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Avery v. State

Court of Appeals of Mississippi

June 9, 2015

WILLIAM ANTONIO AVERY A/K/A WILLIAM AVERY A/K/A WILLIAM A. AVERY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/19/2014

COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR.

ATTORNEY FOR APPELLANT: WILLIAM ANTONIO AVERY (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL SCOTT STUART

BEFORE LEE, C.J., ROBERTS AND JAMES, JJ.

ROBERTS, J.,

¶1. William Antonio Avery appeals the summary dismissal of his post-conviction-relief (PCR) motion by the Lauderdale County Circuit Court. On appeal, Avery argues that the circuit court's dismissal of his PCR motion was error. Avery claims that he received ineffective assistance of counsel prior to and during his guilty plea. Upon review, we find that Avery's issue is both time-barred and subsequent-writ barred. Furthermore, his claims are without merit. Thus, we affirm the circuit court's ruling.

FACTS AND PROCEDURAL HISTORY

¶2. Avery was indicted in November 2006, in cause number 691-06, for sale of a controlled substance within 1, 500 feet of a church and in cause number 692-06, for possession of a controlled substance with intent to distribute. On January 24, 2007, Avery's privately retained attorney filed a motion to dismiss the indictment for sale of a controlled substance, alleging that the indictment was defective, as it did not sufficiently identify the person to whom Avery allegedly sold the drugs. A few months later, on July 16, 2007, Avery's attorney filed motions to suppress his identification made as a result of a photo lineup and evidence seized based on a warrantless search. In the motion to suppress the lineup, Avery argued that the photo-identification lineup was suggestive in nature and did not incorporate all facts surrounding the arrest. Avery also argued that his warrantless arrest, as well as the subsequent search, violated his Fourth Amendment rights. On April 14, 2008, the circuit court held a hearing on the motion to dismiss and both motions to suppress. At that hearing, the trial judge heard testimony and denied the motion to dismiss, noting that the indictment clearly presented the essential elements of the sale charge and that the use of "confidential informant" rather than the informant's name was not a fatal flaw. After ruling on the motion to dismiss, the court heard Avery's argument on his motions to suppress.

¶3. Officer Greg Lea, who was present at Avery's arrest for the charged offenses, was the only witness examined. First, Avery argued that the photo lineup was impermissibly suggestive, in that law enforcement had presented the confidential informant with his photo in order to confirm that both the informant and law enforcement identified the person shown as Avery, then later asked the informant to identify Avery out of a photo lineup comprised of several men. This, according to Avery, was an impermissible attempt on behalf of law enforcement to bolster the informant's identification of Avery. The court denied the motion to suppress the photo lineup.

¶4. The court next heard arguments pertaining to the suppression of evidence seized as a result of the warrantless search. Avery argued that his warrantless arrest was illegal, as the alleged felony did not occur in the presence of law enforcement, and any evidence obtained as a result of the arrest was fruit of the poisonous tree. Officer Lea again testified about the circumstances surrounding Avery's arrest and the search incident to that arrest. Officer Lea testified that the Lauderdale County Sheriff's Department Narcotics Task Force had received anonymous phone calls that Avery was selling drugs from a home believed to be his. The task force then placed an agent on the home, which belonged to Avery's fiancée, to conduct surveillance, and this agent believed that his observations of the home confirmed the anonymous tips. The task force then observed a man come and go from the house, and this man later agreed to become a confidential informant for the task force. The informant was given two marked $20 bills to use in what is termed a "buy/bust, " in which an informant or undercover officer buys drugs from a suspected dealer, and upon a successful sale, law enforcement immediately moves in and apprehends the alleged dealer. Officer Lea testified that, in his experience, law enforcement immediately moves to make an arrest of the person selling controlled substances in order to recover the buy money given to the informant or undercover agent. Officer Lea also testified that in some circumstances, like Avery's, they move in immediately in order to secure the location for a search warrant and to ensure the suspect has not left the location or destroyed the evidence.

¶5. Officer Lea testified that in this particular situation, law enforcement could not take the time to present evidence of the anonymous calls, the officer's observations, and the confirmed purchase of drugs by the confidential informant to a magistrate to get a search warrant because they feared Avery would have left the location in the time necessary to get the warrant processed. Officer Lea stated that in his eleven years of experience as a law enforcement officer, moving in for an arrest without a warrant was the safest course of action to preserve the evidence and crime scene. Upon cross-examination, Officer Lea testified that when law enforcement initially made contact with their informant, he had just left Avery's home and had purchased drugs. At that time, Officer Lea did not believe they had sufficient probable cause to get a search warrant for the property or an arrest warrant for Avery because the informant was not positive that he had purchased the drugs from Avery. The task force then convinced the informant to conduct another purchase from the same man, whom they believed to be Avery. After the planned purchase, the informant left the house, and officers confirmed with him that he had purchased drugs from Avery. When Avery exited the house shortly thereafter, law enforcement moved in and arrested him. Upon searching him, two $20 bills were found, matching those given to the informant by law enforcement. Law enforcement took Avery into custody, and a judge signed an arrest warrant the following day. After hearing Officer Lea's testimony as to the above facts, the trial judge announced that he would take the motion to suppress under advisement.

¶6. On June 8, 2009, over a year after the motion hearings, Avery entered a guilty plea to the charge of sale of a controlled substance within 1, 500 feet of a church in cause number 691-06. Though a transcript of the plea hearing is not included in the record, Avery's plea petition indicates that this plea was a "best interest" plea, made pursuant to North Carolina v. Alford, 400 U.S. 25 (1970).[1] On his plea petition, Avery initialed beside the section enumerating the constitutional rights he was waiving by pleading guilty. He acknowledged through signing the petition that he understood the minimum and maximum penalties for the crimes, and he understood that the judge did not have to follow the State's recommendation. He did not claim to be suffering from any mental disease or defect. He initialed beside the paragraph stating, "I believe that my lawyer has done all that anyone could do to counsel and assist me, and I am satisfied with the advice and help he has given me." Avery swore under oath that his plea petition was true. Avery's attorney wrote the following on the plea petition, by which Avery initialed and later acknowledged through his signature:

I am charged with sale of cocaine to a [confidential informant] on 8-3-06 in [Lauderdale County, Mississippi]. I have reviewed the discovery with my attorney and my family. I have reviewed the DA['s] plea offer and feel it is in my best interest to accept the plea offer rather than risk additional consequences of a ...

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