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 ...