Eric Denorris Kennedy v. State of Mississippi
2016-CP-00755-COA
| Miss. Ct. App. | Jan 9, 2018Background
- In 1998 Kennedy pleaded guilty to murder in exchange for the State recommending a life sentence; the plea colloquy included an express waiver of appeal.
- Kennedy was sentenced to life; he filed a PCR in 1998 which was denied in a 2002 order.
- In December 2013 Kennedy filed another (successive) PCR challenging the statute, alleging recanted testimony, and claiming evidence showed innocence.
- The circuit court denied that PCR on August 29, 2014; Kennedy did not file a timely notice of appeal within 30 days.
- Kennedy later filed (Nov. 18, 2014) a notice of appeal and a motion for an out-of-time appeal, claiming he never received the August 29 order and that the clerk failed to mail it. The circuit court denied the out-of-time motion on March 15, 2016.
- On appeal the Court of Appeals reviewed whether the circuit court abused its discretion in denying the out-of-time appeal and affirmed, finding Kennedy presented no credible proof he lacked notice or good cause for delay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether circuit court abused discretion by denying out-of-time appeal | Kennedy: he never received the August 29, 2014 order and thus timely appeal was impossible; clerk admitted not mailing order | State/Court: Kennedy filed 81 days after the order, offered only allegations and no credible proof of lack of notice; rules require timely appeal absent good cause | Denied — no abuse of discretion; Kennedy failed to prove lack of notice or good cause |
| Whether Rules 2/4 should be suspended to allow out-of-time appeal | Kennedy: justice/fundamental fairness requires reopening time due to alleged clerk misconduct | State/Court: suspension requires showing of good cause or that denial resulted “through no fault” of appellant; Kennedy failed to show this | Denied — no showing that justice demands suspension or good cause existed |
| Applicability of Rule 4(h) exception for lack of notice | Kennedy: satisfied elements because he did not receive notice within 21 days and sought relief | State/Court: Kennedy did not produce credible evidence of nondelivery or prejudice; burden on appellant to prove entitlement | Denied — appellant did not meet burden under Rule 4(h) |
| Effect of successive PCR history on relief | Kennedy: focused on PCR merits; implied prior filings irrelevant to right to reopen appeal | State/Court: noted petition was successive and many claims previously raised, undermining relief | Court considered prior history and found no basis to reopen time |
Key Cases Cited
- Williams v. State, 24 So. 3d 360 (Miss. Ct. App.) (burden to prove lack of timely notice for out-of-time appeal)
- Andrews v. State, 932 So. 2d 61 (Miss. Ct. App.) (timely notice requirement discussion)
- Johnson v. State, 137 So. 3d 336 (Miss. Ct. App.) (review of denial of out-of-time appeal is abuse-of-discretion)
- Edmond v. State, 991 So. 2d 588 (Miss.) (Rules 2 and 4 may be suspended when justice demands to allow out-of-time appeal)
- Barnes v. State, 151 So. 3d 220 (Miss. Ct. App.) (affirming denial where appellant offered only allegations of nondelivery)
- Havard v. State, 911 So. 2d 991 (Miss. Ct. App.) (appellant’s burden to show lack of timely appeal through no fault of his own)
- Evans v. State, 725 So. 2d 613 (Miss.) (pro se pleadings construed liberally)