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Jones v. State

Court of Appeals of Mississippi

April 4, 2017

LONZELL JONES A/K/A LONZELL JONES, JR. A/K/A LONZELLE JONES APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/16/2016

         WINSTON COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: LONZELL JONES (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE

          BEFORE IRVING, P.J., CARLTON AND WESTBROOKS, JJ.

          CARLTON, J.

         ¶1. Lonzell Jones pleaded guilty to one count of sale of cocaine on May 7, 2013. On July 30, 2015, Jones filed a motion for postconviction relief (PCR), which the trial court summarily denied. Jones now appeals, arguing that the trial court erred in denying his PCR motion because his counsel was ineffective and his indictment was defective. After our review of the record, we affirm the trial court's denial of Jones's PCR motion.

         FACTS

         ¶2. On March 26, 2013, a Winston County grand jury indicted Jones with two counts of sale of cocaine. The indictment charged Jones as a second drug offender and as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev. 2015). On May 7, 2013, Jones pleaded guilty to a single count of sale of cocaine contained in Count II of the indictment.[1]

         ¶3. The record reflects that, upon entering his guilty plea, Jones signed a plea petition wherein Jones confirmed that he offered his plea of guilty "freely and voluntarily and of [his] own accord[, ] and with [a] full understanding of all the matters set forth in the indictment and . . . in [the plea] petition." Jones also wrote on the plea petition: "I am guilty of sale of cocaine[, ] count 2." The trial court then sentenced Jones to serve a term of thirty years in the custody of the Mississippi Department of Corrections (MDOC), with eight years of postrelease supervision after the completion of twenty-two years of incarceration.

         ¶4. Jones filed a PCR motion on July 30, 2015, claiming that: (1) the indictment was defective; (2) he was denied effective assistance of counsel; (3) the trial court, his attorney, and the district attorney's office committed plain error; and (4) a fatal variance existed between the indictment and the proof against him. The trial court denied Jones's PCR motion, finding the motion frivolous, and ordered that "sixty (60) days of h[is] earned time credit should be forfeited pursuant to Mississippi Code Annotated [s]ection 47-5-138 [(Rev. 2015)]." Jones now appeals the trial court's denial of his PCR motion.

         STANDARD OF REVIEW

         ¶5. "When reviewing a trial court's denial or dismissal of a motion for PCR, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review legal conclusions under a de novo standard of review." Chapman v. State, 167 So.3d 1170, 1172 (¶3) (Miss. 2015).

         DISCUSSION I. Defective Indictment

         ¶6. Jones argues that his indictment was defective because it failed to properly charge him with an offense. Jones specifically claims that he was charged with the sale of cocaine, but the indictment failed to contain the amount of cocaine he allegedly sold. Jones further claims that his indictment also failed to contain essential facts-that he sold the cocaine to a confidential informant, and the name of the confidential informant. As set forth in this opinion, Jones's argument lacks merit because the quantity of cocaine sold is not required to be specified in the indictment. See Fair v. State, 93 So.3d 56, 58 (¶7) (Miss. Ct. App. 2012). We now address Jones's claims of error with more specificity.

         ¶7. Although "the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment[, ] . . . [a] guilty plea does not waive an indictment's failure to charge an essential element of the crime[.]" Joiner v. State, 61 So.3d 156, 159 (¶7) (Miss. 2011). Upon review, we recognize that "[a] PCR movant bears the burden of showing he is entitled to relief by a preponderance of the evidence." Ducksworth v. State, 134 So.3d 792, 794 (¶3) (Miss. Ct. App. 2013).

         ¶8. Uniform Rule of Circuit and County Court 7.06 provides that an indictment "shall be a plain, concise[, ] and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation." This Court has held that "[t]he chief objective of an indictment is to provide a defendant fair notice of the crime charged." Davis v. State, 171 So.3d 537, 540 (¶11) (Miss. Ct. App. 2015). "An indictment must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly inform the defendant of the charge against which he must defend, and (3) sufficient facts to enable him to plead double jeopardy in the event of a future prosecution for the same offense." Id. (quoting Gilmer v. State, 955 So.2d 829, 836-37 (¶24) (Miss. 2007)). In Harrison v. State, 722 So.2d 681, 687 (ΒΆ22) (Miss. 1998), the ...


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