285 So.3d 708
Miss. Ct. App.2019Background
- May 2016: Tingle indicted for burglary of a nondwelling and charged as a violent habitual offender.
- September 7, 2016: Tingle pled guilty and was sentenced as a non-violent habitual offender to seven years; restitution, fines, and costs imposed; receiving-stolen-property count nolle prossed per plea agreement.
- May 9, 2018 and September 25, 2018: Tingle filed two pro se PCR motions alleging a void/defective indictment, lack of factual basis for the plea, and ineffective assistance of counsel (including counsel’s alleged threat of a life sentence).
- October 8, 2018: Circuit court denied post-conviction relief; subsequent motions to correct/amend were denied.
- Tingle’s notice of appeal was stamped filed December 6, 2018 (certificate of service dated November 29, 2018); Rule 4(a) required filing by November 7, 2018. The prison mailbox rule applies but his filing was still late.
- The Court declined to suspend the 30-day rule as “in the interest of justice,” noting some claims were first raised on appeal and remaining claims appeared meritless; appeal dismissed for lack of appellate jurisdiction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness / Appellate jurisdiction | Tingle submitted notice by prison mail (certificate Nov 29) and should be permitted to appeal | Notice of appeal filed after 30-day Rule 4(a) deadline; even under prison mailbox rule, filing was late | Appeal dismissed as untimely; Court declines to grant out-of-time appeal; no appellate jurisdiction |
| Request to suspend Rule 4(a) (equitable/interest of justice) | Suspension warranted due to collateral-attack context and claims of counsel misconduct | Not in the interest of justice here; claims not sufficiently persuasive and some raised first on appeal | Court refuses to suspend Rule 4(a); denies out-of-time appeal |
| Ineffective assistance of counsel | Counsel withheld discovery, failed to assert constitutional rights, threatened a life sentence to force plea, failed to demur to the indictment or object to lack of factual basis | Claims were raised inadequately or for the first time on appeal; PCR record did not meet burden | Court did not reach merits because appeal untimely and ineffective-assistance specifics were raised late; deemed insufficient to justify relief |
| Sufficiency of indictment / involuntary plea / proper charge (trespass vs burglary) | Indictment void or failed to charge essential elements; should have been petit larceny or trespass; plea involuntary | Claims meritless on review and/or not preserved for appeal; procedurally untimely | Court found these claims meritless on review and, in any event, did not grant an out-of-time appeal; dismissal stands |
Key Cases Cited
- Williams v. State, 228 So. 3d 844 (Miss. Ct. App. 2017) (standard of review for PCR denials)
- Thinnes v. State, 196 So. 3d 204 (Miss. Ct. App. 2016) (standard of review cited)
- Cane v. State, 206 So. 3d 1268 (Miss. Ct. App. 2016) (discussing suspension of appellate deadlines in interest of justice)
- Vance v. State, 941 So. 2d 225 (Miss. Ct. App. 2006) (appeal dismissal for untimely notice; Rule 4 authority)
- Hunt v. State, 11 So. 3d 764 (Miss. Ct. App. 2009) (court must determine jurisdiction even if State does not challenge it)
- Sykes v. State, 757 So. 2d 997 (Miss. 2000) (prison mailbox rule for incarcerated filers)