E-Filed Document May 5 2017 13:43:04 2016-CP-01474-COA Pages: 10 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI LYNDON BRITAIN APPELLANT VS. NO. 2016-CP-01474 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: KATY GERBER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104577 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF CONTENTS........................................................ i TABLE OF AUTHORITIES..................................................... ii STATEMENT REGARDING ORAL ARGUMENT................................... 1 STATEMENT OF THE ISSUE.................................................... 1 STATEMENT OF THE CASE AND FACTS......................................... 1 SUMMARY OF THE ARGUMENT............................................... 2 ARGUMENT.................................................................. 2 I. THE CIRCUIT COURT DID NOT ERR IN DISMISSING BRITAIN S MOTION FOR POST-CONVICTION COLLATERAL RELIEF............. 2 CONCLUSION................................................................ 6 CERTIFICATE OF SERVICE.................................................... 7 i
TABLE OF AUTHORITIES Cases Boyd v. State, 155 So. 3d 914 (Miss. Ct. App. 2014)... 3 Garcia v. State, 14 So. 3d 749 (Miss. Ct. App. 2009)... 3, 4 Jones v. State, 203 So. 3d 657 (Miss. Ct. App. 2016)... 2, 3 Pittman v. State, 192 So. 3d 1147 (Miss. Ct. App. 2016)... 4 Rowland v. State, 42 So. 3d 503 (Miss. 2010).... 2 Strickland v. Washington, 466 U.S. 668 (1984)... 4 Williams v. State, No. 2015-CP-01911, 2017 WL 347577 (Miss. Ct. App. Jan. 24, 2017)... 3 Statutes Mississippi Code Annotated section 99-39-5(2)... 2 ii
STATEMENT REGARDING ORAL ARGUMENT The State of Mississippi submits that the issue raised by the Appellant involves well-settled principles of law. Due to the straightforward application of the law to the facts in this case, the State of Mississippi does not request oral argument. STATEMENT OF THE ISSUE I. THE CIRCUIT COURT DID NOT ERR IN DISMISSING BRITAIN S MOTION FOR POST-CONVICTION COLLATERAL RELIEF. STATEMENT OF THE CASE AND FACTS Lyndon Britain was indicted for Count I, conspiracy to manufacture methamphetamine, and Count II, possession of precursors with the intent to manufacture a controlled substance. (CP 71-72). On March 26, 2012, Britain pleaded guilty in the Circuit Court of Lauderdale County to Count II. (CP 74-85). The circuit court accepted Britain s plea and sentenced him to twenty (20) years, nineteen (19) years and one hundred seventy-one (171) days suspended, one hundred ninety-four (194) days to serve, in the custody of the Mississippi Department of Corrections (MDOC). (CP 86-89). Britain was also sentenced to five (5) years reporting supervision followed by five (5) years non-reporting post-release supervision. (CP 86-89). And Britain was ordered to pay fines and fees in the amount of $5,847. (CP 86-89). As part of the plea bargain, the circuit court entered an order of nolle prosequi as to Count I. (CP 90). On May 23, 2012, Britain committed the crimes of possession of methamphetamine, possession of morphine, and possession of Schedule II, III, IV, and V controlled substances. (CP 92). As a result, on August 24, 2012, the circuit court entered an agreed order of revocation of postrelease supervision, and Britain was sentenced to nineteen (19) years and one hundred seventy-one (171) days in the custody of the MDOC. (CP 92). Britain was also ordered to pay $5,747 in court 1
ordered assessments. (CP 92). On June 19, 2016, Britain filed a motion for post-conviction collateral relief (PCR), claiming (1) unreasonable search and seizure, and (2) ineffective assistance of counsel. (CP 2-18). However, Britain failed to indicate whether his claims were challenges to the initial charge or the charges surrounding the revocation of his post-release supervision. The circuit court dismissed Britain s PCR motion. (CP 54-59). Now Britain appeals. (CP 61-62). SUMMARY OF THE ARGUMENT The circuit court did not err in dismissing Britain s PCR motion. ARGUMENT I. THE CIRCUIT COURT DID NOT ERR IN DISMISSING BRITAIN S MOTION FOR POST-CONVICTION COLLATERAL RELIEF. This Court reviews a circuit court s dismissal of a PCR motion for clear error; however, questions of law are reviewed de novo. Jones v. State, 203 So. 3d 657, 659 ( 6) (Miss. Ct. App. 2016) (citation omitted). The Uniform Post-Conviction Collateral Relief Act (UPCCRA) states that, in the instance of a guilty plea, a PCR motion shall be made within three years after the entry of the judgment of conviction. Miss. Code Ann. 99-39-5(2). Britain filed his PCR motion well outside of the applicable three-year limitations period. Therefore, his motion is time-barred. Britain asserts that his motion should be excepted from the time-bar pursuant to the supreme court s holding in Rowland v. State, 42 So. 3d 503 (Miss. 2010). There, the supreme court held that errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA. Rowland, 42 So. 3d at 507 ( 12). However, this Court recently reiterated that only four types of fundamental rights have been expressly found to survive PCR procedural bars: (1) 2
double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post facto claims. Williams v. State, No. 2015-CP-01911-COA, 2017 WL 347577, *2 ( 11) (Miss. Ct. App. Jan. 24, 2017) (quoting Boyd v. State, 155 So. 3d 914, 918 ( 13) (Miss. Ct. App. 2014)). Furthermore, the mere suggestion of a constitutional-right violation is not itself sufficient to surmount the time-bar. Jones, 203 So. 3d at 659 ( 8) (citation omitted). There must at least appear to be some basis for the truth of the claim before the limitation period will be waived. Id. (citation omitted). A. Search and Seizure Britain claimed that the search and seizure was unreasonable because law enforcement did not have probable cause or a warrant. (CP 4; 5). However, Britain s assertions are vague and are set out in their entirety as follows: (CP 4; 5). Specific Facts Within Petitioner s Personal Knowledge 1. Due to the lack of probable cause [and] no search warrant by a judge, the search [and] seizure was unreasonable resulting in illegally obtained evidence. 2..... Specific Facts Not Within Petitioner s Personal Knowledge 1. I do not know why the Meridian Police Officers seized [and] searched my property without probable cause or a warrant. 2..... There is nothing to support Britain s claim. Furthermore, [a] valid guilty plea constitutes a waiver of certain constitutional claims, including illegal search and seizure. Garcia v. State, 14 So. 3d 749, 750 ( 6) (Miss. Ct. App. 2009) (citation omitted). A plea is considered voluntary and 3
intelligent if the defendant is advised regarding the nature of the charge and the consequences of the plea. Id. at 751 (citation omitted). The record reflects that the circuit court advised Britain of the nature of the charges against him and the consequences of his plea. (CP 19-53). This claim is without merit. B. Ineffective Assistance of Counsel Britain also claimed that his counsel failed to acknowledge the lack of probable cause and warrant for the search and seizure, thus resulting in ineffective assistance of counsel. (CP 4-5). In order to succeed on a claim of ineffective assistance of counsel, the defendant must prove that (1) his counsel s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). In the context of guilty pleas, this means the defendant must show that, were it not for counsel s errors, [he] would not have pleaded guilty and would have insisted on going to trial. Pittman v. State, 192 So. 3d 1147, 1149 ( 6) (Miss. Ct. App. 2016) (citation omitted). Furthermore, the defendant must produce more than conclusory allegations on a claim of ineffective assistance of counsel. Id. (citation omitted). In cases involving postconviction collateral relief, where a party offers only [his] affidavit, then [his] ineffective assistance of counsel claim is without merit. Id. (citation omitted). Britain s assertions are set forth in their entirety as follows: Specific Facts Within Petitioner s Knowledge 1..... 2. The counsel provided to me failed to acknowledge the fact that probable cause [and] a search warrant were lacking in my case. Specific Facts Not Within Petitioner s Knowledge 1..... 4
(CP 4; 5). 2. I do not know why my counsel was ineffective and failed to acknowledge the fact that there was never any probable cause or a search warrant for the illegally obtained evidence, and why she did not file the proper motion(s) to suppress the illegally obtained evidence. Britain s assertions are nothing more than conclusory allegations of ineffective assistance of counsel. This claim is without merit. 5
CONCLUSION The issue raised by Britain is without merit. Accordingly, the State of Mississippi respectfully requests that this Honorable Court affirm the circuit court s dismissal of Britain s PCR motion. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Katy Gerber KATY GERBER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104577 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 6
CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed (and mailed by United States Postal Service) the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Honorable Lester F. Williamson, Jr. Circuit Court Judge Post Office Box 86 Meridian, MS 39302 Honorable E.J. (Bilbo) Mitchell District Attorney Post Office Box 5163 Meridian, MS 39302-5127 Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Lyndon Britain, #56308 3824 36th Avenue Meridian, MS 39301 This the 5th day of May, 2017. OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi 39205-0220 Telephone: (601) 359-3680 s/katy Gerber KATY GERBER SPECIAL ASSISTANT ATTORNEY GENERAL 7