IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CP-00865-COA
ALBERT L. MCDONALD A/K/A ALBERT LEE APPELLANT
MCDONALD A/K/A ALBERT MCDONALD
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/15/2015
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ALBERT L. MCDONALD (PRO SE)
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
JASON L. DAVIS
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-
CONVICTION RELIEF
DISPOSITION: AFFIRMED: 09/06/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND FAIR, JJ.
FAIR, J., FOR THE COURT:
¶1. After an argument with his girlfriend, Albert McDonald shot her. She survived, but
McDonald went on to kill two people and seriously wound two others. In 2005, he pled
guilty to two counts of capital murder, three counts of aggravated assault, three counts of
burglary of a dwelling, and one count of kidnapping. In 2015, he filed a motion for post-
conviction relief contending that he was subjected to double jeopardy, that some of his
indictments were defective, and that he had received ineffective assistance of counsel. The
circuit court dismissed the motion without an evidentiary hearing, finding McDonald’s
claims procedurally barred and without merit. We agree and affirm.
STANDARD OF REVIEW
¶2. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing
“[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior
proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann. §
99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial
showing of the denial of a state or federal right and (2) show that the claim is procedurally
alive. Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999).
¶3. Our review of the summary dismissal of a PCR motion, a question of law, is de novo.
Id.
DISCUSSION
¶4. At the outset, we must address the motion’s failure to comply with the Uniform Post-
Conviction Collateral Relief Act’s requirement that “[a PCR] motion shall be limited to the
assertion of a claim for relief against one (1) judgment only.” Miss. Code Ann. § 99-39-9(2)
(Rev. 2015). “If a petitioner desires to attack the validity of other judgments under which
he is in custody, he shall do so by separate motions.” Id. This is true even when all of the
sentences are imposed in a single sentencing order. Brandon v. State, 108 So. 3d 999, 1004
(¶10) (Miss. Ct. App. 2013). The convictions McDonald challenges in his motion stem from
several indictments and lower court cause numbers. Still, we have held that such error is
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harmless when the motions are found to be without merit, as is the case here. See id. at (¶11).
¶5. That being said, McDonald’s motion is also time-barred, as McDonald pled guilty,
the motion was filed outside the three years following the entry of his convictions, and the
motion is not subject to any of the statutory exceptions to the time-bar. See Miss. Code Ann.
§ 99-39-5(2) (Rev. 2015). We will address further issues relating to the time-bar under our
discussion of the underlying merits of each of McDonald’s claims, which we present in the
alternative.
1. Double Jeopardy
¶6. “Double jeopardy consists of three separate constitutional protections: (1) protection
against a second prosecution for the same offense after acquittal, (2) protection against a
second prosecution for the same offense after a conviction, and (3) protection against
multiple punishments for the same offense.” Powell v. State, 806 So. 2d 1069, 1074 (¶8)
(Miss. 2001). We employ the Blockburger test to determine whether a double-jeopardy
violation has occurred; it asks “whether each offense contains an element not present in the
other.” Watkins v. State, 101 So. 3d 628, 532 (¶12) (Miss. 2012) (citing Blockburger v.
United States, 284 U.S. 299, 304 (1932)).
¶7. McDonald argues that his constitutional protection against double jeopardy was
violated by his conviction of two counts of capital murder based on the same underlying
felony – robbery. In this contention, McDonald erroneously assumes that he cannot be
convicted of two counts of capital murder unless there are two separate underlying felonies.
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This is simply not the case because, even assuming the capital murder convictions were
based on the same robbery, each capital murder count contains an element not present in the
other – a separate victim. See Watkins, 101 So. 3d at 532 (¶12). Moreover, although it is
true that each of his indictments only specified the offense as “robbery,” the factual basis as
outlined by the prosecutor for McDonald’s guilty plea, which McDonald admitted under
oath, was for robbery of each of the murder victims, separately, as the encounters with the
victims occurred some time apart.
¶8. McDonald relies on Roland v. State, 98 So. 3d 1032, 1033 (¶1) (Miss. 2012), where
the Mississippi Supreme Court found a double jeopardy violation where a defendant pled
guilty to two counts of capital murder and two counts of robbery, when the robberies were
the felonies underlying the capital murders. McDonald’s case is simply inapposite, as while
his capital murder convictions rely on the underlying felony of robbery, he was not separately
convicted of either robbery.
¶9. Next, McDonald argues that he was convicted of two counts of burglary for the same
house. This argument is based on the fact that the indictments list two of the houses as being
at the same postal address (different owners were specified for each house). At the guilty
plea hearing, the prosecutor stated that these were two separate residences, which were
entered separately, and McDonald admitted these facts when he pled guilty.1 We find no
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In his other arguments in the motion for post-conviction relief, McDonald seems to
admit this; he also contends that the residences were erroneously described in the indictment
and that they, in fact, had separate postal addresses.
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merit to this contention.
¶10. McDonald also contends that two of his convictions for burglary were precluded by
his capital murder convictions, with robbery as the underlying crime. This argument is
without merit, as burglary and robbery are different offenses with different elements.
Burglary contains elements not present in robbery – breaking and entering, intent to commit
a crime therein, etc. See Smallwood v. State, 930 So. 2d 448, 450-51 (¶7) (Miss. Ct. App.
2006).
¶11. Finally, McDonald asserts that he was convicted of two counts that “charge the same
crime and elements.” But it is unclear what he means by this – he points to lower court cause
numbers UK-2005-175 and UK-2005-241 (Count II). UK-2005-175 contains two counts,
the kidnapping and aggravated assault of Denise Spight. Count II of UK-2005-241 charged
McDonald with the aggravated assault of Harold Dye. We see no double jeopardy violation
here.
¶12. We find no merit to McDonald’s double jeopardy arguments.
2. Indictments
¶13. McDonald next makes various challenges to his indictments.
¶14. First, he argues that his burglary indictments failed to adequately accuse him of an
underlying offense, which was larceny. His complaint seems to be that the word “larceny”
was not used. However, the indictments did allege that McDonald broke and entered “with
the felonious intent to unlawfully, willfully, and feloniously take, steal and carry away the
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goods, wares, chattels, or merchandise in said dwelling.” This was sufficient. See Pickney
v. State, 192 So. 3d 337, 342 (¶20) (Miss. Ct. App. 2015).
¶15. McDonald also complains that the prosecutor, when stating the factual basis for the
guilty pleas, specified underlying intents for two of the burglary counts that differed from the
ones for which he was indicted. This does appear to be the case – in both indictments,
McDonald was alleged to have broken and entered with intent to commit larceny inside.
However, when the prosecutor gave the factual basis for the convictions, he stated that
McDonald entered one of the houses with intent to murder the occupants, and in the other,
with the intent to evade capture by the police.
¶16. To the extent McDonald argues his indictments were constructively amended by the
substitution of a different intent from the one specified in the indictments, this claim was
waived. “[A] valid guilty plea admits all elements of a formal charge and operates as a
waiver of all non-jurisdictional defects contained in an indictment or information against a
defendant.” Reeder v. State, 783 So. 2d 711, 720 (¶36) (Miss. 2001). “A claim of
constructive amendment . . . is not the equivalent of a charge of a jurisdictional defect.”
United States v. Bieganowski, 313 F.3d 264, 286-87 (5th Cir. 2002). The constructive
amendment claim was waived when McDonald pled guilty.
¶17. As to whether there was a factual basis supporting the intent element of the two
contested burglaries, “the crime of burglary requires the jury to find beyond a reasonable
doubt that the defendant broke and entered the dwelling house of another with the intent to
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commit some crime therein.” Conner v. State, 138 So. 3d 143, 149 (¶14) (Miss. 2014) (citing
Miss. Code Ann. § 97-17-23(1) (Rev. 2006)). There is no doubt that entering a dwelling with
intent to commit the criminal act of shooting the occupants suffices to prove the intent
element of burglary. It is less clear whether “intent to evade capture” does, as the prosecutor
initially articulated it. But the prosecutor’s complete statement removes any doubt – once
inside the house, McDonald laid in wait, and when someone entered, he robbed and
murdered her, taking her keys and vehicle. Since intent to commit a crime inside “may be
proved by circumstantial evidence, and may be inferred from the time and the manner in
which the entry was made, and the conduct of the accused after the entry,” the trial court had
before it a factual basis for concluding that McDonald entered the home with the intent to
commit any one of several crimes inside – theft, robbery, or murder. See Windless v. State,
185 So. 3d 956, 962 (¶11) (Miss. 2015) (citation omitted).
¶18. McDonald also complains that the indictments for aggravated assault were defective
because they omitted an essential element: “or other means likely to produce death or serious
bodily injury.” This is simply not required when, as here, the allegation is that the aggravated
assault was done with a deadly weapon. The statute states in relevant part: “A person is
guilty of aggravated assault if he . . . purposely or knowingly causes bodily injury to another
with a deadly weapon or other means likely to produce death or serious bodily harm.” Miss.
Code Ann. § 97-3-7(2)(a)(ii). The statute employs the disjunctive “or”; in other words, it
criminalizes both aggravated assaults with a deadly weapon and aggravated assaults
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committed with “other means likely to produce death or serious bodily harm.” Id. Only one
of the two is required. In this case, McDonald was alleged to have used a deadly weapon,
a pistol, in each of his aggravated assaults. That was sufficient.
¶19. Next, McDonald complains about a supposed lack of signatures on his indictments.
He claims that his indictment in cause number UK-2005-175 is defective because it was not
signed by the foreman of the grand jury. This claim appears to be based on the copy
McDonald attached to his motion for post-conviction relief as an exhibit, which is missing
its second page. In the actual record from that cause number, the second page is present and
is signed by the grand jury foreman. McDonald also alleges that his waiver of indictment in
cause number UK-2005-241 lacks the signature of the trial judge, but he presents no
authority that this was required. Moreover, even if one or both of these documents were
missing required signatures, McDonald waived the issues by pleading guilty. See Clark v.
State, 54 So. 3d 304, 307-08 (¶9) (Miss. Ct. App. 2011).
3. Ineffective Assistance of Counsel
¶20. McDonald makes various claims that he received ineffective assistance of counsel,
including his allegation that one of his attorneys had a conflict of interest. But for an
ineffective assistance of counsel claim to be excepted from the time-bar under the
fundamental constitutional rights exception, it must concern either: “(1) the right against
double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process
at sentencing; [or] (4) the right not to be subject to ex post facto laws.” Salter v. State, 184
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So. 3d 944, 950 (¶22) (Miss. Ct. App. 2015). We have already addressed and rejected
McDonald’s double jeopardy arguments, and he makes no claims relating to the other
potential avenues for arguing this issue outside of the three-year limitations period. Thus we
find it without merit.
4. Confession
¶21. McDonald lists as a separate issue claimed violations of various constitutional rights
stemming from a coerced confession. These claims are time-barred and barred by
McDonald’s guilty plea. Reeder, 783 So. 2d at 720 (¶36).
¶22. THE JUDGMENT OF THE CIRCUIT COURT OF UNION COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO UNION COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
JAMES, WILSON AND GREENLEE, JJ., CONCUR.
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