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Lopez v. State

Court of Appeals of Mississippi

June 6, 2017

MARK STEVEN LOPEZ A/K/A MARK S. LOPEZ A/K/A MARK LOPEZ APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/21/2016

         HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT HON. CHRISTOPHER LOUIS SCHMIDT TRIAL JUDGE

          ATTORNEY FOR APPELLANT: MARK STEVEN LOPEZ (PRO SE)

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

          BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

          ISHEE, J.

         ¶1. Mark Lopez was convicted as a habitual offender in the First Judicial District of the Harrison County Circuit Court. This appeal stems from the circuit court's denial of Lopez's motion for postconviction relief (PCR). Finding no error, we affirm.

         STATEMENT OF FACTS AND PROCEDURAL HISTORY

         ¶2. On July 14, 2014, Lopez was charged with the unlawful transfer of less than ten dosage units of hydrocodone, a Schedule III opioid. Because Lopez had previous felony convictions, he was indicted as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81 (Rev. 2015). On December 11, 2014, Lopez voluntarily entered a plea of guilty, and was thereafter sentenced as a habitual offender to serve a term of four years in the custody of the Mississippi Department of Corrections (MDOC), without the possibility of parole or probation. On December 15, 2015, however, Lopez filed a motion for resentencing, which the circuit court characterized as a PCR motion, pursuant to Mississippi Code Annotated section 99-39-5 (Rev. 2015).

         ¶3. In that motion, Lopez asserted that his sentence should be reduced for the following reasons: (1) he received ineffective assistance of counsel and/or an illegal sentence; (2) he did not satisfy the requirements to be classified as a habitual offender; (3) he completed long-term drug and alcohol treatment, as ordered by the court; and (4) he had served one-fourth of his sentence. Finding no merit to any of the issues raised by Lopez in his motion, the circuit court summarily denied his motion. Lopez timely appealed.

         STANDARD OF REVIEW

         ¶4. "This Court reviews a circuit court's [denial] of a PCR motion for abuse of discretion." Birmingham v. State, 159 So.3d 597, 598 (¶4) (Miss. Ct. App. 2014). "We will only reverse if the circuit court's decision was clearly erroneous." Id. (quoting Williams v. State, 110 So.3d 840, 842 (¶11) (Miss. Ct. App. 2013)). We review questions of law de novo. Id.

         DISCUSSION

         ¶5. To begin, we reaffirm that "[a]n evidentiary hearing is not necessary where the allegations in a [PCR motion] are specific and conclusory." Russell v. State, 44 So.3d 431, 434 (¶6) (Miss. Ct. App. 2010) (citing Cole v. State, 666 So.2d 767, 777 (Miss. 1995)). "The trial court is not required to grant an evidentiary hearing on every [motion] it entertains." Byrne v. State, 30 So.3d 1264, 1266 (ΒΆ7) (Miss. Ct. App. 2010) (citation omitted). Thus, we find at the outset that the circuit ...


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