185 So. 3d 1081
Miss. Ct. App.2016Background
- In 2003 Ricky Shies pled guilty to two counts of credit-card fraud (2003-0368-CRI) and possession of cocaine (2003-0494-CRI) pursuant to plea agreements.
- The circuit court adjudicated Shies a habitual offender and sentenced him to two consecutive five-year terms for the credit-card fraud counts and a consecutive ten-year term for the cocaine count (total 20 years).
- The indictments and plea paperwork reflected habitual-offender allegations that could support either Mississippi Code §§ 99-19-81 or 99-19-83; the sentencing order stated the court found Shies to be a § 99-19-81 habitual offender.
- Under the credit-card fraud statute (Miss. Code Ann. § 97-19-21), the maximum imprisonment for each count is three years; thus the two consecutive five-year terms exceeded the statutory maximum and were illegal.
- Shies filed a post-conviction relief (PCR) motion in July 2014 claiming his credit-card-fraud sentences were illegal (exempting his PCR from the three-year statute of limitations), requested that time be credited to his cocaine sentence, and alleged ineffective assistance of counsel.
- The circuit court dismissed the PCR as time-barred and without merit; the Court of Appeals found the sentences were illegal but concluded it could not grant the requested relief and rejected the ineffective-assistance claim, so it affirmed.
Issues
| Issue | Shies' Argument | State's Argument | Held |
|---|---|---|---|
| Whether Shies' two 5-year credit-card-fraud sentences were illegal | Sentences exceed statutory maximum (3 years per count); illegal-sentence exception to PCR time bar applies | Benefits from plea (retired counts, avoided greater exposure) preclude relief; motion time-barred | Court: Sentences were illegal (did not conform to penalty statute), so PCR not time-barred, but appellate court cannot grant the requested relief because Shies already served those sentences and reduction cannot be accomplished via PCR here |
| Whether the court may retroactively reduce the expired illegal sentences and credit time to the consecutive cocaine sentence | Requests reduction of credit-card sentences by 2 years each and crediting of that time to cocaine sentence (shorten current custody) | Reduction cannot be granted because the credits would amend sentences already served; defendant reaped benefits of plea | Court: Lacks authority to amend already-served sentences via PCR; cannot grant requested relief |
| Whether Shies received ineffective assistance of counsel | Counsel failed to object, investigate, or file motions; failure prejudiced defense | Claims are conclusory, no specific facts showing deficient performance or prejudice; tactical decisions not second-guessed | Court: Ineffective-assistance claim fails for lack of proof of deficient performance and prejudice |
| Whether Shies had standing / custody to challenge expired consecutive sentences | Challenges expired credit-card sentences while still in custody on a consecutive cocaine sentence; illegal-sentence claim not moot | State argues defendant benefited and cannot attack lenient aspects; also relied on procedural bars | Court: Considers claim on merits (illegal-sentence exception applies); nevertheless denies substantive relief for reasons above |
Key Cases Cited
- Grayer v. State, 120 So.3d 964 (Miss. 2013) (illegal sentence defined as not conforming to statute; illegal-sentence claims not time-barred)
- Hughes v. State, 106 So.3d 836 (Miss. Ct. App. 2012) (illegal-sentence fundamental right exception to PCR time bar)
- Robinson v. State, 849 So.2d 157 (Miss. Ct. App. 2003) (PCR not proper avenue to seek reduction of a sentence already served)
- Edmondson v. State, 17 So.3d 591 (Miss. Ct. App. 2009) (discusses ability to attack expired sentence when serving consecutive sentences)
- Peyton v. Rowe, 391 U.S. 54 (1968) (prisoner serving consecutive sentences is "in custody" under any one of them for habeas purposes)
- Garlotte v. Fordice, 515 U.S. 39 (1995) (consecutive sentences viewed in aggregate; prisoner may attack the conviction underlying the first sentence)
- Graves v. State, 822 So.2d 1089 (Miss. Ct. App. 2002) (defendant cannot accept benefits of an illegal sentence and later complain when advantageous)
- McGleachie v. State, 800 So.2d 561 (Miss. Ct. App. 2001) (similar principle on accepting benefits of illegal sentence)
- McCollum v. State, 81 So.3d 1191 (Miss. Ct. App. 2012) (standards for ineffective-assistance claims)
- Crosby v. State, 16 So.3d 74 (Miss. Ct. App. 2009) (a convicted felon may not quietly enjoy benefits of an illegally lenient sentence and later attack it)
- Rivers v. State, 136 So.3d 1089 (Miss. Ct. App. 2014) (supports proposition that defendant cannot reap benefit of illegal sentence then claim prejudice)