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Lovett v. State

Court of Appeals of Mississippi

August 7, 2018

CLARENCE LOVETT A/K/A CLARENCE LAMAR LOVETT APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 02/13/2017

          PIKE COUNTY CIRCUIT COURT HON. DAVID H. STRONG JR. TRIAL JUDGE

          ATTORNEY FOR APPELLANT: CLARENCE LOVETT (PRO SE)

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

          BEFORE GRIFFIS, P.J., FAIR AND TINDELL, JJ.

          FAIR, J.

         ¶1. Clarence Lovett pled guilty to two counts of sexual battery. The victim was impregnated around her fourteenth birthday, and Lovett-who was in his forties at the time-was established by DNA testing to be the child's father. At the plea hearing, the prosecutor stated the victim would testify Lovett had been having sex with her since she was nine years old. Lovett's plea was made without an agreed recommendation, leaving his sentences up to the circuit court, which ultimately sentenced Lovett to twenty-five years on each count, to be served consecutively.

         ¶2. Lovett filed a motion for post-conviction relief alleging he received constitutionally ineffective assistance of counsel because his attorney failed to file a motion for discovery. Lovett also alleged his attorney "forced" him to plead guilty by telling him it was his "best option" and he "would get one hundred years" otherwise. The circuit court dismissed the motion without an evidentiary hearing, concluding that even if Lovett's claims were true, they did not amount to ineffective assistance of counsel.

         ¶3. The circuit court may summarily dismiss a PCR motion without an evidentiary hearing "[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief." Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the movant must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶9) (Miss. 1999).

         ¶4. Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Id.

         ¶5. To succeed on an ineffective-assistance-of-counsel claim, Lovett must meet both prongs of the test laid out in Strickland v. Washington, 466 U.S. 668, 687 (1984), as adopted by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476-78 (Miss. 1984). "First, the defendant must show that counsel's performance was deficient." Strickland, 466 U.S. at 687. Second, the defendant must "show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694.

         ¶6. As to Lovett's claim regarding the motion for discovery, the circuit court observed in its order dismissing Lovett's PCR motion:

[T]he Fourteenth Judicial District has an open discovery rule, so his attorney's failure to Move for Discovery only demonstrates his attorney's expertise with Fourteenth District practice. It would not be wrong for an attorney to file a Motion for Discovery in the Fourteenth District, but it is wholly unnecessary, and is the exception, rather than the rule.

         ¶7. Furthermore, Lovett does not identify any particular evidence his attorney would have discovered if he had filed the motion, nor does Lovett explain how the failure to file a motion for discovery affected his defense in any other way. Consequently, he fails the second Strickland prong, ...


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