Opinion
No. 2008-CT-00074-SCT.
April 1, 2010.
TRIAL JUDGE: HON. ISADORE W. PATRICK, JR., DATE OF JUDGMENT: 12/04/2007
COURT FROM WHICH APPEALED: WARREN COUNTY CIRCUIT COURT
DISPOSITION: REVERSED AND REMANDED
ON WRIT OF CERTIORARI
ATTORNEYS FOR APPELLANT: PRO SE, WILLIAM B. BARDWELL, DAVID McCARTY
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JOHN R. HENRY, JR.
EN BANC.
¶ 1. This certiorari review arises from the Warren County Circuit Court's decision to dismiss Robert H. Jackson's most recent motion for post-conviction relief. The Court of Appeals affirmed that decision. Finding that the trial court had jurisdiction to decide Jackson's motion, and that the motion is excepted from the procedural bars, we reverse and remand.
FACTS AND PROCEDURAL HISTORY
¶ 2. Robert H. Jackson was indicted for capital murder for killing Josephine Todd during the burglary of her home in Vicksburg, Mississippi, on June 4, 1979. Soon after his arrest, Jackson gave a statement to police, detailing the events surrounding the burglary. Jackson stated that he "had entered Mrs. Todd's Apartment, tied her hands, placed a cloth over her mouth, looked through the drawers in her apartment, had found some money, took Mrs. Todd's purse, removed [the] restraints from her hands and pulled [the] gag off [her] mouth and left through [the] front door of [the] apartment." Mrs. Todd died from asphyxiation. The indictment charged Jackson as follows:
The capital-murder statute in effect in 1979 stated, in pertinent part, that "[t]he killing of a human being without the authority of law by any means or in any manner shall be capital murder . . . [w]hen done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnapping, arson or robbery, or in any attempt to commit such felonies[.]" Miss. Code Ann. § 97-3-19(2)(e) (Supp. 1977).
The Grand Jurors of the State of Mississippi, elected, summoned, empaneled, sworn, and charged to inquire in and for the body of Warren County, State of Mississippi, at the term aforesaid, in the name and by the authority of the State of Mississippi, upon their oaths present that ROBERT H. JACKSON, late of the County aforesaid, on or before the 4th day of June, A.D., 1979, with force and arms, in the County aforesaid, and within the jurisdiction of this Court did feloniously, wilfully, and of his malice aforethought, kill and murder Josephine Todd, a human being, with or without the design of the said Robert H. Jackson to affect the death of the said Josephine Todd, at a time when the said Robert H. Jackson was then engaged in the commission of the crime of Burglary of the dwelling house of the said Josephine Todd, contrary to the provisions of Section 97-3-19(2)(e) of the Mississippi Code of 1972, as amended. [C]ontrary to the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.
Jackson pleaded guilty to this charge, and he was sentenced as a habitual offender to life in prison without parole, pursuant to Mississippi Code Section 99-19-81.
¶ 3. Pursuant to Mississippi's Uniform Post-Conviction Collateral Relief Act ("UPCCRA"), passed by the Legislature in 1984, Jackson filed a motion to vacate his conviction and sentence on April 21, 1986. See Miss. Code Ann. § 99-39-5(1) (Supp. 2009). Jackson complained that his court-appointed attorneys had inadequately investigated the previous convictions on which the habitual-offender portion of the indictment was based and that his guilty plea had been induced involuntarily because his attorneys had assured him he would, under a pre-arranged plea agreement, plead to the reduced charge of manslaughter. In the trial court proceedings on Jackson's 1986 motion for post-conviction relief (PCR), the State asserted the three-year statute of limitations under Mississippi Code Section 99-39-5(2). The trial court dismissed Jackson's 1986 PCR motion without a hearing based on the procedural bar of the statute of limitations and "on the basis of its merit."
Jackson's claim regarding the plea agreement was supported by a letter from his attorney recalling that the plea bargain was to be manslaughter, and an affidavit from two of Jackson's family members who averred that they had understood from Jackson's attorneys that the charge would be reduced to manslaughter. No transcript of the guilty plea or waiver-of-rights form signed by Jackson appeared in the record before this Court in Jackson's first post-conviction relief appeal. Jackson v. State , 506 So. 2d 994, 994-95 (Miss. 1987) (" Jackson I ").
¶ 4. On appeal, this Court held that the three-year limitation period of the UPCCRA operates prospectively. Jackson v. State , 506 So. 2d 994, 994-95 (Miss. 1987) (" Jackson I ") (citing Odom v. State , 483 So. 2d 343 (Miss. 1986)). Therefore, we found that the lower court clearly was in error for applying the time bar to Jackson. We reversed the trial court's dismissal of Jackson's 1986 PCR motion and remanded the case for development of the facts of Jackson's substantive claim, either through review of the transcript of the guilty plea, if sufficient, or through an evidentiary hearing.
The UPCCRA was enacted on April 17, 1984. Hence, "[i]ndividuals convicted prior to April 17, 1984, ha[d] three (3) years from April 17, 1984, to file their petition for post conviction relief." Odom v. State , 483 So. 2d 343, 344 (Miss. 1986).
The trial court "dismissed" Jackson's 1986 PCR motion based on the statute of limitations. But since the trial court characterized its dismissal as "on the basis of its merit," it also could be characterized as a "denial." In the arena of post-conviction relief proceedings, the terms "dismiss" and "deny" are not synonymous. See discussion, infra, at Issue I.
¶ 5. Upon remand, the trial court issued an order on January 27, 1989, either dismissing or denying Jackson's PCR motion. Jackson appealed that order to this Court, which affirmed it without opinion on October 24, 1990. Jackson v. State , 568 So. 2d 1212 (Miss. 1990) (No. 89-KP-00272) (" Jackson II "). Jackson filed another PCR motion in the trial court in 1993. The trial court either dismissed or denied this motion as well, issuing its order on February 26, 1993. Jackson appealed, and on December 7, 1995, this Court affirmed, once again without opinion. Jackson v. State , 665 So. 2d 1356 (Miss. 1995) (No. 93-KP-01208) (" Jackson III ").
¶ 6. In 1997, this Court decided State v. Berryhill , 703 So. 2d 250 (Miss. 1997). In that case, we held that, when a person is indicted for capital murder predicated on burglary, the indictment must state the underlying offense that comprised the burglary. Berryhill , 703 So. 2d at 255.
The crime of burglary requires the breaking and entering of a dwelling of another with the intent to commit another crime therein. Miss. Code Ann. § 97-17-23 (Rev. 2006).
¶ 7. On March 29, 1999, Jackson filed an application in this Court for leave to proceed in the trial court with a new PCR motion (No. 1999-M-00547). The basis of Jackson's proposed PCR motion was that there was newly discovered evidence that could raise a reasonable doubt as to whether Jackson had, in fact, caused Josephine Todd's death. On August 6, 1999, a panel of this Court denied Jackson's application, finding that "[a] prior application was denied by this Court in case no. 89-K[P]-00272." Thus, we held simply that "Jackson's present motion is barred as a successive writ pursuant to Miss. Code Ann. § 99-39-27(9)."
¶ 8. On January 17, 2002, Jackson again sought leave of this Court to pursue post-conviction relief in the trial court (No. 2001-M-00864). In Jackson's proposed PCR motion, attached to his application, Jackson argued for the first time that Berryhill is an intervening decision of this Court which invalidates his indictment, or at least the capital portion thereof. Jackson also argued that his indictment was defective because it failed to include the phrase "without the authority of law," a required element of capital murder. Without addressing the substantive merits of Jackson's claims, a panel of this Court denied Jackson's application on June 6, 2002, finding that "the petition [was] procedurally barred as a successive writ pursuant to Miss. Code Ann. § 99-39-27(9)."
¶ 9. On March 1, 2004, Jackson filed a document entitled "Petition for Extraordinary Circumstances Review," which this Court treated as another application for permission to seek post-conviction relief in the trial court (No. 2003-M-01858). Jackson again argued that this Court should apply Berryhill and invalidate his indictment and that the indictment was otherwise defective for omitting the phrase "without the authority of law." Jackson also argued that this Court unconstitutionally and unreasonably had applied the successive-writ procedural bar to his 1999 and 2002 applications. Once again, however, without addressing its merits, this Court denied Jackson's application on July 19, 2004, finding it, "like others filed previously by Jackson, [to be] barred as a successive writ pursuant to Miss. Code Ann. § 99-39-27(9)."
Beginning after the denial of his 2002 application, and continuing after the denial of his 2004 application, Jackson filed several documents in this Court seeking certiorari, mandamus, "discretionary review," rehearing, and reconsideration of the denials. Jackson continued to raise his arguments concerning Berryhill and the phrase "without the authority of law" in all of those filings. However, this Court denied all of those motions without addressing their substantive merits.
¶ 10. Undeterred, Jackson filed the instant PCR motion in the circuit court on November 14, 2007. In this motion, Jackson again argued that his capital-murder indictment was unconstitutionally insufficient under Berryhill and because it omitted the phrase "without the authority of law." Based on this Court's dispositions of Jackson's 2002 and 2004 applications, the circuit court dismissed Jackson's 2007 PCR motion on December 4, 2007, finding it to be barred as a successive writ. Jackson appealed on January 7, 2008, and the case was assigned to the Court of Appeals.
The State asserted in its appellate brief that Jackson's notice of appeal was untimely. Although Jackson has asserted his rights under the so-called "prison mailbox rule," the record before us contains no evidence of the date when Jackson delivered his notice of appeal to prison officials. Nonetheless, "because procedures for criminal appeals apply to post-conviction relief proceedings, Miss. Code Ann. § 99-39-25(1); Williams v. State , 456 So. 2d 1042, 1043 (Miss. 1984), [this] Court may suspend the rules and extend the time for taking an appeal in th[e]se proceedings." Miss. R. App. P. 2(c) cmt. Therefore, we hereby suspend the operation of the thirty-day appeal time under Rule 4(a) of the Mississippi Rules of Appellate Procedure, and hold that Jackson's notice of appeal, filed thirty-four days after the trial court's entry of judgment, was timely.
¶ 11. The Court of Appeals affirmed the trial court's dismissal of Jackson's latest PCR motion, explaining that "Jackson's motion is procedurally barred as an impermissible subsequent attempt to obtain post-conviction relief, as Jackson has failed to show that it falls within any of the statutory exceptions to the successive-writ bar." Jackson v. State , 2009 WL 441440, *2 (Miss. Ct. App. Feb. 24, 2009). The Court of Appeals also held that "the circuit court was without jurisdiction to entertain Jackson's motion absent leave of the supreme court, which Jackson did not obtain[,]" because this Court had "last exercised jurisdiction in the case." Id. (citing Perry v. State , 759 So. 2d 1269, 1270 (Miss. Ct. App. 2000); Miss. Code Ann. § 99-39-7 (Rev. 2007)).
¶ 12. Jackson petitioned this Court for writ of certiorari, which we granted on December 17, 2009. The State has not responded to Jackson's petition. We find that the Court of Appeals' decision that Jackson's 2007 PCR motion is procedurally barred as a successive writ was in error because of this Court's incorrect application of the procedural bar to Jackson's 1999, 2002, and 2004 applications.
STANDARD OF REVIEW
¶ 13. A trial court's dismissal of a motion for post-conviction relief will not be reversed absent a finding that the trial court's decision was clearly erroneous. Brown v. State , 731 So. 2d 595, 598 (Miss. 1999). However, when issues of law are raised, the proper standard of review is de novo. Id.
DISCUSSION
¶ 14. This case has a lengthy and confusing procedural history stemming from multiple motions and applications for post-conviction relief filed by Jackson, proceeding pro se. In fact, this is the fourth time in which the disposition of one of Jackson's PCR motions has been appealed to this Court. The Court of Appeals held that the trial court was without jurisdiction to entertain Jackson's 2007 PCR motion and that the motion was procedurally barred as an impermissible successive writ. We address these two questions before we get to the substantive merits of the arguments in Jackson's PCR motion.
I. Whether the trial court had jurisdiction over Jackson's 2007 PCR motion.
¶ 15. Mississippi Code Section 99-39-5 provides that "[a]ny person sentenced by a court of record of the State of Mississippi . . . may file a motion to vacate, set aside or correct the judgment or sentence [based on several applicable criteria]." Miss. Code Ann. § 99-39-5 (Supp. 2009) (emphasis added). Where there has been no direct appeal of his conviction or sentence, the prisoner must file this PCR motion, sometimes called a "PCR petition," "as an original civil action in the trial court." Miss. Code Ann. § 99-39-7 (Supp. 2009). However, if the prisoner's conviction and sentence were directly appealed, and either the conviction is affirmed or the appeal dismissed by this Court, then he must file an application for leave to proceed in the trial court and include the proposed PCR motion with his application. Miss. Code Ann. §§ 99-39-7 and 99-39-27 (Supp. 2009).
¶ 16. Because Jackson pleaded guilty in 1979, a direct appeal of his conviction was not permitted. Miss. Code Ann. § 99-35-101 (Rev. 2007). Thus, because there has been no direct appeal of his conviction or sentence, Jackson must file his PCR motions in the trial court. Miss. Code Ann. § 99-39-7 (Supp. 2009). See Martin v. State , 556 So. 2d 357, 359 (Miss. 1990) (citing McDonall v. State , 465 So. 2d 1077 (Miss. 1985)) ("In cases where the prisoner has entered a plea of guilty, the trial court has exclusive, original jurisdiction to hear and determine a petition for post-conviction relief."). Jackson's original 1986 "motion to vacate" and his PCR filings in 1993 and 2007 were properly filed PCR motions. However, Jackson incorrectly filed in this Court three applications for leave to proceed in the trial court ( i.e., to get permission to file new PCR motions in the trial court), in 1999, 2002, and 2004. This Court denied all three applications, finding them to be impermissible successive writs under Section 99-39-27(9).
¶ 17. When we characterized our disposition of Jackson's 1999 application as a denial, we were stating that the merits of the PCR motion had been reviewed and rejected or that his arguments were barred on res judicata or waiver grounds. See Miss. Code Ann. § 99-39-27(9) (Rev. 2007). This was not the case. We did not make a "final determination going to the merits of the underlying conviction and sentence." Martin , 556 So. 2d at 359. Nonetheless, we had, in fact, "exercised jurisdiction" over Jackson's PCR proceedings, and "[t]here is . . . general language in our prior cases to the effect that the court to last exercise jurisdiction in the case has exclusive, original jurisdiction over the post-conviction petition." Martin , 556 So. 2d at 359 (citing Evans v. State , 485 So. 2d 276, 283 (Miss. 1986), cert. denied, 476 U.S. 1178, 106 S. Ct. 2908, 90 L. Ed.2d 994 (1986); McDonall , 465 So. 2d at 1078)). Based on these authorities, the trial court and the Court of Appeals found that, when we "denied" Jackson's 1999 application, we had assumed jurisdiction over Jackson's PCR proceedings to the exclusion of the trial court. However, the cases cited above presupposed that this Court had proper jurisdiction to exercise, which is not the case here.
¶ 18. Pursuant to Section 99-39-7 and Martin , this Court was without jurisdiction to consider Jackson's 1999, 2002, and 2004 applications for leave to proceed in the trial court, because Jackson's conviction and sentence were never directly appealed. Miss. Code Ann. § 99-39-7 (Supp. 2009); Martin , 556 So. 2d at 358. Hence, the only way in which this Court properly could have considered Jackson's PCR filings would have been if Jackson had first presented his PCR motion to the trial court, that court had denied relief, and Jackson had appealed that decision to this Court pursuant to Section 99-39-25. Miss. Code Ann. § 99-39-25 (Rev. 2007); Martin , 556 So. 2d at 358. Regarding Jackson's misfiled applications, this had not happened, so this Court did not have subject-matter jurisdiction to entertain those applications, at first instance, or the merits of the PCR motions attached thereto.
"A final judgment entered under this article may be reviewed by the supreme court of Mississippi on appeal brought either by the prisoner or the state on such terms and conditions as are provided for in criminal cases." Miss. Code Ann. § 99-39-25(1) (Rev. 2007).
When Jackson filed his applications in this Court in 1999, 2002, and 2004, it had the same effect as a divorce complaint filed in circuit court. The circuit court has no subject-matter jurisdiction over divorce actions and, thus, must dismiss them or transfer them to the chancery court. See Georgia-Pacific Corp. v. Mooney , 909 So. 2d 1081, 1086-87 (Miss. 2005) (discussing jurisdiction of chancery and circuit courts). In the same manner, if a prisoner's conviction and sentence were never directly appealed, then, pursuant to Sections 99-39-7 and 99-39-27, this Court is not permitted to entertain the prisoner's PCR motion until it has been ruled upon by the circuit court and appealed to this Court under Section 99-39-25. Miss. Code Ann. §§ 99-39-7, 99-39-27 (Supp. 2009); Miss. Code Ann. § 99-39-25 (Rev. 2007); Martin , 556 So. 2d at 358-59.
¶ 19. Put simply, the fatal flaw in Jackson's 1999, 2002, and 2004 applications was not that they were successive writs, but that they were filed in the wrong court. Thus, we improperly exercised jurisdiction and denied Jackson's applications. Miss. Code Ann. § 99-39-7 (Supp. 2009). We should have merely dismissed the applications without prejudice for being filed in the wrong court and directed Jackson to file his PCR motions in the trial court. Martin , 556 So. 2d at 358 ("this post-conviction relief action initiated by Martin must be dismissed without prejudice as having been filed in the wrong court"). We routinely dismiss mistakenly filed applications, but such action by this Court does not strip the trial court of jurisdiction. Martin , 556 So. 2d at 359.
¶ 20. Therefore, we hold that the Warren County Circuit Court continues to have exclusive initial jurisdiction over Jackson's PCR proceedings, because Jackson never directly appealed his conviction and sentence to this Court. Miss. Code Ann. § 99-39-7 (Supp. 2009). Further, as this Court was without jurisdiction to entertain them, we vacate and set aside our denials of Jackson's 1999, 2002, and 2004 applications. Section 99-39-25 gives this Court appellate jurisdiction over properly filed PCR motions which are dismissed or denied by the trial court. Miss. Code Ann. § 99-39-25(1) (Rev. 2007). Therefore, this Court now may address the merits of Jackson's 2007 PCR motion, which the Warren County Circuit Court dismissed on December 4, 2007. However, before we may do so, we must decide whether Jackson's PCR motion is procedurally barred.
II. Whether Jackson's 2007 PCR motion is procedurally barred.
¶ 21. Before we address the various procedural bars which may prohibit our consideration of the arguments in Jackson's PCR motion, we must understand the character of those arguments. Jackson asserts that his indictment is substantively defective under Berryhill , because it does not state the underlying offense to the burglary, and alternatively, because it omits the phrase "without the authority of law," an essential element of the offense of capital murder.
¶ 22. We held in Berryhill that "capital murder indictments that are predicated upon the underlying felony of burglary must assert with specificity the felony that comprises the burglary." Berryhill , 703 So. 2d at 258. Simply put, "[b]urglary is unlike robbery and all the other capital murder predicate felonies in that it requires as an essential element the intent to commit another crime." Id. at 256. Because of this, "the level of notice that would reasonably enable a defendant to defend himself against a capital murder charge that is predicated upon burglary must, to be fair, include notice of the crime comprising the burglary." Id. Hence, "since the indictment provides the basis of the notice to the defendant of the crime for which he is to be tried, the failure to be informed of the nature of the crime underlying the burglary [is] tantamount to the failure to allow a defendant to prepare a defense." Id. at 255 (citing Lambert v. State , 462 So. 2d 308, 319 (Miss. 1984) (Dan Lee, J., dissenting)).
¶ 23. As for Jackson's second argument, the fact that the killing occurred "without the authority of law" is a statutory element of simple murder, capital murder, and manslaughter. See Miss. Code Ann. § 97-3-19(1) (Rev. 2006); Miss. Code Ann. § 97-3-19(2) (Rev. 2006); Miss. Code Ann. §§ 97-3-35 and 97-3-47 (Rev. 2006). And a defendant cannot be convicted based on an indictment that fails to include all the essential elements of the crime. This Court explained in 1894 that the absence of an element of the crime voids the indictment, stating:
[I]f the indictment omits altogether any averment . . . which averment we hold to be essential in such an indictment, there would be a total omission of a matter of substance, — of an element of the very essence of the offense, — and the indictment would be void as charging no offense, and the judgment and sentence of the law could not follow upon a conviction had under it; and, a matter of constitutional right [is] thus involved. . . .
Norton v. State , 72 Miss. 128, 16 So. 264, 265 (1894). See also Sarah v. State , 6 Cushm. 267, 1854 WL 2309, *2 (Miss. Err. Ct. App. 1854) ("Without the[] words ["malice aforethought"], . . . the party cannot be convicted for murder."). In other words, if an indictment omits any essential element of the crime, then the indictment fails to charge the crime, and any conviction or sentence procured by it is unconstitutional. Id.
¶ 24. Suffice it to say that both of Jackson's principal arguments are grounded in fundamental constitutional concerns for due process. "As a matter of due process, a defendant is entitled to reasonable advance notice of the charges against him and a reasonable opportunity to prepare and present his defense to those charges." Jones v. State , 461 So. 2d 686, 693 (Miss. 1984). Thus, under Berryhill , an indictment for capital murder predicated on burglary that fails to state the underlying crime to the burglary violates due process because it fails to give notice to the defendant of the charges against which he must prepare his defense. See also U.S. Const. amend. VI ("In all criminal prosecutions, the accused shall enjoy the right . . . to be informed of the nature and cause of the accusation."). And "before a conviction may stand . . . Due Process requires that the State prove each element of the offense beyond a reasonable doubt." Washington v. State , 645 So. 2d 915, 918 (Miss. 1994) (citing Jackson v. Virginia , 443 U.S. 307, 324, 99 S. Ct. 2781, 2791, 61 L. Ed. 2d 560, 576-77 (1979)). Therefore, an indictment for murder that omits the phrase "without the authority of law" fails due process, as well, because it allows the prosecution to convict the defendant without proving an essential element of the crime, i.e., that the killing was done outside of the authority given by the laws of the state. See also Miss. Const. art. 3, § 26 (1890) ("In all criminal prosecutions the accused shall have the right . . . to demand the nature and cause of the accusation.").
¶ 25. Now, we must address the various procedural bars which may prohibit our consideration of Jackson's arguments. First, we address the effect of Jackson's guilty plea. Generally, a valid guilty plea waives all technical and nonjurisdictional defects in the indictment. Brooks v. State , 573 So. 2d 1350, 1352-55 (Miss. 1990). However, we have held that "[i]f an indictment fails to charge a necessary element of a crime[,]" the deficiency is deemed jurisdictional, and hence, not waivable. Banana v. State , 635 So. 2d 851, 853 (Miss. 1994). Thus, this Court has squarely held that a substantive defect in an indictment cannot be waived by entry of a guilty plea and may be raised in a motion for post-conviction relief. Jefferson v. State , 556 So. 2d 1016, 1019 (Miss. 1989). See also Monk v. State , 532 So. 2d 592 (Miss. 1988), superseded by rule on other grounds (objection to an indictment that failed to charge an essential element of the crime sought to be charged may be raised for the first time on appeal); Copeland v. State , 423 So. 2d 1333 (Miss. 1982) (substantive failure of an indictment to charge a crime was not waivable and not subject to amendment); Burchfield v. State , 277 So. 2d 623 (Miss. 1973). Hence, Jackson did not waive the substantive deficiency of his indictment by pleading guilty.
¶ 26. Next, we address the waiver bar in Mississippi Code Section 99-39-21(1). "One of the most fundamental and long-established rules of law in Mississippi is that the [appellate court] will not review matters on appeal that were not raised at the trial court level." Shaw v. Shaw , 603 So. 2d 287, 292 (Miss. 1992) (citations omitted). This age-old rule is given force in PCR proceedings by Mississippi Code Section 99-39-21(1), which provides that the "[f]ailure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal . . . shall constitute a waiver thereof and shall be procedurally barred." Miss. Code Ann. § 99-39-21 (Rev. 2007). Here, Jackson pleaded guilty, but he failed to object to his indictment or otherwise assert any problems with it at either his plea hearing or his sentencing hearing. Thus, based on Section 99-39-21(1), Jackson's problems with his indictment should be barred under Section 99-39-21(1).
¶ 27. Finally, we address the time bar in Mississippi Code Section 99-39-5(2) and the successive-writ bar in Section 99-39-23(6). The State asserted in its appellate brief that all of Jackson's claims in his instant PCR motion, including his Berryhill argument, are barred by the statute of limitations in Section 99-39-5(2). Miss. Code Ann. § 99-39-5(2) (Supp. 2009). And the trial court and the Court of Appeals held that Jackson's 2007 PCR motion is procedurally barred as a successive writ pursuant to Section 99-39-23(6). Miss. Code Ann. § 99-39-23(6) (Rev. 2007). Section 99-39-5(2) provides a time limit within which a prisoner must bring a PCR motion. It states in pertinent part that "[I]n case of a guilty plea, [a motion for relief under this article shall be made] within three (3) years after entry of the judgment of conviction." Miss. Code Ann. § 99-39-5(2) (Supp. 2009). Section 99-39-23(6) provides the successive-writ bar for PCR motions. It states that "any 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) (Rev. 2007).
¶ 28. Jackson's present PCR motion was filed far more than three years after his conviction and more than three years after we decided Berryhill . Thus, his motion should be time-barred by Section 99-39-5(2), unless an exception applies. Further, the instant PCR motion, which Jackson filed in 2007 and which is the subject of this appeal and certiorari review, is the third PCR motion which Jackson has filed in the trial court. The trial court ultimately dismissed or denied Jackson's 1986 PCR motion, and this Court affirmed. Pursuant to Section 99-39-23(6), therefore, this latest PCR motion should be barred as a successive writ, unless it meets one of the exceptions.
¶ 29. There are several exceptions to the time bar and the successive-writ bar enumerated in the statutes, but only the "intervening-decision" exception is pertinent to this case. Put simply, the statutes allow a prisoner to file subsequent motions for relief and motions after the expiration of the statute of limitations if he can show that there has been an intervening decision of the United States Supreme Court or of the Mississippi Supreme Court that would have actually adversely affected the outcome of his conviction or sentence. See Miss. Code Ann. § 99-39-5(2) (Supp. 2009); Miss. Code Ann. § 99-39-23(6) (Rev. 2007). This Court has held that the "intervening-decision" exception "applies only to those decisions that create new intervening rules, rights, or claims that did not exist at the time of the prisoner's conviction or during the three (3) year period circumscribed by the statute of limitations." Patterson v. State , 594 So. 2d 606, 608-09 (Miss. 1992) (emphasis in original).
¶ 30. Jackson asserts that Berryhill qualifies as an intervening decision of this Court. He argues that Berryhill "would have actually adversely affected the outcome of his conviction or sentence" under Section 99-39-23(6), either by rendering his conviction unconstitutional or by voiding the capital portion of his sentence and making him eligible for parole. The State argued in its appellate brief that Jackson's Berryhill argument was barred by res judicata because this Court previously had found it lacking. The Court of Appeals agreed and interpreted this Court's denials of Jackson's 1999, 2002, and 2004 applications as rejections of Jackson's Berryhill argument, stating that "it is apparent from our review of the record that Jackson has made the same [ Berryhill ] argument before the supreme court in his prior petitions. The supreme court found it to be without merit, and we are bound by its prior decision." Jackson , 2009 WL 441440, at *1. However, all of Jackson's PCR pleadings filed since Berryhill was handed down in 1997 have been denied/dismissed based on the procedural bar of the successive-writ prohibition in Sections 99-39-23(6) and 99-39-27(9). To date, neither this Court nor the trial court has addressed, much less rejected, Jackson's Berryhill argument. Therefore, Jackson's Berryhill argument is not barred by res judicata. See Miss. Code Ann. § 99-39-21(3) (Rev. 2007).
¶ 31. Nonetheless, the Court of Appeals held that, "[m]ore fundamentally, Berryhill cannot now be an `intervening decision' because it was handed down well before the supreme court's dismissal of Jackson's most recent petitions seeking permission to file a motion for post-conviction relief." Jackson , 2009 WL 441440, at *1. In Lockett v. State , 656 So. 2d 68 (Miss. 1995), we opined that any intervening decision must have been decided after our disposition of the prisoner's previous PCR filing, not before. In that case, "Lockett filed his first application on December 22, 1988; relief was denied on October 1, 1992." Id. at 72. Thus, when Lockett filed his second application, we found the "intervening-decision" exception inapplicable, explaining that:
Within the context of either the time bar or the successive writ bar, we agree with the State that it would have been necessary for any intervening decision sufficient to defeat the bars to have been rendered after this Court's denial of Lockett's first application for post-conviction relief. [A]ny decision rendered prior to October 1, 1992, would have been available to Lockett in his first application for post-conviction relief.
Lockett , 656 So. 2d at 72 ( overruled in part on other grounds by Jones v. State , 700 So. 2d 631, 632 (Miss. 1997)) (internal citations omitted) (emphasis added). In other words, Lockett opined that an intervening decision must "intervene" between the prisoner's present PCR motion and his last one, not simply between his present PCR motion and his conviction. Id.
¶ 32. Here, although Berryhill was decided in 1997, Jackson did not raise his Berryhill argument in his 1999 application. Thus, pursuant to the rationale of Lockett , Jackson's Berryhill argument should be barred. Similarly, this Court previously has found another prisoner's Berryhill argument time-barred when he did not assert it within three years of that decision. See King v. State , 960 So. 2d 413, 431 (Miss. 2007) ("This [ Berryhill ] claim was not raised until 2002 at King's most recent resentencing trial. Accordingly, we hold that King is barred from raising the matter at this time by virtue of the time bar found in Section 99-39-5(2)."). Here, Jackson first raised his Berryhill argument in his 2002 application, so under King , it should be procedurally barred by the three-year time limit in Section 99-39-5(2). Miss. Code Ann. § 99-39-5(2) (Supp. 2009).
King is the only decision in which this Court has applied the three-year time limit under Section 99-39-5(2) to the intervening-decision exception. But we note that King did not involve PCR proceedings. King directly appealed his conviction and death sentence, filed several petitions for habeas corpus in federal courts, and was granted new sentencing hearings, only to be resentenced to death each time. King , 960 So. 2d at 418. At no time did King file a PCR motion under Section 99-39-5 or otherwise attack his conviction or sentence under the UPCCRA. Therefore, it is questionable whether the three-year time limit in Section 99-39-5(2) would apply to King's case at all. Also, it strikes us as illogical to apply the three-year time limit to the exception to the time limit. Although we would hope that prisoners would assert an intervening decision in a timely manner, the only person prejudiced by failing to do so is the prisoner himself.
¶ 33. Pursuant to the foregoing authorities, Jackson's Berryhill argument should be prohibited from consideration. Simply put, even if Berryhill qualifies as an intervening decision of this Court, sufficient to except Jackson's PCR motion from the time bar and the successive-writ bar, Jackson's Berryhill argument is barred under Lockett because he failed to assert it in his 1999 application, and it is barred under King because he did not raise it within three years of when it was handed down.
¶ 34. However, this Court held in Luckett v. State , 582 So. 2d 428 (Miss. 1991), a PCR case, that the denial of due process merited exception from the procedural bars in the UPCCRA. Specifically, we held that "[e]rrors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration, and this case discloses a denial of due process in sentencing." Id. at 430 (citing Smith v. State , 477 So. 2d 191, 195-96 (Miss. 1985)) ("errors affecting fundamental rights are exceptions to the rule that questions not raised in the trial court cannot be raised for the first time on appeal"). Accord Ivy v. State , 731 So. 2d 601, 603 (Miss. 1999). Therefore, we hold that Jackson's arguments regarding the substantive deficiencies in his indictment — insofar as they implicate his fundamental constitutional rights to due process — are excepted from the procedural bars of the UPCCRA, "which would otherwise prohibit [their] consideration." Id. This holding, however, is contingent upon finding that the indictment that charged Jackson with capital murder is, in fact, substantively defective on fundamental constitutional grounds, either under Berryhill or because it omitted the phrase "without the authority of law." We address that question now.
III. Whether Jackson's indictment is substantively defective.
¶ 35. "Our review of the legal sufficiency of an indictment is an issue of law, and therefore is reviewed de novo." Berry v. State , 996 So. 2d 782, 785 (Miss. 2008) (citing Quang Thanh Tran v. State , 962 So. 2d 1237, 1240 (Miss. 2007)). An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense. Berry , 996 So. 2d at 786 (quoting Gilmer v. State , 955 So. 2d 829, 836-37 (Miss. 2007)).
¶ 36. We held in Berryhill that "capital murder indictments that are predicated upon the underlying felony of burglary must assert with specificity the felony that comprises the burglary." Berryhill , 703 So. 2d at 258. As discussed above, this decision was based primarily on constitutional concerns of due process. After review, it is apparent that Jackson's indictment wholly fails to meet the Berryhill standard. The indictment charged, in pertinent part, that:
ROBERT H. JACKSON . . . did feloniously, wilfully, and of his malice aforethought, kill and murder Josephine Todd, a human being, with or without the design of the said Robert H. Jackson to affect the death of the said Josephine Todd, at a time when the said Robert H. Jackson was then engaged in the commission of the crime of Burglary of the dwelling house of the said Josephine Todd, contrary to the provisions of Section 97-3-19(2)(e) of the Mississippi Code of 1972, as amended.
As can be seen, the indictment predicates Jackson's capital-murder charge on his alleged "commission of the crime of Burglary," but it does not state the underlying offense that Jackson allegedly intended to commit that comprised the burglary.
¶ 37. The crime of burglary requires the prosecution to prove, in addition to breaking and entering into the victim's dwelling, that the defendant intended to commit another crime therein. Miss. Code Ann. § 97-17-23 (Rev. 2006). Based on the facts surrounding the death of Josephine Todd, Jackson could have intended to commit "probably one hundred different crimes and/or misdemeanors and still constitute the charge [of burglary]." Berryhill , 703 So. 2d at 254. He could have intended to commit simple assault, aggravated assault, kidnapping, false imprisonment, robbery, or larceny, just to name a few. But the indictment makes no mention of any of these crimes or any facts from which to infer one, so it gave no notice to Jackson on how to prepare his defense. Berryhill , 703 So. 2d at 256.
In his 1999 application, Jackson characterized his intent as one to commit larceny. However, there is no indication from the record that such a characterization was presented to the grand jury that indicted him. And as the Berryhill court noted, "[t]o allow the prosecutor, or the court, to make a subsequent guess as to what was in the minds of the grand jury at the time they returned the indictment would [allow] a defendant [to] be convicted on the basis of fact not found by, and perhaps not even presented to, the grand jury which indicted him." Berryhill , 703 So. 2d at 256 (quoting Russell v. United States , 369 U.S. 749, 766, 82 S. Ct. 1038, 1048, 8 L. Ed. 2d 240 (1962)).
¶ 38. Therefore, applying the rule of Berryhill , we hold that Jackson's indictment was substantively defective, because it did not state the underlying offense that comprised the burglary. Jackson could not have been properly convicted of capital murder based upon it. Id. at 255. For that matter, the indictment also failed to charge Jackson with burglary, because "[a]n indictment for burglary must state the particular crime the intruder intended to commit." Id. (quoting Moore v. State , 344 So. 2d 731, 735 (Miss. 1977)). But that does not end the inquiry.
¶ 39. In Berryhill , upon finding the indictment fatally defective, the trial court quashed the capital portion of the indictment, and the State was invited to proceed against the defendant on the charge of simple murder. Berryhill , 703 So. 2d at 252. Immediately thereafter, the defendant pleaded guilty to simple murder. Id. The State appealed, but this Court affirmed the trial court's quashal of the capital portion of the indictment and invitation to the State to proceed on a simple-murder charge. Berryhill , 703 So. 2d at 258. We could simply follow suit in this case, and quash the capital portion of Jackson's indictment, potentially subjecting him to a charge and conviction for simple murder. However, before we remand with instructions that Jackson be resentenced for simple murder, we must follow Berryhill 's lead and ensure that the 1979 indictment was sufficient to charge Jackson with that crime.
¶ 40. The simple murder statute states, in pertinent part, that "[t]he killing of a human being without the authority of law by any means or in any manner shall be murder . . . [w]hen done with deliberate design to effect the death of the person killed, or of any human being." Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2006) (emphasis added). This Court has held that "the terms deliberate design, malice aforethought, and premeditated design are all synonymous." Hawthorne v. State , 835 So. 2d 14, 19 (Miss. 2003). See also Greenlee v. State , 725 So. 2d 816, 822 (Miss. 1998) (holding that amending a murder indictment from "malice aforethought" to "deliberate design" is an amendment of form, not substance).
We also recognize that "[a]n indictment for murder or capital murder shall serve as notice to the defendant that the indictment may include any and all lesser included offenses thereof, including, but not limited to, manslaughter." Miss. Code Ann. § 97-3-19(3) (Rev. 2006). However, subsection (3) was not added until 2004, so it cannot apply to Jackson's 1979 indictment.
¶ 41. Jackson's indictment charged him with simple murder. It alleged that Jackson "did feloniously, wilfully, and of his malice aforethought, kill and murder Josephine Todd. . . ." (Emphasis added.) Thus, we conclude that the "malice-aforethought" language in Jackson's indictment constructively attempted to charged him with "deliberate-design" murder, or simple murder, as a lesser-included offense to the capital-murder charge. In his 2002 and 2004 applications and his 2007 PCR motion, however, Jackson asserted that his indictment is also substantively defective because it does not include the phrase "without the authority of law." As already discussed, this assertion implicates fundamental due-process rights, so it is not waivable and is excepted from the UPCCRA procedural bars. Banana , 635 So. 2d at 853; Monk , 532 So. 2d 592; Copeland , 423 So. 2d 1333; Burchfield , 277 So. 2d 623; Norton , 16 So. at 265; Luckett , 582 So. 2d at 430.
¶ 42. The essential elements of the crime of simple murder, which "the prosecution is required to prove beyond a reasonable doubt[,]" are that: "(1) the defendant killed the victim; (2) without authority of law; and (3) with deliberate design to effect his death." Miss. Code Ann. § 97-3-19(1)(a) (Rev. 2006); Brown v. State , 965 So. 2d 1023, 1030 (Miss. 2007) (citing Dilworth v. State , 909 So. 2d 731, 736 (Miss. 2005)). Therefore, the fact that the killing occurred "without the authority of law" is a statutory element of both simple murder and capital murder. See Miss. Code Ann. § 97-3-19(1) (Rev. 2006); Miss. Code Ann. § 97-3-19(2) (Rev. 2006); see also Bishop v. State , 812 So. 2d 934, 941 (Miss. 2002) ("[t]he phrase `without authority of law,' is an essential element of the capital murder statute"); Harris v. State , 861 So. 2d 1003, 1015 (Miss. 2003) ("the phrase `without the authority of law' is an essential element of the [simple murder] statute"). It is also an essential element of the crime of manslaughter. See Miss. Code Ann. §§ 97-3-35 and 97-3-47 (Rev. 2006). But "[w]ithout the authority of law" and "unlawfully" are interchangeable phrases. Bishop , 812 So. 2d at 941-42 (citing Turner v. State , 796 So. 2d 998, 1002 (Miss. 2001)). If an indictment for murder or manslaughter fails to include either phrase, then the indictment fails to charge a crime, because a defendant cannot be convicted of either crime unless the prosecution proves beyond a reasonable doubt that the killing was not authorized by the law. Norton , 16 So. at 265; Washington , 645 So. 2d at 918; Edwards v. State , 737 So. 2d 275, 293-94 (Miss. 1999) (conviction for capital murder reversed, in part because jury instructions omitted that statutory element, and thus, jury did not have to find beyond a reasonable doubt that killings occurred without authority of law).
See, supra, footnote 1.
"The killing of a human being, without malice, in the heat of passion, but in a cruel or unusual manner, or by the use of a dangerous weapon, without authority of law, and not in necessary self-defense, shall be manslaughter." Miss. Code Ann. § 97-3-35 (Rev. 2006) (emphasis added). And "[e]very other killing of a human being, by the act, procurement, or culpable negligence of another, and without authority of law, not provided for in this title, shall be manslaughter." Miss. Code Ann. § 97-3-47 (Rev. 2006) (emphasis added).
¶ 43. The 1979 indictment that purportedly charged Jackson with capital murder did not include either phrase. Nowhere does the indictment state that Jackson's alleged killing of Josephine Todd was done "without the authority of law" or "unlawfully." Thus, notwithstanding the effect of Berryhill (to void the capital-murder charge), the indictment did not sufficiently charge Jackson with simple murder or manslaughter. Since the indictment does not charge Jackson with another crime, it fails to charge him with any crime at all. Therefore, following the procedure outlined in Berryhill , we must conclude that Jackson could not have been convicted of any crime based upon his 1979 indictment.
¶ 44. Our analysis has led inexorably to this conclusion. The question presented to this Court was whether the trial court's dismissal of Jackson's 2007 PCR motion, as a successive writ, was proper. We found Jackson's 2007 PCR motion potentially to be excepted from the time-limit and successive-writ procedural bars because Jackson's arguments implicate fundamental due-process concerns. In deciding upon the merits of those arguments, we necessarily concluded that Jackson's indictment was fatally insufficient to charge him with capital murder or burglary, pursuant to Berryhill , because it failed to assert the underlying offense that comprised the burglary. But when we followed Berryhill 's lead, to ensure that Jackson was presented with a properly drawn indictment for simple murder, we unavoidably concluded that the indictment also failed to charge him with simple murder or manslaughter, because it omitted the phrase "without the authority of law" or "unlawfully." Therefore, Jackson's conviction must be reversed because the 1979 indictment fails to charge him with a crime. We cannot simply remand for a new trial or resentencing, because any new trial and/or conviction based upon the defective indictment would be fated to unconstitutionality. If the State chooses to proceed against Jackson once again for the killing of Josephine Todd, it must do so with a properly drawn indictment.
CONCLUSION
¶ 45. We reverse the decision of the Court of Appeals and the trial court's dismissal of Jackson's 2007 motion for post-conviction relief. We also reverse Jackson's conviction for capital murder, and we remand this cause to the Warren County Circuit Court without prejudice to the right of the State to bring against Jackson a charge founded upon a proper indictment. Love v. State , 211 Miss. 606, 613, 52 So. 2d 470, 472-73 (1951). Jackson is to be held under bond to await the action of the grand jury upon a properly drawn indictment. Burchfield , 277 So. 2d at 626; Taylor v. State , 214 Miss. 263, 268, 58 So. 2d 664, 666 (1952); Wash v. State , 206 Miss. 858, 863, 41 So. 2d 29, 30 (1949).
¶ 46. REVERSED AND REMANDED. CARLSON AND GRAVES, P.JJ., DICKINSON, RANDOLPH, LAMAR, KITCHENS, CHANDLER AND PIERCE, JJ., CONCUR.