author: BARNES, J.,

text:
    Christopher Conway BOYD a/k/a Christopher C. Boyd a/k/a Christopher Boyd, Appellant v. STATE of Mississippi, Appellee.
    Nos. 2013-CA-00681-COA, 2013-CP-00684-COA.
    Court of Appeals of Mississippi.
    Sept. 9, 2014.
    Rehearing Denied Jan. 20, 2015.

      Jonathan W. Martin, attorney for appellant.
    Office of the Attorney General by Ladonna C. Holland, Barbara Wakeland Byrd, attorneys for appellee.
    Before LEE, C.J., BARNES and FAIR, JJ.
   BARNES, J.,

for the Court:

¶ 1. This appeal stems from the Tate County Circuit Court’s denial of Christopher Conway Boyd’s motion for post-conviction relief (PCR) based on procedural bars. After review, we find that Boyd has not asserted a claim that exempts his motion from procedural bars. Accordingly, we affirm the judgment.

PROCEDURAL HISTORY

2: Christopher Conway Boyd pleaded guilty on January 20, 1987, to four counts of armed robbery and was sentenced to ten years for each count, with the sentences to run consecutively. At his plea colloquy, the circuit judge asked Boyd if he was aware he was giving up certain constitutional rights by pleading guilty. The specific rights enumerated by the judge were the (1) right to a jury trial, (2) the right to assistance of counsel, (3) the right to appeal, and (4) the right to confront his accusers. Boyd responded in the affirmative. However, the circuit court did not inform Boyd that he was waiving his right against self-incrimination.

¶ 3. Seven years later, on November 14, 1994, Boyd filed a PCR motion, claiming his guilty pleas were involuntarily entered because he had not been informed of the minimum and maximum sentences and his fundamental right against self-incrimination. The circuit court summarily denied the motion as procedurally barred under Mississippi Code Annotated section 99-39-5(2) (Rev. 1994), and the Mississippi Supreme Court (in a three-judge panel decision) affirmed without an opinion. See Boyd v. State, 667 So.2d 1312 (Miss.1996).

¶ 4. Boyd filed a second PCR motion in 2001, asserting the same issues, but arguing that they were not procedurally barred based on intervening authority in the form of an unpublished opinion, Powell v. State, 691 So.2d 1021 (Miss.1996) (table) (No. 95-KP-00895-SCT). His motion was again denied by the circuit court, and the supreme court affirmed, finding that under Mississippi Rule of Appellate Procedure 35-A(b), Boyd could not rely on an unpublished opinion. Thus, his claims were procedurally barred. Boyd v. State, 801 So.2d 691, 693-94 (¶¶ 7-9) (Miss.2001).

¶ 5. On July 10, 2012, Boyd filed the PCR motion considered in the present appeal, again asserting that his guilty plea was involuntary, due to the circuit court judge’s failure to inform Boyd that he was waiving his right against self-incrimination. Boyd argued that intervening authority, Rowland v. State, 42 So.3d 503 (Miss.2010), exempted his petition from procedural bars. In Rowland, the Mississippi Supreme Court held that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-Conviction Collateral Relief Act (UPCCRA) Id. at 507 (¶ 12). However, the circuit court dismissed Boyd’s motion without an evidentiary hearing, ruling that Boyd’s claim was “not sufficient to invoke the fundamental rights exception set forth in Rowland.'” Boyd subsequently filed a motion to vacate or amend the order, which the circuit court also denied, and Boyd now appeals the court’s judgment.

¶ 6. We find the failure to inform Boyd of his right against self-incrimination does not exempt his motion from procedural bars under Rowland, and we affirm the circuit court’s dismissal.

STANDARD OF REVIEW

¶ 7. “When reviewing the denial or dismissal of a PCR motion, we will only disturb the circuit court’s factual findings if they are clearly erroneous.” Bell v. State, 117 So.3d 661, 663 (¶ 5) (Miss.Ct.App.2013) (citing Beal v. State, 58 So.3d 709, 710 (¶ 2) (Miss.Ct.App.2011)). Findings of law are reviewed de novo. Id.

DISCUSSION

Whether the advisement of the right against self-incrimination when entering a guilty plea is a fundamental right pursuant to Rowland that exempts Boyd’s PCR petition from procedural bars.

¶ 8. There is no question that Boyd’s PCR motion is subject to procedural bars since it was filed outside the three-year statute of limitations and is a successive writ. See Miss.Code Ann. §§ 99-39-5(2) & 99-39-28(6) (Supp.2013). However, Boyd argues that intervening authority issued since his prior PCR motion, specifically Rowland, overcomes any procedural bars and allows the court to address the merits of his argument. Boyd contends that he was never told by the circuit judge he was giving up his fundamental right against self-incrimination and, had he been informed of this fact, he would not have pled guilty.

¶ 9. In Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), the United States Supreme Court firmly established:

Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Second, is the right to trial by jury. Third, is the right to confront one’s accusers. We cannot presume a waiver of these three important federal rights from a silent record.

Id. at 243, 89 S.Ct. 1709 (emphasis added and internal citations omitted). Therefore, for a guilty plea to be knowingly and voluntarily given, a court must make an affirmative showing on the record that the defendant “has a full understanding of what the plea connotes and of its consequence.” Id. at 244, 89 S.Ct. 1709. In Boykin, the trial court asked no questions of the defendant concerning his guilty plea, and the defendant did not address the court. Thus, there was no showing in that record that the defendant’s guilty plea was knowing and voluntary.

¶ 10. Boyd contends that Boykin stands for the proposition that a failure to advise a defendant of his right against self-incrimination is the same as a violation of that right. We disagree. Boykin has not been interpreted to require reversal of a guilty-plea conviction upon the failure of the court to specifically advise the defendant of his rights. In fact, within a year of Boykin, the Supreme Court, in Brady v. United States, 397 U.S. 742, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970), upheld a guilty plea, even though the trial court had not specifically advised the defendant of the rights identified in Boykin. The Brady Court noted that “[t]he new element added in Boykin was the requirement that the record must affirmatively disclose that a defendant who pleaded guilty entered his plea understandingly and voluntarily.” Id. at 747 n. 4, 90 S.Ct. 1463. In People v. Mosby, 33 Cal.4th 353, 15 Cal.Rptr.3d 262, 92 P.3d 841 (2004), the California Supreme Court held:

[ T]he United States Supreme Court “has never read Boykin as requiring explicit admonitions on each of the three constitutional rights,” but instead looks to the test set out in North Carolina v. Alford, 400 U.S. [25,] 32, 91 S.Ct. 160, [27 L.Ed.2d 162 (1970) ], which asks “ ‘whether the plea represents a voluntary and intelligent course among the alternative courses of action open to the defendant.’ ”

Id., 15 Cal.Rptr.3d 262, 92 P.3d at 845 (citations omitted).

¶ 11. In United States v. Frontero, 452 F.2d 406, 415 (5th Cir.1971), the United States Court of Appeals for the Fifth Circuit:

This [c]ourt is, however, aware of no precedent, from the Supreme Court or elsewhere, for the proposition that due process requires that a defendant be informed of each and every right which is. waived by a guilty plea or that the waiver of these rights is a “consequence,” within the meaning of Rule 11, of which a defendant must be personally informed before a guilty plea may be accepted.

Id. at 415. After Boykin, Rule 11 of the Federal Rules of Criminal Procedure, which governs a defendant’s entry of a plea, was revised to include a more detailed list of requirements for the trial court in order to ensure the defendant’s guilty plea was voluntarily given. Among those requirements was the duty of the trial court to inform a defendant of the important rights identified in Boykin, including the right against self-incrimination. Subsequent federal case law and a 1983 amendment to Rule 11 have somewhat softened the procedural requirements of Rule 11, which now includes a “harmless error” provision under subsection (h). See generally State v. Finney, 834 N.W.2d 46, 51-56 (Iowa 2013) (history of Federal Rule 11). There is no per se rule in the federal system requiring automatic reversal for failure to advise a defendant of his rights at the time of his guilty plea.

¶ 12. Several jurisdictions agree that no other Supreme Court case has required that a defendant in a criminal case be specifically advised of any particular rights in order for the guilty plea to be constitutionally valid. See, e.g., Wilkins v. Erickson, 505 F.2d 761, 763 (9th Cir.1974) (“Specific articulation of the Boykin rights is not the sine qua non of a valid guilty plea.... Boykin does not require specific articulation of the above mentioned three rights in a state proceeding.”); McChesney v. Henderson, 482 F.2d 1101, 1106 (5th Cir.1973) (“[N]o rule of criminal procedure was mandated by Boykin, and there is no express requirement that specific articulation of the three constitutional rights above mentioned be given to the accused at the time of the acceptance of a plea of guilty....”); Wade v. Coiner, 468 F.2d 1059, 1060 (4th Cir.1972) (“[W]e reject the contention ... [that] Wade was entitled to specific mention as to the several constitutional rights waived by entry of the plea.”); Carter v. Brooks, 2001 WL 169584, at *6-7 (D.Conn.2001) (The Supreme Court has “in no way intimated the precise terms of the inquiry that the trial judge should make of a defendant before accepting his plea” and “a guilty plea will not be invalidated simply because of the district court’s failure ... to enumerate one or more of the rights waived by the defendant as the result of such a plea.”).

¶ 13. In Mississippi, since Rowland, only four types of “fundamental rights” have been expressly found to survive PCR procedural bars: (1) double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims. No cases in our appellate courts have held that a trial court’s failure to advise a defendant, on the record, of his right against self-incrimination is a constitutional violation sufficient to surmount the PCR procedural bars. In fact, in McGriggs v. State, 117 So.3d 626, 629 (¶ 10) (Miss.Ct.App.2012), this Court determined that a defendant’s claims of an involuntary plea, and the circuit court’s failure to inform him that he has a right against self-incrimination, “ha[d] not been determined by the supreme court to be fundamental constitutional rights.” Therefore, we concluded that McGriggs’s petition for PCR was “subject to the procedural bars of the UP-CCRA.” Id. Boyd argues on appeal that our holding in McGriggs is contrary to precedent and should be overruled as such. We reject Boyd’s claim. Although we provided limited analysis of this issue in McGriggs, our holding is in accord with our discussion of the federal cases above and the distinction between the right to be informed of a Boykin important right and the constitutional right itself.

¶ 14. Unlike the “silent record” in Boy-kin, the guilty-plea transcript shows that Boyd understood that he had the right to go to trial rather than plead guilty and that he would have the assistance of counsel, with whom he was satisfied, throughout that trial. Boyd also acknowledged that he understood that he would be giving up his right to a trial by jury of his peers and the right to confront witnesses and to appeal his conviction if he entered his guilty plea. He also informed the court that he had not been threatened, mistreated, or tricked into pleading guilty and that he was pleading guilty because “I did it.”

¶ 15. Boyd does contend that he would not have pleaded guilty if he had been advised of his rights against self-incrimination, but he does so in a conclusory fashion without explaining why. He does not claim that he thought, based oh the failure to advise him of this right, he was compelled to incriminate himself and plead guilty. Nor does he claim that he thought the State could call him to the witness stand and compel him to testify against himself. The first position is refuted by the entire nature of the guilty-plea hearing. It was clear from the exchanges between the judge and Boyd that the court would not take his guilty plea unless it was something Boyd voluntarily wanted to do. Nothing in this transcript supports the proposition that Boyd thought that he must admit his guilt in that proceeding. It is unreasonable for Boyd to claim that he felt compelled to incriminate himself by stating his guilt. Likewise, Boyd does not claim, and points to nothing in the record to show, that because the judge said nothing to correct this notion, Boyd believed he could be compelled to take the stand at trial and admit his guilt.

¶ 16. Since Boyd has failed to show the violation of a fundamental constitutional right, his claim is procedurally barred. We note, however, that the record clearly establishes that his guilty plea was knowing and voluntary. Accordingly, we affirm the circuit court’s dismissal of Boyd’s PCR motion.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO TATE COUNTY.

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

      . The transcript of the guilty-plea hearing indicates that two of the counts originated in DeSoto County, Mississippi; the other two in Tate County, Mississippi. It also stated that Tate County was the circuit court that held jurisdiction, although the hearing was .held at the DeSoto County courthouse. Therefore, Boyd's current motion for post-conviction relief was filed in Tate County.

      . Rule 35-A(b) states:
      Opinions in cases decided prior to the effective date of this rule which have not been designated for publication shall not be cited, quoted or referred to by any court or in any argument, brief or other materials presented to any court except in continuing or related litigation upon an issue such as res judicata, collateral estoppel or law of the case.

      . Boyd cited and discussed Boykin in his original PCR motion in 1994 to support his claim. However, neither the courts, nor the State, addressed Boykin's holding, as it pertained to Boyd's prior motions. The Mississippi Supreme Court has relied on Boykin in Alexander v. State, 226 So.2d 905, 910 (Miss.1969) (pre-UPCCRA collateral attack not involving procedural bars), and Chunn v. State, 669 So.2d 29, 32 (Miss.1996) (conviction set aside where there was no indication that defendant had ever pled guilty).

      . In United States v. Timmreck, 441 U.S. 780, 782, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979), the Supreme Court held that collateral relief from a guilty plea will not be granted when the respondent's "only claim is of a technical violation of the Rules," without an argument that had he been aware of the violation, he would not have pled guilty. See also United States v. Dominguez Benitez, 542 U.S. 74, 83, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) (Defendant seeldng reversal of his conviction as a result of guilty plea "must show a reasonable probability that, but for the error, he would not have entered the plea.”)

      . We acknowledge there are cases that do not involve procedural bars in which our courts have held that the failure to advise the defendant of this right warranted an evidentiary hearing. In Horton v. State, 584 So.2d 764, 768 (Miss.1991), the supreme court held that the defendant was entitled to an evidentiary hearing on his PCR motion where the record failed to show that he was advised of his rights against self-incrimination, but there is no indication that the claim would have been subject to any procedural bars. In Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992), although the defendant was entitled to an evidentiary hearing because the transcript did not reflect advisement of the right against self-incrimination, the PCR motion was timely and properly filed, and there were no procedural bars at issue.


source: Caselaw Access Project

author: LEE, C.J.,

license: Public Domain

text:
    Philip Halbert NEILSON, Appellant/Cross-Appellee v. Tom DAWSON, Alan Lange, and Pediment Publishing, Appellees/Cross-Appellants.
    No. 2012-CA-01792-COA.
    Court of Appeals of Mississippi.
    Sept. 16, 2014.
    Rehearing Denied Jan. 20, 2015.

      Christi R. McCoy, attorney for appellant.
    Grady F. Tollison Jr., Oxford, Taylor Hamilton Webb, attorneys for appellees.
    Before LEE, C.J., ISHEE and JAMES, JJ.
   LEE, C.J.,

for the Court:

PROCEDURAL HISTORY

¶ 1. On December 2, 2010, Philip Hal-bert Neilson filed a defamation suit in the Lafayette County Circuit Court against Tom Dawson, Aan Lange, and Pediment Publishing. Neilson alleged certain statements in the book Kings of Tort, written by Dawson and Lange (hereinafter Dawson) and published by Pediment, were libelous. After some delay relating to service of process and other matters, Dawson filed a motion to dismiss. The trial court treated the motion to dismiss as a motion for summary judgment and gave the parties timely notice to present supporting evidence. After a hearing, the trial court granted relief in favor of Dawson.

¶ 2. Neilson now appeals, asserting the trial court erred in granting summary judgment in favor of Dawson.

FACTS

¶ 3. Kings of Tort, released on or about December 2, 2009, details the events surrounding the undercover investigation and prosecution of Richard Scruggs and others. During the investigation, Dawson was the First Assistant United States Attorney for the Northern District of Mississippi. Assisting Dawson was John Hail-man, Chief of the Criminal Division of the United States Attorney for the Northern District. Both Dawson and Hailman were supervised at the time by Jim Greenlee, the United States Attorney for the Northern District. During this time, Neilson served as the FBI Supervisory Special Agent, overseeing all of the FBI agents in the Northern District of Mississippi.

¶4. A section of the book details the actions taken by Dawson, Hailman, and Greenlee after becoming aware of the attempted bribery of a local circuit court judge. The pertinent section describes the resulting decision to initiate an undercover operation:

Paramount to their success would be secrecy and how the case agent would be supervised. From past experiences Greenlee, Dawson, and Hailman had lost confidence in ... Neilson.... The three resolved to travel to Jackson FBI headquarters to consult with the special agent in charge of the entire state. To complicate matters, the FBI was in the middle of changing leaders, and the new special agent[ ]in[ jcharge (SAC) had not arrived in Jackson. Greenlee determined when he would arrive, and the three made an appointment on April 13. The new SAC had been in place one week.
The two-and-a-half-hour drive from Oxford to Jackson was filled with apprehension. They had to gain the confidence of a brand new SAC, whom they had never met, by convincing him that his supervisor in north Mississippi could not be trusted and that a new case agent and supervisor should be assigned to this investigation. This was not an easy task, as anyone familiar with the FBI as .an institution would understand. Still, the makeup of the delegation was pretty convincing. The fact that the United States Attorney, his First Assistant^] and Criminal Chief requested a confidential meeting with the [SAC] communicated how serious the matter was to them....
During the meeting[,] [the new SAC, Frederick] Brink[,] was flanked by his two assistant special agents in charge, one of which was Steve Gomez, who was familiar with the concern with [Neilson] in Oxford. [Greenlee] took the lead in explaining the reason for the meeting, and Hailman and Dawson provided their judgment of the situation based on long experience.
The two major points were as such: (1) the investigation involved potential bribery by an unknown number of defendants, including a billionaire lawyer known as the King of Torts[J who just happened to be the brother-in-law of a United States Senator, and (2) there was concern that the investigation could not be successful if [Neilson] was involved or even knew about the investigation. After much discussion, Steve Gomez came up with a suggestion that turned out to be brilliant. Special Agent Bill Delaney, who was stationed in Jackson, had been detailed to north Mississippi on an unrelated case, and if he was assigned as the case agent in the Scruggs investigation, his presence in Oxford would not be unusual. Also, [Delaney] reported to a supervisor in Jackson. This arrangement satisfied everyone’s concerns. Greenlee’s team offered one further provision. None but the three present in the U.S. Attorney’s Office would know about the investigation. Everyone agreed to observe strict radio silence.
On the way back to Oxford, they rehashed the day’s events, and Dawson wondered aloud how the Bureau received their emphatic insistence to replace [Neilson]. Although all three felt that Neilson was untrustworthy, Green-lee and Hailman surmised that the problem might be deeper than that. In any event, they were all unified in the decision to remove Neilson from the investigation.

Tom Dawson & Alan Lange, Kings of Tort 127-28 (Pediment Publishing 2009).

¶ 5. Over two weeks prior to the publication, the Northeast Mississippi Daily Journal published an article on November 14, 2009, discussing the book. The article, written by Patsy R. Brumfield, discloses that Neilson was under investigation at that time for unspecified acts. Brumfield then discusses the section of Kings of ToH relating to Neilson. The next day, the newspaper published a book review, also written by Brumfield, of Kings of ToH. This review also included a one-sentence mention of the question regarding Neil-son’s trustworthiness.

STANDARD OF REVIEW

¶ 6. In considering a trial court’s grant of a motion for summary judgment, this Court conducts a de novo review and “examines all the evidentiary matters before it-admissions in pleadings, answers to interrogatories, depositions, affidavits, etc.” City of Jackson v. Sutton, 797 So.2d 977, 979 (¶ 7) (Miss.2001) (citation omitted). The Mississippi Supreme Court recently clarified the summary-judgment standard, explaining that “[t]he movant bears, the burden of persuading the trial judge that: (1) no genuine issue of material fact exists, and (2) on the basis of the facts established, he is entitled to [a] judgment as a matter of law.” Karpinsky v. Am. Nat’l Ins. Co., 109 So.3d 84, 88 (¶ 11) (Miss.2013) (citation omitted). The supreme court further stated that “[t]he movant bears the burden of production if, at trial, he would bear the burden of proof on the issue raised. In other words, the movant only bears the burden of production where [he] would bear the burden of proof at trial.” Id. at 88-89 (¶ 11) (citations omitted). The supreme court again clarified that “while [defendants carry the initial burden of persuading the trial judge that no issue of material fact exists and that they are entitled to summary judgment based upon the established facts, [the plaintiff] carries the burden of producing sufficient evidence of the essential elements of [his] claim at the summary-judgment stage, as []he would carry the burden of production at trial.” Id. at (¶ 13).

DISCUSSION

I. SUMMARY JUDGMENT

¶ 7. Neilson contends the trial court erred in granting summary judgment in favor of Dawson. Specifically, Neilson argues the statements in Kings of Tort are opinion and not automatically granted First Amendment protections pursuant to Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). Neilson is correct that statements, “even if phrased as ... opinionfe], will not enjoy constitutional protection if the court concludes that its substance or gist could reasonably be interpreted as declaring or implying an assertion of fact.” Roussel v. Robbins, 688 So.2d 714, 723 (Miss.1996) (quoting Keohane v. Wilkerson, 859 P.2d 291, 297 (Colo.Ct.App.1993)).

¶ 8. To establish a claim of defamation, the following four elements must be proved:

(1) a false and defamatory statement concerning the plaintiff;
(2) unprivileged publication to [a] third party;
(3) fault amounting at least to negligence on the part of [the] publisher;
(4) and either actionability of [the] statement irrespective of special harm or [the] existence of special harm caused by publication.

Franklin v. Thompson, 722 So.2d 688, 692 (¶ 12) (Miss.1998). The Mississippi Supreme Court has held that “truth is a complete defense to an action for libel.” Blake v. Gannett Co., 529 So.2d 595, 602 (Miss.1988) (citing Fulton v. Miss. Publishers Corp., 498 So.2d 1215, 1217 (Miss.1986)). “In defamation actions, then, the threshold question ... is whether the published statements are false.” Blake, 529 So.2d at 602. The plaintiff has the burden of proving the falsity of the statement. Id.

¶ 9. Neilson contends these statements are untrue based upon an investigation conducted by the Department of Justice (DOJ), which Neilson alludes to in a response to Dawson’s motion for summary judgment. This response was titled “Plaintiffs submission regarding defendant’s motions.” In his response, Neilson mentions a document produced by the DOJ regarding the investigation, but did not include the document for the trial court’s (or this Court’s) review. The trial court refused to rely upon Neilson’s “submission regarding defendant’s motions” since Neilson had emailed it directly to the court the evening prior to the motion hearing rather than filing it with the clerk of the court, as was proper. The response was filed twp days after the hearing.

¶ 10. Dawson supported his motion for summary judgment with affidavits from himself, Greenlee, and Hailman. In these separate affidavits, each man states the reason he thought Neilson was untrustworthy. These affidavits go into detail about Neilson’s past conduct and how that conduct resulted in Dawson, Greenlee, and Hailman’s lack of confidence in Neilson.

¶ 11. Neilson, on the other hand, has produced no evidence in support of his claim. Mississippi Rule of Civil Procedure 56(e) states that once a summary-judgment motion is made, the “adverse party may not rest upon the mere allegations or denials of his pleadings, but his response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing that there is a genuine issue for trial.” Mindful of our standard of review, that Neilson “carries the burden of producing sufficient evidence of the essential elements of [his] claim ... as [ ]he would carry the burden of production at trial,” we find Neilson has failed to show the existence of a genuine issue of material fact. Thus, we affirm the trial court’s decision' to grant summary judgment in favor of Dawson.

II. CROSS-APPEAL: MOTION FOR SANCTIONS

¶ 12. In his cross-appeal, Dawson contends the trial court erred in dismissing his motion for sanctions. We look to our familiar abuse-of-discretion standard of review in determining'whether the assessment of sanctions was warranted. Batman v. City of Moss Point, 809 So.2d 591, 593 (¶ 6) (Miss.2000). Under Mississippi Rule of Civil Procedure 11(b), “the court may award reasonable expenses and attorney’s fees against a party or his attorney, or both, whose pleading or motion (1) is frivolous or (2) is filed for the purpose of harassment or delay.” Id. A pleading is frivolous when the pleader “has no hope of success.” Id. (citation omitted). Furthermore, “[w]hen a party espouses a viable legal theory, [Rule] 11 sanctions are inappropriate.” Brown v. Hartford Ins. Co., 606 So.2d 122, 127 (Miss.1992) (citations omitted).

¶ 13. In his order denying Dawson’s motion for sanctions, the trial court did not find Neilson’s complaint to be frivolous or filed for the purpose of harassment. Upon review of the record, we cannot find the trial court abused its discretion in denying Dawson’s motion for sanctions.

¶ 14. THE JUDGMENT OF THE LAFAYETTE COUNTY CIRCUIT COURT IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR. GRIFFIS, P.J., AND MAXWELL, J., NOT PARTICIPATING.

      . Pediment was never served with process and was ultimately dismissed from the suit.

      . In the response, Neilson states: "[Tjhis document was produced to [him] in his criminal trial and is not to be disseminated publicly and is therefore not attached herein.... [Neilson] will provide it to the Court in camera until directed by the [DOJ] that it can be publicly disseminated and discussed.”


author: IRVING, P.J.,

text:
    John Joseph DEDEAUX a/k/a John Joseph Dedeaux, Sr. a/k/a John J. Dedeaux a/k/a John J. Dedeaux, Sr., Appellant v. STATE of Mississippi, Appellee.
    No. 2013-CP-00903-COA.
    Court of Appeals of Mississippi.
    Dec. 2, 2014.

      John Joseph Dedeaux Sr., appellant, pro se.
    Office of the Attorney General by Scott Stuart, attorney for appellee.
    Before IRVING, P.J., FAIR and JAMES, JJ.
   IRVING, P.J.,

for the Court:

¶ 1. John Joseph Dedeaux appeals the judgment of the Hancock County Circuit Court denying his fourth motion for post-conviction collateral relief (PCR), arguing that (1) the circuit court erred in convicting him of a crime for which he had not been indicted and had not waived indictment, and (2) he had received ineffective assistance of counsel.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. On July 25, 1990, Dedeaux was indicted for burglary of the Bay Senior High School, located in Bay St. Louis, Mississippi. On November 8, 1990, Dedeaux filed a plea petition, stating that he wished to plead guilty and attesting that the basis for his desire to plead guilty was that he “was in possession of the property stolen from the high school.” On November 13, 1990, the circuit court accepted Dedeaux’s guilty plea and sentenced him to five years in the custody of the Mississippi Department of Corrections (MDOC), to run concurrently to his sentence for a prior felony conviction. On March 15, 1994, Dedeaux was convicted of transfer of a controlled substance, his third felony conviction, and was sentenced to thirty years in custody of the MDOC pursuant to Mississippi Code Annotated section 99-19-81 (Supp.2014).

¶ 4. After filing three PCR motions in the circuit court challenging his 1990 receiving-stolen-property conviction, each of which the circuit court denied, Dedeaux filed a PCR motion in the Mississippi Supreme Court challenging the same conviction.

¶ 5. By order filed on February 21, 2013, the supreme court dismissed Dedeaux’s PCR motion without prejudice to his filing the motion in the circuit court. On February 21, 2013, Dedeaux filed his fourth PCR motion in the circuit court, arguing that (1) the motion was not time-barred despite the provisions of Mississippi Code Annotated section 99-39-5 (Supp.2014) because his fundamental right had been violated; (2) the circuit court lacked subject-matter jurisdiction to convict him of receiving stolen property because he had not been indicted for that crime and had not waived indictment therefor, and (3) he had received ineffective assistance of counsel because his trial counsel had advised him to plead guilty.

¶ 6. By order filed May 2, 2013, the circuit court denied Dedeaux’s PCR motion, finding that (1) the motion was time-barred under section 99-39-5(2); and (2) the motion lacked merit because “the lesser charge of receiving stolen property arose from the same set of operative facts as the greater charge of burglary.” De-deaux appealed the May 2, 2013 order on May 24, 2013. On June 5, 2013, Dedeaux filed a post-judgment motion in the circuit court, arguing that the circuit court erred in failing to set aside his conviction for receiving stolen property. By order filed June 11, 2013, the circuit court set aside its May 2, 2013 order and instructed the State to file a response to Dedeaux’s PCR motion and post-trial motion.

¶ 7. After the State filed its response, the circuit court, again, denied the fourth PCR motion on December 4, 2013, finding that (1) the issues presented in the motion lacked merit, (2) the motion was time-barred, and (3) the motion was successive-writ barred. As stated, on appeal, De-deaux argues that (1) the circuit court erred in convicting him of a crime for which he had not been indicted and had not waived indictment; and (2) he received ineffective assistance of counsel.

DISCUSSION

¶ 8. Preliminarily, we note that the circuit court’s May 2, 2013 order remained an appealable judgment even after the circuit court set that order aside. The Mississippi Supreme Court has found that “[f]iling a notice of appeal transfers jurisdiction from the circuit court to [the] appellate court, thereby removing the circuit court’s authority to amend, modify, or reconsider its judgment.” Shinn v. State, 74 So.3d 901, 905 (¶ 13) (Miss.Ct.App.2011) (citation omitted). Therefore, the circuit court lacked jurisdiction to set aside its May 2, 2013 order.

¶ 9. We also note that Dedeaux’s PCR motion is time-barred under section 99-39-5. The circuit court entered its judgment of conviction on November 13,. 1990, and Dedeaux filed the PCR motion at issue more than twenty-three years after that judgment was entered. Dedeaux argues that the issues presented in his PCR motion arise from an illegal sentence and that the motion is, therefore, excepted from the time-bar. We agree that “the right to be free from an illegal sentence is a fundamental right not subject to the time-bar” found in section 99 — 39—5(2). Hughes v. State, 106 So.3d 836, 840 (¶ 10) (Miss.Ct.App.2012) (citing Kennedy v. State, 732 So.2d 184, 186-87 (¶¶ 7-8) (Miss.1999)). However, as discussed later, this case does not involve an illegal sentence or a violation of Dedeaux’s fundamental right.

¶ 10. Dedeaux’s PCR motion is also successive-writ barred under Mississippi Code Annotated section 99-39-23 (Supp.2014). Before filing the PCR motion at issue, Dedeaux had filed three prior PCR motions, the first of which was dismissed by the circuit court, and Dedeaux did not appeal. Dedeaux v. State, 834 So.2d 712, 713 (¶ 3) (Miss.Ct.App.2002). The circuit court denied the second and third PCR motions as successive writs. Id. at (¶ 2). This Court affirmed those denials on appeal. Id. at 712 (¶ 4-6). Likewise, the PCR motion now before this Court constitutes a successive writ. See Miss.Code Ann. § 99-39-23(6). Notwithstanding, we briefly address Dedeaux’s claim that he received an illegal sentence because, as stated, if that is the case, his PCR motion would not be subject to the procedural bar.

¶ 11. Dedeaux argues that the circuit court erred in accepting his guilty plea to the crime of receiving stolen property because the circuit court lacked subject-matter jurisdiction in that he had not been indicted for that crime. He insists that because the crime of receiving stolen property is not a lesser-included offense of the crime of burglary, the State was required to indict him for the crime of receiving stolen property before the circuit court could accept his plea of guilty.

¶ 12. In Green v. State, 884 So.2d 733, 737 (¶¶ 11-12) (Miss.2004) (citations omitted), the Mississippi Supreme Court stated, “A lesser included offense requires that the elements of the greater offense contain the elements of the lesser offense [while] a lesser non-included offense applies where there is evidentiary support that a defendant is guilty of a lesser charge arising from the same nucleus of operative facts.”

¶ 13. In Jefferson v. State, 556 So.2d 1016 (Miss.1989), a case similar to the one now before this Court, the defendant was initially indicted for burglary of an automobile belonging to a Walter Boswell. Id. at 1017. The defendant was later indicted, in a separate case, for burglary of a 1980 Lincoln vehicle also belonging to Boswell. Id. The defendant later appeared before the circuit court with his attorney and announced that he wished to withdraw his previous plea of not guilty and énter a plea of guilty to grand larceny in both cases. Id. at 1018. The circuit court accepted both pleas, and the defendant was convicted of grand larceny in both cases. Id. He was later convicted of the crime of burglary of a business, and he was sentenced as a habitual offender. Id. at 1017. On appeal, the defendant argued that because he had not been indicted for grand larceny before being convicted, the two judgments of conviction could not be used to enhance his sentence as a habitual offender. Id. at 1018. The Mississippi Supreme Court found that the defendant’s argument had no merit because he had given “a counseled waiver” of his right to be indicted for grand larceny. Id. at 1018-19.

1114. We find Jefferson persuasive. Here, Dedeaux argues that the circuit court lacked subject-matter jurisdiction because he had not been indicted on the lesser offense. In Jefferson, our supreme court spoke directly to the issue of a circuit’s court jurisdiction of a lesser unin-dicted offense: “Once an indictment has been served on [a] defendant, a court having subject[-]matter jurisdiction is empowered to proceed. A subsequent event such as a guilty plea to a lesser related offense in no way ousts the court of personal jurisdiction.” Id. at 1021. Additionally, in Young v. State, 797 So.2d 239, 243 (¶ 9) (Miss.Ct.App.2001), the Mississippi Supreme Court found that because the defendant “was indicted under the jurisdiction of the circuit court, and he voluntarily entered his pleas of guilty, he [had] waived the right to be indicted for the crimes [to which he entered a plea of guilty].”

¶ 15. Based on Jefferson and Young, the circuit court had both subject-matter jurisdiction and personal jurisdiction to accept Dedeaux’s plea of guilty to receiving stolen property and sentence him accordingly. Therefore, Dedeaux’s assertion that his 1990 sentence was illegal because the circuit court lacked jurisdiction is without merit. Consequently, Dedeaux’s PCR motion is procedurally barred. Additionally, since Dedeaux has presented the issue of the lack of circuit-court jurisdiction in three previous PCR motions, consideration of the issue is also barred by the doctrine of res judicata. Accordingly, we affirm the circuit court’s denial of Dedeaux’s fourth PCR motion.

¶ 16. THE JUDGMENT OF THE HANCOCK COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HANCOCK COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

      . Before pleading guilty to receiving stolen property, Dedeaux was convicted of another felony crime in Hancock County Circuit Court cause number 7086.

      . Section 99-19-81 provides as follows:
      Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

      .Section 99-39-5 states, in relevant part, as follows:
      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 die 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).

      . Dedeaux styled his post-judgment motion as a "Motion of Objections.”

      . Section 99-39-23 states, in relevant part, as follows:
      [An] 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).