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Vitela v. State

Court of Appeals of Mississippi

July 21, 2015

TOMMY VITELA, SR. A/K/A TOMMY VITELA A/K/A TOMAS VITELA APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

Date 06/30/2014

Court From Which Appealed: Lauderdale County Circuit Court HON. LESTER F. WILLIAMSON JR. Trial Judge:

Attorney For Appellant: Tommy Vitela sr. (pro se)

Attorney For Appellee: Office Of the Attorney General by: Laura H. Tedder

BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

GRIFFIS, P.J.

¶1. On November 8, 2005, Tommy Vitela was indicted for sexual battery of a minor in violation of Mississippi Code Annotated section 97-3-95(2) (Rev. 2014). Vitela submitted an Alford guilty plea to the downgraded charge of lustful touching. See North Carolina v. Alford, 400 U.S. 25, 37 (1970) (defendant can plead guilty to crime and consent to prison sentence without admitting to participation in crime itself). On March 24, 2008, the circuit court sentenced Vitela to eight years, suspended, and four years of post-release supervision (PRS), and ordered him to pay a fine.

¶2. During his PRS, Vitela was indicted for sale and possession of hydrocodone and acetaminophen with intent to distribute. Vitela pleaded guilty to the charge of the sale of hydrocodone and acetaminophen. The circuit court sentenced Vitela to fifteen years, with ten years suspended, five years to serve, and three years of PRS. Also, Vitela signed an agreed order for the revocation of his suspended sentence from the 2008 conviction, and he received an additional eight years to serve. The circuit court entered the orders and sentenced Vitela on August 24, 2010.

¶3. On January 22, 2014, Vitela submitted his petition for post-conviction collateral relief (PCCR). In his petition, Vitela asserted four grounds for relief: an involuntary plea in 2008, ineffective assistance of counsel in 2010, an illegal sentence from the revocation in 2010, and an illegal sentence for his 2010 conviction. Vitela also claimed that each of these grounds of relief affected his fundamental constitutional rights, which excepted his PCCR petition from the procedural time-bar under Mississippi Code Annotated section 99-39-5(2) (Supp. 2014).

¶4. On June 30, 2014, the circuit court dismissed Vitela's petition as time-barred. The circuit court further found Vitela's PCCR petition was procedurally improper in that Vitela sought relief from both his 2008 and 2010 convictions. Though the circuit court ruled the procedural bars applied, the circuit court discussed the merits of his petition. Nevertheless, the circuit court found Vitela failed to meet any statutory or constitutional exception to the procedural bars. It is from this dismissal that Vitela now appeals.

STANDARD OF REVIEW

¶5. "A circuit court's dismissal of a [petition] for post-conviction collateral relief will not be reversed on appeal absent a finding that the trial court's decision was clearly erroneous." Madden v. State, 75 So.3d 1130, 1131 (¶6) (Miss. Ct. App. 2011) (citation omitted). "However, when reviewing issues of law, this Court's proper standard of review is de novo." Id. (citing Brown v. State, 731 So.2d 595, 598 (¶6) (Miss. 1999)).

ANALYSIS

ΒΆ6. We begin with the procedural posture of Vitela's PCCR petition. The Uniform Post-Conviction Collateral Relief Act (UPCCRA) dictates the requirements for PCCR petitions. The UPCCRA limits PCCR petitions "to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is ...


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