Gregory L. Gill v. State of Mississippi , 269 So. 3d 207 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CP-01618-COA
GREGORY L. GILL A/K/A GREGORY GILL APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/21/2016
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HANCOCK COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: GREGORY L. GILL (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
DISPOSITION: AFFIRMED - 02/13/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., CARLTON AND GREENLEE, JJ.
CARLTON, J., FOR THE COURT:
¶1. Gregory Gill pleaded guilty to two counts of touching a child for a lustful purpose in
violation of Mississippi Code Annotated section 97-5-23(1) (Supp. 2017). The trial court
sentenced Gill to fifteen years in the custody of the Mississippi Department of Corrections
(MDOC) for each count, with the sentences to run consecutively, with fifteen years
suspended and five years of postrelease supervision.
¶2. Gill filed a motion for postconviction relief (PCR), which the trial court denied. Gill
now appeals, asserting the following assignments of error: (1) his right against double
jeopardy was violated; (2) the State failed to amend his indictment; (3) the trial court erred
in admitting evidence of Gill’s prior convictions; (4) his counsel was ineffective; and (5) his
right to a speedy trial was violated. Finding no error, we affirm the Hancock County Circuit
Court’s denial of Gill’s PCR motion.1
FACTS
¶3. On February 3, 2014, Gill pleaded guilty to two counts of touching a child for lustful
purposes.2 The trial court sentenced Gill to fifteen years in the custody of the MDOC for
each count, with the sentences to run consecutively, with fifteen years suspended and five
years of postrelease supervision.
¶4. On July 29, 2016, Gill filed a petition to vacate his conviction and sentence, which the
trial court treated as a PCR motion. In his PCR motion, Gill argued that: (1) his right to a
speedy trial was violated; (2) his counsel was ineffective; and (3) his right against double
jeopardy was violated.
¶5. On September 21, 2016, the trial court entered an order denying Gill’s PCR motion.
Regarding Gill’s speedy-trial claim, the trial court explained that a valid guilty plea operates
as a waiver of the right to a speedy trial. The trial court found that since Gill entered a guilty
1
On June 12, 2017, Gill filed a motion asking this Court not to “release any decision
of its judgment on [his] appeal to any public broadcasting network or TV news group.” He
also asked the Court not to “release its decision to the public.” On June 20, 2017, this Court
entered an order interpreting Gill’s motion as a request for a per curiam opinion and passed
Gill’s motion for consideration with the merits of his appeal.
This Court finds that per curiam affirmance is not called for in this case. See
M.R.A.P. 35-B(d). Gill provides no authority for the concept that he is entitled to
confidentiality in the context of his appeal, which is a matter of public record.
Consequently, Gill’s motion for an unpublished decision is denied.
2
Gill’s sentencing order reflects that Gill “entered his plea of [g]uilty to the charge
of Touching of a Child for Lustful Purposes, Count II only[,] in B2301-13-0120 and
Touching of a Child for Lustful Purposes in B2301-14-0017.”
2
plea and failed to show that his plea was not valid, his claim lacked merit.
¶6. The trial court also found that Gill’s claim of ineffective assistance of counsel lacked
merit because Gill “failed to show that his counsel’s representation fell below an objective
standard of reasonableness and that, but for his counsel’s alleged errors, he would not have
pled guilty.” The trial court explained that Gill failed to present evidence to support his
claim of ineffective assistance of counsel. Citing Mississippi Code Annotated section 99-35-
101 (Rev. 2015), the trial court also provided that since Gill pleaded guilty to the charges
against him, he had no right to directly appeal his sentence and no right to counsel for a direct
appeal.
¶7. Finally, the trial court held that Gill was not subjected to double jeopardy because Gill
“pled guilty to two (2) separate acts of touching of a child for a lustful purpose, both of
which took place on or between January 1, 2004[,] and December 31, 2007.”
¶8. Gill filed his notice of appeal on November 3, 2016.3
STANDARD OF REVIEW
¶9. “When reviewing a trial court’s denial . . . of a motion for PCR, we will only disturb
the trial court’s factual findings if they are clearly erroneous; however, we review. . . legal
conclusions under a de novo standard of review.” Chapman v. State, 167 So. 3d 1170, 1172
(¶3) (Miss. 2015) (quotation omitted).
3
The record reflects that Gill made an earlier attempt to file his notice of appeal. This
prior notice of appeal appears in the record, and Gill handwrote the month and the day on
the document. The document shows the month October and the year 2016, but the day is
illegible. The record also contains an October 25, 2016 letter from the Hancock County
Circuit Clerk informing Gill that she was returning his notice of appeal because the circuit
court clerk does not accept filings by fax.
3
DISCUSSION
I. Double Jeopardy
¶10. Gill claims that he was subjected to double jeopardy because he was charged twice
for the same crime—touching a child for a lustful purpose. “[T]he Fifth Amendment to the
United States Constitution, as well as Article 3, Section 22 of the Mississippi Constitution,
protect[s] against double jeopardy, providing that no person shall be prosecuted twice for the
same offense.” Williams v. State, 167 So. 3d 252, 257 (¶15) (Miss. Ct. App. 2015).
Specifically, “[t]he Double Jeopardy Clause prevents a second prosecution for the same
offense after acquittal, protects against a second prosecution for the same offense after
conviction, and protects against multiple punishments for the same offense.” Avery v. State,
102 So. 3d 1178, 1181 (¶9) (Miss. Ct. App. 2012) (quoting Ewing v. State, 34 So. 3d 612,
616 (¶14) (Miss. Ct. App. 2009)) (internal quotation marks omitted).
¶11. On August 1, 2013, a Hancock County grand jury indicted Gill on the charges of
sexual battery (Count I) and touching a child for a lustful purpose (Count II) in Cause No.
B2301-13-0120. The record also contains a bill of information entered on February 3, 2014,
charging Gill with one count of touching of a child for a lustful purpose in a separate cause
number, Cause No. B2301-14-0017. Gill pleaded guilty to two counts of touching a child
for lustful purposes pursuant to section 97-5-23(1): one count of touching of a child for
lustful purposes as charged in Count II of B2301-13-0120, and one count of touching of a
child for lustful purposes as charged in B2301-14-0017. As a result of his guilty pleas, the
trial court sentenced Gill to serve fifteen years for each count, with the two sentences to run
4
consecutively.
¶12. The charge in Count II of Cause No. B2301-13-0120 alleged that:
[Gill,] being at the time in question over the age of eighteen years, for the
purpose of gratifying his lust or indulging his depraved licentious sexual
desires, did unlawfully, willfully[,] and feloniously handle, touch[,] or rub
with his hands, the vagina of the said G.A.G., a child who was at the time in
question under the age of sixteen (16) years . . . .
(Emphasis added).
¶13. The bill of information in cause number B2301-14-0017 charged that:
[Gill,] being at the time in question over the age of eighteen years, for the
purpose of gratifying his lust or indulging his depraved licentious sexual
desires, did unlawfully, wilfully[,] and feloniously handle, touch or rub
with his hands the breasts of G.A.G. a child who was at the time in question
under the age of sixteen (16) years . . . .
(Emphasis added).
¶14. The plea-hearing transcript reflects that the trial court informed Gill that he was
pleading guilty to two separate charges of touching a child for a lustful purpose—one count
in Cause No. B2301-13-0120 and one count in Cause No. B2301-14-0017. The trial court
then told Gill that each of the charges carried a minimum sentence of two years and a
maximum sentence of fifteen years and a minimum fine of $1,000 and a maximum fine of
$5,000. The trial court also asked, “Sir, do you understand if you plead guilty today, you
could be sentenced to a maximum [of thirty] years in prison and imposed a maximum fine
of $10,000?” Gill confirmed that he understood, and he informed the trial court that he still
intended to plead guilty. Additionally, during the plea hearing, the State set forth the facts
surrounding Gill’s charges as follows:
5
[T]he juvenile victim brought out that she had experienced inappropriate
sexual activity with the defendant between the years when she was between six
and [eleven] years old, and she described the different things that occurred[,]
which include[d] different types of touching all over her body, and it occurred
multiple times in multiple locations both in Mississippi and outside Mississippi
before and after Hurricane Katrina.
¶15. When reviewing double-jeopardy claims on appeal, we utilize the test established in
Blockburger v. United States, 284 U.S. 299, 304 (1932), which “instructs courts to determine
whether each offense contains an element not present in the other; if not, they are labeled the
same offense[] for double-jeopardy purposes.” Kelly v. State, 80 So. 3d 802, 805 (¶11)
(Miss. 2012). The Mississippi Supreme Court has stated that “[t]he rule plainly states that
‘where the same act or transaction constitutes a violation of two distinct statutory provisions,
the test to be applied to determine whether there are two offenses or only one[] is whether
each provision requires proof of a fact which the other does not.’” Id. (quoting Blockburger,
284 U.S. at 304).
¶16. In Byers v. State, 157 So. 3d 98, 104 (¶17) (Miss. Ct. App. 2014), the defendant,
Daniel Byers, was indicted for three counts of felony child abuse under Mississippi Code
Annotated section 97-5-39(2) (Supp. 2011), and the jury found him guilty of two counts,
Count I and Count III. Byers appealed, claiming that he was subjected to double jeopardy.
Id. at 103 (¶16). This Court acknowledged that Byers was indicted under section 97-5-39(2)
on both counts of felony child abuse, and as a result, “the statutory elements were the same.”
Byers, 157 So. 3d at 104 (¶17). The Byers Court clarified, however, that “the types of
injuries constituting the abuse in the two counts are different: Count I concerns the leg
fracture; Count III concerns the bruises and abrasions.” Id. This Court cited Nelson v. State,
6
10 So. 3d 898, 907 (¶37) (Miss. 2009), where the supreme court explained that “[e]ven
though there may be a substantial overlap in the proof supporting the convictions of the
different crimes, the Blockburger test is met where each offense requires proof of an element
not necessary to the other.” Byers, 157 So. 3d at 104 (¶18). The Byers Court thus held that
“Count III required ‘proof of a fact’ not found in Count I; namely, that [the victim] suffered
serious bodily harm in the form of ‘severe bruising, abrasions, and lacerations.’” Id.
¶17. In the present case, the record shows that Count II of Gill’s indictment in Cause No.
B2301-13-0120 charged Gill with “unlawfully, willfully[,] and feloniously handl[ing],
touch[ing,] or rub[bing] with his hands, the vagina” of the victim. In contrast, the bill of
information in Cause No. B2301-14-0017 charged Gill with “unlawfully, wilfully[,] and
feloniously handl[ing], touch[ing,] or rub[bing] with his hands the breasts” of the victim.
Similar to Byers, we find that each of the charges against Gill required “proof of a fact” not
found in the other charge. Further, it is clear that Gill “was not prosecuted for the same
offense after acquittal; he was not subjected to a second prosecution for the same offense
after conviction; and he did not receive multiple punishments for the same offense.” Avery,
102 So. 3d at 1181 (¶9). The factual predicate for the pleas provided by the State reflects that
Gill touched the victim inappropriately multiples times when she was between the ages of
six and eleven years old, in violation of section 97-5-23(1), and Gill pleaded guilty to charges
for two of those occasions. See Brown v. State, 198 So. 3d 325, 335-36 (¶¶39-40) (Miss. Ct.
App. 2015) (finding that a sufficient factual predicate existed for the guilty plea); see also
Corley v. State, 585 So. 2d 765, 766-67 (Miss. 1991) (discussing the factual basis required
7
for a guilty plea). Accordingly, we find that Gill’s double-jeopardy claim lacks merit.
II. Indictment
¶18. Gill submits that the State failed to amend his indictment to reflect that he was
pleading guilty to two counts of touching a child for lustful purposes; as a result, he claims
that he pleaded guilty to an untrue indictment.
¶19. The record reflects that Gill failed to raise this assignment of error in his PCR motion
before the trial court. “A defendant who fails to raise an issue in his motion for
post[]conviction relief before the trial court may not raise that issue for the first time on
appeal.” Marshall v. State, 136 So. 3d 443, 445 (¶3) (Miss. Ct. App. 2013). Furthermore,
the supreme court has held that “a knowing and voluntary guilty plea waives certain
constitutional rights[.]” Joiner v. State, 61 So. 3d 156, 158 (¶7) (Miss. 2011). “[B]eyond the
constitutional rights that may be waived, the law is settled that . . . the entry of a knowing and
voluntary guilty plea waives all other defects or insufficiencies in the indictment.” Id. at 158-
59 (¶7). However, “[a] guilty plea does not waive an indictment’s failure to charge an
essential element of the crime[.]” Id. at 159 (¶7).
¶20. This Court has held that “the chief objective of an indictment is to provide a defendant
fair notice of the crime charged.” Jones v. State, 215 So. 3d 508, 510-11 (¶8) (Miss. Ct. App.
2017). In order to provide a defendant fair notice of the crime charged, “[a]n indictment
must contain (1) the essential elements of the offense charged, (2) sufficient facts to fairly
inform the defendant of the charge against which he must defend, and (3) sufficient facts to
enable him to plead double jeopardy in the event of a future prosecution for the same
8
offense.” Id. at 511 (¶8).
¶21. The record before us reflects that Gill was sufficiently aware of the charges against
him. The plea-hearing transcript shows that the trial court read aloud each charge of
touching a child for a lustful purpose. After reading each charge, the trial court asked Gill,
“Did you do that?” Gill responded, “Yes, sir.” Gill then entered a guilty plea to each charge.
The record further reflects that the trial court determined that Gill knowingly, voluntarily,
and freely entered his guilty pleas. Gill bears the burden of showing that his pleas were not
voluntary, and Gill does not claim his pleas were invalid. See Hannah v. State, 943 So. 2d
20, 25 (¶11) (Miss. 2006). We thus find that this issue lacks merit.
III. Prior Convictions
¶22. Gill next argues that the State induced the trial court to render the maximum sentence
allowable, even though Gill was not charged as a habitual offender, by offering evidence of
Gill’s prior convictions. Gill claims that this caused the judge “to have a prejudicial state of
mind” regarding Gill’s character. Gill argues that his prior convictions were “of a totally
nonrelevant nature” to the crime of touching a child for a lustful purpose. Gill further
submits that Federal Rule of Evidence 609(a)(1) states that past criminal convictions are not
admissible in court if a period of more than ten years has passed since the date of release
from that conviction.
¶23. The record reflects that Gill failed to raise this assignment of error in his PCR motion
before the trial court, and he “may not [now] raise [this] issue for the first time on appeal.”
Marshall, 136 So. 3d at 445 (¶3). Additionally, “a plea of guilty waives any evidentiary
9
issue.” Jefferson v. State, 855 So. 2d 1012, 1014 (¶11) (Miss. Ct. App. 2003) (citing Bishop
v. State, 812 So. 2d 934, 945 (¶39) (Miss. 2002)).
¶24. Procedural bar notwithstanding, the plea-hearing transcript reflects that after Gill
admitted to having three prior convictions, the trial court advised Gill how these prior
convictions would affect his decision to plead guilty in the context of any future crimes. The
trial court informed Gill as follows:
[I]f you were to be charged with an additional crime at some time in the future,
the [S]tate could potentially proceed against you as what’s commonly referred
to as a life habitual. Ultimately what that could mean is whatever the
minimum or the maximum is on that new charge you’re potentially charged
with in the future, you could potentially serve a term of life in prison on that
charge.
¶25. Our review of the record reveals no indication of any misconduct on the part of the
prosecutor or any prejudice on the part of the judge. We find this issue lacks merit.
IV. Ineffective Assistance of Counsel
¶26. Gill next argues that his counsel was ineffective for failing to disclose to the trial court
that Gill’s prior conviction was committed in North Carolina, not in Mississippi. Gill also
asserts that his counsel was “uncaring,” and Gill claims that his counsel told him that if Gill
did not take the plea deal and instead went to trial, he would receive a life sentence plus
fifteen years if found guilty by a jury. Gill states that “based on court proceedings that did
occur uncontested and without comment by counsel,” he was poorly represented.
¶27. To prevail on his claim of ineffective assistance of counsel, Gill must show: (1) his
counsel’s performance was deficient, and (2) the deficiency was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687 (1984). Strickland provides that an attorney is deficient if
10
he fails to meet “an objective standard of reasonableness.” Id. at 688. “[A] strong
presumption [exists] that counsel’s conduct falls within the wide range of reasonable
professional assistance[.]” Id. at 689.
¶28. In order to establish prejudice, Gill must show a “reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694. Since Gill pleaded guilty, he “must show that, were it not for counsel’s errors, he
would not have pleaded guilty and would have insisted on going to trial.” Burrough v. State,
9 So. 3d 368, 375 (¶22) (Miss. 2009).
¶29. As stated previously, “a knowing and voluntary guilty plea waives certain
constitutional rights[.]” Joiner, 61 So. 3d at 158 (¶7). “This ‘waiver includes all claims of
ineffective assistance of counsel, except insofar as the alleged ineffectiveness relates to the
voluntariness of the . . . guilty plea.’” Hill v. State, 60 So. 3d 824, 827 (¶6) (Miss. Ct. App.
2011) (quoting United States v. Cavitt, 550 F.3d 430, 441 (5th Cir. 2008)).
¶30. After reviewing the record, we find that Gill’s allegations of ineffective assistance of
counsel are not supported by any proof except his own affidavit. “A PCR movant bears the
burden of showing he is entitled to relief by a preponderance of the evidence.” Ducksworth
v. State, 134 So. 3d 792, 794 (¶3) (Miss. Ct. App. 2013). The supreme court has held that
a PCR movant may not rely solely on his own affidavit and unsupported allegations in his
brief. Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995). Additionally, “where an affidavit
is overwhelmingly belied by unimpeachable documentary evidence in the record[–]such as,
for example, a transcript or written statements of the affiant to the contrary[–]to the extent
11
that the court can conclude that the affidavit is a sham[,] no hearing is required.” Williams
v. State, 770 So. 2d 1048, 1051 (¶9) (Miss. Ct. App. 2000).
¶31. In the present case, the plea-hearing transcript shows that Gill confirmed that he was
satisfied with his attorney’s service and also satisfied that his attorney familiarized himself
with the facts of Gill’s case. Gill acknowledged that his attorney had explained the elements
of the crimes for which Gill was charged, as well as any available defenses to these crimes.
¶32. Gill informed the trial court that no one had threatened or coerced him to plead guilty.
Furthermore, Gill’s guilty-plea petition reflects that Gill believed that his lawyer had “done
all that anyone could do to counsel and assist” him. Gill also provided in his guilty-plea
petition that he was satisfied with his attorney’s advice and help. After our review, we find
this issue lacks merit.
V. Speedy Trial
¶33. Finally, Gill asserts that since he was incarcerated for 479 days prior to his court
appearance, his right to a speedy trial was violated. “It is well established that where a
defendant voluntarily pleads guilty to an offense, he waives nonjurisdictional rights incident
to trial, including the constitutional right to a speedy trial.” Kyles v. State, 185 So. 3d 408,
411 (¶5) (Miss. Ct. App. 2016) (citing Anderson v. State, 577 So. 2d 390, 391-92 (Miss.
1991)). Gill does not argue that his guilty plea was involuntary.
¶34. In denying Gill’s PCR motion, the trial court explained that Gill’s valid guilty pleas
operate as a waiver of the right to a speedy trial. The trial court also found that Gill failed
to show that his pleas were not valid. We agree, and we find that this issue lacks merit.
12
¶35. After our review of the record and claims in Gill’s PCR motion, we find that the trial
court did not err in denying Gill’s motion. See Chapman, 167 So. 3d at 1172 (¶3).
¶36. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, FAIR, WILSON,
GREENLEE, WESTBROOKS AND TINDELL, JJ., CONCUR.
13