Michael Bernard Moore v. State of Mississippi , 250 So. 3d 521 ( 2018 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2016-CA-01408-COA
MICHAEL BERNARD MOORE A/K/A APPELLANT
MICHAEL B. MOORE A/K/A MICHAEL
MOORE A/K/A MICHAEL BANARD MOORE
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/14/2016
TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: WILLIAM STACY KELLUM III
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 06/26/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., GREENLEE AND TINDELL, JJ.
GREENLEE, J., FOR THE COURT:
¶1. On October 17, 2011, Michael Bernard Moore pled guilty to statutory rape and was
sentenced by the Harrison County Circuit Court to thirty years in the custody of the
Mississippi Department of Corrections (MDOC). Moore filed a motion for post-conviction
relief (PCR) in 2016, which the circuit court dismissed. The circuit court determined that the
motion was procedurally barred and Moore was not entitled to any relief for his claims.
Finding no error, we affirm.
BACKGROUND
¶2. On July 26, 2010, Moore was indicted on the charges of statutory rape in violation of
Mississippi Code Annotated section 97-3-65(1) (Supp. 2007) and the touching of a child for
lustful purpose in violation of Mississippi Code Annotated section 97-5-23(1) (Rev. 2006).
On October 17, 2011, Moore pled guilty to Count One, statutory rape, in the Circuit Court
of Harrison County, Mississippi. The circuit court sentenced him to thirty years in the
custody of the Mississippi Department of Corrections (MDOC), with ten years suspended
and twenty years to serve, followed by five years of post-release supervision. Moore was
further ordered to pay a $2,000 fine, to be paid at a rate of $50 per month. Moore’s sentence
also required that he register as a sexual offender and have no further contact with the victim.
¶3. On July 1, 2016, Moore filed a PCR motion. The motion asserted several errors,
including invalidity of the indictment, lack of subject matter jurisdiction, ineffective
assistance of counsel, and double jeopardy. The trial court dismissed Moore’s motion without
an evidentiary hearing, concluding Moore’s claims did not except his motion from the three-
year statutory bar. On appeal, Moore raises the following issues: lack of jurisdiction,
ineffective assistance of counsel, lack of capacity to enter a guilty plea, and dismissal without
an evidentiary hearing.
STANDARD OF REVIEW
¶4. A trial court may summarily dismiss a PCR motion “[i]f 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 . . . .” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). The
summary dismissal of a defendant’s PCR motion will be affirmed “if [he] fails to
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demonstrate a claim procedurally alive substantially showing the denial of a state or federal
right.” Salter v. State, 184 So. 3d 944, 948 (¶10) (Miss. Ct. App. 2015) (citing White v. State,
59 So. 3d 633, 635 (¶4) (Miss. Ct. App. 2011)). When reviewing a trial court’s denial or
dismissal of a PCR motion, we will only disturb the trial court’s decision if the trial court
abused its discretion and the decision was clearly erroneous. However, we review the trial
court’s legal conclusions de novo. Hughes v. State, 106 So. 3d 836, 838 (¶4) (Miss. Ct. App.
2012).
¶5. When a defendant pleads guilty to an offense, the corresponding motion for post-
conviction relief must be filed within three years after entry of the judgment of conviction.
Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Moore’s motion is time-barred, as he pled guilty
in 2011 and filed his PCR motion in 2016, well after the three-year statute of limitations.
Nevertheless, we will address the merits of Moore’s appeal to determine whether he meets
any exceptions to the procedural bar. See § 99-39-5(2)(a)-(b) (statutory exceptions to the
time-bar); Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010) (“[E]rrors affecting
fundamental constitutional rights are excepted from the procedural bars of the [Uniform
Postconviction Collateral Relief Act (UPCCRA)].”).
DISCUSSION
I. Jurisdiction to Accept Moore’s Guilty Plea
¶6. Moore argues that the factual allegations of the crime of statutory rape occurred in
Biloxi and were only cognizable in the Second District of Harrison County. In support,
Moore offers an unsworn statement of the victim, “E.N.,” who purports the two had
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consensual sex in Biloxi, and not in Gulfport.
¶7. Because Moore did not present E.N.’s unsworn statement to the trial court, it is not
part of the record. Further, E.N.’s statement is insufficient evidence to support Moore’s
allegation: E.N. did not confirm her declaration by oath or affirmation before a person with
authority to administer such oath or affirmation. See Miss. Code Ann. § 11-1-1 (Rev. 2014).
¶8. After a review of the record and the prior proceedings, we find Moore is not entitled
to relief. In his plea petition, Moore gave sworn testimony that:
Between December 2, 2009, and December 24, 2009, [he] unlawfully had
sexual intercourse with E.N., a child at least 14 but under 16 years of age. [He]
was 48 years old at the time. She was not [his] wife when [they] had
intercourse. This happened in Gulfport, Harrison County, Mississippi.
Moore testified during his plea hearing that he had read his petition or someone had read it
to him, and everything in his petition was true and correct. Moore further testified he
understood what his petition contained; he had discussed the petition with his attorney; and
his attorney had answered his questions about the petition.
¶9. The trial court was entitled to rely on Moore’s sworn admissions that the statutory
rape occurred in Gulfport, within the First Judicial District of Harrison County, Mississippi,
where Moore was charged and pled guilty. See Richardson v. State, 769 So. 2d 230, 235
(Miss. Ct. App. 2000) (“If the defendant’s claims are totally contradicted by the record, the
trial judge may rely heavily on previous statements made under oath.”). Mississippi Code
Annotated section 99-39-9(1) (Rev. 2015) requires that Moore furnish affidavits to support
his claims or show cause why he could not furnish them. He has failed to do either. We
therefore find that Moore’s claim is unsupported and without merit.
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II. Ineffective Assistance of Counsel
¶10. During his plea hearing, Moore swore under oath that he was satisfied with his
attorney’s representation. On appeal, however, Moore argues his attorney provided
ineffective assistance of counsel. Specifically, Moore asserts his counsel promised that the
trial court would impose a lenient sentence of five years if he pled guilty, and that he would
not have accepted the plea offer had he known he would be sentenced to thirty years. Moore
also argues that his counsel should have moved to dismiss the indictment due to its
“jurisdictional defect.”
¶11. “It is true that ‘errors affecting fundamental constitutional rights are excepted from
the procedural bars of the UPCCRA.’” Sanders v. State, 179 So. 3d 1190, 1192 (¶9) (Miss.
Ct. App. 2015) (citing Rowland, 42 So. 3d at 506 (¶¶9, 12)). “However, the supreme court
has not held that ineffective-assistance-of-counsel claims in noncapital cases invoke a
fundamental right that eludes the UPCCRA’s procedural bars.” Id. Notwithstanding, we will
review Moore’s claim on the merits.
¶12. An ineffective assistance of counsel claim requires a showing that (1) counsel’s
performance was deficient, and (2) the deficient performance resulted in prejudice to the
defendant. Strickland v. Washington, 466 U.S. 668, 687 (1984). Additionally, “a defendant
must plead claims of ineffective assistance of counsel with specificity, and the claim must
be supported by affidavits other than his own.” McBride v. State, 108 So. 3d 977, 980 (¶11)
(Miss. Ct. App. 2012) (citing Robertson v. State, 669 So. 2d 11, 13 (Miss. 1996)). When a
movant fails to attach any supporting affidavits and relies solely on his own sworn motion,
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his ineffective assistance claim must fail. Id. Failure to attach affidavits of other persons may
be excused upon a showing of good cause, specifically detailed in the motion, why they
cannot be obtained. Miss. Code Ann. § 99-39-9(1)(e) (Rev. 2015).
¶13. Here, Moore did not support his PCR motion with affidavits other than his own, and
he offers no good cause why he could not obtain additional affidavits. As discussed above,
there is nothing in the record to indicate that Moore’s indictment contained a jurisdictional
defect, and therefore, there is nothing to support Moore’s assertion that his attorney was
deficient in not recognizing this “error.” Further, there is no indication in the record that
Moore’s attorney promised any leniency to obtain his guilty plea.
¶14. At the plea hearing, the circuit judge thoroughly covered what rights Moore was
giving up by entering his guilty plea, and inquired if Moore understood that the court was not
bound by the prosecutor’s sentencing recommendation. Moore acknowledged that he
understood he was charged with statutory rape, and that the judge “could sentence [him] to
the maximum of 30 years in prison and impose the maximum fine of $10,000.” The court
also asked:
THE COURT: . . . [A]re you satisfied with the services of your attorney?
[MOORE]: Yes, sir.
THE COURT: Are you satisfied that your attorney familiarized himself
with the facts of your particular case?
[MOORE]: Yes, sir.
....
THE COURT: Are you under any undue influence or has anyone
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guaranteed you any specific sentence[,] or promised you anything of value
to make you plead guilty today?
[MOORE]: No, sir.
The judge asked Moore several times if it was still his intention to plead guilty. Each time,
Moore replied, “Yes, sir.” In addition, Moore’s signed plea petition states:
I believe that my lawyer has done all that anyone could do to counsel and assist
me. I AM SATISFIED WITH THE ADVICE AND HELP HE/SHE HAS
GIVEN ME; I recognize that if I have been told by my lawyer that I might
receive probation or a light sentence, this is merely his prediction and is not
binding on the Court.
¶15. Beside his own affidavit, Moore has failed to show that but for trial counsel’s advice,
he would not have entered his guilty plea. Lackaye v. State, 166 So. 3d 560, 564 (¶12) (Miss.
Ct. App. 2015) (“When the only support the movant offers is his own affidavit, and it is
contradicted by unimpeachable documents in the record, an evidentiary hearing is not
required.”). Accordingly, this issue is without merit.
III. Mental Competency
¶16. In his reply brief, Moore claims that his guilty plea was not made knowingly,
intelligently, and voluntarily. We note that claims regarding mental competency are not
subject to procedural bars. Jones v. State, 174 So. 3d 902, 907 (¶13) (Miss. Ct. App. 2015)
(citing Smith v. State, 149 So. 3d 1027, 1031 (¶8) (Miss. 2014) (overruled on other grounds
by Pitchford v. State, 240 So. 3d 1061 (Miss. 2014)). However, Moore did not raise any
claim regarding mental competency in his PCR motion, nor did he raise it in his initial brief.
Because “[w]e will not consider issues raised for the first time in an appellant’s reply brief,”
we decline to review this issue. Ogunbor v. May, 204 So. 3d 840, 848 (¶33) (Miss. Ct. App.
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2016) (quoting Shelton v. State, 172 So. 3d 216, 220 (¶20) (Miss. Ct. App. 2014)).
IV. Evidentiary Hearing
¶17. Moore argues that the circuit court erred in dismissing his PCR motion without first
conducting an evidentiary hearing. Based on the foregoing reasons, we find the circuit court’s
dismissal of Moore’s PCR motion is consistent with the evidence and testimony presented
in the record. Mississippi Code Annotated section 99-39-11(2) provides that a circuit court
may summarily dismiss a PCR motion “[i]f 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[.]” It follows that we find that this issue is without merit.
CONCLUSION
¶18. For these reasons, we affirm the circuit court’s dismissal of Moore’s PCR motion.
¶19. AFFIRMED.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, WESTBROOKS AND TINDELL, JJ., CONCUR.
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