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Buckley v. State

Court of Appeals of Mississippi

August 20, 2013

Amy BUCKLEY a/k/a Amy Gray Buckley, Appellant
v.
STATE of Mississippi, Appellee.

Page 1172

Amy Buckley, appellant, pro se.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.

Page 1173

FAIR, J.

¶ 1. On August 9, 2008, Amy Buckley, Derrick Rainey, and David Earl Franklin robbed a liquor store at gunpoint in Columbia, Mississippi. All three were indicted by a Marion County grand jury for conspiracy to commit armed robbery under Mississippi Code Annotated section 97-1-1 (Rev.2006), and armed robbery under Mississippi Code Annotated section 97-3-79 (Rev.2006). The first charge was dropped for all three defendants. On April 6, 2009, Buckley pleaded guilty to armed robbery. She was sentenced to twenty-five years, with twenty years to serve and five years of post-release supervision.

¶ 2. On May 13, 2010, Buckley filed a petition in the Marion County Circuit Court for post-conviction relief. On July 18, 2011, the court ordered the State to file a response. Buckley's petition was dismissed on May 23, 2012. Buckley now appeals, arguing that her counsel was ineffective and that she received an excessive sentence. Finding no error, we affirm.

STANDARD OF REVIEW

¶ 3. The trial court may summarily dismiss a PCR petition 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) (Supp.2012). 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).

¶ 4. " When reviewing a [trial] court's decision to [dismiss] a petition for post conviction relief [an appellate court] will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

DISCUSSION

1. Ineffective Assistance of Counsel

¶ 5. To succeed on an ineffective-assistance-of-counsel claim, the petitioner must satisfy the two-pronged test laid out in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), and adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468 (Miss.1984). " First, the defendant must show that counsel's performance was deficient.... Second, the defendant must show that the deficient performance prejudiced the defense." Id. at 477 (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). When a defendant pleads guilty, she " must show unprofessional errors of substantial gravity." Cole v. State, 918 So.2d 890, 894 (¶ 10) (Miss.Ct.App.2006). The defendant must show her counsel's conduct " proximately resulted in [her] guilty plea, and [that] but for counsel's errors, [she] would not have entered the plea." Id.

¶ 6. Buckley contends that her counsel's failure to object to the search warrant in this case constituted ineffective assistance of counsel. This Court has found that a valid guilty plea " waives any evidentiary issue." Jefferson v. State, 855 So.2d 1012, 1014 (¶ 11) (Miss.Ct.App.2003) (citing Bishop v. State, 812 So.2d 934, 945 (¶ 39) (Miss.2002)). This waiver includes her constitutional rights against any unreasonable search or seizure. King v. ...


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