JAMES THOMAS A/K/A JAMES D. THOMAS APPELLANT
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 11/05/2013
OKTIBBEHA COUNTY CIRCUIT COURT TRIAL JUDGE: HON. LEE J. HOWARD
ATTORNEY FOR APPELLANT: JIM DAVIS.
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT.
BEFORE LEE, C.J., BARNES AND MAXWELL, JJ.
FACTS AND PROCEDURAL HISTORY
¶1. On April 17, 2012, James D. Thomas pleaded guilty in the Oktibbeha County Circuit Court to sexual battery. Thomas was sentenced to twenty-seven years to serve in the custody of the Mississippi Department of Corrections (MDOC). On April 4, 2013, Thomas filed a motion for post-conviction relief (PCR). After an evidentiary hearing, the trial court denied his PCR motion. Thomas now appeals, asserting the following issues, which we have reordered for clarity: (1) there was no factual basis to support his plea, (2) his plea was involuntary, (3) he met his burden of proof, (4) his counsel was ineffective, and (5) trial courts have a duty to inform criminal defendants of their parole eligibility before accepting pleas.
STANDARD OF REVIEW
¶2. When reviewing a trial court's denial or dismissal of a PCR motion, we will only disturb the trial court's decision if it is clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review. Hughes v. State, 106 So.3d 836, 838 (¶4) (Miss. Ct. App. 2012).
¶3. Thomas argues that there was no factual basis to support his sexual-battery plea because there was no evidence of penetration. According to Uniform Rule of Circuit and County Court Practice 8.04(A)(3), "[b]efore the trial court may accept a plea of guilty, the court must determine . . . that there is a factual basis for the plea." The trial court must be able to "say with confidence [that] the prosecution could prove the accused guilty of the crime charged . . . ." Corley v. State, 585 So.2d 765, 767 (Miss. 1991).
¶4. "Penetration is the very essence of the crime of sexual battery." Johnson v. State, 626 So.2d 631, 632 (Miss. 1993) (citations omitted). Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014) states that "[a] person is guilty of sexual battery if he or she engages in sexual penetration with . . . [a] child under the age of fourteen (14) years of age, if the person is twenty-four (24) or more months older than the child." Mississippi Code Annotated section 97-3-97 (Rev. 2014) defines "sexual penetration" for the purposes of section 97-3-95 as "cunnilingus, fellatio, buggery or pederasty, any penetration of the genital ...