Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Parker v. State

Court of Appeals of Mississippi

January 10, 2017

ATIBA PARKER APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 12/04/2015

         LOWNDES COUNTY CIRCUIT COURT HON. JAMES T. KITCHENS JR., Judge

          ATTORNEY FOR APPELLANT: ATIBA PARKER (PRO SE)

          ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN JASON L. DAVIS

         EN BANC.

          GREENLEE, J.

         ¶1. This is an appeal from Lowndes County Circuit Court where Atiba Parker moved for post-conviction collateral relief (PCR) from his 2009 felony conviction of possession of less than one-tenth of one gram of cocaine and sentence as a habitual offender and subsequent drug offender to eight years' imprisonment in the custody of the Mississippi Department of Corrections (MDOC). The circuit court dismissed Parker's motion because it was time-barred and his sentence was not illegal. On appeal, Parker asserts that his motion is exempt from the time-bar, that his guilty plea was not knowing and intelligent, that his indictment was improperly amended, that his sentence was illegal, and that his counsel's assistance was ineffective. Because his motion is time-barred, his guilty plea was knowingly and intelligently made, his indictment was properly amended, his sentence was legal, and the assistance of his counsel was not ineffective, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2. On August 15, 2006, Parker was indicted for possession of less than one-tenth of one gram of cocaine, in violation of Mississippi Code Annotated section 41-29-139(c)(1)(A) (Rev. 2005). On August 25, 2009, the State filed a motion to amend the indictment to charge Parker as a subsequent drug offender and habitual offender pursuant to Mississippi Code Annotated sections 41-29-147 (Supp. 2016) and 99-19-81 (Rev. 2015), respectively.[1] That same day, Parker filed a petition to enter a plea of guilty. In his signed petition, he stated that he understood the nature of the charge to which he wished to plead guilty, that his plea was knowing and intelligent, that he understood the rights he would waive by pleading guilty, that he knew and understood what the required sentence was for the charge, and that he was pleased with the work of his trial counsel and thought his trial counsel was acting in his best interests. Also on that same day, a plea hearing was held.

         ¶3. At Parker's plea hearing, the circuit court made inquiries into his competency. The circuit-court judge asked Parker if he understood the nature of the charges against him. The circuit judge advised Parker of the constitutional rights he would be waiving by pleading guilty. Further, the judge asked Parker if he understood the nature and consequences of the plea and the minimum and maximum penalties to which he was subject upon a plea of guilty. The judge asked Parker whether he understood the State's motion to amend his indictment. Parker stated that he understood the amendment and that he assented to it. At no time did Parker object to the amendment. At the conclusion of the hearing, the circuit court took judicial notice of Parker's prior convictions and entered an order amending the indictment the same day. The circuit court found that Parker knowingly and voluntarily entered a plea of guilty to possession of cocaine in an amount less than one-tenth of one gram, and that he was a habitual offender and subsequent drug offender. In exchange for Parker's plea, the State agreed to retire two additional indicted charges to the files. Because Parker was found to be a habitual and subsequent drug offender and pleaded guilty to the charge, he was sentenced under the enhancements provided in Mississippi Code Annotated sections 99-19-81 (habitual offender) and 41-29-147 (subsequent drug offender) to eight years' imprisonment in the custody of the MDOC.

         ¶4. On September 21, 2013, Parker moved for PCR. In his motion and supporting memorandum, Parker argued that his motion for PCR should be exempt from the time-bar; that his guilty plea was not knowingly, voluntarily, or intelligently entered; that the trial court's order amending his indictment was untimely and his sentence illegal; and that his trial counsel's assistance was ineffective. On December 7, 2015, the circuit court dismissed Parker's motion for PCR. The circuit court found that Parker's motion was time-barred as it was filed more than three years after Parker's conviction, and did not fall within any exemptions. Further, and notwithstanding the time-bar, the circuit court addressed the alleged illegality of Parker's sentence and found that the claim was without merit. Parker appealed the circuit court's dismissal of his motion for PCR to this Court.

         DISCUSSION

         ¶5. A dismissal of a motion for PCR is reviewed for clear error; however, questions of law are reviewed de novo. Hughes v. State, 106 So.3d 836, 838 (¶4) (Miss. Ct. App. 2012). This court will dismiss a PCR motion unless the movant demonstrates that his claim is procedurally alive and substantially shows that he has been denied a state or federal right. Id.

         ¶6. On appeal, Parker asserts five claims: (1) his motion for PCR is exempt from the time- bar; (2) his guilty plea was not knowingly and intelligently made; (3) his indictment was improperly amended; (4) his sentence ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.