Wаlter B. HENLEY, Appellant, v. STATE of Mississippi, Appellee.
No. 97-CP-01195-COA.
Court of Appeals of Mississippi.
August 24, 1999.
749 So. 2d 246
Office of the Attorney General by Dewitt T. Allred, III, Attorneys for Appellee.
BEFORE KING, P.J., PAYNE, AND THOMAS, JJ.
THOMAS, J., for the Court:
¶ 1. Walter B. Henley appeals the denial of his post-conviction relief raising the following issues as error:
I. WHETHER THE TRIAL COURT ERRED IN SENTENCING THE PETITIONER TO SERVE FOUR TEN YEAR SENTENCES CONCURRENTLY ON FOUR COUNTS OF THE HIS SIX COUNT INDICTMENT, WHERE THE TRIAL COURT HAD PREVIOUSLY SENTENCED THE PETITIONER‘S CO-DEFENDANT TO SERVE SIX YEARS ON ONE COUNT OF HIS SIX COUNT INDICTMENT.
II. WHETHER THE TRIAL COURT ERRED IN SENTENCING PETITIONER TO FOUR TEN YEAR SENTENCES OF HIS SIX COUNT INDICTMENT IN VIOLATION OF DOUBLE JEOPARDY.
Finding no error, we affirm.
FACTS
¶ 2. Henley and his co-defendant, Donald E. Yarbrough, were each charged in a six count indictment for the armed robbery of the Pizza Hut restaurant in Columbus, Mississippi and five individuals. Henley pled guilty on February 27, 1995 to counts one, two, four, and five. The remaining two counts, three and six, were dropped. Henley received four separate ten year sentences for each of the four counts, to be served concurrently, in the custody of the Mississippi Department of Corrections. Yarbrough had previously pled guilty to one count of his six count indictment on December 5, 1994, and received a six year sentence to run consecutively with any sеntence he was presently serving. The remaining five counts against Yarbrough were dropped.
¶ 3. On July 28, 1995, Henley, pro se, filed a motion requesting documents from the court, but set forth nо grounds for obtaining the documents requested. The lower court denied this request in an order entered on August 23, 1995. On August 18, 1996, Henley, pro se, filed a motion which was styled “Motion to Review Sentеnces.” This motion was dismissed on August 22, 1996. A second motion styled in the same manner as the August 18, 1996 motion was filed on October 23, 1996 and was denied on November 22, 1996. A third motion was filed on June 30, 1997 styled “The Petitiоner‘s Petition for Post-Conviction Relief.” The lower court entered an order denying Henley‘s petition and imposed monetary sanctions in the amount of $250 against Henley for repeatedly filing frivolous and repetitive petitions and motions. It is from this denial that Henley now appeals.
ANALYSIS
I.
WHETHER THE TRIAL COURT ERRED IN SENTENCING THE PETITIONER TO SERVE FOUR TEN YEAR SENTENCES CONCURRENTLY ON FOUR COUNTS OF THE HIS SIX COUNT INDICTMENT, WHERE THE TRIAL COURT HAD PREVIOUSLY SENTENCED THE PETITIONER‘S CO-DEFENDANT TO SERVE SIX YEARS ON ONE COUNT OF HIS SIX COUNT INDICTMENT.
¶ 4. Henley argues that the trial court erred in sentencing him to sеrve four
¶ 5. The present issue is procedurally barred.
Failure by a prisoner to raise objections, defenses, claims, questions, issues, or errors either in fact or in law which were capable of determinatiоn at trial and/or on direct appeal, regardless of whether such are based on the laws and the Constitution of the state of Mississippi or of the United States, shall cоnstitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver.
¶ 6. In addition, the use of
Direct appeal shall be the principle means of reviewing all criminal convictions and sentences, and the purpose of this chapter is to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal. See also Williams v. State, 669 So. 2d 44, 52 (Miss.1996) (holding Post-Conviction Collateral Relief Act provides a procedure limited in nature and relief is not granted upon facts and issues which could have or should have been addressed at trial or on appeal); Cole v. State, 666 So. 2d 767, 772-73 (Miss.1995) (holding that post-conviction relief does not lie for facts and issues which were litigаted at trial or on direct appeal).
¶ 7. In the present case, Henley neither objected nor attempted to address the issue of disparity of sentences between himself and Yarbrough during his plea and sentencing, nor directly appealed the same. Henley, therefore cannot now complain on appeal аn issue which was capable of being addressed and litigated before the trial court during his plea and sentencing.
¶ 8. Notwithstanding the procedural bar, Henley has failed to present argument from which this Court can find error. Both Henley and Yarbrough were charged in a six count indictment for armed robbery. However, Henley pled guilty to four of his six counts while Yаrbrough pled guilty to only one of his six counts. We note that both defendants, as part of their plea negotiations, were offered the opportunity to coopеrate with the prosecution but refused. Every criminal proceeding presents its own individual strengths and weaknesses. This is true despite the fact that two defendants shared equally in planning and committing the crime as charged. We further note that evidentiary problems present in the case against Yarbrough were not present in the case against Henley, as was argued by the State during Henley‘s sentencing.
¶ 9. Nevertheless, the fact remains that Henley pled guilty to four separate counts of armed robbery of his six count indictmеnt, while his co-defendant, Yarbrough, only pled guilty to one count of his six count indictment. Henley received four ten year sentences to be served concurrently while Yarbrough received a six year sentence. We do not see, given the number
II.
WHETHER THE TRIAL COURT ERRED IN SENTENCING PETITIONER TO FOUR TEN YEAR SENTENCES OF HIS SIX COUNT INDICTMENT IN VIOLATION OF DOUBLE JEOPARDY.
¶ 10. Henley argues that his convictions on the four armed robbery counts violates double jeopardy. Henley asserts that only one armed robbery occurred rather that six separate robberies and that there were in actuality six separate victims under one set of operative circumstances and facts. The State responds that Henley failed to raise this issue during his plea and sentencing and is therefore procedurally barred from raising the issue on appeal.
¶ 11. The procedural bar in Henley‘s previous assignment of error is likewise applicable to the instant assignment. Failure to raise facts and issues which could have or should have been addressed at trial or on direct appeal constitutes waiver and is treated as a procedural bar on a post-conviction relief appeal.
¶ 12. Notwithstanding the procedural bar, Henley‘s argument that only one crime of armed robbery was committed against six separate and distinct victims under one set of operative circumstances and facts is without merit. Mississippi has long recognized that separate offenses, though committed under a сommon nucleus of operative fact, does not present a legal impediment to multiple prosecutions under the double jeopardy clause of both thе federal and the state constitutions. Ohio v. Johnson, 467 U.S. 493, 498 (1984); Lee v. State, 469 So. 2d 1225, 1229 (Miss.1985). In the instant case, Henley and his co-defendant not only committed armed robbery against the Pizza Hut restaurant, but also robbed five individuals, рlacing each of them in immediate fear of injury with a deadly weapon and depriving each of them of his or her personal property. Under these circumstanсes, Henley‘s six count indictment charging six separate crimes of armed robbery against multiple victims, despite their common nucleus, is indicative of Henley‘s intent to rob each person and therefore, multiple convictions or counts for multiple victims do not violate Henley‘s protection under double jeopardy. See generally Lee v. State, 469 So. 2d 1225 (Miss.1985); Berry v. State, 195 Miss. 899, 16 So. 2d 629 (1944). In addition to the procedural bar, this assignment of error is also without merit.
¶ 13. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT OF DENIAL OF POST-CONVICTION RELIEF AND IMPOSITION OF SANCTIONS IS AFFIRMED. COSTS OF THIS APPEAL ARE TAXED TO LOWNDES COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, DIAZ, IRVING, LEE, MOORE, AND PAYNE, JJ., CONCUR.