OF JUDGMENT: 02/13/2017
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
GRIFFIS, P.J., FAIR AND TINDELL, JJ.
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.
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.
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).
Our review of the summary dismissal of a PCR motion, a
question of law, is de novo. Id.
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.
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.
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,