        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CP-01374-COA

JAMES KENARD PARISH A/K/A JAMES                                             APPELLANT
KINARD PARISH A/K/A JAMES KINARD
PARICH A/K/A JAMES KINE PARISH

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          08/18/2015
TRIAL JUDGE:                               HON. LAWRENCE PAUL BOURGEOIS JR.
COURT FROM WHICH APPEALED:                 HARRISON COUNTY CIRCUIT COURT,
                                           FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                    JAMES KENARD PARISH (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:                   DENIED MOTION FOR POST-
                                           CONVICTION COLLATERAL RELIEF
DISPOSITION:                               AFFIRMED: 11/01/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       GRIFFIS, P.J., FOR THE COURT:

¶1.    James Kenard Parish pleaded guilty to possession of cocaine with intent to sell. He

now appeals the Harrison Country Circuit Court’s denial of his motion for post-conviction

collateral relief (PCCR). This Court finds no error and affirms.

                        FACTS AND PROCEDURAL HISTORY

¶2.    Following Parish’s indictment on July 16, 2007, for possession of cocaine with the

intent to sell, Parish entered a negotiated plea of guilty on December 3, 2007, to possession
of a controlled substance with intent. Because Parish had previously been convicted of ten

felony crimes prior to the instant case, including a drug-related felony on June 25, 1992, the

State sought to sentence Parish as a habitual offender under Mississippi Code Annotated

section 99-19-81 (Rev. 2015).

¶3.    Rejecting the negotiated plea deal, the trial court sentenced Parish to serve twenty

years as a habitual offender in the custody of the Mississippi Department of Corrections. On

December 22, 2014, seven years after his voluntary plea of guilty, Parish filed a motion for

PCCR. He complained his plea was involuntary because he was the victim of a breached

plea-bargain agreement and he received ineffective assistance of counsel.

¶4.    On August 18, 2015, the trial court found Parish’s motion was time-barred under

Mississippi Code Annotated section 99-39-5(2) (Supp. 2014). Parish filed a timely notice

of appeal of this decision on September 11, 2015. On December 8, 2015, the circuit court

entered a second order upholding the time-bar despite the absence of a plea colloquy in the

record. Parish now appeals.

¶5.    Parish asserts the same arguments on appeal as in his PCCR motion along with a few

others: (1) he involuntarily entered into a guilty plea; (2) his indictment was defective; (3)

he was convicted with insufficient evidence; (4) he received ineffective assistance of

counsel; and (5) his sentence was illegal.

                                STANDARD OF REVIEW

¶6.    This Court will not overturn a trial court’s denial of a PCCR motion on appeal “unless

the trial court’s decision was clearly erroneous.” Chapman v. State, 135 So. 3d 184, 185 (¶6)



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(Miss. Ct. App. 2013) (citation omitted). “When reviewing questions of law, this Court’s

standard of review is de novo.” Id. (citation omitted).

                                        ANALYSIS

¶7.    The trial court denied Parish’s PCCR motion as time-barred under the Uniform

Post-Conviction Collateral Relief Act (UPCCRA). Mississippi Code Annotated section 99-

39-5(2) (Rev. 2015) states:

       A motion for relief under this article shall be made within three (3) years after
       the time in which the petitioner’s direct appeal is ruled upon by the Supreme
       Court of Mississippi or, in case no appeal is taken, within three (3) years after
       the time for taking an appeal from the judgment of conviction or sentence has
       expired, or in case of a guilty plea, within three (3) years after entry of the
       judgment of conviction.

¶8.    Parish entered a negotiated guilty plea and was sentenced on December 3, 2007. This

gave Parish until December 3, 2010, to file a PCCR motion. Parish submitted his motion on

December 22, 2014, four years past the three-year statutory limitation. Based on this

limitation, Parish’s motion was untimely.

¶9.    Despite the time limitation, section 99-39-5 does list several exceptions to the three-

year time-bar:

       To be exempt, a movant must show one of the following: (1) an intervening
       decision of the United States Supreme Court or Mississippi Supreme Court;
       (2) new evidence, not reasonably discoverable at trial; or (3) his sentence has
       expired or his parole, probation, or conditional release has been unlawfully
       revoked. However, the movant carries the burden or proving that one of the
       exceptions appl[ies].

Graham v. State, 151 So. 3d 242, 245 (¶6) (Miss. Ct. App. 2014) (citation omitted).

¶10.   Parish failed to argue that either an intervening decision or the discovery of new



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evidence supported his motion. The majority of Parish’s arguments in his PCCR motion and

on appeal rest on his claims of ineffective assistance of counsel and the allegedly involuntary

guilty plea. Therefore, no exception applies.

¶11.   However, in addition to the exceptions listed in section 99-39-5, “errors affecting

fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.”

Rowland v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010). These errors include “instances

where an attorney’s performance is so deficient and prejudicial to a defendant, that it is

deemed to be violative of the defendant’s fundamental constitutional rights.” Thomas v.

State, 933 So. 2d 995, 997 (¶4) (Miss. Ct. App. 2006) (citing Bevill v. State, 669 So. 2d 14,

17 (Miss. 1996)).

¶12.   Further, “the Mississippi Supreme Court has held that there is a fundamental right to

be free from an illegal sentence, and a claim implicating a fundamental right may be excepted

from the time-bar.” Moore v. State, 152 So. 3d 1208, 1210 (¶10) (Miss. Ct. App. 2014)

(citing Sneed v. State, 722 So. 2d 1255, 1257 (¶11) (Miss. 1998)). Therefore, we must

determine if any of Parish’s claims result in the deprivation of a fundamental constitutional

right that would defeat the time-bar.

       I.      Whether Parish’s guilty plea was entered voluntarily, knowingly, and
               intelligently.

¶13.   Parish contends that his guilty plea was involuntary because of a breach by the State

of a negotiated plea deal and erroneous advice from his counsel. Parish now maintains that

since there is no available plea colloquy in the record, this Court is not able to hold his guilty

plea against him because we cannot presume that it was knowing and voluntary.

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¶14.   Although there is no record of a formal plea colloquy in the record, that fact alone is

not enough to establish reversible error. “The burden of proving that a guilty plea was

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

Walton v. State, 16 So. 3d 66, 70 (¶8) (Miss. Ct. App. 2009) (quoting House v. State, 754 So.

2d 1147, 1152 (¶24) (Miss. 1999)). A plea is considered “voluntary and intelligent” when

the defendant knows the elements of the charge against him, understands the charge’s

relation to him, what effect the plea will have, and what sentence the plea may bring.

Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992). “To determine whether the plea is

voluntarily, knowingly, 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.”

Carroll v. State, 963 So. 2d 44, 46 (¶8) (Miss. Ct. App. 2007) (quoting Burrough v. State,

9 So. 3d 368, 373 (¶11) (Miss. 2009)).

¶15.   Parish did not make any claim that the plea colloquy contained information that would

render his plea involuntary. Further, the record indicates that Parish not only knowingly

entered his guilty plea upon his own free will when he signed the petition to enter a guilty

plea, but he also understood the consequences that such a plea would compel. He signed,

with his attorney present, the guilty-plea petition, which stated in part:

       I know also that the sentence is up to the Court; that the Court is not required
       to carry out any understanding made by me and my attorney with the District
       Attorney; and further, that the Court is not required to follow the
       recommendation of the District Attorney, if any.

Also, in the December 3, 2007 sentencing order, the trial court reflected that a plea colloquy

occurred and indicated that Parish entered a voluntary plea. Therefore, Parish cannot now

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claim that he unknowingly or involuntarily pleaded guilty based on the sentencing agreement.

We find this issue is without merit.

       II.     Whether Parish’s indictment was defective and if there was sufficient
               evidence to support his indictment.

¶16.   Parish contends that his indictment was defective because it failed to identify any

specific person to whom he intended to transfer or distribute the cocaine. Parish next argues

that the evidence failed to establish his intent to distribute the drugs. As such, Parish asserts

that because the indictment lacked this crucial information, the evidence was insufficient to

support his conviction.

¶17.   “[T]he law is settled that[,] with only two exceptions, the entry of a knowing and

voluntary guilty plea waives all other defects or insufficiencies in the indictment.” Joiner

v. State, 61 So. 3d 156, 159 (¶7) (Miss. 2011) (quoting Conerly v. State, 607 So. 2d 1153,

1156 (Miss. 1992)). However, “[a] guilty plea does not waive an indictment’s failure to

charge an essential element of the crime, and it does not waive lack of subject matter

jurisdiction . . . .” Id. As previously discussed, Parish entered a valid guilty plea, and Parish

does not allege nor do we find a lack of subject-matter jurisdiction. Therefore, we must

determine if the identity of the recipient of the drugs or Parish’s intent constitutes an essential

element of the crime.

¶18.   Mississippi Code Annotated section 41-29-139(a)(1) (Rev. 2009) dictates that “it is

unlawful for any person knowingly or intentionally: To sell, barter, transfer, manufacture,

distribute, dispense[,] or possess with intent to sell, barter, transfer, manufacture, distribute[,]

or dispense, a controlled substance[.]” But “the supreme court has held that ‘the identity of

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the person to whom drugs are sold does not change the essence of the offense, since such

identity is not an element of the offense.’” Garrett v. State, 110 So. 3d 790, 793 (¶11) (Miss.

Ct. App. 2012) (quoting Jones v. State, 912 So. 2d 973, 976 (¶10) (Miss. 2005)). Therefore,

the recipient’s identity is not an essential element of the crime and does not render the

indictment defective.

¶19.   Next, Parish argues the State did not proffer evidence substantiating his intent to sell

or distribute the cocaine. Intent may be established by inference from circumstantial

evidence. Ultimately, “there must be enough [evidence] that the court may say with

confidence the prosecution could prove the accused guilty of the crime charged.” Burrough,

9 So. 3d at 373 (¶14) (citation omitted).

¶20.   Parish, however, failed to raise this issue before the trial court in his initial PCCR

motion.       “If a prisoner fails to raise all of his claims in his original [motion] for

post-conviction relief, those claims will be procedurally barred if the petitioner seeks to bring

them for the first time on appeal to this Court.” Massey v. State, 131 So. 3d 1213, 1219 (¶29)

(Miss. Ct. App. 2013) (quoting Willis v. State, 17 So. 3d 1162, 1166 (¶15) (Miss. Ct. App.

2009)). Accordingly, we cannot consider this issue on appeal. This issue is without merit.

       III.      Whether Parish received ineffective assistance of counsel.

¶21.   Parish contends he received ineffective assistance of counsel when he relied on

counsel’s promise made in the plea deal for a ten-year sentence. Parish claims that but for

his counsel’s promise, he would have gone to trial and not settled for a twenty-year sentence.

¶22.   “The Mississippi Supreme Court has consistently held that the UPCCRA’s procedural



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bars ‘apply to post-conviction relief claims based on ineffective assistance of counsel.’”

Williams v. State, 110 So. 3d 840, 844 (¶21) (Miss. Ct. App. 2013) (quoting Crosby v. State,

16 So. 3d 74, 78 (¶8) (Miss. Ct. App. 2009)). Therefore, this claim is barred. Regardless,

we address the merits.

¶23.   “An ineffective-assistance claim requires showing: (1) counsel’s performance was

deficient and (2) prejudice resulted.” Id. (citing Strickland v. Washington, 466 U.S. 668, 687

(1984)). “Pursuant to Strickland, there is a strong presumption that counsel’s performance

falls within the range of reasonable professional assistance.” Hooghe v. State, 138 So. 3d

240, 247 (¶31) (Miss. Ct. App. 2014) (citing Strickland, 466 U.S. at 689).

¶24.   “To overcome this presumption, the [petitioner] must show that there exists ‘a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Id. (citation omitted). However, because Parish

pleaded guilty, to prove the second prong, he must show “that but for his counsel’s error(s):

he would not have pleaded guilty; he would have instead insisted on going to trial; and the

ultimate outcome would have been different.” Mitchell v. State, 58 So. 3d 59, 62 (¶15)

(Miss. Ct. App. 2011) (citing Hannah v. State, 943 So. 2d 20, 24 (¶7) (Miss. 2006)).

¶25.   “In order to prevail on the issue of whether his defense counsel’s performance was

ineffective, [the petitioner] must prove that his counsel’s performance was deficient and that

he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So. 2d 1038, 1041 (¶8)

(Miss. Ct. App. 1999) (citing Strickland, 466 U.S. at 687-96). Parish failed to offer any

evidence of ineffective assistance of counsel other than his own affidavit. The supreme court



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has held that, in cases involving post-conviction relief, “where a party offers only his

affidavit, then his ineffective assistance of counsel claim is without merit.” Vielee v. State,

653 So. 2d 920, 922 (Miss. 1995).

¶26.   We find that Parish failed to prove any instance of deficiency on the part of his

counsel. Furthermore, Parish failed to show with reasonable probability that, but for his

counsel’s unprofessional errors, the result of this proceeding would have been different.

Accordingly, this issue is without merit

       IV.    Whether Parish received an illegal sentence.

¶27.   Parish also contests his twenty-year sentence on the grounds that it is violative of his

due-process rights and the sentence is illegal as a matter of law. He contends that he was led

to believe that he would receive a ten-year sentence in exchange for his guilty plea. Despite

the agreement, the trial court sentenced Parish to twenty years.

¶28.   Ordinarily, a trial judge is not bound by the terms of a plea agreement when the trial

judge does not participate in the plea-bargaining process, and the defendant is informed that

the plea agreement is merely a recommendation. Martin v. State, 635 So. 2d 1352, 1355-56

(Miss. 1994). The trial judge’s decision to accept or reject a plea is within the exercise of

sound judicial discretion. Miss. Code Ann. § 99-15-53 (Rev. 2015); Moody v. State, 716 So.

2d 592, 594 (¶9) (Miss. 1998); Martin, 635 So. 2d at 1355. As such, the circuit court did not

abuse its discretion.

¶29.   Because of Parish’s extensive record of past felonies, he was sentenced as a habitual

offender. Mississippi Code Annotated section 99-19-81 states:



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       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to separate terms of one (1) year or more in any state
       and/or federal penal institution, whether in this state or elsewhere, shall be
       sentenced to the maximum term of imprisonment prescribed for such felony,
       and such sentence shall not be reduced or suspended nor shall such person be
       eligible for parole or probation.

¶30.   At the time of Parish’s offense, possession of a controlled substance with intent to

distribute carried a maximum sentence of thirty years in prison. Miss. Code Ann. § 41-29-

139(b) (Rev. 2009). Therefore, while Parish received more than he expected, his sentence

did not exceed the maximum penalty allowed by the statute. Thus, we find this issue is

without merit.

¶31.   We find that Parish’s PCCR motion is time-barred. Further, he failed to raise any

claims resulting in the deprivation of his fundamental constitutional rights that would defeat

the time-bar. For these reasons, we affirm the circuit court’s judgment.

¶32. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, DENYING THE MOTION FOR POST-CONVICTION
COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.

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




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