed capital-murder
conviction and sentence).

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legal conclusions under a de novo standard of review. Hughes v. State, 106 So. 3d 836, 838

(¶4) (Miss. Ct. App. 2012).

                                       DISCUSSION

¶6.    Sims takes issue with the trial court’s dismissal of his motion as a successive writ.

Sims argues that the trial court was required to address the merits of his PCR motion since

he claimed his sentence was illegal, and errors affecting fundamental rights are excepted

from procedural bars. The trial court found that Sims’s PCR motion was a successive writ,

and Sims had not overcome the procedural bar, stating it could find “no basis for the truth

of [his] claim.” The trial court also determined that Sims’s claim was without merit since the

supreme court had already ruled on the same issue in Sims II.

¶7.    As previously stated, this is Sims’s third PCR motion. And section 99-39-23(6)

provides that any order dismissing or denying a petitioner’s motion for relief “is a final

judgment . . . [and] shall be a bar to a second or successive motion[.]” To circumvent this

procedural bar, Sims must assert a cognizable claim involving the violation of a fundamental

constitutional right. See Rowland v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010). The right

to be free from an illegal sentence is a fundamental constitutional right. Bosarge v. State,

141 So. 3d 24, 26 (¶7) (Miss. Ct. App. 2014). Sims’s third PCR motion raises the same issue

of illegal sentence raised in his second PCR motion—the trial court found that Sims was

attempting to “re-argue” the illegal-sentence issue, implying res judicata barred Sims’s claim.

“[A]n issue that has been addressed in a final judgment with specific findings of facts and

conclusions of law may not be raised again by a PCR movant.” Savinell v. State, 147 So. 3d



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862, 863 (¶7) (Miss. Ct. App. 2014) (quotation omitted). The Mississippi Supreme Court

held in Smith v. State, 149 So. 3d 1027, 1032 (¶11) (Miss. 2014), that “neither the common

law nor our own constitutional law applies the doctrine of res judicata to constitutional

claims.”

¶8.    However, “merely asserting a constitutional-right violation is insufficient to overcome

the procedural bars. There must at least appear to be some basis for the truth of the claim

before the procedural bar will be waived.” Fluker v. State, 170 So. 3d 471, 475 (¶11) (Miss.

2015). As stated, Sims claims his sentence was illegal because he was ordered to pay

restitution to a victim whose count was dismissed.

¶9.    In Sims I, this Court determined that Sims waived the restitution issue since he failed

to object. Sims I, 134 So. 3d at 322 (¶23). We also determined that the sentence was not

illegal. Id. at 322-23 (¶¶24-25). In Sims II, the supreme court affirmed Sims I, finding that

Sims waived any objection to the restitution order. Sims II, 134 So. 3d at 304 (¶9). The

supreme court further held that “the trial court was well within its discretion to impose

restitution for the benefit of any victim ‘whom the court determines . . . suffered pecuniary

damages as a result of [Sims’s] criminal activities.’” Id. at 303 (¶7) (quoting Miss. Code

Ann. § 99-37-1(d) (Rev. 2015)). Upon review, we find no reason to rule differently on

Sims’s claim at this time. This issue is without merit.

¶10.   Sims also argues that the trial court erred in finding that his PCR motion was

frivolous. The trial court stated Sims’s third PCR motion was frivolous and warned Sims

that he would be subject to sanctions if he filed a future frivolous claim. It is within a trial



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court’s discretion to determine whether a PCR motion is frivolous. See Pickle v. State, 64

So. 3d 1009, 1012 (¶11) (Miss. Ct. App. 2010). Here, the trial court determined Sims’s third

PCR motion was successive and could find “no basis for the truth of Sims’s claim.” We find

no abuse of discretion here.

¶11.   AFFIRMED.

    IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.




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