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Lamontay v. State

Court of Appeals of Mississippi

February 28, 2017

LAMONTAY MARSH A/K/A LAMONTAY D. MARSH A/K/A LAMONTAY D'SHAWN MARSH A/K/A MOE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE 01/05/2016

COURT FROM LAUDERDALE COUNTY CIRCUIT COURT HON. JUSTIN MILLER COBB JUDGE.

          ATTORNEY FOR APPELLANT: LAMONTAY MARSH (PRO SE)

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

          BEFORE GRIFFIS, P.J., ISHEE AND GREENLEE, JJ.

          GREENLEE, J.

         ¶1. This is an appeal from Lauderdale County Circuit Court where LaMontay Marsh moved for post-conviction collateral relief (PCR), which was denied. On appeal, Marsh asserts that the circuit court erred because (1) his indictment contained the word "unlawfully" instead of "without authority of law"; (2) he is actually innocent; and (3) his trial counsel's assistance was ineffective. Because (1) the term "unlawfully" is synonymous and interchangeable with the phrase "without authority of law"; (2) Marsh failed to demonstrate that it is more likely than not that no reasonable juror would convict him; and (3) we fail to see that the assistance of Marsh's counsel was ineffective, we affirm the circuit court's denial of Marsh's motion for PCR.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2. On March 21, 2012, Marsh was indicted for capital murder for the killing of Thomas Eugene Tedeschi while engaged in the commission of the felony crime of armed robbery, in violation of Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2006). On November 29, 2012, Marsh entered a guilty plea[1] and, per the recommendation of a plea agreement with the district attorney's office, was adjudged guilty of noncapital murder and sentenced to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections with the possibility of parole.

         ¶3. On July 23, 2015, Marsh moved for PCR. On January 5, 2016, the Lauderdale County Circuit Court denied Marsh's motion for PCR. On January 22, 2016, Marsh appealed the circuit court's decision to this Court.

         DISCUSSION

         ¶4. On appeal, Marsh asserts three errors: (1) his indictment did not contain the words "without the authority of law"; (2) he is actually innocent; and (3) his trial counsel's assistance was ineffective.

          ¶5. We review the denial of PCR for clear error; however, questions of law are reviewed de novo. Ryals v. State, 51 So.3d 974, 975 (¶4) (Miss. App. Ct. 2010).

         I. ...


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