John Bevalaque v. State of Mississippi , 196 So. 3d 1149 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CA-00664-COA
JOHN BEVALAQUE A/K/A JOHN MCANDREW APPELLANT
BEVALAQUE A/K/A JOHN M. BEVALAQUE
A/K/A JOHN ANDREW BEVALAQUE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 03/24/2015
TRIAL JUDGE: HON. WILLIAM E. CHAPMAN III
COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: MICHAEL HADEN LAWYER
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LISA L. BLOUNT
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: PETITION FOR POSTCONVICTION RELIEF
DISMISSED
DISPOSITION: AFFIRMED - 08/02/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., WILSON AND GREENLEE, JJ.
LEE, C.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1. John Bevalaque was indicted on May 20, 2011, in the Circuit Court of Rankin County,
on seven counts of exploitation of a child under Mississippi Code Annotated section 97-5-33
(Supp. 2011). Bevalaque pleaded guilty to six counts, and the remaining count was nolle
prosequied. On November 30, 2011, the circuit court accepted Bevalaque’s guilty plea and
sentenced him to thirty-five years on each count, with ten years suspended, in the custody of
the Mississippi Department of Corrections and five years of supervised probation. The
sentences were ordered to run concurrently. And Bevalaque was ordered to pay court costs
of $413 and a fine of $50,000 on each count, but the circuit court suspended the fine in
Counts II through VI. The judgment of conviction was filed on December 12, 2011.
¶2. Bevalaque filed a motion for postconviction relief (PCR) on December 12, 2014,
claiming (1) his guilty plea was not knowing or voluntary, and (2) he received ineffective
assistance of counsel. The circuit court dismissed Bevalaque’s PCR motion without a
hearing. Bevalaque timely appeals.
STANDARD OF REVIEW
¶3. A circuit court may dismiss a PCR motion without a hearing “if 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.” Thomas v. State, 159 So. 3d 1212, 1214 (¶4) (Miss.
Ct. App. 2015) (quoting Miss. Code Ann. § 99-39-11(2) (Rev. 2015)). When reviewing a
denial of a PCR motion, we will only disturb the circuit court’s factual findings if they are
clearly erroneous. Id.
DISCUSSION
I. Knowing and Voluntary Plea
¶4. In his first issue, Bevalaque claims his guilty plea was entered into unknowingly and
involuntarily. He argues that because of his mental illness and his prescribed medications,
he was unable to comprehend his rights, the nature of the charges against him, and the
consequences of his plea.
¶5. However, the circuit court questioned Bevalaque about his mental illness and
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prescribed medications:
Q: Are you under the influence of any drugs or alcohol?
A: No, sir.
Q: Have you ever been treated for any mental illness or disorder?
A: Yes, sir.
Q: What was that?
A: Manic depression, and also manic depression here while I’ve been
incarcerated.
Q: What kind of medication are you taking?
A: Six hundred milligrams of lithium per day, and thirty milligrams of
Prozac.
Q: Did you read and sign your petition to enter a guilty plea?
A: [Pause]. Yes, sir.
Q: . . . Do you understand everything in it?
A: Umm, yes, sir.
¶6. Then the circuit court thoroughly questioned Bevalaque about the waiver of certain
rights—including the right to trial by jury, the right to confront witnesses, and the right to
protection against self-incrimination; the charges against him—including the elements of the
crime; and the consequences of his guilty plea—including the minimum and maximum
sentences and fines.
¶7. Bevalaque also argues his attorney coerced him into entering the guilty plea.
However, during the plea hearing, Bevalaque was questioned about the voluntariness of his
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plea:
Q: Have any threats been made against you or has there been any use of
force or intimidation that might have caused you to change your plea
from not guilty to guilty?
A: No, sir.
Q: Have any promises or hope of reward been made to you in return for
your changing your plea from not guilty to guilty?
A: No, sir.
Q: After your discussions with your attorney, are you the one that
decided to plead guilty?
A: Yes, sir.
Q: Are you telling the court that you’re freely and voluntarily admitting
your guilt to the crimes you are pleading guilty to?
A: Yes, sir.
¶8. Thus, we find the plea transcript shows Bevalaque’s guilty plea was knowing and
voluntary. See id. at 1216 (¶12) (finding “[s]tatements made in open court under oath ‘carry
a strong presumption of veracity’”). While “an attack on a facially correct plea may survive
summary dismissal if supporting affidavits of other persons are attached,” Bevalaque
attached no such evidence to his PCR motion. Mitchener v State, 964 So. 2d 1188, 1194
(¶15) (Miss. Ct. App. 2007). This issue is without merit.
II. Ineffective Assistance of Counsel
¶9. In his second issue, Bevalaque claims his counsel was ineffective for (1) failing to
conduct any meaningful investigation, (2) failing to ascertain whether Bevalaque was
competent to enter a guilty plea or assist in his own defense, (3) failing to properly advise
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Bevalaque of possible defenses, elements of the crime, or consequences of entering a guilty
plea, and (4) coercing Bevalaque into pleading guilty and agreeing to a disproportionate
sentence.
¶10. We have already concluded that Bevalaque entered his guilty plea knowingly and
voluntarily. “A voluntary guilty plea waives claims of ineffective assistance of counsel,
‘except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the
guilty plea.’” Thomas, 159 So. 3d at 1215 (¶10) (quoting Fortenberry v. State, 151 So. 3d
222, 225 (¶10) (Miss. Ct. App. 2014)). When a defendant pleads guilty, and later asserts
ineffective assistance of counsel, he “must demonstrate that his counsel’s ‘conduct
proximately resulted in the guilty plea, and that but for counsel’s errors, he would not have
entered the plea.’” Id. (quoting Fortenberry, 151 So. 3d at 225 (¶11)).
¶11. But Bevalaque provides nothing beyond his own assertions. See Ealey v. State, 967
So. 2d 685, 691 (¶18) (Miss. Ct. App. 2007) (“It is firmly established that mere allegations
are insufficient to entitle a defendant to an evidentiary hearing on a postconviction claim of
ineffective assistance of counsel.”). Furthermore, Bevalaque’s assertions are contradicted
by his prior sworn testimony about his counsel’s representation. See Mitchener, 964 So. 2d
at 1194 (¶15) (holding that, where a PCR movant’s assertions are overwhelmingly
contradicted by the “unimpeachable documentary evidence in the record,” such as the
movant’s prior sworn testimony, the court may conclude the allegations are a “sham” and no
hearing is required). This issue is without merit.
¶12. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.
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ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.
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