        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2015-CP-01341-COA

JAMES ALLEN SWAIM A/K/A JAMES A.                                           APPELLANT
SWAIM A/K/A JAMES SWAIM

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         08/21/2015
TRIAL JUDGE:                              HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT,
                                          SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   JAMES ALLEN SWAIM (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: SCOTT STUART
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 Allen Swaim was convicted of felony DUI after he was arrested on June 1,

2011, for his third DUI offense in five years. Swaim previously received convictions for

misdemeanor DUIs on June 25, 2008, and October 21, 2010. Based on these two prior DUI

convictions within five years of each other, Swaim was indicted for felony DUI on March

12, 2012.

¶2.    On March 4, 2013, Swaim entered a guilty plea to felony DUI, and the trial court

sentenced him to five years, with two years to serve, three years suspended, and three years
of post-release supervision.

¶3.    Swaim filed a motion for post-conviction collateral relief (PCCR) on July 22, 2015.

In his PCCR motion, Swaim alleged he was improperly convicted of felony DUI, he received

ineffective assistance of counsel, his conviction stemmed from a Fourth Amendment right

violation, and he entered an involuntary guilty plea. He also attempted to challenge his 2010

misdemeanor DUI conviction. On August 24, 2015, the trial court denied his PCCR motion.

Swaim now appeals. We find no error and affirm.

                                 STANDARD OF REVIEW

¶4.     “In reviewing a trial court’s dismissal of a [PCCR] motion, our standard of review

is well-settled. We will not disturb the trial court’s factual findings unless they are found to

be clearly erroneous.” Allen v. State, 164 So. 3d 498, 499 (¶4) (Miss. Ct. App. 2015)

(quoting Williams v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004)). “However,

where questions of law are raised, the applicable standard of review is de novo.” Id.

                                         ANALYSIS

¶5.    Swaim raised several issues in his PCCR motion. We address three of his contentions

here. Swaim asserts that: (1) he was improperly convicted for felony DUI when his prior

convictions were for DUI, first offense; and (2) he received ineffective assistance of counsel,

which resulted in an involuntary guilty plea.

¶6.    Swaim also challenged his 2010 DUI conviction, but we decline to address this

contention because Swaim attempted to collaterally attack multiple judgments contrary to the


                                              2
Uniform Post-Conviction Collateral Relief Act (UPCCRA). See Miss. Code Ann. § 99-39-

9(2) (Rev. 2015) (The UPCCRA limits PCCR petitions “to the assertion of a claim for relief

against one (1) judgment only. If a petitioner desires to attack the validity of other judgments

under which he is in custody, he shall do so by separate motions.”).

¶7.    Additionally, Swaim argues a Fourth Amendment right violation occurred because his

DUI stemmed from an illegal search and seizure. Swaim, however, does not state from which

DUI this allegation arises or what illegal search occurred. Without more, this Court cannot

address this contention. We address the remaining issues.

       I.     The trial court properly found Swaim guilty of felony DUI.

¶8.    Swaim initially contends that he was erroneously found guilty of a felony DUI when

his two previous DUI convictions were for a first-offense DUI. As such, Swaim asserts that

he could only be convicted for a second-offense DUI rather than for a third-offense, or felony,

DUI.

¶9.    Mississippi Code Annotated section 63-11-30(2)(c) (Supp. 2016) defines third-offense

DUI as:

       Except as otherwise provided in subsection (3), for any third conviction of any
       person violating subsection (1) of this section, the offenses being committed
       within a period of five (5) years, the person shall be guilty of a felony and fined
       not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand
       Dollars ($5,000.00), and shall serve not less than one (1) year nor more than
       five (5) years in the custody of the Department of Corrections.

Based on this statute, Swaim was convicted of third-offense DUI due to his two prior

convictions for DUI.

                                               3
¶10.   Swaim, however, asserts that his two prior convictions were for first-offense DUI,

which meant he must be convicted of a second-offense DUI before a third-offense DUI. This

contention is in error.

¶11.   To support this proposition, Swaim relies on Page v. State, 607 So. 2d 1163, 1168

(Miss. 1992), and Ashcraft v. City of Richland, 620 So. 2d 1210, 1211 (Miss. 1993). The Page

court held that “each prior conviction is an element of the felony offense, and each must be

specifically charged.” Page, 607 So. 2d at 1168. In the DUI context, this meant that each

DUI offense must be specifically charged as a first, second, or subsequent offense, and also

that a defendant must have been convicted of first- and second-offense DUI before a

conviction for third-offense DUI. Id. Ashcraft extended this holding. Ashcraft, 620 So. 2d

at 1211.

¶12.   The Mississippi Supreme Court, however, overruled Page and Ashcraft “to the extent

that they interpret the statute to require that the indictment must specifically show a previous

conviction for D.U.I. First prior to being convicted for D.U.I. Second and a conviction of

D.U.I. Second prior to being convicted for D.U.I. Third.” McIlwain v. State, 700 So. 2d 586,

589 (¶9) (Miss. 1997). Thus, the only requirement for a felony DUI conviction is that “the

indictment must . . . ‘supply enough information to the defendant to identify with certainty the

prior convictions relied upon by the State for enhanced punishment.’” Id. at (¶10) (quoting

Benson v. State, 551 So. 2d 188, 196 (Miss. 1989)).

¶13.   Here, the indictment stated both of the prior convictions and the dates of those


                                               4
convictions. This information on the indictment sufficiently apprised Swaim of the charge

of felony DUI. Additionally, Swaim’s petition to enter a guilty plea stated that he sought to

plead guilty to felony DUI and that “[he] was arrested for [his] third offense DUI after two

prior misdemeanor offenses.” For these reasons, Swaim was properly convicted of felony

DUI.

       II.    Swaim did not receive ineffective assistance of counsel or enter an
              involuntary guilty plea.

¶14.   Swaim next contends he received ineffective assistance of counsel due to his trial

counsel’s failure to fully inform him of the applicable law. Swaim further asserts that he

pleaded guilty in reliance on his attorney’s advice, which rendered his guilty plea involuntary.

Therefore, this Court addresses the claims of ineffective assistance of counsel and an

involuntary guilty plea together.

¶15.   To support an ineffective-assistance-of-counsel claim, Swaim must show: (1) his

counsel’s performance was deficient and (2) prejudice resulted. Strickland v. Washington,

466 U.S. 668, 687 (1984). Under 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).

¶16.   “The movant must allege facts pointing toward counsel’s deficient performance with

‘specificity and detail.’” Bell v. State, 117 So. 3d 661, 664 (¶10) (Miss. Ct. App. 2013)

(citation omitted). Further, “[i]n cases involving post-conviction collateral relief, ‘where a

party offers only his affidavit, then his ineffective assistance claim is without merit.’” Cherry

                                               5
v. State, 24 So. 3d 1048, 1051 (¶6) (Miss. Ct. App. 2010) (quoting Vielee v. State, 653 So. 2d

920, 922 (Miss. 1995)). Swaim failed to attach any affidavits in support of his contentions.

Swaim merely asserted he received ineffective assistance without alleging specific acts,

except in his appellate brief. Therefore, Swaim failed to meet his burden in his PCCR

petition.

¶17.   Additionally, Swaim pleaded guilty, which “waives claims of ineffective assistance of

counsel ‘except insofar as the alleged ineffectiveness relates to the voluntariness of the giving

of the guilty plea.’” Rigdon v. State, 126 So. 3d 931, 936 (¶16) (Miss. Ct. App. 2013)

(quoting Hill v. State, 60 So. 3d 824, 827 (¶6) (Miss. Ct. App. 2011)). Swaim raises the issue

that he involuntarily pleaded guilty because his attorney did not disclose information and he

only pleaded guilty based on his attorney’s advice.

¶18.   Swaim, however, has failed to demonstrate what information the attorney should have

provided or that his attorney improperly induced him to plead guilty. As such, Swaim does

not meet his burden under Strickland. He fails to show how his counsel’s actions constituted

an error or caused prejudice. Additionally, because Swaim pleaded guilty, he must “show that

the deficient conduct proximately resulted in his guilty plea, and but for counsel’s errors, he

would not have entered the plea.” Cole v. State, 918 So. 2d 890, 894 (¶10) (Miss. Ct. App.

2006) (citing Reynolds v. State, 521 So. 2d 914, 918 (Miss. 1988)). Yet Swaim did not

demonstrate how his counsel’s actions or inactions resulted in his guilty plea. He merely

asserts that he would not have pleaded guilty if his attorney presented undisclosed


                                               6
information. Absent any additional evidence, this is insufficient to prove ineffective

assistance of counsel. This issue is without merit.

¶19. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT,
SECOND 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.




                                             7
