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Avery v. State

Court of Appeals of Mississippi

July 28, 2015

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

DATE OF JUDGMENT: 05/19/2014

LAUDERDALE COUNTY CIRCUIT COURT, HON. LESTER F. WILLIAMSON JR. JUDGE

ATTORNEY FOR APPELLANT: WILLIAM ANTONIO AVERY (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: STEPHANIE BRELAND WOOD

BEFORE IRVING, P.J., BARNES AND FAIR, JJ.

BARNES, J.

¶1. William Avery, appearing pro se, appeals the Lauderdale County Circuit Court's denial of his motion for post-conviction relief (PCR). Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2. In November 2002, Avery was indicted by a Lauderdale County grand jury for one count of possession of 41.5 grams of methamphetamine with intent to distribute, or the lesser crime of possession. Since Avery had been previously convicted under the Mississippi Uniform Controlled Substances Act, the State sought an enhanced sentence under Mississippi Code Annotated section 41-29-147 (Rev. 2013). Avery's charge was also enhanced under Mississippi Code Annotated section 41-29-152 (Rev. 2013) due to his possession of a firearm at the time of the drug offense.

¶3. On May 20, 2003, Avery entered a blind plea of guilty to the crime of possession of 41.5 grams of methamphetamine. On June 20, 2003, the trial judge sentenced Avery to a term of fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with ten of those years suspended, five years to serve, and five years of probation. At some point, Avery was released on parole. In April 2010, Avery violated the conditions of his parole by being charged with sale of cocaine and felony fleeing.[1] In October 2010, the trial court revoked Avery's probation and sentenced him to serve the remainder of his fifteen-year sentence, or ten years, in the custody of the MDOC.

¶4. In March 2011, Avery filed an untimely PCR motion, arguing that his double-jeopardy rights were violated because the trial court imposed a sentence exceeding that in his guilty plea when his probation was revoked, and his counsel rendered ineffective assistance by failing to object to the trial court's imposition of this "illegal sentence." See Avery v. State, 102 So.3d 1178, 1180, 1182 (¶¶7, 12) (Miss. Ct. App. 2012).[2] The trial court denied Avery's motion as time-barred, and Avery appealed. On May 15, 2012, this Court affirmed the trial court's dismissal of his PCR motion, holding it to be time-barred, without statutory exceptions, and without merit. See id. at 1182 (¶¶11, 13). This Court declined to address the issue of whether Avery's guilty plea was voluntary, as he did not raise it before the trial court in his PCR motion.

¶5. In February 2014, Avery filed a second PCR motion, arguing that he was denied due process when the trial court obtained his guilty plea, allegedly in violation of Rule 8.04(A)(4)(b) of the Uniform Circuit and County Court Rules, [3] because "the trial court had [him] sign an agreed 'order accepting plea and setting sentencing' that stated [he] would not be sentenced to serve more than five years, but sentenced [him] to fifteen years on his sentencing date." The trial court denied Avery's PCR motion, finding it untimely, successive, and without merit. Avery now appeals.

STANDARD OF REVIEW

¶6. When reviewing a trial court's denial of a PCR motion, this Court will not disturb the trial court's factual findings unless they are clearly erroneous. Questions of law are reviewed de novo. Moore ...


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