James Scott Lewis a/k/a James S. Lewis v. State of Mississippi

<font color="red"><b><h2><center> Jackson, MS criminal defense lawyer represented the Defendant charged with seven counts of sexual battery, four counts of statutory rape, and one count of touching a child for lustful<br>
purposes. On June 28, 2004, Lewis pled guilty to statutory rape in Count 1, sexual battery in<br>
Count 4, sexual battery in Count 6, and statutory rape </font/color="red"></b></center></i></i><b><center></i><br>
<b> </b> here </h2></center></b></b> </h2></center></b><center><h2><font><br>
<br>
During the March 2002 term of a grand jury for the First Judicial District of Harrison<br>
County, the grand jury returned an indictment against Lewis, charging him with seven counts<br>
of sexual battery, four counts of statutory rape, and one count of touching a child for lustful<br>
purposes. On June 28, 2004, Lewis pled guilty to statutory rape in Count 1, sexual battery in<br>
Count 4, sexual battery in Count 6, and statutory rape as set out in Count 11. He was<br>
sentenced to serve twenty years in custody for Count 1 and ten years for Count 4 (to run<br>
consecutively to Count 1). For Count 6, he was sentenced to serve twenty years in custody,<br>
and for Count 11, he was sentenced to serve ten years, set to run consecutively to Count 6.<br>
The sentences for Counts 1 and 4 were ordered to run concurrently with the sentences for<br>
Counts 6 and 11, respectively, resulting in thirty years to serve in the custody of the<br>
Mississippi Department of Corrections (MDOC). The sentences were suspended, and Lewis<br>
was placed on post-release supervision for a period of five years. His post-release supervision<br>
was transferred to the State of Georgia, and he was required to register as a sex offender. <br>
¶3. On March 19, 2008, MDOC filed a "Petition to Revoke Probation” to revoke Lewis'<br>
post-release supervision because Lewis had been arrested and charged with the murder of his<br>
wife in Georgia. Lewis subsequently pled guilty to voluntary manslaughter and was<br>
sentenced to serve fifteen years in the custody of the Georgia Department of Corrections. <br>
¶4. Upon completion of his sentence in Georgia, Lewis was returned to Mississippi, and<br>
his revocation hearing was conducted on April 9, 2020. Lewis, who was represented by<br>
counsel at the hearing, was found to have violated the terms of his post-release supervision <br>
due to his Georgia felony conviction.1<br>
As a result of his revocation, Lewis was sentenced to<br>
serve a total of twenty-six years in MDOC's custody. The "Amended Order” provided that<br>
"The Defendant shall receive credit for any and all Time Served on these charges including<br>
credit for time served since the placing of a detainer in favor of the State of Mississippi, as<br>
determined by the Department of Corrections.”<br>
1<br>
The transcript of the revocation hearing is not a part of the record on appeal.<br>
2<br>
¶5. Lewis filed a PCR motion not to challenge his revocation, but to challenge his 2004<br>
guilty plea. Lewis contended:<br>
I plead guilty to a crime without the knowledge of exculpatory evidence that<br>
was and is material to my case. The evidence being a positive syphilis result<br>
on a sexual assault kit that was in the possession of MDCPS and withheld from<br>
the defense prior to the plea agreement.<br>
Lewis argues that had he known that C.P., one of the victims listed in his indictment, tested<br>
positive for syphilis, he would have gone to trial and not pled guilty. Lewis argues that the<br>
State's allegation that "I was sleeping with my wife and both step daughters is and was false<br>
to begin with.” He contends that if that statement were true, all three of them would have<br>
tested positive for syphilis. <br>
¶6. After he pled guilty and was sentenced, Lewis remained in Mississippi until an<br>
"Interstate Compact” could be completed, transferring his supervision to the State of<br>
Georgia. In his PCR motion, Lewis stated that the Mississippi Department of Child<br>
Protection Services (MDCPS) gave custody of "all our kids” to his brother-in-law, Scott<br>
Padgett, and his wife, Linda. Lewis stated that he lived with Scott and Linda Padgett for<br>
almost two months until the compact was completed. According to Lewis, when MDCPS<br>
brought the children to the Padgetts, someone told him about C.P.'s positive syphilis test. The<br>
Padgetts then told Lewis about the positive syphilis test before Lewis left for Georgia.<br>
¶7. Lewis maintains that pursuant to Mississippi Code Annotated section 99-39-5(1)(i)<br>
(Rev. 2020), he is entitled to an out-of-time appeal. He argues that pursuant to section 99-39-<br>
5(1)(e), the positive syphilis test of one of the victims is "evidence of material facts thats<br>
[sic] not previously presented and heard that requires vacation of the conviction and sentence<br>
3<br>
in the Interest of Justice.” The circuit court summarily denied his claim for relief. See Brown<br>
v. State, 362 So. 3d 106, 111 (¶15) (Miss. Ct. App. 2023) ("However, a circuit court may<br>
dismiss a PCR motion without an evidentiary hearing if the movant fails to show that his<br>
claim is 'procedurally alive.'” (quoting Ford v. State, 336 So. 3d 1146, 1150 (¶12) (Miss. Ct.<br>
App. 2022) (collecting cases))).<br>
STANDARD OF REVIEW<br>
¶8. In Thomas v. State, 314 So. 3d 1181, 1183 (¶5) (Miss. Ct. App. 2021), this Court<br>
stated:<br>
"When a circuit court summarily denies or dismisses a request for an<br>
out-of-time appeal, we review the decision for abuse of discretion.” Pulliam<br>
v. State, 282 So. 3d 734, 736 (¶7) (Miss. Ct. App. 2019) (citing Johnson v.<br>
State, 137 So. 3d 336, 338 (¶7) (Miss. Ct. App. 2014)). "Questions of law are<br>
reviewed de novo.” Id. (citing Barnes v. State, 151 So. 3d 220, 221 (¶5) (Miss.<br>
Ct. App. 2014)).<br>
ANALYSIS<br>
¶9. Because Lewis entered pleas of guilty, he cannot directly appeal his convictions. See<br>
Vlasak v. State, 378 So. 3d 465, 466 (¶3) (Miss. Ct. App. 2024); Miss. Code Ann. § 99-35-<br>
101 (Rev. 2020). However, his PCR motion can also be read to challenge the voluntariness<br>
of his 2004 guilty pleas based upon his contention that the State withheld material evidence<br>
that one of the victims tested positive for syphilis. Because his 2023 PCR motion was not<br>
filed within three years of his convictions,2<br>
Lewis bears the burden of proving that his claim<br>
2<br>
Mississippi Code Annotated section 99-39-5(2) requires that a PCR motion for postconviction collateral relief must be filed "within three (3) years after the time for taking an<br>
appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea,<br>
within three (3) years after entry of the judgment of conviction.” <br>
4<br>
is not procedurally barred. Lockett v. State, 614 So. 2d 888, 893 (Miss. 1992). <br>
¶10. In his motion before the circuit court, Lewis argued that he could file his PCR motion<br>
within "the first five (5) years of” his registration as a sex offender. Further, he argued<br>
because he was "locked up” in Georgia after only three and a half years of registration, his<br>
time within which to file a PCR motion was tolled. Lewis cites no authority for this<br>
contention.3<br>
¶11. Without specifically referring to the exceptions to the bar, Lewis contends that he has<br>
newly discovered evidence that entitles him to relief. This may be true pursuant to the<br>
exceptions provided in section 99-39-5(2)(a)(i), but the burden was on Lewis to show that<br>
such evidence was "not reasonably discoverable at the time of trial” and that such evidence<br>
would be "practically conclusive” of his innocence of the charges. Miss. Code Ann. §99-39-<br>
5(2)(a)(i). In a similar case, this Court stated in Clark v. State, 54 So. 3d 304, 307 (¶8) (Miss.<br>
Ct. App. 2011):<br>
In the case of the exception for newly discovered evidence, the petitioner must<br>
prove that he has evidence, not reasonably discoverable at trial, that would<br>
have caused a different result in the conviction or sentence. Miss. Code<br>
Ann. § 99-39-5(2)(a)(i). Clark has failed to provide any evidence, other than<br>
the assertions in his brief, that the police had promised him a lesser sentence<br>
or that knowledge of the alleged promise would have affected the circuit<br>
court's sentencing decision. Furthermore, even if Clark had provided evidence<br>
of a promise of a lesser sentence, such evidence was available to Clark when<br>
he pleaded guilty. Without an applicable exception to the statute of limitations,<br>
Clark's petition is time-barred. This assignment of error lacks merit. <br>
(Emphasis added).<br>
3<br>
On appeal, Lewis challenges the timeliness of his revocation hearing. Because this<br>
issue was not raised in his PCR motion before the trial court, it is barred from consideration<br>
on appeal. See Camphor v. State, 339 So. 3d 205, 207 (¶6) (Miss. Ct. App. 2022).<br>
5<br>
¶12. First, we must address whether the evidence was "reasonably discoverable at trial.” <br>
On February 21, 2003, Lewis' trial counsel filed a "Motion for Preservation of Evidence<br>
Samples.” In this motion, Lewis' counsel specifically referred to the gynecological report on<br>
C.P. and "certain body fluid samples” taken from C.P. during the "victim's gynecological<br>
examination on November 29, 2001.” This was well over a year after the sample was taken<br>
and was sixteen months prior to Lewis entering his pleas of guilty. We find that Lewis has<br>
failed to produce any evidence, other than his assertions in his pleading, that C.P. tested<br>
positive for syphilis or that such evidence was not "reasonably discoverable” before he<br>
entered his pleas of guilty.<br>
¶13. Further, the trial court found that Lewis had failed to provide any documentary or<br>
testimonial evidence to support his claim that a positive syphilis test would have "caused a<br>
different result in the conviction or sentence.” We agree with the trial court that even if it was<br>
shown that C.P. tested positive for syphilis, Lewis has not shown that he would have been<br>
exonerated by such a test alone.<br>
C

<center><h2><font color="green"> We find that Lewis’ PCR motion, filed almost twenty years after his convictions, is time-barred pursuant to section 99-39-5(2) and that he has failed to show that any statutory exception applies to his claim. We affirm the circuit court’s summary denial of Lewis’ PCR</font color="green"></center></h2>