          IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2017-CP-00417-COA

CALVIN LEE ROBINSON A/K/A CALVIN L.                                       APPELLANT
ROBINSON

v.

STATE OF MISSISSIPPI                                                       APPELLEE

DATE OF JUDGMENT:                         01/11/2017
TRIAL JUDGE:                              HON. W. ASHLEY HINES
COURT FROM WHICH APPEALED:                LEFLORE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   CALVIN LEE ROBINSON (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              AFFIRMED - 06/26/2018
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., CARLTON AND WESTBROOKS, JJ.

      WESTBROOKS, J., FOR THE COURT:

¶1.   Calvin Lee Robinson, appearing pro se, appeals the Leflore County Circuit Court’s

denial of his motion for post-conviction relief (PCR).1 Finding no error, we affirm.

                      FACTS AND PROCEDURAL HISTORY

¶2.   In 2002, Robinson was indicted for statutory rape. In 2003, he pleaded guilty and was

sentenced to thirty years in the custody of the Mississippi Department of Corrections

(MDOC), with ten years suspended upon successful completion of five years of supervised



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        Although styled as a denial and dismissal, we refer to the determination as a
“denial” pursuant to Jackson v. State, 67 So. 3d 725, 730-31 (¶¶17-21) (Miss. 2011).
probation.

¶3.    In July 2004, Robinson filed his first PCR motion, which the circuit court denied. In

that PCR motion, Robinson asserted that his plea was involuntary, his trial counsel was

deficient, and his sentence was disproportionate. Robinson did not appeal the denial of the

2004 PCR motion.

¶4.    In September 2007, Robinson filed his second PCR motion, which the circuit court

denied as successive. Robinson appealed the denial of this motion. In 2009, this Court

affirmed the circuit court’s judgment in Robinson v. State, 19 So. 3d 140, 141 (¶21) (Miss.

Ct. App. 2009).

¶5.    In 2016, Robinson filed his third PCR motion alleging that he was denied effective

assistance of counsel. He asserted that his trial counsel assured him that he would receive

a sentence between eight and six years if he entered a guilty plea. Robinson attached the

affidavits of his sister, Minnie Scott, his wife, Debra Robinson, and his niece, Sharon Murry,

in support of his assertion. In January 2017, the circuit court deemed Robinson’s PCR

motion was time-barred, successive, and without merit.

¶6.    In June 2017, Robinson timely filed a motion to proceed on appeal to this Court, and

that motion was granted.

                                STANDARD OF REVIEW

¶7.    “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only

disturb the trial court’s factual findings if they are clearly erroneous; however, we review the

trial court’s legal conclusions under a de novo standard of review.” Jackson v. State, 178 So.



                                               2
3d 807, 809 (¶8) (Miss. Ct. App. 2014).

                                        DISCUSSION

¶8.    This is Robinson’s third PCR motion. The circuit court held that Robinson’s PCR

motion was time-barred, successive, and without merit.

       I.     Procedural Bars

              A.     Time-Bar

¶9.    “Under Mississippi’s PCR statute, challenges to guilty pleas must be filed within three

years after entry of the judgment of conviction.” Allen v. State, 177 So. 3d 1148, 1150 (¶7)

(Miss. Ct. App. 2014); see also Miss. Code Ann. § 99-39-5(2) (Rev. 2015). Robinson filed

this PCR motion more than three years after the entry of his judgment of guilt in 2003.

Therefore, his motion is time-barred.

              B.     Successive-Writ Bar

¶10.   The circuit court dismissed Robinson’s other two PCR motions and deemed them

successive. “Under the UPCCRA, any order denying or dismissing a PCR motion is a bar

to a second or successive PCR motion.” Stokes v. State, 199 So. 3d 745, 749 (¶9) (Miss. Ct.

App. 2016); see also Miss. Code Ann. § 99-39-23(6) (Rev. 2015). As a result, this PCR

motion is successive-writ barred.

       II.    Other Claims in Robinson’s Pro se Brief

¶11.   Robinson asserts that his attorney’s ineffective assistance rendered his guilty plea

involuntary. He also argues that he has newly discovered evidence to overcome the

procedural bars.



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¶12.   This Court has ruled that “[w]hen a subsequent PCR motion is filed, the burden falls

on the movant to show he has met a statutory exception.” Id. at 749 (¶10). We acknowledge

that “[t]here is a recognized exception for errors affecting fundamental constitutional rights.”

Allen, 177 So. 3d at 1150 (¶9) (internal quotation mark omitted). However, “mere

assertion[s] of a fundamental-right violation [are] not enough.” Id. Therefore, this Court

will review Robinson’s additional claims to determine whether any exceptions to the

procedural bars apply.

              Ineffective Assistance of Counsel, Involuntary Plea, and Newly
              Discovered Evidence

¶13.   Robinson maintains that he was denied effective assistance of counsel and did not

voluntarily enter his guilty plea. Robinson asserts that he would not have entered a guilty

plea if he had known the actual consequences of the guilty plea. Robinson claims that his

trial counsel informed him that the circuit court would sentence him to a term between six

and eight years. Attached to his PCR motion were three affidavits.

¶14.   “Ineffective-assistance claims require a showing that: (1) counsel’s performance was

deficient and (2) prejudice resulted.” Allen, 177 So. 3d at 1150 (¶11) (citing Strickland v.

Washington, 466 U.S. 668 (1984)). Further, “the burden of proving that a guilty plea is

involuntary is on the defendant and must be proven by a preponderance of the evidence.”

Funchess v. State, 202 So. 3d 1286, 1289 (¶7) (Miss. Ct. App. 2016). “To determine whether

the plea is voluntarily and intelligently given, the trial court must advise the defendant of his

rights, the nature of the charge against him, as well as the consequences of the plea.” Id.

¶15.   In Robinson v. State, 19 So. 3d 140, 144 (¶20) (Miss. Ct. App. 2009), this Court held:

                                               4
       [Robinson’s] petition was accompanied by the affidavit of Robinson’s wife,
       and it contained allegations concerning the voluntariness of his guilty plea, his
       assertion that his counsel was ineffective, as well as a similar argument about
       the disproportionality of his sentence. The circuit court considered these
       issues and denied Robinson’s first PCR petition on the merits, as it had the
       discretion to do.

¶16.   However, Robinson asserts that he submitted newly discovered evidence to the circuit

court evincing that he received ineffective assistance of counsel. The three affidavits

submitted to the circuit court signed by Robinson’s wife, Debra Robinson, his sister, Minnie

Scott, and his niece, Sharon Murry, stated that each person was present when Robinson’s

attorney assured him that he would only receive a six to eight years sentence if he entered a

guilty plea.

¶17.   The circuit court found that this evidence was available when Robinson entered his

guilty plea. Furthermore, Robinson’s wife had previously submitted a similar affidavit to the

court, and the circuit court found that Robinson failed to state any new grounds regarding the

voluntariness of his plea. As a result, the circuit court found that Robinson’s claim was

barred under the theory of res judicata and deemed it a successive writ.

¶18.   There is, however, a newly-discovered-evidence exception to the three-year statute

of limitations. Allen, 177 So. 3d at 1151 (¶6); see also Miss. Code Ann. § 99-39-5(2). “The

successive-writ bar does not apply where a PCR movant shows he has evidence, not

reasonably discoverable at the time of trial, which is of such nature that it would be

practically conclusive that, if it had been introduced at trial, it would have caused a different

result in the conviction or sentence.” Allen, 177 So. 3d at 1151 (¶6) (internal quotation mark

omitted); see also Miss. Code Ann. § 99-39-23(6).

                                               5
¶19.   Here, although Robinson claimed he had “new” evidence, the circuit court found the

attached affidavits were mere recitations of claims that had already been addressed by the

court. Also, the statements contained in the affidavits were readily available at the time

Robinson entered his guilty plea. But, Robinson failed to submit those affidavits during that

time. The circuit court also noted that neither of the witnesses nor Robinson brought the

allegations against Robinson’s attorney at the hearing to withdraw his guilty plea or at

Robinson’s sentencing hearing. We agree.

                                     CONCLUSION

¶20.   After review of the record, we find that Robinson failed to proffer any newly

discovered evidence that would trigger any exceptions to the procedural bars. Therefore, we

affirm the denial of Robinson’s PCR motion.

¶21.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
WILSON, GREENLEE AND TINDELL, JJ., CONCUR.




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