COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 08/22/2013. TRIAL JUDGE: HON. MARGARET CAREY-MCCRAY. TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POST-CONVICTION COLLATERAL RELIEF.
BRIAN WILLIAMS, APPELLANT, Pro se.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LISA L. BLOUNT.
BEFORE GRIFFIS, P.J., MAXWELL AND FAIR, JJ. LEE, C.J., IRVING, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL AND FAIR, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
¶1. Brian Williams appeals the summary dismissal of his third motion for post-conviction collateral relief (PCCR). Because we find his motion is successive, not excepted from the procedural bar, and without merit, we affirm the circuit court's dismissal.
¶2. Williams was indicted in Sunflower County Circuit Court, along with other individuals, in a multi-count indictment, for offenses involving robbery at a bar. In October 2009, he pled guilty to one count of armed robbery, in violation of Mississippi Code Annotated section 97-3-79 (Rev. 2006), and one count of aggravated assault in violation of Mississippi Code Annotated section 97-3-7(2) (Rev. 2006). He was sentenced to concurrent terms of eighteen years on each charge, with five years suspended and thirteen years to serve, followed by five years of post-release supervision. His first PCCR motion was considered in Williams v. State, 98 So.3d 1090 (Miss.Ct.App. 2012), where we affirmed the denial of his PCCR motion that alleged speedy-trial violations. His second PCCR motion was considered in Williams v. State, 110 So.3d 840 (Miss.Ct.App. 2013), where we affirmed the denial of his second PCCR motion, which challenged the voluntariness of his guilty plea and ineffective assistance of counsel due to an alleged inadequate factual basis for the plea.
¶3. Williams filed his third and most recent PCCR motion on July 23, 2013. In that motion, Williams alleged that his indictment was defective because it failed to allege all the essential elements of armed robbery and aggravated assault, and that his attorney was ineffective for failing to challenge these defects. The circuit court summarily dismissal the motion without an evidentiary hearing. The court held that the motion was procedurally barred as a successive writ under Mississippi Code Annotated section 99-39-23(6) (Supp. 2013).
¶4. " We review the dismissal of a PCR motion under an abuse-of-discretion standard. We will only reverse if the circuit court's decision was clearly erroneous. We review questions of law de novo." Williams, 110 So.3d at 842 (¶ 11) (internal citation omitted). Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), an order " denying relief . . . is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article." Miss. Code Ann. § 99-39-23(6). Under limited circumstances, a successive writ may be permitted. " When a subsequent PCR motion is filed, [t]he burden falls on the movant to show he has met a statutory exception. Errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA. But mere assertions of constitutional-rights violations do not suffice to overcome the procedural bar." Williams, 110 So.3d at 843 (¶ 15) (internal citations and quotation marks omitted).
¶5. In this motion, Williams claimed that his motion survives any procedural bars because it alleges the indictment was defective because it failed to list the essential elements of the crimes to which he pled guilty. Williams claims that his armed-robbery count failed to contain the elements of armed robbery. This grammatically imperfect count of the indictment read:
That Brian Williams [and three other named individuals in Hinds County] . . . on or before August 31, 2006, in and upon David Gardner did unlawfully, wilfully and feloniously make an assault and they, the said Brian Williams [and the three other named individuals] did then and there by the exhibition of a deadly weapon, to-wit: a gun, unlawfully, wilfully and feloniously put in bodily fear of immediate injury to his person, and money of the personal property of All The Marbles of the total and aggregate value of more than one dollar from the presence or from the person ...