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Thomas v. State

Court of Appeals of Mississippi

June 30, 2015

ALVIN THOMAS III, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 04/17/2014. TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO. TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF SUMMARILY DISMISSED.

ALVIN THOMAS III, APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: JEFFREY A. KLINGFUSS.

BEFORE IRVING, P.J., ROBERTS AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.

Page 979

NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF

ROBERTS, J.

[¶1] Following the entry of Alvin Thomas III's guilty plea to one count of armed robbery and sentence of thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty-five years to serve and five years of post-release supervision (PRS), Thomas filed a motion for post-conviction relief (PCR) on March 4, 2014. The circuit court summarily dismissed Thomas's motion, and Thomas appeals the circuit court's summary dismissal. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

[¶2] A grand jury indicted Thomas on four counts of burglary of a dwelling and one count of armed robbery, all stemming from incidents that occurred in November 2011. Thomas elected to enter an open plea of guilty to one count of armed robbery. The four remaining counts of burglary of a dwelling were dismissed. The Pearl River County Circuit Court accepted Thomas's guilty plea on July 8, 2013, and it sentenced Thomas, on July 19, 2013, to thirty years in the custody of the MDOC, with twenty-five years to serve and five years of PRS.

[¶3] Thomas filed his PCR motion on March 4, 2014, which the circuit court summarily dismissed on April 21, 2014. Thomas appeals, and he raises the following issues on appeal:

I. That the trial court erred in failing to find that . . . Thomas was denied due process [of] law to a fundamental constitutional violation where [the] trial court failed to specify that Thomas was being sentenced pursuant to Miss[issippi] Code Ann[otated section] 47-5-138 [(Supp. 2014)] since the earned time scheme is not applicable where Thomas is not eligible for parole pursuant to Miss[issippi] Code Ann[otated section] 47-5-13[9(1)](e) [(Rev. 2011)]. The order of the trial [c]ourt is illegal where it fails to refer to or contain Miss[issippi] Code Ann[otated section] 47-5-139

Page 980

[(Rev. 2011)]. Such failure constitutes plain error and a fundamental constitutional violation when such error has the effect of shifting the sentence from a sentence under [Mississippi Code Annotated section] 47-7-34 [(Supp. 2014)] to a totally mandatory sentence in disregard of the language under Miss[issippi] Code Ann[otated section] 47-5-139[(1)](e). The [trial c]ourt failed to specify that Thomas should be eligible for [a] sentence reduction after serving the first [ten] years.
II. That the trial court erred in failing to find that . . . [Thomas] suffered a violation of his [Fifth Amendment and Fourteenth Amendment] rights under the United States Constitution as well as the Constitution of the State of Mississippi where [the] trial court convicted . . . [Thomas] on [the] charge [of armed robbery] and plea of guilty without advising [Thomas] of his [c]onstitutional [r]ight to call witnesses in his defense at trial or that he would enjoy the right to the assistance of counsel at trial. The [trial] court therefore failed to comply ...

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