Date: 03-17-2021

Case Style: Gary Hunt v. State of Mississippi

Case Number: 2019-CP-01567-COA

Judge: Virginia Carlton

Court: IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Plaintiff's Attorney: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART

Defendant's Attorney:

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Jackson, MS - Criminal defense attorney represented Gary Hunt with a possession of a controlled substance in a correctional facility charge.

The Leflore County Circuit Court accepted Hunt’s guilty plea to possession of a
controlled substance in a correctional facility on July 2, 2012. The circuit court’s sentencing
order provided that Hunt’s guilty plea was “knowingly, willingly, and voluntarily given.”
Hunt was sentenced to a term of seven years, with two years to be served in the custody of
the MDOC followed by five years of PRS (Hunt’s 2012 sentence). The circuit court’s
sentencing order also provided that the time Hunt wasto serve in the instant cause was to run
consecutively to the time Hunt was presently serving.
¶4. On April 11, 2017, the circuit court revoked Hunt’s PRS, citing five PRS violations.
The circuit court ordered Hunt to serve the remaining five years of his suspended sentence
in the custody of the MDOC. A year later, Hunt was convicted again on an unrelated charge
for possession of a controlled substance in a correctional facility. Hunt was sentenced to
serve three years in the custody of the MDOC for that conviction.
¶5. On July 26, 2019, Hunt filed a PCR motion in the Leflore County Circuit Court,
asserting that his 2012 sentence was illegal. Although the circuit court found that Hunt’s
2012 sentence was more lenient than the law allowed—and, thus, illegal—the court also
2found that because “Hunt’s sentence was more favorable than what the legal sentence would
have been, [Hunt] cannot claim prejudice as a result of receiving the illegal sentence.”
Accordingly, the circuit court found that Hunt’s PCR motion was without merit and denied
Hunt’s motion in its order entered on August 30, 2019. Hunt appealed.
STANDARD OF REVIEW
¶6. “This Court reviews the dismissal or denial of a PCR motion for abuse of discretion.”
Carr v. State, 291 So. 3d 1132, 1137 (¶16) (Miss. Ct. App. 2020). “‘We will only reverse
if the trial court’s decision is clearly erroneous.’” Id. (quoting Hughes v. State, 106 So. 3d
836, 838 (¶4) (Miss. Ct. App. 2012)). “Questions of law are reviewed de novo.” Id.
DISCUSSION
I. Illegal Sentence
¶7. Under Mississippi Code Annotated section 99-39-5(2) (Rev. 2015), a defendant who
has pleaded guiltyand seeks relief under the Mississippi UniformPost-Conviction Collateral
Relief Act must file a PCR motion “within three . . . years after entry of the judgment of
conviction.” The circuit court sentenced Hunt on July 2, 2012, and the court’s sentencing
order was entered on that same day. Hunt filed his PCR motion on July 26, 2019, over four
years too late. Hunt’s PCR motion is time-barred unless he meets an exception to section
99-39-5(2).
¶8. In an effort to survive this procedural bar, Hunt asserts that his 2012 sentence was
illegal because he was sentenced to serve only two years in the custody of the MDOC, with
3five years of PRS, when the applicable statute required that he serve a minimum of three
years in the custody of the MDOC and prohibited a suspended sentence. Apparently in the
alternative, Hunt also asserts that his 2012 sentence was too harsh and thus “illegal” for
reasons relating to his drug and alcohol addiction, as we detail below. In addressing these
contentions, we recognize that a “fundamental-rights exception[] . . . expressly found to
survive procedural bars . . . [includes] . . . the right to be free from an illegal sentence[.]”
Nichols v. State, 265 So. 3d 1239, 1242 (¶10) (Miss. Ct. App. 2018). We therefore address
Hunt’s illegal sentence assertions on the merits.
¶9. Hunt pleaded guilty to possession of a controlled substance in a correctional facility
pursuant to section 47-5-198(1). The punishment for this offense is set forth in section
47-5-198(3), which provides that a person violating this provision shall “be punished by
imprisonment for not less than three (3) years nor more than seven (7) years; and the person
is not eligible for probation, parole, suspension of sentence, . . . or any other reduction of
sentence.”
¶10. We find no merit in Hunt’s assertions that his 2012 sentence (consisting of two years
in the custody of the MDOC and five years of PRS) was too lenient and therefore “illegal”
so as to constitute a violation of his fundamental rights. Specifically, we find that although
Hunt’s 2012 sentence did not conform to section 47-5-198(3), his sentence was more lenient
than the law allowed. Given the sentence’s more lenient terms, Hunt “did not suffer ‘any
fundamental unfairness fromthe illegal sentence, nor were his fundamental rights violated.’”
4Jefferson v. State, 958 So. 2d 1276, 1279 (¶11) (Miss. Ct. App. 2007) (quoting Myers v.
State, 897 So. 2d 198, 201 (¶12) (Miss. Ct. App. 2004)). Therefore, Hunt is not entitled to
post-conviction relief on this basis.
¶11. This Court’s decision in Jefferson v. State is instructive. There, the defendant
(Jefferson) raised an argument similar to Hunt’s argument, asserting that “because of prior
felonies on his record . . . the trial judge was without authority to suspend any portion of his
sentence and was without authority to place him under house arrest in lieu of being placed
in the custody of MDOC.” Id. at 1278 (¶7). Jefferson claimed that his sentence was
therefore “illegal,” and, according to Jefferson, the trial court judge erred in dismissing his
PCR motion. Id.
¶12. Rejecting Jefferson’s contention, this Court held that even assuming Jefferson’s
sentence was illegal, because the defendant “benefitted from the allegedly illegal sentence
imposed by the trial court, . . . we find any error committed by the trial court in imposing
such illegal sentence to be harmless.” Id. at 1279 (¶11); see also Williams v. State, 4 So. 3d
388, 393 (¶18) (Miss. Ct. App. 2009) (“It is well settled in Mississippi that when a defendant
is given an illegal sentence that is more favorable than what the legal sentence would have
been, he is not later entitled to relief through a post-conviction relief action.”); Cook v. State,
910 So. 2d 745, 747 (¶10) (Miss. Ct. App. 2005) (“[I]t is well established in Mississippi that
an individual may not plead guilty to a crime, receive a lesser sentence than what is
prescribed by statute, and then use the more lenient sentence as a sword to attack the entire
5sentence as illegal.”). In this case, Hunt was sentenced to spend five years of his seven-year
sentence on PRS. His sentence was plainly more lenient than what a legal sentence would
have been. As such, any purported error on the circuit court’s part in imposing Hunt’s
sentence was harmless. We find that Hunt’s assertions to the contrary are without merit.
¶13. Hunt also appears to assert, in the alternative, that he received “an illegally harsh
sentence, not an illegally lenient one,” because the circuit court “should have ordered [him]
to long-term drug and alcohol [rehabilitation], anger management etc.” rather than the
sentence imposed. According to Hunt, “[his] obvious drug, alcohol[,] and mental health
problems are causation for [him] being charged with a ‘second offense’ of [having a]
controlled substance within a penal facility” after his PRS was revoked and he was sentenced
to serve the remaining five years of his sentence. Hunt asserts that had he received the
statutory minimum three years or maximum seven years at the outset, “either way he would
be at home now[.]”
¶14. Based upon our review of the record, we find it devoid of any evidence supporting
Hunt’s assertions. Indeed, with respect to Hunt’s assertion that had he been given a “legal”
sentence in 2012 he “would be at home now” instead of facing a 2025 release date, we find
that it is contrary to the information contained in record. The record shows that Hunt’s 2025
release date reflects the additional three-year sentence he received on his subsequent
November 2019 conviction. Hunt’s 2012 PRS was revoked in April 2017. The circuit court
sentenced Hunt to serve the remaining five years of his 2012 sentence in the custody of
6MDOC. While in prison, Hunt committed the crime of possession of a controlled substance
in a correctional facility on a second occasion. The circuit court ordered that Hunt serve an
additional three years for that separate crime. Those two convictions resulted in Hunt serving
a total of eight years (five years resulting from the PRS revocation and three years for the
subsequent 2019 conviction). We reject Hunt’s “illegally harsh sentence” contentions on the
merits because they are unsupported by the record.
¶15. In sum, even if Hunt’s 2012 sentence were “illegal” in any way, Hunt has failed to
demonstrate that his fundamental rights were violated by the circuit court’s imposition of that
sentence. Accordingly, we find that Hunt’s PCR motion is not excepted from the procedural
time-bar under section 99-39-5(2) on this basis.
II. Ineffective Assistance of Counsel
¶16. In his second assignment of error, Hunt asserts that he was denied effective assistance
of counsel because his lawyer advised him to plead guilty to a sentence that did not conform
to the applicable penalty statute (section 47-5-198(3)) and because his lawyer should have
objected to the sentence the circuit court imposed. As we have addressed above, without an
applicable exception, Hunt’s PCR motion is time-barred under section 99-39-5(2). This
Court has recognized that “procedural bars apply to ineffective-assistance-of-counsel
claims,” Wood v. State, 291 So. 3d 830, 838 (¶25) (Miss. Ct. App. 2020), but “in certain
cases, ‘an attorney’s performance is so deficient and prejudicial to a defendant[] that it is
deemed to be violative of the defendant’s fundamental constitutional rights.’” Id. (quoting
7Hamberlin v. State, 165 So. 3d 491, 494 (¶13) (Miss. Ct. App. 2015)). Accordingly, we
address Hunt’s ineffective-assistance-of-counsel claim on the merits.
¶17. “A successful claim of ineffective assistance of counsel requires a showing that
counsel’s performance was deficient in some respect and that this deficiency caused
prejudice to the defendant.” Jefferson, 958 So. 2d at 1280 (¶13) (citing Strickland v.
Washington, 466 U.S. 668, 687 (1984)). “In the guilty plea context, as here, in order to
eliminate the procedural bar, [Hunt] must ‘establish that counsel’s ineffective assistance
caused him to enter his plea, and he would not have entered the plea but for counsel’s
incorrect advice.’” Wood, 291 So. 3d at 839 (¶26) (quoting Moore v. State, 248 So. 3d 845,
851 (¶14) (Miss. Ct. App. 2017)). Additionally, “a defendant’s claims of ineffective
assistance of counsel must be pled with specificity, and the claim must be supported by
affidavits other than his own.” Id. (quoting Moore, 248 So. 3d at 851 (¶15)). In particular,
“[t]he supreme court has held that, in cases involving post-conviction relief, ‘where a party
offers only his affidavit, then his ineffective[-]assistance[-]of[-]counsel claim is without
merit.’” Parish v. State, 203 So. 3d 718, 724 (¶25) (Miss. Ct. App. 2016) (quoting Vielee v.
State, 653 So. 2d 920, 922 (Miss. 1995)).
¶18. Based upon these principles and the circumstances before us, we find that Hunt’s
ineffective-assistance-of-counsel claim is without merit. As we have addressed above, Hunt
was not prejudiced by the circuit court’s imposing a more lenient sentence for his conviction
of possession of a controlled substance while incarcerated. Further, the record reflects that
8Hunt’s ineffective-assistance-of-counsel allegations are supported only by his own affidavit.
As such, we find that Hunt has not proved “any instance of deficiency on his lawyer’s part
that would constitute ineffective assistance of counsel of constitutional dimensions.” Wood,
291 So. 3d at 839 (¶29). Wood’s ineffective-assistance-of-counsel claim therefore fails.

Outcome: AFFIRMED.

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