         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-CP-00486-COA

CHARLES BESTER                                                               APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          02/23/2018
TRIAL JUDGE:                               HON. DAL WILLIAMSON
COURT FROM WHICH APPEALED:                 JONES COUNTY CIRCUIT COURT,
                                           SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    CHARLES BESTER (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: SCOTT STUART
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 09/10/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE BARNES, C.J., GREENLEE AND TINDELL, JJ.

       TINDELL, J., FOR THE COURT:

¶1.    On August 31, 1992, Charles Bester pled guilty to robbery and rape, and the Jones

County Circuit Court sentenced him to life imprisonment in the custody of the Mississippi

Department of Corrections (MDOC). Bester filed his third post-conviction-relief (PCR)

petition, in the form of a motion to vacate judgment, on January 30, 2018, again challenging

the legality of his life-imprisonment sentence for rape. The circuit court dismissed Bester’s

motion on February 23, 2018, finding the motion to be an attempt to relitigate issues properly

decided by the Mississippi Supreme Court in its April 14, 2016 opinion. Aggrieved, Bester

now appeals the circuit court’s denial of his motion. We agree with the circuit court and find
that Bester’s third PCR petition was properly dismissed. We, therefore, affirm the circuit

court’s decision.

                       FACTS AND PROCEDURAL HISTORY

¶2.    On August 31, 1992, Bester pled guilty to robbery and rape. The circuit court found

that Bester’s plea was “freely, voluntarily, and intelligently” made. As a part of Bester’s plea

bargain, the circuit court sentenced him to serve seven years for robbery and to life

imprisonment for rape, with both sentences to run concurrently in MDOC’s custody.

¶3.    On May 2, 2006, almost fourteen years after entering his guilty plea, Bester filed an

unsuccessful PCR petition to vacate, set aside, or correct his sentence. In that motion, Bester

argued that he was not properly advised of his “right to testify or not to testify, that he had

the right to exercise the act of self-incrimination if need be, and the right to be informed of

the maximum and minimum penalties of the alleged crimes against him” prior to his plea

hearing. Bester v. State, 976 So. 2d 939, 941 (¶2) (Miss. Ct. App. 2007). Bester further

argued that, had he been properly advised of these rights, he would not have entered a guilty

plea. Id. On September 11, 2007, this Court upheld the circuit court’s dismissal of Bester’s

motion, finding the PCR petition to be time-barred under Mississippi Code Annotated section

99-39-5(2) (Rev. 2006) with no applicable exception to overcome the time-bar.1 Id. at 941-

42 (¶¶4-5).

¶4.    Bester filed a PCR petition to “correct [an] illegal sentence” on September 14, 2012,



       1
        Bester’s petition for writ of certiorari following this opinion was denied by the
Mississippi Supreme Court on February 7, 2008. Bester v. State, 977 So. 2d 343 (Miss.
2008).

                                               2
arguing that the circuit court unlawfully sentenced him to life imprisonment for rape because

that sentence had not been recommended by a jury. Bester v. State, 188 So. 3d 576, 577 (¶5)

(Miss. Ct. App. 2014). Additionally, Bester argued that his illegal sentence constituted an

exception to the time-bar under section 99-39-5(2). Id. The circuit court again denied

Bester’s PCR petition. Id. This Court affirmed the circuit court’s decision, finding that

because Bester knowingly and voluntarily agreed to enter a guilty plea, he effectively waived

his right to empanel a jury for trial and sentencing. Id. at 580 (¶15). Therefore, Bester’s

second PCR petition still remained time-barred with no applicable exceptions. Id.

¶5.    On April 14, 2016, the Supreme Court affirmed this Court’s decision. Bester v. State,

188 So. 3d 526, 529-30 (¶¶10-11) (Miss. 2016). In its opinion, the Supreme Court found that

the language of Mississippi Code Annotated section 97-3-65(4)(a) (1991)2 granted the circuit

court the right to sentence defendants to imprisonment “for any term as the court, in its

discretion, may determine,” which included life imprisonment. Id. at 528-29 (¶6). Therefore,

the Supreme Court found that Bester’s sentence was not illegal. Id. at 529 (¶6).

¶6.    On January 30, 2018, Bester filed a third PCR petition to vacate the circuit court’s

judgment. The circuit court denied the motion on February 23, 2018, finding that the motion

was an attempt to relitigate issues that had properly been decided by the Supreme Court in

its April 14, 2016 opinion. Aggrieved by the circuit court’s denial of this current motion,

Bester appeals.

                               STANDARD OF REVIEW

       2
         This section was codified as Mississippi Code Annotated section 97-3-65(2) (1991)
at the time of Bester’s conviction and sentencing.

                                             3
¶7.      “We review the dismissal or denial of a PCR motion for abuse of discretion. We will

only reverse if the trial court’s decision is clearly erroneous. When reviewing questions of

law, our standard is de novo.” Ware v. State, 258 So. 3d 315, 317-18 (¶7) (Miss. Ct. App.

2018).

                                           ANALYSIS

¶8.      We first find that Bester’s PCR petition is time-barred. Section 99-39-5(2) (Rev.

2015) sets forth a mandatory three-year statute of limitations for all non-death-penalty PCR

petitioners.3 This limitations period includes petitioners who entered guilty pleas. Bass v.

State, 237 So. 3d 172, 174 (¶5) (Miss. Ct. App. 2017). The circuit court accepted Bester’s

guilty pleas and entered its judgment of conviction on August 31, 1992. After two

unsuccessful PCR petitions in 2006 and 2012, Bester filed this third petition in

2018—twenty-six years after his conviction.

¶9.      Bester argues that his motion to vacate judgment constitutes a motion under

Mississippi Rule of Civil Procedure 60(b), and therefore, no time limitation applies. But we

have held actions “attacking the judgment of conviction or sentence should be sought under

authority of the [Uniform] Post-Conviction Collateral Relief Act [UPCCRA] since that Act

. . . is arguably ‘post-conviction habeas corpus renamed.’” Sanders v. State, 149 So. 3d 541,

543 (¶5) (Miss. Ct. App. 2014) (quoting Edmond v. State, 845 So. 2d 701, 702 (¶3) (Miss.

Ct. App. 2003)). We have further held that Rule 60(b) motions are meant only for

“extraordinary and compelling circumstances,” and “should be denied where they are merely

         3
             Section 99-39-5(2)(b) limits all PCR filings for death-penalty convictions to one
year.

                                                4
an attempt to relitigate the [petitioner’s] case.” Id. (quoting S. Healthcare Servs. Inc. v.

Lloyd’s of London, 110 So. 3d 735, 742 (¶14) (Miss. 2013)). Because Bester again attempts

to attack the legality of his sentence, his Rule 60(b) motion was properly treated as a PCR

petition governed by the UPCCRA. Id. at (¶6). We find that the three-year statute of

limitations under Section 99-39-5(2) applies to Bester’s PCR petition, and as such, we find

Bester’s motion to be time-barred.

¶10.   We also find Bester’s motion to be barred as a successive writ. The UPCCRA

mandates that “any order dismissing the petitioner’s motion or otherwise denying relief . . .

is a final judgment and shall be conclusive until reversed. It shall [also] be a bar to a second

or successive motion . . . .” Miss. Code Ann. § 99-39-23(6) (Rev. 2011). To overcome this

procedural bar, “the movant must show by a preponderance of the evidence that his claims

are not barred in order to proceed” due to one or more exceptions. Ratcliff v. State, 120 So.

3d 1058, 1060 (¶5) (Miss. 2013). Included in these exceptions are errors affecting the

movant’s fundamental constitutional rights. Id. “Only four fundamental-rights exceptions

have been expressly found to survive procedural bars: (1) the right against double jeopardy;

(2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and

(4) the right not to be subject to ex post facto laws.” Nichols v. State, 265 So. 3d 1239, 1242

(¶10) (Miss. 2018).

¶11.   Bester asserts four points of contention to try to overcome the procedural bars, all

relating to his life sentence and the Supreme Court’s decision to affirm that sentence. First,

Bester again attempts to argue that Mississippi statutory law, at the time of his sentencing,



                                                5
prohibited a circuit court judge from sentencing a defendant to life in prison without a jury

recommendation. Second, Bester argues that the circuit court judge committed plain error

by failing to declare section 97-3-65(2) as “constitutionally vague and ambiguous” and in

violation of due process and equal protection. Bester thirdly argues that the Supreme Court

committed plain error when it overruled the cases of Lee v. State, 322 So. 2d 751 (Miss.

1975), Friday v. State, 462 So. 2d 336 (Miss. 1985), and Luckett v. State, 582 So. 2d 428

(Miss. 1991). Finally, Bester argues that the Supreme Court imposed an ex post facto law

against him through its 2016 decision.

¶12.   Upon review, we find the foregoing issues to be properly decided by the Mississippi

Supreme Court in Bester v. State, 188 So. 3d 526 (Miss. 2016). In Bester, the Supreme Court

thoroughly dissected section 97-3-65(4)(a) to determine a circuit court’s specific sentencing

parameters. Id. at 528-29 (¶6). The Supreme Court found that “[t]he statute’s plain language

authorize[d] a trial judge to sentence to imprisonment ‘for any term as the court, in its

discretion, may determine.’” Id. (quoting Miss. Code Ann. § 97-3-65(2)). The Supreme

Court further found that the laws governing criminal sentencing fell within the Legislature’s

purview and compared the plain language of the rape statute to the kidnapping statute,4 which

allows a circuit court judge to sentence defendants up to only thirty years in prison, with no

jury recommendation. Id. at 529 (¶9). The Supreme Court found that the judiciary could no

longer ignore the plain language of section 97-3-65(4)(a), allowing the circuit judge to

sentence a defendant to life in prison for rape. Id. at (¶¶9-10). The Supreme Court overruled



       4
           Mississippi Code Annotated section 97-3-53 (Rev. 2014) (defining kidnapping).

                                              6
Lee, Friday, and Luckett, which prohibited such a sentence without a jury recommendation.

Id. at 529-30 (¶10). Contrary to Bester’s assertions, the Supreme Court overruled this

precedent not to retroactively aggravate Bester’s crime or to enlarge the length of sentence5

but in furtherance of its “constitutional mandate to faithfully apply the provisions of

constitutionally enacted legislation.” Id. at 529 (¶10). In other words, the Bester Court

applied the plain meaning of statutory language that existed even before Bester’s conviction,

making Bester’s ex post facto argument meritless. As such, we find that Bester fails to

establish any applicable fundamental-rights exception, and his PCR petition is also barred

as a successive writ.

                                      CONCLUSION

¶13.   Mississippi case law allows movants “one bite at the apple when requesting PCR.”

Porter v. State, 271 So. 3d 731, 733 (¶5) (Miss. Ct. App. 2018). Upon review, we agree with

the circuit court’s denial of Bester’s third PCR petition as an attempt to relitigate issues

already decided by the Supreme Court. We find Bester’s PCR petition to be both time-barred

and successive-writ-barred, without an applicable exception to overcome these procedural

       5
       Bester cites to the following language in Bouie v. City of Columbia, 378 U.S. 347,
353 (1964), to support his ex post facto argument:

       [A]n unforeseeable judicial enlargement of a criminal statute, applied
       retroactively, operates precisely like an ex post fact law, such as Art[icle] I,
       [section] 10, of the [United States] Constitution forbids. An ex post facto law
       has been defined by this Court as one “that makes an action done before the
       passing of the law, and which was innocent when done, criminal; and
       punishes such action,” or “that aggravates a crime, or makes it greater than it
       was, when committed.”

(quoting Calder v. Bull, 3 U.S. 386, 390 (1798)).

                                              7
bars. We therefore affirm the circuit court’s judgment.

¶14.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, McDONALD, LAWRENCE AND C. WILSON, JJ., CONCUR.
McCARTY, J., NOT PARTICIPATING.




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