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Avery v. State

Court of Appeals of Mississippi

January 29, 2019

WILLIAM ANTONIO AVERY A/K/A WILLIAM A. AVERY A/K/A WILLIAM KEN AVERY A/K/A WILLIAM A. KEN AVERY A/K/A KEN A/K/A KEN AVERY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/03/2017

          LAUDERDALE COUNTY CIRCUIT COURT, HON. LESTER F. WILLIAMSON JR. JUDGE.

          ATTORNEY FOR APPELLANT: WILLIAM ANTONIO AVERY (PRO SE)

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH.

         EN BANC.

          WESTBROOKS, J.

         ¶1. William A. Avery appeals the denial of his postconviction relief (PCR) motion challenging the revocation of his post-release supervision. Finding no error, we affirm.

         FACTS AND PROCEDURAL HISTORY

         ¶2. On June 20, 2003, Avery pleaded guilty to possession of methamphetamine in Lauderdale County Circuit Court in cause number 645-02. Avery was sentenced to a term of fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with 10 years suspended, five years to serve, followed by five years of reporting probation. In 2004, Avery was granted conditional parole and released. In 2006, Avery's conditional parole was revoked on the basis of "sale of cocaine and possession of cocaine with intent to deliver," and he was taken back into custody. In 2007, Avery was released once again, this time on earned-release supervision.

         ¶3. On June 8, 2009, Avery was charged with the sale of cocaine within 1, 500 feet of a church in cause number 691-06. Avery pleaded guilty and was sentenced "to serve a term of thirty years in the custody of the [MDOC] with twenty-nine years and three hundred fifty-nine days of such sentence suspended and five years reporting post-release supervision under the supervision of the [MDOC], to be followed by five years of non-reporting post-release supervision." The circuit court ordered that the sentence in cause number 691-06 run consecutively with the sentence in cause number 645-02, and the court ordered the probation and post-release supervision terms run concurrently.[1] As part of Avery's plea agreement, his probation in cause number 645-02 was not revoked and a charge of possession of cocaine with intent to distribute was dismissed. Furthermore, according to our records, no petition to revoke his probation was filed as a result of Avery's arrest in cause number 691-06.

         ¶4. A little over a year later, while concurrently on probation for his conviction in cause number 642-02 and on post-release supervision for 691-06, Avery was charged with the sale of cocaine and felony fleeing in cause number 439-10. As a result, the trial court found that Avery had violated the terms of his probation and post-release supervision. On October 13, 2010, Avery's probation in cause number 645-02 and his post-release supervision in cause number 691-06 were revoked.

         ¶5. Avery was ordered to serve the ten years suspended in cause number 645-02 and received two-hundred and fifty days of credit for time served. Additionally, Avery was required to serve the remainder of his sentence in cause number 691-06. Avery also was sentenced to sixty years for the sale of cocaine and five years for felony fleeing in cause number 439-10, to be served concurrently. Avery is now serving a total of ninety-nine years and three hundred fifty-nine days for the convictions in cause numbers 645-02, 691-06, and 439-10.

         ¶6. Avery has an extensive history of appearing before this Court. In 2010, Avery appealed his conviction in cause number 439-10, filing a motion for a judgment notwithstanding the verdict or, in the alternative a new trial. The circuit court denied his motion, and this Court affirmed. See Avery v. State, 119 So.3d 329 (Miss. Ct. App. 2012). In March 2011, Avery filed his first PCR motion claiming that the trial court imposed a sentence exceeding the sentence set forth in his guilty-plea petition in violation of his constitutional protection against double jeopardy. Avery also stated that his counsel rendered ineffective assistance by failing to object to the trial court's imposition of his "illegal sentence" and that he entered an unknowing, unintelligent, and involuntary guilty plea. The circuit court denied Avery's motion, and this Court affirmed. See Avery v. State, 95 So.3d 765, 766 (Miss. Ct. App. 2012). Also in March 2011, Avery alleged that his defense counsel's performance was deficient and that he was denied a right to a speedy trial. This Court found no merit to his claims. See Avery v. State, 102 So.3d 1178 (Miss. Ct. App. 2012).

         ¶7. In Avery's third PCR motion, in 2014, Avery argued that he was denied due process when the trial court allegedly misled him concerning the consequences of his guilty plea regarding his sentence in violation of Rule 8.04(A)(4)(b). This Court found Avery's PCR motion to be time-barred, successive, and substantively without merit, affirming the circuit court's denial. See Avery v. State, 179 So.3d 1182 (Miss. Ct. App. 2015). Additionally, in 2014, Avery appealed a summary dismissal of his second PCR motion. Avery stated that he received ineffective assistance of counsel prior to and during his guilty plea. This Court ...


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