           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2014-CP-01539-COA

WILLIAM SMOTHERS A/K/A WILLIAM                                                APPELLANT
ARTHUR SMOTHERS

v.

STATE OF MISSISSIPPI                                                            APPELLEE


DATE OF JUDGMENT:                           10/01/2014
TRIAL JUDGE:                                HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                  MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     WILLIAM SMOTHERS (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LA DONNA C. HOLLAND
NATURE OF THE CASE:                         CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DISMISSED PETITION FOR
                                            POSTCONVICTION COLLATERAL RELIEF
DISPOSITION:                                AFFIRMED: 10/06/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    In October of 2009, William Smothers pleaded guilty to the statutory rape of A.R.1

In September of 2014, he filed a petition for postconviction collateral relief (PCCR) with the

Madison County Circuit Court. This petition was denied as time-barred. Smothers argues:

(1) that the indictment was defective and (2) that he had ineffective assistance of counsel.

We affirm.


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        Due to the nature of this case and the age of the victim, we substitute initials for the
victim’s name.
                                             FACTS

¶2.    In July of 2007, Smothers had sexual intercourse with his niece, A.R. Smothers was

charged with “willfully, unlawfully and feloniously hav[ing] sexual intercourse with A.R.,

a female child . . . under the age of fourteen (14) years, whose birth is July 21, 1993, while

said Defendant was twenty-four (24) months or more older than A.R.[,]” in violation of

Mississippi Code Annotated section 97-3-65(1)(b) (Rev. 2014).

¶3.    The indictment charging Smothers with this offense originally alleged that the crime

occurred “on or about or between the dates of July 27, 2007, through July 28, 2007 . . . .”

These dates were later amended in writing to “July 13, 2007, through July 20, 2007 . . . .”

It appears from the record that this change of dates occurred at the hearing in the circuit

court, minutes before Smothers pleaded guilty to statutory rape. Smothers made no

objections to the alteration of the dates.

                                STANDARD OF REVIEW

¶4.    “When reviewing a trial court's denial or dismissal of a PCCR petition, 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.” Martin v. State, 138 So.

3d 267, 268 (¶3) (Miss. Ct. App. 2014) (citing Hughes v. State, 106 So. 3d 836, 838 (¶4)

(Miss. Ct. App. 2012)).

                                         ANALYSIS

       A.     Whether Smothers’s claims are time-barred.


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¶5.    The circuit court dismissed Smothers’s PCCR petition as time-barred. When a

defendant has pleaded guilty, a motion for relief must be made within three years after the

entry of the judgment of conviction.        Miss. Code Ann. § 99-39-5(2) (Supp. 2014).

Smothers’s judgment of conviction was filed on October 14, 2009. His PCCR petition was

filed in September 2014, well after the time allotted for such a petition.

¶6.    However, the supreme court has held that the three-year statute of limitations is

waived when a fundamental constitutional right is implicated. Jordan v. State, 118 So. 3d

656, 658 (¶8) (Miss. Ct. App. 2013) (citing Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss.

2010)). But the three-year statute of limitations still applies to claims that an indictment was

defective. Id. (citing Moss v. State, 45 So. 3d 305, 307 (¶10) (Miss. Ct. App. 2010)).

Likewise, this time-bar also applies to postconviction-relief claims based on ineffective

assistance of counsel. Crosby v. State, 16 So. 3d 74, 78 (¶8) (Miss. Ct. App. 2009) (citing

Chancy v. State, 938 So. 2d 267, 270 (¶11) (Miss. Ct. App. 2005)). Despite this procedural

time-bar, we address Smothers’s claims.

       B.     Whether the indictment was defective.

¶7.    Smothers claims that the indictment was defective and that because of this deficiency,

his guilty plea was involuntary. The issues regarding the indictment arise from the change

of the dates of the crime. The original dates in the indictment establish A.R.’s age at

fourteen, meaning that Smothers could not be convicted under section 97-3-65(1)(b). Once

the dates were changed, A.R.’s age at the time of the incident was under fourteen. This


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change in the victim’s age is the difference between being convicted under Mississippi Code

Annotated section 97-3-65(1)(a) (Rev. 2014) or section 97-3-65(1)(b).

¶8.    This change would be significant in the sentencing phase if Smothers was eighteen

or older. However, “[i]n sentencing a criminal defendant, [his] age at the time the crime was

committed is used . . .” In re D.S., 943 So. 2d 1280, 1283 (¶10) (Miss. 2006). Because

Smothers was seventeen at the time of the offense, the circuit court had complete discretion

in sentencing regardless of which statutory-rape section applied. Miss. Code Ann. § 97-3-

65(3)(d) (Rev. 2014). The change in the indictment did not change the applicable sentencing

range; therefore, if error did occur, it was harmless.

¶9.    Furthermore, “by pleading guilty to the charges, [he] waived his argument that the

indictment was faulty . . . .” Maggit v. State, 26 So. 3d 363, 365 (¶8) (Miss. Ct. App. 2009)

(citing Miller v. State, 834 So. 2d 721, 723 (¶7) (Miss. Ct. App. 2003)). The changes to the

indictment occurred at the hearing before the circuit court judge, in front of Smothers and

his counsel. The judge asked if there were any objections to the change of date, and

Smothers made none. Smothers’s claim as to the indictment fails.

       C.     Whether Smothers had ineffective assistance of counsel.

¶10.   Smothers also claims ineffective assistance of counsel.

       To prove ineffective assistance of counsel, a defendant must show that: (1) his
       counsel’s performance was deficient, and (2) this deficiency prejudiced his
       defense. The burden of proof rests with the defendant to prove both prongs.
       Under Strickland, there is a strong presumption that counsel’s performance
       falls within the range of reasonable professional assistance. To overcome this
       presumption, the defendant must show that there is a reasonable probability

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       that, but for the counsel’s unprofessional errors, the result of the proceeding
       would have been different.

Maggitt, 26 So. 3d at 365 (¶12) (internal citations and quotations omitted) (citing Strickland

v. Washington, 466 U.S. 668, 687 (1984)).

¶11.   Smothers argues that his counsel should have objected to the change of date in the

indictment, because it led to a change in the age of the victim. While the change in the

indictment did alter the age of the victim, we do not find counsel’s inaction prejudiced

Smothers’s defense.

¶12.   We find that the result of the proceeding would have been the same. As we noted

before, Smothers was sentenced under a portion of the statute that gave the judge complete

discretion as to sentencing. Miss. Code Ann. § 97-3-65(3)(d). Furthermore, as part of this

plea agreement, the State agreed not pursue another case against Smothers, where it was

alleged that he sexually assaulted another victim. Smothers’s claim of ineffective assistance

of counsel fails.

¶13.   Smothers’s PCCR petition is time-barred pursuant to section 99-39-5(2). Despite this

bar, his claims of a defective indictment and ineffective assistance of counsel have no merit.

¶14. THE JUDGMENT OF THE CIRCUIT COURT OF MADISON COUNTY
DISMISSING THE PETITION FOR POSTCONVICTION COLLATERAL RELIEF
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON
COUNTY.

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL, FAIR,
JAMES AND WILSON, JJ., CONCUR.



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