Johnny Yearby, Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2013-CP-00467-COA

JOHNNY YEARBY, JR. A/K/A JOHNNY APPELLANT
YEARBY

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 01/28/2013
TRIAL JUDGE: HON. FORREST A. JOHNSON JR.
COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: JOHNNY YEARBY JR. (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DISMISSED
DISPOSITION: AFFIRMED - 03/31/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE LEE, C.J., ISHEE AND FAIR, JJ.

ISHEE, J., FOR THE COURT:

¶1. On March 1, 2010, Johnny Yearby pled guilty in the Circuit Court of Adams County

to two counts of uttering forgery. He was sentenced to serve two eight-year terms, running

concurrently. Yearby received credit for time served, and the remaining balance was

suspended. He was placed on post-release supervision and was remanded to the restitution

center for payment of restitution. On June 14, 2011, Yearby was arrested for violating the

terms of his post-release supervision. The circuit court dismissed his motion to reinstate

probation, and he filed the instant appeal.
STATEMENT OF FACTS

¶2. Yearby was charged in a thirteen-count indictment with uttering thirteen forged

checks. On March 1, 2010, he pled guilty in the Circuit Court of Adams County to Counts

II and III of the indictment, while Counts I and Counts IV-XIII were retired. Yearby was

sentenced to serve a term of eight years on Count II and eight years on Count III of the

indictment, to run concurrently, in the custody of the Mississippi Department of Corrections.

He received full credit for time served, and the remaining balance was suspended to be

served on formal reporting post-release supervision for five years and the remaining balance

on informal nonreporting post-release supervision. As a special condition of Yearby’s post-

release supervision, he was remanded to a restitution center for payment of $2,865 in

restitution to Natchez Market and $1,785 to Southside Market, for a total of $4,650, plus all

court costs and fees.

¶3. On June 14, 2011, Yearby was arrested for violating the conditions of his probation.

Specifically, Yearby escaped from the grounds of the Hinds County Restitution Center. A

hearing was held on July 25, 2011, and Yearby admitted that he left the grounds without

permission because he was upset about the amount of money being applied to his court-

ordered payments. Following the hearing, the court was provided with a supplemental report

stating he brought contraband into the jail. As a result, his post-release supervision was

revoked, and he was ordered to serve the remaining balance of his sentence in the custody

of the Mississippi Department of Corrections.

¶4. On April 10, 2012, Yearby filed a “Petition for Writ of Habeas Corpus/Motion to

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Vacate Revocation of Post-Release Supervision,” which was denied by the circuit court in

an order dated July 6, 2012. On September 12, 2012, Yearby filed a request for a writ of

prohibition with the Mississippi Supreme Court, which was denied. Yearby then filed a

motion for reinstatement of probation on October 26, 2012. The circuit court dismissed the

motion in an order entered on February 1, 2013, stating that the matter was not properly

before it, and that such relief should have been filed under the Uniform Post-Conviction

Collateral Relief Act (UPCCRA). Yearby appealed to this Court, and we remanded to the

circuit court to determine whether Yearby “wishe[d] to proceed pro se and ha[d] intelligently

and competently waived the right of counsel or whether he should be appointed counsel for

the appeal.” The circuit court entered an order on April 1, 2013, stating that “the court

[found] that the Defendant’s request never rose to the level requiring an evidentiary hearing

for the court to consider appointment of counsel pursuant to [Mississippi Code Annotated

section] 99-39-23 [Supp. 2014].” Yearby filed a motion to amend designation of the record

and for the appointment of counsel on appeal, which the circuit court denied. Yearby then

filed this appeal arguing that his probation was unconstitutionally revoked.

STANDARD OF REVIEW

¶5. “A trial court’s denial of post-conviction relief will not be reversed absent a finding

that the trial court's decision was clearly erroneous.” Byrom v. State, 978 So. 2d 689, 690

(¶5) (Miss. Ct. App. 2008) (citing Smith v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App.

2002)).

DISCUSSION

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¶6. The UPCCRA specifies which grounds for relief are properly sought in a motion for

post-conviction relief (PCR). Walker v. State, 35 So. 3d 555, 558 (¶11) (Miss. Ct. App.

2010). This list includes claims that an inmate’s “probation, parole[,] or conditional release

was unlawfully revoked.” Id. (quoting Miss. Code Ann. § 99-39-5(1)(h) (Supp. 2009)).

Mississippi Code Annotated section 99-39-23(6) states that “any order dismissing the [PCR]

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.” However, a prisoner may succeed with a successive PCR motion if he is able to

show one of the following:

(1) the existence of newly discovered evidence which would alter the outcome
of the prisoner’s sentence; or, (2) an intervening decision from the United
States Supreme Court or State of Mississippi that would have adversely
affected the outcome of the prisoner's case; or, (3) the prisoner must show that
biological evidence exists which was either not previously tested or could be
subjected to more advanced biological testing and which would demonstrate
by reasonable probability that the petitioner would not have been convicted or
would have received a lesser sentence; or, (4) the prisoner claims that his
sentences have expired or his conditional release was unlawfully revoked; or,
(5) the prisoner claims that the trial court's error infringed on his fundamental
constitutional rights.

Hearron v. State, 68 So. 3d 699, 701 (¶13) (Miss. Ct. App. 2011).

¶7. Yearby filed a “Petition for Writ of Habeas Corpus/Motion to Vacate Revocation of

Post-Release Supervision” on April 10, 2012. It was correctly treated as a PCR motion by

the Circuit Court of Adams County, and the motion was denied on July 6, 2012. Therefore,

that makes Yearby’s current motion for reinstatement of probation Yearby’s second PCR

motion. While it is true that a claim alleging the unlawful revocation of a prisoner’s

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probation falls within the exception to UPCCRA’s procedural bar, “the ordinary principles

of res judicata are still applicable.” Mohead v. State, 2013-CP-01070-COA, 2014 WL

5137557, at *2 (¶8) (Miss. Ct. App. Oct. 14, 2014). Therefore, a defendant may not appeal

any issues upon which the circuit court ruled in considering the first PCR motion. Bosarge

v. State, 141 So. 3d 24, 26 (¶6) (Miss. Ct. App. 2014).

¶8. Upon review of the record, it is clear that the issues which were raised in Yearby’s

current appeal are the same issues that were raised in his PCR motion that was filed on April

10, 2012. In both motions, Yearby claims that his probation was unlawfully revoked, that

he was not informed of the probation violation against him, that he was denied proper notice

of his preliminary hearing, and that he was denied his due-process rights in the final

revocation hearing. The circuit court addressed each of these allegations and dismissed them

in its order dated July 6, 2012.

¶9. The instant appeal rose from the circuit court’s dismissal of Yearby’s motion for

reinstatement of probation. In dismissing the motion, the circuit court stated that the motion

was not properly before it and that such relief should be requested under the UPCCRA.

While we agree that the motion should be dismissed, we are affirming the dismissal on other

grounds. This Court will affirm a trial court’s decision on appeal where the correct result is

reached, even when we disagree with its reasoning in reaching that result. Carothers v. State,

152 So. 3d 277, 282 (¶14) (Miss. 2014) (citing Smith v. State, 25 So. 3d 264, 273-74 (¶28)

(Miss. 2009)). We find that the circuit court's dismissal of Yearby’s PCR motion was the

correct result; however, we find that the motion was barred by res judicata.

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¶10. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO ADAMS COUNTY.

LEE, C.J., GRIFFIS, P.J., BARNES, ROBERTS, CARLTON, MAXWELL AND
FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE
WRITTEN OPINION. IRVING, P.J., CONCURS IN PART AND IN THE RESULT
WITHOUT SEPARATE WRITTEN OPINION.

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