Elroy Kennedy v. State of Mississippi , 179 So. 3d 82 ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2014-CP-01029-COA
ELROY KENNEDY A/K/A ELORY KENNEDY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/06/2014
TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED: CHOCTAW COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: ELROY KENNEDY (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DENIED
DISPOSITION: AFFIRMED - 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.
BARNES, J., FOR THE COURT:
¶1. Elroy Kennedy, appearing pro se, appeals the Choctaw County Circuit Court’s denial
of his motion for post-conviction relief (PCR). Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. In July 2009, Kennedy was indicted for statutory rape of a child under fourteen years
of age, under Mississippi Code Annotated section 97-3-65(1)(b) (Rev. 2014). Kennedy
pleaded guilty to the crime and was sentenced to twenty-five years in the custody of the
Mississippi Department of Corrections.
¶3. In April 2012, Kennedy filed a PCR motion claiming his indictment had been falsified
and his counsel was ineffective. Kennedy appealed the trial court’s denial of his motion, and
this Court affirmed that denial. Kennedy v. State, 118 So. 3d 684, 687 (¶14) (Miss. Ct. App.
2013).
¶4. In April 2014, Kennedy filed another PCR motion, making similar claims to his initial
PCR motion. The trial court denied his motion, stating it was barred by the statute of
limitations and as a successive motion. Kennedy now appeals, claiming his indictment was
defective and he received ineffective assistance of counsel.
STANDARD OF REVIEW
¶5. On review of a trial court’s denial of a PCR motion, the appellate court will only
disturb the trial court’s factual findings if they are clearly erroneous. Matters of law,
however, are reviewed de novo. Doss v. State, 19 So. 3d 690, 694 (¶5) (Miss. 2009)
(citations omitted).
ANALYSIS
¶6. We agree with the trial court that Kennedy’s PCR motion is time-barred, successive,
and without merit. A PCR motion challenging a guilty plea must be filed within three years
of the entry of the judgment of conviction. Miss. Code Ann. § 99-39-5(2) (Rev. 2015).
Additionally, a trial court’s denial of a PCR motion is a final judgment and bars a second or
successive motion unless an exception applies. Miss. Code Ann. § 99-39-23(6) (Rev. 2015).
¶7. Here, both procedural bars are applicable. Kennedy pleaded guilty and was sentenced
in August 2009. The PCR motion before us was filed in April 2014, nearly five years later.
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Thus, Kennedy’s PCR motion is time-barred. Also, the PCR motion before us is Kennedy’s
second one; his initial PCR motion was filed in April 2012. This Court affirmed the trial
court’s denial of the merits of Kennedy’s PCR motion in Kennedy, 118 So. 3d 684.
Approximately two years later, Kennedy filed his second PCR motion, which is thus barred
as successive.
¶8. Kennedy argues that his second PCR motion is excepted from any procedural bars
because of newly discovered evidence and because his claims pertain to fundamental
constitutional rights. He cites Rowland v. State, 42 So. 3d 503, 506-07 (¶¶9, 12) (Miss.
2010), in support of his argument, where the supreme court held that “errors affecting
fundamental constitutional rights are excepted from the procedural bars of the [Uniform Post-
Conviction Collateral Relief Act].” However, “[i]n Mississippi, since Rowland, only four
types of ‘fundamental rights’ have been expressly found to survive PCR procedural bars: (1)
double jeopardy; (2) illegal sentence; (3) denial of due process at sentencing; and (4) ex post
facto claims.” Boyd v. State, 155 So. 3d 914, 918 (¶13) (Miss. Ct. App. 2014). None of
Kennedy’s claims are included in the fundamental rights that survive procedural bars. Nor
has the supreme court held that ineffective-assistance-of-counsel claims in noncapital cases
invoke a fundamental right that eludes PCR procedural bars. Compare Grayson v. State, 118
So. 3d 118, 126 (¶14) (Miss. 2013) (holding there is a fundamental constitutional right to
effective assistance of post-conviction-relief counsel in death-penalty cases), with Boyd, 155
So. 3d at 918 (¶13) (identifying four types of “fundamental rights” recognized by the
Mississippi Supreme Court to survive procedural bars). Further, no other statutory
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exceptions apply to the procedural bar, as provided in sections 99-39-5(2) or 99-39-23(6).
¶9. Notwithstanding the procedural bars, Kennedy’s arguments are without merit. He
argues that his indictment was invalid as it charged him with the wrong crime; however, “a
valid guilty plea admits all elements of a formal charge and operates as a waiver of all
non-jurisdictional defects contained in an indictment or information against a defendant.”
McClurg v. State, 758 So. 2d 473, 479 (¶17) (Miss. Ct. App. 2000) (citations omitted). It is
true that Kennedy’s arrest-warrant affidavit charged him with sexual battery; yet the grand
jury indicted him for statutory rape. The grand jury acted within its power in indicting
Kennedy for this charge.
¶10. Kennedy also argues that his trial counsel was ineffective for failing to object to this
alleged error in his indictment. To prevail on this claim, the defendant must show that his
trial counsel’s performance was deficient and he was prejudiced by that deficiency.
McCollum v. State, 81 So. 3d 1191, 1192-93 (¶8) (Miss. Ct. App. 2012) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). Because Kennedy’s claim stems from a guilty
plea, he must show that his “counsel’s errors proximately resulted in the guilty plea and, but
for [his] counsel’s error, [he] would not have entered the guilty plea.” Id. at 1193 (¶8)
(quoting Deloach v. State, 937 So. 2d 1010, 1011 (¶5) (Miss. Ct. App. 2006)). At his plea
hearing, Kennedy claimed he had no complaint about his trial counsel’s performance.
Further, Kennedy pleaded guilty to the charge of statutory rape, not sexual battery, at his plea
hearing. This issue is without merit.
¶11. Accordingly, the trial court did not err in denying Kennedy’s PCR motion.
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¶12. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO CHOCTAW COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL,
FAIR, JAMES AND WILSON, JJ., CONCUR.
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