                         IN THE SUPREME COURT OF MISSISSIPPI
                                  NO. 96-KP-00246-SCT
JOHNNY WHITE a/k/a JOHNNY LEE WHITE
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
                        PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:                              01/31/96
TRIAL JUDGE:                                   HON. KOSTA N. VLAHOS
COURT FROM WHICH APPEALED:                     HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                        PRO SE
ATTORNEY FOR APPELLEE:                         OFFICE OF THE ATTORNEY GENERAL

                                               BY: BILLY L. GORE
DISTRICT ATTORNEY:                             CONO CARANNA
NATURE OF THE CASE:                            CRIMINAL - POST CONVICTION RELIEF
DISPOSITION:                                   AFFIRMED - 10/2/97
MOTION FOR REHEARING FILED:                    10/16/97
MANDATE ISSUED:                                12/1/97




     BEFORE SULLIVAN, P.J., ROBERTS AND SMITH, JJ.

     ROBERTS, JUSTICE, FOR THE COURT:


                                  STATEMENT OF THE CASE

In the present case, Johnny Lee White, presently serving at the Parchman Penitentiary, pled guilty and
was sentenced as an habitual offender by the Harrison County Court to a life sentence without the
benefit of parole on November 5, 1984, after being found guilty of Burglary. White was sentenced
under Miss. Code Ann. § 99-19-83 relying on two prior felonies for which White had been convicted
and the fact that he served at least one (1) year for each. He was first convicted on July 21, 1972, for
burglary. He was later convicted of armed robbery on October 13, 1978.

White appeals from an order entered on January 31, 1996, by the Circuit Court of Harrison County,
Kosta N. Viahos, Circuit Judge, presiding, dismissing as time-barred White's motion to vacate and/or
correct his conviction and sentence as a recidivist filed in the lower court by White on January 19,
1996.
It is from the proceeding below that White brings this matter before this Court on appeal raising the
following:

I. WHETHER INVOCATION OF THE PLAIN ERROR RULE WILL DEFEAT
APPLICATION OF A TIME BAR ACCORDING TO MISS. CODE ANN. §99-39-5(2).

II. WHETHER WHITE'S SENTENCE OF LIFE WITHOUT PAROLE UNDER § 99-19-83
MISS. CODE ANN. IS GROSSLY DISPROPORTIONATE TO THE OFFENSE WHICH
WHITE PLEADED GUILTY AND, THUS, IS IN VIOLATION OF THE EIGHTH AND
FOURTEENTH AMENDMENT.

III. WHETHER WHITE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
BECAUSE OF COUNSEL'S FAILURE TO OBJECT TO SENTENCE AND TO THE
DEFECTIVE PORTION OF THE HABITUAL INDICTMENT.

IV. WHETHER THE TRIAL COURT WAS WITHOUT AUTHORITY OF LAW TO
SENTENCE WHITE TO LIFE IMPRISONMENT WITHOUT PAROLE AND ERRED IN
FAILING TO CORRECT SENTENCE.

V. WHETHER THE TRIAL COURT HAD AUTHORITY TO SENTENCE WHITE UNDER
§99-19-83 FOR THE CRIME OF BURGLARY WHICH CARRIED A MAXIMUM
PENALTY OF SEVEN YEARS UNDER §97-17-19.

                                  DISCUSSION OF THE ISSUES

     I. WHETHER INVOCATION OF PLAIN ERROR RULE WILL DEFEAT THE
     APPLICATION OF A TIME BAR ACCORDING TO MISS. CODE ANN. §99-39-5(2).

According to the Post-Conviction Relief Act,

     A motion for relief under this chapter shall be made within three (3) years after the time in
     which the prisoner'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 the case of a guilty plea, within three (3) years after
     entry of the judgment of conviction.

Miss. Code Ann. § 99-39-5(2), see also Lockett v. State, 656 So.2d 68, 71 (Miss. 1995). In
accordance with § 99-39-5(2), White had three (3) years from the date of his guilty plea, or until
November 5, 1987, within which to file for post-conviction relief. This Court has demonstrated that
this statute requires close adherence. Luckett v. State, 582 So.2d 428 (Miss. 1991).

White filed his PCR Application on January 19, 1996, almost nine years late. Therefore, unless White
has demonstrated an exception to the statute of limitation, his PCR Motion is time barred. Although
White does argue in his Motion that the McNeal case is an intervening decision that would have
adversely affected the outcome of his sentence, White fails to note one major distinguishing fact in his
case as compared to the defendant in the McNeal case. Brandau v. State, 662 So.2d 1051, 1053
(Miss. 1995). McNeal objected to the indictment at his original trial and in his direct appeal. McNeal
v. State, 658 So.2d 1345 (Miss. 1995). White, on the other hand, failed to object to the form of the
indictment at his trial. Thus, the present case would follow the holding in Brandau which prohibits a
defendant from objecting to the form of the indictment where he failed to raise it at trial or in his
direct appeal. Brandau, 662 So.2d at 1053.

As the facts have indicated, White made a valid guilty plea. A valid guilty plea admits all elements of
a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an
indictment against a defendant such as White. Brooks v. State, 573 So.2d 1350, 1352 (Miss. 1990).
Issues regarding form of the indictment are essentially procedural and susceptible of waiver if not
timely preserved and presented on direct appeal. Brooks, 573 So.2d 1350, 1353. The deficiencies
alleged by White are non-jurisdictional defects. They must be timely asserted or they will be deemed
waived. Clearly, they may not be raised for the very first time in an application for post-conviction
relief absent a showing of cause or actual prejudice. Id. Thus, White's belated attempt to raise the
issue almost thirteen years after his guilty plea is simply too late. This claim for relief is time barred
according to § 99-39-5(2).

Furthermore, Miss. Code Ann. § 99-7-21 provides that defects on the face of an indictment must be
presented by way of demurrer. Brandau at 1054. Because the formal defect is curable by
amendment, it follows that it is subject to waiver for the failure to demur to the indictment in
accordance with this statute. Id. at 1055. Therefore, White waived any right to correct indictment by
not demurring to the flawed indictment before trial.

     II. WHETHER WHITE'S SENTENCE OF LIFE WITHOUT PAROLE UNDER MISS. CODE
     ANN. § 99-19-83 IS GROSSLY DISPROPORTIONATE TO THE OFFENSE WHICH
     WHITE PLEADED GUILTY AND, THUS, IS IN VIOLATION OF THE EIGHTH AND
     FOURTEENTH AMENDMENT.

"Sentencing is within the complete discretion of the trial court and not subject to appellate review if it
is within the limits prescribed by statute." Hoops v. State, 681 So.2d 521, 537 (Miss. 1996).
"Further, the general rule in this state is that a sentence cannot be disturbed on appeal so long as it
does not exceed the maximum term allowed by statute." Hoops, 681 So.2d at 538. However, this
Court will use the three-pronged analysis as set forth by the United States Supreme Court in Solem
v. Helm, but only when a threshold comparison of the crime committed to the sentence imposed
leads to an inference of gross disproportionality. Hoops, 681 So.2d at 538. The three factors set out
in Solem for courts to consider when conducting a proportionality analysis are:

     (a) gravity of the offense and the harshness of the penalty;

     (b) sentences imposed on other criminals in the same jurisdiction; and

     (c) sentences imposed for the commission of the same crime in different jurisdictions.

Solem v. Helm, 463 U.S. at 292, 103 S.Ct. at 3010.

In order to be sentenced to life imprisonment as an habitual offender under § 99-19-83, the individual
must have committed two (2) prior felonies, one of which was violent, and must have been sentenced
and served terms of at least one year on each of those prior felonies. Miss. Code Ann. § 99-19-83
(1994). In the present case, the record indicates that White was convicted of burglary on July 21,
1972; of armed robbery on October 13, 1978; and, most recently of burglary on November 5, 1984.
Moreover, this Court has held that armed robbery is a crime of violence per se. Ashley v. State, 538
So.2d 1181, 1185 (Miss. 1989) citing King v. State, 527 So.2d 641, 646 (Miss. 1988). Thus, White
would be classified as a habitual offender according § 99-19-83 and could receive a life sentence
without parole. For crimes classifiable as felonies in which significant terms of imprisonment in the
state penitentiary can be given, the length of the sentence actually imposed is purely a matter of
legislative prerogative. Hopson v. State, 625 So.2d 395, 404 (Miss. 1993). Therefore, as long as the
sentence is within the limits of the statute, the imposition of such sentence is within the sound
discretion of the trial court and this Court will not reverse them. White was sentenced to life in prison
without the possibility of parole under a valid recidivist statute. Thus, his sentence is proportionate
under the three-prong analysis and is not violative of the Eighth Amendment.

     III. WHETHER WHITE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
     BECAUSE OF COUNSEL'S FAILURE TO OBJECT TO SENTENCE AND TO THE
     ALLEGED DEFECTIVE PORTION OF THE HABITUAL INDICTMENT.

The standard of review for ineffective assistance of counsel is set out in Strickland v. Washington.
"The test to be applied is (1) whether counsel's overall performance was deficient and (2) whether or
not the deficient performance, if any, prejudiced the defense." Taylor v. State, 682 So.2d 359, 363
(Miss. 1996). The defendant has the burden of proving both prongs. Taylorat 363. "The adequacy of
counsel's performance, as to its deficiency and prejudicial effect should be measured by a 'totality of
the circumstances.'" Id. However, there is a strong, yet rebuttable, presumption that the actions by
the defense counsel were reasonable and strategic. Cole v. State, 666 So.2d 767, 775 (Miss. 1995).
"In short, defense counsel is presumed competent." Foster v. State, 687 So.2d 1124, 1130 (Miss.
1996), see also Johnson v. State, 476 So.2d 1195, 1204 (Miss. 1985).

In the present case, White's argument concerning counsel's failure to object to the life sentence
without parole will not meet the two prong test of Strickland. The court had no choice but to follow
the recidivist statute under which White qualified as an habitual offender. The sentence was within
the sound discretion of the trial court and imposed in accordance with the statute. Failure to object to
the imposition of the sentence under these circumstances does not amount to deficient performance
and further, White has not shown prejudice. Thus, this claim should be denied on the merits.

White also asserts that counsel's failure to object to the allegedly defective indictment resulted in
ineffective assistance of counsel. White believes that he was illegally charged as an habitual offender
because the indictment did not conclude with the constitutionally- mandated words "against the peace
and dignity of the State of Mississippi." White states that his indictment was similar in form to the
indictment in the McNeal case, in that the language charging White as an habitual offender came after
these words. McNeal v. State, 658 So.2d 1345, 1349 (Miss. 1995). Thus, White believes that he was
not indicted as an habitual offender and could not be sentenced as such.

However, it appears that White's case is similar to that of the defendant in the Earl case where the
defendant's indictment did contain a phrase to see an attachment which listed prior convictions. Earl
v. State, 672 So.2d 1240, 1244 (Miss. 1996). This Court found such incorporation proper in Earl
because it did effectively charge the defendant as an habitual offender before concluding with the
phrase "against peace and dignity of the State of Mississippi." Earl at 1244. The present case is quite
similar to the Earl case in that it also contained a phrase in the indictment which demonstrated that
the habitual offender charge was continued on to another page but was, none the less, concluded with
the constitutionally-mandated words. This attachment listed a prior conviction and charged White as
an habitual offender who should receive a sentence of life without parole. White's indictment is valid
under the Earl decision. Therefore, counsel's failure to object to the indictment was not ineffective
and as such this argument is denied on the merits.

     IV. WHETHER THE TRIAL COURT WAS WITHOUT AUTHORITY OF LAW TO
     SENTENCE WHITE TO LIFE WITHOUT PAROLE AND ERRED IN FAILING TO
     CORRECT SENTENCE.

White argues that the trial court had no authority to sentence him under Miss. Code Ann. § 99-19-
83. White cites Friday v. State, 462 So.2d 336 (Miss. 1985) as controlling law in his case. In Friday,
the petitioner was wrongfully sentenced to life imprisonment without parole under § 99-19-83.
Friday v. State, 462 So.2d at 338. The petitioner argued that he should have been sentenced under §
99-19-81 which provides that every person convicted of a felony who had been convicted of two
prior felonies in which he served at least one year for each crime shall be sentenced to the maximum
term of imprisonment prescribed for such felony. Friday at 339. The petitioner successfully argued
that the record did not indicate that he served imprisonment for the crimes of violence and he could
not been sentenced under § 99-19-83. Id. In the present case, however, the indictment charged White
as an habitual offender because of two (2) prior felonies he was convicted, one of which was a crime
of violence. The trial court had the authority to impose a life sentence according to § 99-19-83 and
was not in error. Therefore, this argument is without merit.

     V. THE TRIAL COURT HAD NO AUTHORITY TO SENTENCE WHITE UNDER MISS.
     CODE ANN. § 99-19-83 FOR THE CRIME OF BURGLARY WHICH CARRIED A
     MAXIMUM TERM OF SEVEN YEARS UNDER MISS. CODE ANN. § 97-17-19.

This is a restatement of the McNeal argument which states that the trial court could not sentence
White under § 99-19-83. White argued that the indictment did not include the portion charging him
as an habitual offender because it was not concluded with the words "against the peace and dignity of
the State of Mississippi." The case of Earl v. State controls and renders the indictment valid and
thus, White was properly charged as an habitual offender and properly given a sentence of life
imprisonment without parole.

                                           CONCLUSION

Most importantly, White's claim for post-conviction relief was time barred according to Miss. Code
Ann. § 99-39-5(2). White waited almost thirteen (13) years from the date of his conviction to file this
motion. Therefore, all claims pertaining to the sufficiency of the indictment were barred and without
merit.

There is no procedural bar on the issue of ineffective assistance of counsel. However, White has
failed to meet the two-pronged Strickland test regarding his claims of ineffective assistance of
counsel. Accordingly, his claims of ineffective assistance of counsel are without merit. This Court
finds that the Earl decision properly applies to this case the prior 1972 conviction of burglary and the
language charging White as an habitual offender are deemed to have been concluded with the words
"against the peace and dignity of the State of Mississippi."

The sentence given to White was within the limits of the habitual offender statute, the imposition of
the sentence was within the sound discretion of the trial judge and, therefore, this Court will not
reverse the decision.

LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, SMITH AND
MILLS, JJ., CONCUR.
