                    IN THE SUPREME COURT OF MISSISSIPPI

                                 NO. 2012-CT-01574-SCT

RICHARD CHAPMAN

v.

STATE OF MISSISSIPPI

                              ON WRIT OF CERTIORARI

DATE OF JUDGMENT:           12/10/2012
TRIAL JUDGE:                HON. JEFF WEILL, SR.
TRIAL COURT ATTORNEYS:      RICHARD CHAPMAN, PRO SE
                            JEFFREY A. KLINGFUSS
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:     RICHARD CHAPMAN (PRO SE)
ATTORNEY FOR APPELLEE:      OFFICE OF THE ATTORNEY GENERAL
                            BY: JEFFREY A. KLINGFUSS
NATURE OF THE CASE:         CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                REVERSED AND REMANDED - 07/02/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       EN BANC.

       WALLER, CHIEF JUSTICE, FOR THE COURT:

¶1.    Richard Chapman currently is serving a life sentence in the custody of the Mississippi

Department of Corrections. He has never had a direct appeal through no apparent fault of his

own, and his trial record allegedly has been destroyed. While Chapman has filed multiple

motions for post-conviction relief (PCR), no appellate court has ever addressed the merits

of his claims, despite potential violations of his constitutional rights. Under these peculiar

circumstances, we find that, in the interests of justice, Chapman is entitled to an evidentiary

hearing so that he and the State have an opportunity to reconstruct his trial record.
                       FACTS AND PROCEDURAL HISTORY

¶2.    Richard Chapman was sentenced to life in prison at the age of sixteen after being

convicted of rape. No direct appeal was taken, but several years later, Chapman filed a

number of motions for PCR. Each PCR motion was denied on procedural grounds. See

Chapman v. State, 47 So. 3d 203, 204 (Miss. Ct. App. 2010); Chapman v. State, 135 So.

3d 184, 184 (Miss. Ct. App. 2013), reh’g denied (Apr. 1, 2014), cert. dismissed, 145 So. 3d

674 (Miss. 2014); Chapman v. State, No. 2012-CP-01574-COA, 2014 WL 2579685 (Miss.

Ct. App. June 10, 2014), reh’g denied (Sept. 23, 2014), cert. granted (Jan. 8, 2015).

Chapman’s current motion for PCR also was denied on procedural grounds by the trial court,

and the Court of Appeals affirmed. Chapman then filed a petition for certiorari, which this

Court granted.

                               STANDARD OF REVIEW

¶3.    “When reviewing a trial court’s denial or dismissal of a motion for PCR, we will

only disturb the trial court’s factual findings if they are clearly erroneous; however, we

review . . . legal conclusions under a de novo standard of review.” Chapman v. State,

No. 2012-CP-01574-COA, 2014 WL 2579685, at *1 (Miss. Ct. App. June 10, 2014),

reh’g denied (Sept. 23, 2014), cert. granted (Jan. 8, 2015) (citing Hughes v. State, 106

So. 3d 836, 838 (Miss. Ct. App. 2012)).

                                      DISCUSSION

¶4.    Among the issues raised, Chapman alleges two potential violations of his

constitutional rights. First, he claims his trial record and transcript have been improperly



                                              2
destroyed. See Chapman, 47 So. 3d at 205 (finding the physical evidence from Chapman’s

trial had been destroyed). Second, Chapman asserts that his counsel was ineffective for not

filing his direct appeal, and thereby failing to secure a transcript of his trial.

¶5.    Chapman’s first claim implicates his constitutional right to due process of law. If his

trial record was destroyed, this violated the statutory duty to preserve the record.1 Miss. Code

Ann. § 9-7-128 (1985). The record currently before this Court is essentially Chapman’s

Order of Conviction and what Chapman claims is his indictment. He claims that, in addition

to the physical evidence being destroyed, the trial record and transcript also were destroyed.

¶6.    Chapman next asserts that his counsel was ineffective for not filing his direct appeal.

Chapman claims his attorney at trial agreed to file the appeal and that he paid the attorney

for this service. But, according to Chapman, the attorney failed to do so, and Chapman

learned of his attorney’s alleged failure roughly two years later when he was informed by the

court clerk that no direct appeal had ever been filed.

¶7.    Chapman further alleges that his attorney was ineffective at trial for failing to call an

alibi witness, that there was a Batson2 violation, that his indictment was faulty for not

properly citing the relevant statute, that the State improperly destroyed all physical evidence

after his conviction, that his sentence is illegal, and that the verdict was against the

       1
       The statute at that time required the records be kept for fifty years. The Legislature
amended the statute in 1987 to require the retention of criminal files for twenty years. See
Miss. Code Ann. § 9-7-128 (1987).
       2
         Batson v. Kentucky, 476 U.S. 79, 82, 106 S. Ct. 1712, 1715, 90 L. Ed. 2d 69
(1986), holding modified by Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d
411 (1991) (providing the Equal Protection Clause prohibits prosecutors from challenging
potential jurors solely based on their race).

                                                3
sufficiency and weight of the evidence. See Moore v. Ruth, 556 So. 2d 1059, 1061 (Miss.

1990) (noting that a pro se prisoner’s meritorious claims may not be ignored because of

inartful drafting). In regard to the latter, Chapman claims the State failed to establish any link

between him and the physical evidence of the crime, specifically semen and hair taken from

the victim, and that, at trial, the victim identified his attorney as the perpetrator of the crime

and not him.

¶8.    Because of the lack of a trial record and transcript, it is impossible to address the

merits of Chapman’s claims and his assertion of ineffective assistance of counsel. This lack

of a record, which Chapman attributes to the trial court and to his attorney’s alleged failure

to file his appeal, effectively denied Chapman his right to an appeal and to a review of the

merits of his claim on PCR. Given that there was a statutory duty to preserve Chapman’s

record, which is essential to virtually all post-trial proceedings, the absence of a record of

Chapman’s conviction may be a violation of Chapman’s right to due process. See Miss.

Code Ann. § 9-7-128 (1985) (requiring the preservation of all criminal files “where an

indictment was returned and the defendant was convicted if the file is not at least fifty (50)

years old.”); see also Watts v. State, 717 So. 2d 314, 317 (Miss. 1998) (noting that a

defendant essentially is denied his or her right to appeal when there is no trial transcript or

its equivalent).

¶9.    When a criminal defendant feels aggrieved by a lower-court decision, that defendant

has an “absolute right” to appeal. Harden v. State, 460 So. 2d 1194, 1200 (Miss. 1984); see

also Douglas v. California, 373 U.S. 353, 358, 83 S. Ct. 814, 817, 9 L. Ed. 2d 811 (1963)



                                                4
(noting all defendants are entitled to a meaningful appeal). However, no meaningful appeal

or post-conviction proceeding can be had where no transcript or equivalent picture of the trial

proceedings exists. See Watts, 717 So. 2d at 317; United States v. Selva, 559 F.2d 1303,

1306 (5th Cir. 1977); United States v. Renton, 700 F.2d 154, 158 (5th Cir. 1983);

Commonwealth v. Desimone, 447 Pa. 380, 384-385, 290 A.2d 93, 96 (1972). It is also clear

that a showing of prejudice, which is not required, under these circumstances is axiomatic

– the merits of Chapman’s claims at this point cannot be evaluated because the Court does

not have a transcript of any of the trial proceedings or a complete trial record before it. See

Selva, 559 F.2d at 1305-06 (“When . . . a criminal defendant is represented on appeal by

counsel other than the attorney at trial, the absence of a substantial and significant portion

of the record, even absent any showing of specific prejudice or error, is sufficient to mandate

reversal.”); Renton, 700 F.2d at157; see also Watts, 717 So. 2d at 318.The Fifth Circuit

Court of Appeals has provided, as quoted by Watts, “when a defendant is represented on

appeal by counsel not involved at trial, counsel cannot reasonably be expected to show

specific prejudice.” Renton, 700 F.2d at157; Selva, 559 F.2d at 1305-06; see also Watts, 717

So. 2d at 318 (adopting the rationale of Renton and Selva).

¶10. Moreover, criminal defendants have a constitutional right to effective assistance of

counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064, 80 L. Ed. 2d

674, 693 (1984); Cabello v. State, 524 So. 2d 313, 315 (Miss. 1988). This Court has stated

that trial counsel has a duty to ensure that there is at least a partial transcript of trial

proceedings to ensure a defendant can adequately appeal his conviction. Brawner v. State,



                                              5
947 So. 2d 254, 262 (Miss. 2006) (citing Hardy v. United States, 375 U.S. 277, 280, 84 S.

Ct. 424, 427, 11 L. Ed. 2d 331 (1964)). Failure to do so is ineffective assistance of counsel

and a violation of a defendant’s constitutional rights. Strickland, 466 U.S. at 687; Hardy,

375 U.S. at 280; Cabello, 524 So. 2d at 315; Brawner, 947 So. 2d at 262.

¶11.      Here, there is no trial record or transcript, nor does the record show that Chapman has

had an opportunity to try to construct an equivalent picture, as he repeatedly has been denied

an evidentiary hearing on procedural grounds. See M.R.A.P. 10(c) (providing guidance for

constructing an alternative to the actual record); Selva, 559 F.2d at 1306; Watts, 717 So. 2d

at 318.

¶12. Under these extraordinary circumstances – lack of a direct appeal, lack of a court

record, his attorney’s alleged failure to obtain a transcript, lack of appellate review of the

merits of his claims – we find Chapman is entitled to an evidentiary hearing so that the trial

court can determine what, if anything, of the trial record exists, and to provide Chapman and

the State an opportunity to locate or reconstruct the trial record and transcript, or to produce

an equivalent picture. See Watts, 717 So. 2d at 317; Selva, 559 F.2d at 1304 (allowing parties

to supplement missing portions of record, or if an adequate picture cannot be reproduced, to

grant a new trial if in the interest of justice); Renton, 700 F.2d at158; Desimone, 447 Pa. at

384-385. If Chapman or the State can produce the record and transcript or a sufficient

equivalent, the circuit court should then consider the merits of Chapman’s claims raised in

the current motion for PCR based on that record. Selva, 559 F.2d at 1304. If, however,

Chapman or the State fails to produce the record and transcript or an adequate equivalent,



                                                6
Chapman may be entitled to a new trial. See Watts, 717 So. 2d at 317 (recognizing that a

transcript or equivalent is required for a meaningful appeal); Selva, 559 F.2d at 1304;

Renton, 700 F.2d at 158; Desimone, 447 Pa. at 384-385; see also Brawner, 947 So. 2d at

262 (noting that a partial picture of the trial proceeding may be sufficient for post-trial

proceedings); Mayer v. City of Chicago, 404 U.S. 189, 194, 92 S. Ct. 410, 414, 30 L. Ed. 2d

372 (1971) (recognizing the State and defendant share burden to produce the record or

equivalent, providing that State and defendant should be afforded an opportunity to

reconstruct missing trial records) (citing Draper v. State of Wash., 372 U.S. 487, 495, 83 S.

Ct. 774, 779, 9 L. Ed. 2d 899 (1963)); see also Douglas, 373 U.S. at 358 (guaranteeing a

defendant’s right to a meaningful appeal); Miss. Code Ann. § 9-7-128 (1985) (requiring the

State to preserve criminal trial records for fifty years). A sufficient equivalent of the record,

at a minimum, would include enough material information specific to the claims raised for

the trial court judge to fairly consider the merits of each issue. See M.R.A.P. (10)(c).

¶13. Additionally, in Rowland v. State, this Court held “errors affecting fundamental

constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction

Collateral Relief Act (UPCCRA)],” and courts have no discretion in this regard. Rowland

v. State, 42 So. 3d 503, 507 (Miss. 2010). Accordingly, we find the trial court erred in ruling

Chapman’s current PCR motion procedurally barred, and the Court of Appeals erred in

affirming the trial court’s judgment. Chapman raises credible allegations affecting

fundamental constitutional rights, which are excepted from the PCR statutory bars, including

the statute of limitations found in UPCCRA. Rowland, 42 So. 3d at 506-07 (“We take this



                                               7
opportunity to hold, unequivocally, that errors affecting fundamental constitutional rights are

excepted from the procedural bars of the UPCCRA[,]” including the statute’s time bars); see

also Bevill v. State, 669 So. 2d 14, 17 (Miss. 1996) (recognizing due-process violations are

excepted from the PCR procedural bars and that it is possible for a lawyer’s performance to

be so deficient and so prejudicial that the defendant’s fundamental constitutional rights are

violated); see Douglas, 373 U.S. at 358 (finding all defendants are entitled to a meaningful

appeal); Miss. Code Ann. § 9-7-128 (1985) (requiring the preservation of all criminal files

for fifty years where the defendant was indicted and convicted).

¶14. The trial court also should strongly consider appointing counsel to represent Chapman

for this evidentiary hearing if he qualifies as indigent. Miss. Code Ann. § 99-39-23 (Rev.

2007) (permitting the judge to appoint counsel to assist indigent defendants, as described in

Mississippi Code Section 99-15-15, when an evidentiary hearing is required in PCR

proceedings); see also Rowland, 42 So. 3d at 508 (directing the trial court to consider

appointing counsel to represent Rowland at PCR evidentiary hearing).

                                      CONCLUSION

¶15. For the reasons stated above, we reverse the dismissal of Chapman’s current PCR

motion as well as the Court of Appeals’ affirmance of the dismissal and remand for an

evidentiary hearing consistent with this opinion. At the evidentiary hearing, the trial court

should determine if the trial record and transcript exist, and if not, whether an adequate

equivalent can be reconstructed. If the trial court determines that the record and transcript do

not exist or an adequate equivalent cannot be reconstructed, Chapman should be given leave



                                               8
to file a motion for a new trial. The trial court also should consider appointing counsel to

represent Chapman if he qualifies as indigent. Miss. Code Ann. § 99-39-23 (Rev. 2007);

Rowland, 42 So. 3d at 508.

¶16. REVERSED AND REMANDED.

     DICKINSON, P.J., KITCHENS, CHANDLER AND KING, JJ., CONCUR.
RANDOLPH, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY
LAMAR AND PIERCE, JJ.; COLEMAN, J., JOINS IN PART. COLEMAN, J.,
DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY RANDOLPH, P.J.,
LAMAR AND PIERCE, JJ.

       RANDOLPH, PRESIDING JUSTICE, DISSENTING:

¶17.   I join Justice Coleman’s dissent in which he finds that Chapman’s third attempt at

post-conviction relief is time-barred under the three-year statute of limitations found in

Section 99-39-5(2) of the Mississippi Code. I write separately to encourage my fellow

justices not to be “manipulated by Chapman’s untimely machinations of the post-conviction-

relief process.” Bell v. State, 66 So. 3d 90, 95 (Miss. 2011) (Randolph, P.J., dissenting).

¶18.   On January 27, 1982, a jury found Chapman guilty of rape, and the circuit court

sentenced him to life imprisonment. A few months later, Chapman pleaded guilty to robbery

without a firearm, and the court sentenced him to serve ten years’ imprisonment. Chapman

never filed a direct appeal. See Chapman v. State, 47 So. 3d 203, 205 (Miss. Ct. App. 2010)

(Chapman I). It was not until December 27, 2006, almost twenty-five years later, that

Chapman filed his first post-conviction relief (PCR) motion.3 Id. The Court of Appeals

       3
           Chapman raised the following issues in his first PCR motion:

       (1) His conviction and/or sentence were imposed in violation of the United
       States Constitution; (2) His due-process rights were violated; (3) The circuit

                                              9
affirmed the trial court’s denial of Chapman’s PCR motion as barred by the applicable statute

of limitations. Id. at 209-210. On August 1, 2011, Chapman filed his second PCR motion,

arguing the same issues he argued in his first motion. Chapman v. State, 135 So. 3d 184, 185

(Miss. Ct. App. 2013), reh’g denied (Apr. 1, 2014), cert. dismissed, 145 So. 3d 674 (Miss.

2014) (Chapman II). The trial court dismissed the motion, finding that it was time-barred.

Chapman II, 135 So. 3d at 185. The Court of Appeals affirmed the trial court judgment,

holding that “Chapman’s first [PCR] motion was filed on December 27, 2006, and it was

dismissed by the circuit court, which was affirmed by this Court. Chapman’s current motion,

filed on August 1, 2011, was also procedurally barred as both time-barred and

successive-writ barred.” Id. at 186. Rather than seek permission to amend his PCR motion,

which was pending before the Court of Appeals (Chapman II ), Chapman instead filed a

third PCR motion in the trial court on April 19, 2012. Chapman v. State, No.

2012-CP-01574-COA, 2014 WL 2579685, at *1 (Miss. Ct. App. June 10, 2014), reh’g

denied (Sept. 23, 2014), cert. granted, 154 So. 3d 33 (Miss. 2015) (Chapman III).4 The trial


       court erred in refusing to conduct an evidentiary hearing; (4) His guilty plea
       to the crime of robbery was not voluntary and intelligent; (5) He received
       ineffective assistance of counsel; (6) His “custody is illegal;” (7) His
       indictments for robbery and rape were defective; (8) The jury was not drawn
       from a fair cross-section of the community; (9) The prosecution failed to
       disclose material exculpatory evidence; (10) He is innocent of the crime of
       rape; (11) The State failed to preserve his trial transcript and other evidence
       that would exonerate him.

Chapman I, 47 So. 3d at 205.
       4
        Chapman raised the following issues: “(1) the destruction of evidence violated his
due-process rights, (2) the trial court erred in finding his motion was time-barred, (3) the
indictment was defective, (4) the jury was not properly sworn, (5) the State failed to comply

                                             10
court once again found Chapman’s motion to be time-barred and denied him relief.

Chapman III, 2014 WL 2579685, at *1. The Court of Appeals, also once again, found

Chapman’s motion to be time-barred and barred as a successive writ, as Chapman had failed

to assert any exceptions to the bar. Id.

¶19.   This Court granted Chapman’s petition for writ of certiorari and now opines that

Chapman is entitled to an evidentiary hearing, granting a right to Chapman that otherwise is

not provided by our laws. Pursuant to our statutes, a petitioner is granted the right to proceed

with a post-conviction-relief motion “within three (3) years after the time for taking an

appeal from the judgment of conviction or sentence has expired.” Miss. Code Ann. § 99-39-5

(Rev. 2007). Once the time period, set by statute, has expired, the petitioner’s right to

proceed is extinguished. This Court has provided limited exceptions to the procedural bars

for errors affecting certain constitutional rights. Rowland v. State, 98 So. 3d 1032, 1036

(Miss. 2012) (Rowland II).5 Those constitutional rights are claims of double jeopardy, illegal

sentence, and denial of due process in sentencing. Id. “The deprivation of liberty–that

unalienable, natural right inherent in all persons since time immemorial–without authority

of law distinguishes these three excepted errors from all other post-conviction claims.” Id.

¶20.   Chapman does not raise any claims of double jeopardy, illegal sentence, or denial of



with discovery, (6) his trial counsel was ineffective, and (7) the State’s closing argument was
improper.” Chapman III, 2014 WL 2579685, at *1.
       5
       Rowland I held that “errors affecting fundamental constitutional rights are excepted
from the procedural bars of the UPCCRA.” Rowland v. State, 42 So. 3d 503, 507 (Miss.
2010). Rowland II identified three specific fundamental constitutional rights exceptions.
Rowland II, 98 So. 3d at 1036.

                                              11
due process in sentencing. Therefore, Chapman’s PCR motion is time-barred, as his right to

pursue post-conviction relief no longer exists, absent exception, and is barred as a successive

writ because his motion has been ruled upon and denied by at least seven other courts.

¶21.   Federal law also recognizes the “finality of determination” as established in statutes

of limitation. See 28 U.S.C. § 2244(d)(1) (1996) (“A 1-year period of limitation shall apply

to an application for a writ of habeas corpus by a person in custody pursuant to the judgment

of a State court.”). The United States Supreme Court has made clear that “a ‘petitioner’ is

‘entitled to equitable tolling’ only if he shows ‘(1) that he has been pursuing his rights

diligently, and (2) that some extraordinary circumstance stood in his way’ and prevented

timely filing.” Holland v. Florida, 560 U.S. 631, 649, 130 S. Ct. 2549, 2562, 177 L. Ed. 2d

130 (2010) (quoting Pace v. DiGuglielmo, 544 U.S. 408, 418, 125 S. Ct. 1807, 1814, 161

L. Ed. 2d 669 (2005)). In Holland, the Supreme Court found the record supported the

following facts:

       Holland not only wrote his attorney numerous letters seeking crucial
       information and providing direction; he also repeatedly contacted the state
       courts, their clerks, and the Florida State Bar Association in an effort to have
       Collins–the central impediment to the pursuit of his legal remedy–removed
       from his case. And, the very day that Holland discovered that his AEDPA
       clock had expired due to Collins’ failings, Holland prepared his own habeas
       petition pro se and promptly filed it with the District Court.

Holland, 560 U.S. at 653. The Supreme Court remanded the case to the Eleventh Circuit

Court of Appeals to “determine whether the facts in this record entitle Holland to equitable

tolling, or whether further proceedings, including an evidentiary hearing, might indicate that

respondent should prevail.” Id. at 654.



                                              12
¶22.   In all three of Chapman’s motions, Chapman has not once argued that he has been

pursing his rights diligently and that he has been prevented from timely filing his motion due

to extraordinary circumstances. As such, the trial court and Court of Appeals most assuredly

have been correct in denying Chapman’s motions due to the motions being time-barred and

the second and third motions being barred as successive writs.

     LAMAR AND PIERCE, JJ., JOIN THIS OPINION. COLEMAN, J., JOINS
THIS OPINION IN PART.

       COLEMAN, JUSTICE, DISSENTING:

¶23.   I would affirm the Court of Appeals’ decision, holding that Chapman’s third attempt

at post-conviction relief is time-barred under the three-year statute of limitations found at

Mississippi Code Section 99-39-5(2). Therefore, I dissent.

¶24.   Richard Chapman was convicted of rape and sentenced to life in prison in 1982. He

also pleaded guilty to robbery and was sentenced to an additional ten years. He did not

appeal either conviction. In 2005 – twenty-three years later – the Innocence Project, on

Chapman’s behalf, filed a motion in the circuit court seeking an order for biological evidence

related to the rape case. It was discovered that the physical evidence from Chapman’s case

had been destroyed. Chapman began filing motions for post-conviction relief, all of which

have been denied as time barred and successive. Chapman v. State, 47 So. 3d 203 (Miss.

Ct. App. 2010); Chapman v. State, 135 So. 3d 184 (Miss. Ct. App. 2013), reh’g denied (Apr.

1, 2014), cert. dismissed, 145 So. 3d 674 (Miss. 2014); Chapman v. State, No. 2012-CP-

01574-COA, 2014 WL 2579685 (Miss. Ct. App. June 10, 2014), cert. granted (Jan. 8, 2015).

¶25.   The trial court denied Chapman’s third petition for post-conviction relief – filed in


                                             13
April 2012, thirty years after his conviction – as time barred. The Court of Appeals

unanimously affirmed, writing:

       It is clear that Chapman’s motion was time-barred. Under the Uniform Post-
       Conviction Collateral Relief Act (UPCCRA), where “no appeal is taken,” a
       petitioner must move for relief “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 judgment of
       conviction.” Miss. Code Ann. § 99-39-5(2) (Supp. 2013). Chapman was
       convicted in 1982, which was before the UPCCRA was enacted on April 17,
       1984. Odom v. State, 483 So. 2d 343, 344 (Miss. 1986). “Individuals
       convicted prior to April 17, 1984, ha[d] three (3) years from April 17, 1984,
       to file their [motion] for post[-]conviction relief.” Id. Therefore, Chapman had
       until April 17, 1987, to file his PCR motion. Chapman did not file his motion
       until well after the statute of limitations had run. Thus, Chapman’s motion is
       time-barred, and we find no exception to this bar applies. See Miss. Code Ann.
       § 99-39-5(2)(a)-(b).

Chapman v. State, No. 2012-CP-01574-COA, 2014 WL 2579685, *1 (¶ 4) (Miss. Ct. App.

June 10, 2014), cert. granted (Jan. 8, 2015). This Court granted Chapman’s petition for writ

of certiorari to address whether Chapman was entitled to a new trial because, allegedly, his

trial record and trial transcript had been destroyed. I agree with the majority that one

appealing a conviction should have a record and transcript of the trial. However, the lack of

a trial transcript or portions of the record, in itself, is not grounds for appeal and has nothing

to do with the rulings of the courts below us, in which I can find no error.

¶26.   Although Chapman claims that the trial court improperly ordered the destruction of

his trial record and trial transcript, he has failed to submit any proof to support that

contention. There is evidence that the circuit court allowed the physical evidence to be

destroyed several years after the trial, which is a common practice. The transcript of

Chapman’s trial likely never existed because there was no appeal, and the trial proceedings

                                               14
would not have been transcribed unless Chapman had appealed. See Miss. R. App. P. 11(c).

The majority takes at face value Chapman’s claim that his trial record was destroyed, when

that simply has not been shown. Other than the routine destruction of the physical evidence,

there is no proof that anything else was destroyed.

¶27.   In something of a non sequitur, the majority would reverse the trial court and the

Court of Appeals for correctly applying the statute of limitations because of the alleged loss

of the trial record, which – even if that had occurred – has absolutely nothing to do with the

statute of limitations. The instant case will be remanded and, perhaps even to some degree

or another, the record reconstructed, but after all of the effort and expense of doing so,

Chapman still will be proceeding on a terminally late petition without having met any of the

exceptions to the application of the statute of limitations.

¶28.   The majority relies on Watts v. State, 717 So. 2d 314 (Miss. 1998). Leave aside for

the moment that Watts involved a direct appeal rather than a post-conviction collateral attack;

forget that there appears to have been no issue of timeliness in Watts; and finally, never mind

that the Watts Court held that the lack of a record in the case did not prohibit it from

considering the appeal. The majority cites Watts for the principle that a meaningful appeal

cannot be had without a trial transcript or an equivalent picture of the trial proceedings.

(Maj. Op. ¶ 9). I agree with that principle, and neither the trial court nor the Court of

Appeals found or held otherwise. However, the citation to Watts in support of that principle

does not fully encapsulate the Watts Court’s holding. The Watts Court wrote:

       Watts, however, contends that the mere fact that portions of the trial are
       missing makes a truly accurate and meaningful review impossible and that the

                                              15
       fact that gaps exist at all entitles him to a new trial despite the lack of an ability
       to show specific prejudice from the missing portions. In support of his
       argument, Watts cites to United States v. Carrillo in which the Ninth Circuit
       Court of Appeals held that “[a] criminal defendant has a right to a record on
       appeal which includes a complete transcript of the proceedings at trial.”
       United States v. Carrillo, 902 F.2d 1405, 1409 (9th Cir. 1990) (citing Hardy
       v. United States, 375 U.S. 277, 279-82, 84 S. Ct. 424, 11 L. Ed. 2d 331
       (1964)). However, the Ninth Circuit, in Carrillo, further stated that “while
       court reporters are required by the Court Reporters Act, 28 U.S.C. § 753(b)(1)
       (1982), to record verbatim all proceedings in open court, their failure to do so
       does not require a per se rule of reversal. . . . Rather, some prejudice to the
       defendant must occur before reversal will be contemplated.” Carrillo, 902
       F.2d at 1409 (citing United States v. Doyle, 786 F.2d 1440, 1442 (9th Cir.
       1986)). The Ninth Circuit declined to find reversible error as a result of the
       incomplete record and affirmed Carrillo’s conviction absent a showing that he
       was prejudiced by the missing portion of the record. Id. at 1412. Watts
       additionally cites to Commonwealth v. Goldsmith in which the Pennsylvania
       Supreme Court reversed and remanded for a new trial the conviction of
       Goldsmith because “meaningful appellate review is impossible absent a full
       transcript or an equivalent picture of the trial proceedings.” Commonwealth
       v. Goldsmith, 452 Pa. 22, 304 A.2d 478, 480 (1973). However, in the case sub
       judice, we find that Watts has been afforded an “equivalent picture” of the trial
       proceedings, for the trial court filed a bill of exceptions summarizing the only
       missing testimony at trial, i.e., the missing portions of the cross-examination
       and re-direct examination of Watts, and Watts made no objections to the bill
       of exceptions as being inaccurate.

Watts, 717 So. 2d at 317 (¶ 7). Contrary to Watts’s argument, the Court went on to hold that

Watts was “required to show specific prejudice by the missing portions of the record in order

to mandate reversal and remand for a new trial.” Id. at 318 (¶ 10). Because Watts did not

allege any error from the missing portions, and he did not claim specific prejudice caused by

the missing portions of the record, the Court held that the argument was without merit. Id.

¶29.   Even if Watts addressed the lack of a record in light of an untimely appeal or petition

for post-conviction relief, and was therefore pertinent to the subject matter of the instant

case, the majority ignores one of the Watts Court’s true holdings, and its admonition, that an

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appellant working without a record of his trial must demonstrate prejudice resulting from the

lack of a record. Chapman has shown no prejudice from the alleged loss or non-existence

of any portion of his thirty-plus-year-old trial record. He wholly fails to show any connection

between the alleged loss of the record – of which there is no proof – and his abject failure

to abide by the statute of limitations. Certainly, the lack of a trial record would impair a

defendant’s appeal. However, the defendant must first present a valid issue on appeal.

¶30.   Today, in a case void of any indication that the alleged destruction of the trial record

even occurred, much less that it caused or contributed to Chapman having filed the

underlying petition twenty-five years and two days too late, the majority writes into the

statute of limitations an exception for cases where, over the course of decades, a trial record

no longer exists – regardless of whether the petitioner even attempts to demonstrate that the

alleged loss of the record somehow prejudiced him by causing the delay. The majority holds

that the bare allegation that Chapman does not have a record is alone grounds for a new trial.

It simply is not. Accordingly, I respectfully dissent.

       RANDOLPH, P.J., LAMAR AND PIERCE, JJ., JOIN THIS OPINION.




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