        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CP-01447-COA

CHARLES DOUGLAS OWENS, II A/K/A                                           APPELLANT
CHARLES DOUGLAS OWENS A/K/A CHARLES
OWENS A/K/A CHARLES D. OWENS, II

v.

STATE OF MISSISSIPPI                                                        APPELLEE


DATE OF JUDGMENT:                         08/01/2013
TRIAL JUDGE:                              HON. LISA P. DODSON
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   CHARLE DOUGLAS OWENS II (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: LADONNA C. HOLLAND
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                  DENIED PETITION FOR POST-
                                          CONVICTION RELIEF
DISPOSITION:                              AFFIRMED - 10/28/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       JAMES, J., FOR THE COURT:

¶1.    Charles Douglas Owens II pled guilty in the Harrison County Circuit Court, Second

Judicial District, to one count of armed robbery and one count of aggravated assault. Owens

was sentenced to serve forty years in the custody of the Mississippi Department of

Corrections (MDOC). Owens has had two prior petitions for post-conviction collateral relief

(PCR) denied by the trial court. On both occasions, Owens appealed and this Court affirmed.

See Owens v. State, 17 So. 3d 628 (Miss. Ct. App. 2009); Owens v. State, 996 So. 2d 85
(Miss. Ct. App. 2008). Owens has filed a third PCR petition asserting that his conviction and

sentence violate the prohibition against double jeopardy. Owens’s petition also asserted that

issues raised in his previous PCR petitions should be revisited in light of intervening

decisions of the United States Supreme Court and the Mississippi Supreme Court. The trial

court denied the petition and Owens now appeals. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY 1

¶2.    On May 20, 2002, a Harrison County grand jury indicted Owens on one count of

armed robbery and one count of aggravated assault. Owens entered voluntary pleas of guilty

to both counts on February 4, 2003. On March 17, 2003, Owens was sentenced to thirty

years for armed robbery and ten years for aggravated assault, with the sentences to run

consecutively for a total of forty years in the custody of the MDOC. Owens filed a pro se

motion for reconsideration on March 20, 2003. The following week, Owens’s attorney-of-

record filed a motion for reconsideration or, in the alternative, to withdraw his guilty plea,

and on April 4, 2003, Owens filed a pro se motion to withdraw his plea. On February 2,

2006, nearly three years later, Owens’s new counsel filed a PCR petition arguing that there

were mitigating factors that, if known, would have decreased Owens’s sentence; his plea was

involuntarily given; and his plea should be withdrawn, as there was an agreement between

the circuit court, the State, and Owens as to his sentence. On January 3, 2007, the trial court


       1
         The detailed factual history pertaining to Owens’s arrest and conviction has been
fully recited in our prior decisions affirming the denial of Owens’s petition for PCR. See
Owens, 17 So. 3d at 630-631 (¶¶2-3); Owens, 996 So. 2d at 87-90 (¶¶3-17). Therefore, we
recite only those facts pertinent to this appeal.

                                              2
denied the 2006 PCR petition and Owens appealed. While that decision was pending on

appeal, Owens filed a pro se motion for clarification of his sentence stating that the MDOC’s

position on his parole eligibility contradicted the intent of the trial court. This Court affirmed

the trial court’s denial of Owens’s 2006 PCR petition. See Owens, 996 So. 2d at 94 (¶33).

In so doing, we noted that there was no indication in the record that the trial court had ruled

on Owens’s three post-trial motions. See id. at 89 (¶13).

¶3.    Owens petitioned the Mississippi Supreme Court for a writ of mandamus, attempting

to compel the trial court to take action on those motions. On August 11, 2008, while the

petition for a writ of mandamus was pending, the trial court denied Owens’s pro se motion

for reconsideration; his attorney’s motion for reconsideration or, in the alternative, to

withdraw his plea; and Owens’s pro se motion to withdraw his plea. The motion for

clarification of Owens’s sentence was denied by a separate order entered on August 11, 2008.

Upon entry of those orders, the Mississippi Supreme Court, on August 15, 2008, dismissed

Owens’s petition for a writ of mandamus as moot. Owens then appealed the circuit court’s

denial of his 2003 motions and the motion for clarification of his sentence, and this Court

affirmed. See Owens, 17 So. 3d at 635 (¶20).

¶4.    Undeterred, on June 7, 2013, Owens filed another petition for PCR, asserting that his

conviction violated the prohibition against double jeopardy. Owens also asserted that he

received ineffective assistance of counsel, and that his plea was involuntary and it should be

revisited. On August 1, 2013, the trial court denied Owens’s petition for PCR, finding that

Owens’s conviction did not violate the prohibition against double jeopardy, and that Owens’s

                                                3
remaining claims were procedurally barred. Owens now appeals, raising the following

issues: (1) whether the trial court erred in finding that Owens’s double-jeopardy claim was

without merit; and (2) whether the trial court erred in finding that Owens’s prior claims were

procedurally barred. We find no error and affirm.

                                STANDARD OF REVIEW

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

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

trial court's legal conclusions under a de novo standard of review. Hughes v. State, 106 So.

3d 836, 838 (¶4) (Miss. Ct. App. 2012).

                                       DISCUSSION

       I.     Whether the trial court erred in finding that Owens’s double-
              jeopardy claim was without merit.

¶6.    Owens argues that he was subjected to double jeopardy because he was indicted for

both aggravated assault and armed robbery based on the same set of facts. Thus, Owens

argues that his conviction and sentence for armed robbery and aggravated assault constitute

multiple punishments, violating his constitutional protections against double jeopardy. We

disagree.

¶7.    We first note that Owens’s present petition is time-barred. Pursuant to the Uniform

Post-Conviction Collateral Relief Act (UPCCRA):

       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

                                               4
       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. 2014). Here, Owens pleaded guilty to armed robbery

and aggravated assault, and the judgment of conviction was entered on March 17, 2003. The

present PCR petition was filed on June 7, 2013, more than ten years after the entry of the

judgment of conviction. Thus, Owens’s present petition for PCR is time-barred.

¶8.    The Mississippi Supreme Court has held that “errors affecting fundamental

constitutional rights are excepted from the procedural bars of the UPCCRA.” Rowland v.

State, 42 So. 3d 503, 507 (¶12) (Miss. 2010). Likewise, our supreme court has held that the

right to be free from double jeopardy is a fundamental right. Id. at 508 (¶14). Therefore, we

address the merits of Owens’s claim.

¶9.    “Double jeopardy consists of three separate constitutional protections: (1) protection

against a second prosecution for the same offense after acquittal, (2) protection against a

second prosecution for the same offense after conviction, and (3) protection against multiple

punishments for the same offense.” Rowland v. State, 98 So. 3d 1032, 1037 (¶10) (Miss.

2012) (quoting Powell v. State, 806 So. 2d 1069, 1074 (¶8) (Miss. 2001)). Here, it is the

third protection that is at issue: whether Owens’s right to be free from multiple punishments

for the same offense was violated when he was convicted of aggravated assault and armed

robbery arising from the same criminal act. The Mississippi Supreme Court has held that

“[i]n determining whether double-jeopardy protection applies, we apply the test enunciated

by the United States Supreme Court in Blockburger v. United States, 284 U.S. 299, 304


                                             5
(1932).” Rowland, 98 So. 3d at 1037 (¶10) (citations omitted). The Blockburger Court held:

       [T]he applicable rule is that, where the same act or transaction constitutes a
       violation of two distinct statutory provisions, the test to be applied to
       determine whether there are two offenses or only one, is whether each
       provision requires proof of a fact which the other does not. . . . A single act
       may be an offense against two statutes; and if each statute requires proof of an
       additional fact which the other does not, an acquittal or conviction under either
       statute does not exempt the defendant from prosecution and punishment under
       the other.

Id. (quoting Blockburger, 284 U.S. at 304). Thus, “[e]ven though there may be a substantial

overlap in the proof supporting the convictions of the different crimes, the Blockburger test

is met where each offense requires proof of an element not necessary to the other.”

Greenwood v. State, 744 So. 2d 767, 771 (¶14) (Miss. 1999) (citing Bannister v. State, 731

So. 2d 583, 586 (¶12) (Miss. 1999)). Furthermore, we have held that “[a] criminal defendant

may be prosecuted for more than one offense that arises from a single set of facts where each

offense requires proof of a different element. Thomas v. State, 930 So. 2d 1264, 1266 (¶8)

(Miss. Ct. App. 2005) (citing Davis v. State, 750 So. 2d 552, 563 (¶44) (Miss. Ct. App.

1999)).

¶10.   Here, the grand jury returned a two-count indictment against Owens. Count I charged

Owens with armed robbery pursuant to Mississippi Code Annotated section 97-3-79 (Rev.

2001), which defined the crime as: “[F]eloniously tak[ing] or attempt[ing] to take from the

person or from the presence the personal property of another and against his will by violence

to his person or by putting such person in fear of immediate injury to his person by exhibition

of a deadly weapon[.]” Count I of Owens’s indictment stated that he “did willfully,


                                              6
unlawfully and feloniously take, steal[,] and carry away from the person and in the presence

and against the will of Raleigh Richard Carter, One Thousand Four Hundred Dollars

($1,400.00)[,] . . . the personal property of [Carter], by violence to the person of . . . [Carter],

by the exhibition of a deadly weapon[,] . . . a handgun[.]” Likewise, Count II indicted Owens

for aggravated assault pursuant to Mississippi Code Annotated section 97-3-7(2) (Rev.

2001), which defined the crime of aggravated assault as:

       (a) attempt[ing] to cause serious bodily injury to another, or caus[ing] such
       injury purposely, knowingly[,] or recklessly under the circumstances
       manifesting extreme indifference to the value of human life; or (b)
       attempt[ing] to cause or purposely or knowingly caus[ing] bodily injury to
       another with a deadly weapon or other means likely to produce death or
       serious bodily harm[.]

Count II of the indictment stated that Owens “unlawfully, feloniously, willfully[,] and

purposely, cause[d] bodily injury to [Carter], by shooting . . . [Carter] in the left chest with

a deadly weapon[,] . . . a handgun[.]

¶11.   It is clear that the two crimes for which Owens was indicted and to which he pled

guilty required proof of an element which the other did not. The armed-robbery charge

required the State to prove that Owens took the personal property of Carter; the aggravated

assault charge did not. The aggravated-assault charge required the State to prove that Owens

caused bodily injury to Carter by shooting Carter; the armed-robbery charge did not. Stated

differently, Owens could have been found guilty of armed robbery without having shot

Carter; likewise, Owens could have been found guilty of aggravated assault without taking

Carter’s property. See Thomas, 930 So. 2d at 1266 (¶9). Accordingly, this issue is without


                                                 7
merit.

         II.    Whether the trial court erred in finding that Owens’s prior claims
                were procedurally barred.

¶12.     Owens next argues that his prior claim challenging the voluntariness of his plea and

his claim that his counsel was ineffective should be revisited. In Owens’s February 2, 2006

PCR petition, Owens claimed that he detrimentally relied on the State’s recommendation of

a twenty-five-year sentence when he agreed to plead guilty. Owens asserted that the trial

court failed to advise him that it was not bound by the State’s sentencing recommendation

and that Owens could be sentenced to serve the statutory maximum sentence. Further,

Owens claimed that his trial counsel failed to inform him of the consequences of his plea.

Thus, Owens claims that his guilty plea was not intelligently, voluntarily, and freely given

because the trial court sentenced him to a term of years in excess of the State's

recommendation and that his counsel was ineffective.

¶13.     As to the voluntariness of his plea, this Court has already addressed this issue in our

prior opinion. Following the trial court's denial of Owens's February 2, 2006 PCR petition,

this Court affirmed, finding:

         The transcript from Owens's plea hearing clearly shows that he testified under
         oath that he had read and understood his guilty plea petition, which stated in
         pertinent part that the trial judge was not required to follow the sentencing
         recommendation of the State and could sentence Owens to any term within the
         statutory limits. The transcript also shows that Owens was told the maximum
         and minimum sentences that he could receive for the crimes with which he was
         charged. Owens affirmed to the trial judge that he was satisfied with the
         advice and counsel of his attorney. Importantly, the record shows that Owens
         was informed of his constitutional rights that he was waiving by pleading
         guilty. Owens told the trial court that he understood that he was waiving those

                                                8
       rights. Owens signed the petition to plead guilty and told the trial court that
       he was in fact guilty of the two charges. We find that Owens has failed to
       carry his burden of proof to show that his plea was not voluntarily,
       intelligently, and knowingly given. This issue is without merit.

Owens, 996 So. 2d at 94 (¶32).

¶14.   Nevertheless, Owens’s present petition is procedurally barred by the statute of

limitations set forth in section 99-39-5(2)(a)(ii). Likewise, Owens has filed prior petitions

for PCR, in which these issues were addressed. The UPCCRA prohibits successive attempts

to obtain relief, providing: “[A]ny 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.” Miss. Code. Ann. §

99-39-23(6) (Supp. 2014). Thus Owens’s present petition is barred as a successive writ.

However, both section 99-39-5 and section 99-39-23 provide that an intervening decision of

the United States Supreme Court or the Mississippi Supreme Court which would adversely

affect the outcome of a conviction or sentence is an exception to the respective procedural

bars. See § 99-39-5(2)(a)(ii) (“Excepted from this three-year statute of limitations are those

cases in which the petitioner can demonstrate . . . [t]hat 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[.]”); § 99-

39-23(6) (“[E]xcepted from this prohibition are those cases in which the petitioner can

demonstrate . . . 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


                                              9
the outcome of his conviction[.]”). Owens now argues that his claims should be revisited in

light of intervening decisions by the United States Supreme Court and the Mississippi

Supreme Court.

¶15.   “The burden of proving that no procedural bar exists falls squarely on the petitioner.”

Cosner v. State, 111 So. 3d 111, 113 (¶13) (Miss. Ct. App. 2013) (quoting Crawford v. State,

867 So. 2d 196, 202 (¶7) (Miss. 2003)).

¶16.   Owens first claims that the United States Supreme Court’s decision in Padilla v.

Kentucky, 559 U.S. 356 (2010), which involves an ineffective-assistance-of-counsel claim,

is an intervening decision that would adversely affect the outcome of his conviction. We

disagree.

¶17.   In Padilla, the petitioner, Padilla, a native of Honduras who had been a lawful

permanent resident of the United States for more than forty years, faced deportation as a

result of his pleading guilty to the transportation of a large amount of marijuana in his

tractor-trailer in the State of Kentucky.2 Id. at 359. Padilla alleged that his trial counsel not

only failed to discuss the possibility of deportation as a result of his guilty plea, but claimed

that his attorney told him that he “did not have to worry about immigration status since he




       2
         Padilla faced deportation pursuant to 8 U.S.C. § 1227(a)(2)(B)(i) (2012), which
provides: “Any alien who at any time after admission has been convicted of a violation of
(or a conspiracy or attempt to violate) any law or regulation of a State, the United States or
a foreign country relating to a controlled substance . . . , other than a single offense involving
possession for one's own use of 30 grams or less of marijuana, is deportable.”

                                               10
had been in the country so long.” Id. Applying Strickland,3 the Supreme Court held that

“[a]ccepting his allegations as true, Padilla has sufficiently alleged constitutional deficiency

to satisfy the first prong of Strickland.” Id. at 369. The Court noted:

       In the instant case, the terms of the relevant immigration statute are succinct,
       clear, and explicit in defining the removal consequence for Padilla's
       conviction. . . . Padilla's counsel could have easily determined that his plea
       would make him eligible for deportation simply from reading the text of the
       statute . . . . Instead, Padilla's counsel provided him false assurance that his
       conviction would not result in his removal from this country. This is not a
       hard case in which to find deficiency: The consequences of Padilla's plea could
       easily be determined from reading the removal statute, his deportation was
       presumptively mandatory, and his counsel's advice was incorrect.

Id. at 368-69. The Court remanded, noting: “Whether Padilla is entitled to relief on his claim

will depend on whether he can satisfy Strickland's second prong, prejudice, a matter we leave

to the Kentucky courts to consider in the first instance.” Id. at 369.

¶18.   We find that the decision in Padilla is not analogous to the facts here. The case here

does not involve deportation, and the decision in Padilla did not announce a new rule

regarding ineffective assistance of counsel; instead, it merely continued the Court’s

longstanding adherence to Strickland. We find that this decision would not “have actually

affected” the outcome of Owens’s conviction and sentence as required by section 99-39-

5(2)(a)(ii) and section 99-39-23(6).

¶19.   Owens next claims that this Court’s decision in Salter v. State, 64 So. 3d 514 (Miss.



       3
         Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on a claim of
ineffective assistance of counsel, a defendant must show (1) that counsel's performance was
deficient and (2) that the deficient performance prejudiced the defense. Id. at 687.

                                              11
Ct. App. 2010), is an intervening decision that would adversely affect the outcome of his

conviction. Salter concerned a claim that Salter received erroneous advice from both his

attorney and the trial court concerning his eligibility for parole. This Court found that

Salter’s petition was barred as a successive writ, stating: “Had Salter raised this issue in his

first petition for post-conviction collateral relief, it appears that he would have been entitled

to an evidentiary hearing. . . . However, Salter did not raise the issue in his first petition.

Instead, he raises it for the first time in this his second petition.” Id. Owens misreads this

statement claiming that he did raise this issue in his original petition, but did not receive an

evidentiary hearing. Thus, Owens does not argue that this decision would have actually

affected his conviction and sentence, but merely states that he was denied an evidentiary

hearing. As already stated, the denials of Owens’s prior PCR petitions have been affirmed

by this Court. Furthermore, the petitioner in Salter provided the statements of three

witnesses in support of his claim. See id. at 516 (¶8). Owens has not provided his own

affidavit, much less that of a witness. This Court has held that “if a defendant alleges he was

given erroneous advice by his attorney as to his eligibility for trusty earned time and that

erroneous advice goes uncorrected, and he provides evidence other than his own statement[,]

. . . he is entitled to an evidentiary hearing.” Sylvester v. State, 113 So. 3d 618, 623 (¶19)

(Miss. Ct. App. 2013). In affirming the denial of Owens’s prior conviction, this Court found

that “[t]he transcript from Owens's plea hearing clearly shows that he testified under oath that

he had read and understood his guilty plea petition, which stated in pertinent part that the trial

judge was not required to follow the sentencing recommendation of the State and could

                                               12
sentence Owens to any term within the statutory limits.” Owens, 996 So. 2d at 94 (¶32).

Thus any erroneous advice that Owens may have received was corrected during his plea

hearing. We find that the decision in Salter would not “have actually affected” the outcome

of Owens’s conviction and sentence as required by section 99-39-5(2)(a)(ii) and section 99-

39-23(6).

¶20.   Finally, Owens claims that the United States Supreme Court’s decision in Missouri

v. Frye, 132 S. Ct. 1399 (2012), is an intervening decision that would adversely affect the

outcome of his conviction or sentence. The issue in Frye was whether defense counsel has

an affirmative duty to communicate the terms of a formal offer to accept a plea on terms and

conditions that may result in a lesser sentence or a conviction on a lesser charge. See id. at

1408. There, the Supreme Court held that “[a]s a general rule, defense counsel has the duty

to communicate formal offers from the prosecution to accept a plea on terms and conditions

that may be favorable to the accused.” Id. Owens’s case does not involve Owens’s counsel’s

failure to communicate a formal offer from the State. Therefore, the holding in Frye would

have no impact on Owens’s conviction and sentence.

¶21.    Owens has failed to demonstrate that his present petition for PCR is exempt from

either the three-year statute of limitations set forth in section 99-39-5, or the successive-writ

bar provided section 99-39-23. Accordingly, this issue is without merit, and the trial court’s

denial of Owens’s petition for PCR is affirmed.

¶22. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY
DENYING THE PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

                                               13
     LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON,
MAXWELL AND FAIR, JJ., CONCUR. IRVING, P.J., CONCURS IN PART AND
IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




                               14
