         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2014-CP-00183-COA

JAMES DOUGLAS SMITH A/K/A                                                   APPELLANT
JAMES D. SMITH

v.

STATE OF MISSISSIPPI                                                          APPELLEE


DATE OF JUDGMENT:                           01/06/2014
TRIAL JUDGE:                                HON. C.E. MORGAN III
COURT FROM WHICH APPEALED:                  WINSTON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     JAMES DOUGLAS SMITH (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: LAURA HOGAN TEDDER
NATURE OF THE CASE:                         CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DENIED MOTION FOR POST-
                                            CONVICTION RELIEF
DISPOSITION:                                AFFIRMED - 04/28/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ROBERTS AND FAIR, JJ.

       ROBERTS, J., FOR THE COURT:

¶1.    James Douglas Smith appeals the judgment of the Winston County Circuit Court,

which denied his post-conviction-relief (PCR) motion on January 6, 2014. On appeal, Smith

argues that the circuit court erred in denying his PCR motion as being time-barred and

without merit. Smith claims that his guilty plea was involuntary, as it was coerced as a result

of deception on behalf of his attorney and induced by the judge. Smith also claims that his

thirty-year sentence for the crime of statutory rape is unlawful, as it exceeds his life
expectancy. Upon review, we find that Smith’s issues are without merit. Finding no error,

we affirm.

                                           FACTS

¶2.    On March 31, 2009, a Winston County grand jury indicted Smith on one count of

statutory rape, pursuant to Mississippi Code Annotated section 97-3-65(1)(b) (Supp. 2009),

alleging that on January 17, 2009, Smith “wilfully, unlawfully and feloniously [had] sexual

intercourse with D.B.,1 a female child under the age of fourteen (14) years[,] . . . while . . .

Smith was then and there more than twenty-four (24) months older than the said child.” On

August 8, 2009, Smith submitted a petition to enter a plea of guilty to statutory rape of a

female child under the age of fourteen. The circuit court held a hearing on the petition that

same day, where Smith admitted that he had sexual relations with a minor, D.B., against her

will, at a time when the victim was under the age of fourteen and he was over the age of

eighteen.    The court subsequently accepted Smith’s guilty plea, and upon the

recommendation of the State, sentenced Smith to thirty years in the custody of the

Mississippi Department of Corrections (MDOC), as well as ordered him to pay a $500 fine

plus court costs. On August 10, 2013, Smith filed his PCR motion in the Winston County

Circuit Court, which was dismissed.

                                STANDARD OF REVIEW

¶3.    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. Rowland v. State, 42

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        The Court of Appeals declines to identify sexual-assault victims. In the interest
of the minor’s privacy, initials have been substituted for her name.

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So. 3d 503, 506 (¶8) (Miss. 2010). We review questions of law de novo. Id.

                                         ANALYSIS

       I.     STATUTORY TIME BAR

¶4.    Smith filed his PCR motion nearly one full year outside the three-year statutory period

provided by Mississippi Code Annotated section 99-39-5(2) (Supp. 2014). Section 99-39-

5(2) provides:

       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.

On its face, Smith’s PCR motion appears to be time-barred. However, Mississippi Code

Annotated section 99-39-5(2)(a)-(b) provides three exceptions to this general statute of

limitations. In order to avoid the time bar, the movant must show one of the following: (1)

an intervening decision of a higher court; (2) new evidence that was not reasonably

discoverable at trial; or (3) his sentence has expired, or his parole, probation, or conditional

release has been unlawfully revoked. Miss. Code Ann. § 99-39-5(2)(a)-(b). Additionally,

the Mississippi Supreme Court has found that “[e]rrors affecting fundamental constitutional

rights are excepted from the procedural bars” of the Uniform Post-Conviction Collateral

Relief Act. Rowland, 42 So. 3d at 506 (¶9). While Smith does not assert any of the statutory

exceptions to the time bar, his claim that his guilty plea was entered as a result of coercion,

inducement, and deception does affect his fundamental constitutional rights. See Ducksworth

v. State, 134 So. 3d 792, 794-95 (¶5) (Miss. Ct. App. 2013) (acknowledging that allegations


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of involuntary pleas may affect fundamental constitutional rights, though ultimately holding

Ducksworth’s claims to be barred). Additionally, Smith alleges that he received an illegal

sentence. “[T]he right to be free from an illegal sentence has been found to be fundamental.”

Kennedy v. State, 732 So. 2d 184, 186 (¶8) (Miss. 1999). Thus it is necessary to discuss the

merits of his claims.

       II.    VOLUNTARY GUILTY PLEA

¶5.    Smith claims the circuit court erred when it declared his PCR motion time-barred and

without merit. He claims that his court-appointed attorney used “deception and fear” to

coerce him into accepting the State’s plea offer, based upon a “pretense” that the State had

DNA evidence and a written confession to the crime. Smith alleges that this critical evidence

was not presented to the court in the State’s factual basis at his plea hearing. Smith

additionally claims that part of his attorney’s deception was not informing him that the judge

could sentence him to something other than the State’s offer of thirty years. Finally, Smith

claims that his plea was involuntary because the court insisted he admit guilt before accepting

the plea, and he continued to profess his innocence to the court.

¶6.    Smith filed his Petition to Enter a Plea of Guilty on August 24, 2009, and the court

held a hearing on that petition the same day. At Smith’s guilty-plea hearing, the circuit court

judge questioned and advised Smith about his understanding of the charges against him and

his desire to plead guilty. Smith stated that he understood his rights, and Smith’s attorney

confirmed that they had comprehensively gone over the plea petition before the hearing. The

court asked if Smith understood that he could receive a minimum sentence of twenty years



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and a maximum sentence of life; Smith responded affirmatively. The assistant district

attorney (ADA) stated the factual basis for the charge, after which the court asked Smith if

he heard the basis and admitted guilt. The following exchange occurred:

       SMITH:        I have no recollection of it. But instead of . . . throwing my life
                     away and spending the rest of my life in prison, if there is any
                     possible chance of doing 30 years and I could get out, I’ll . . .
                     take that. I’ll plead guilty.

       COURT:        No. See, I don’t accept anybody’s guilty plea unless they, in
                     fact, did it. I am not going to send innocent folks to the
                     penitentiary. If you didn’t do it, you are entitled to a trial . . . on
                     this matter. And I’m going to grant you that.

                     I would only accept your plea of guilty if, in fact, you did it. I
                     would only accept your plea of guilty if, in fact, you did do it
                     and you acknowledged to me that you did do it.

                     If not, we would have a trial. You’ve got a constitutional right
                     to a trial. I will give you that.

       SMITH:        Yes, sir, I understand. There’s no use in trying to have a speedy
                     trial on that situation. It happened.

The court then asked the ADA to be more specific as to the factual basis for the charge, and

the ADA represented that the State would be able to present a signed, written confession by

Smith, as well as DNA evidence linking him to the victim. At this point, the court asked

Smith if he committed the crime. Smith replied, “Yes, sir.” The court then asked if Smith

was pleading guilty to the charge because he was, “in fact, guilty of it.” Again, Smith

responded, “Yes, sir.” The court then stated that the State was expected to make a sentencing

recommendation, but asked Smith if he understood that the court was under no obligation to

accept the recommendation, but instead could impose any sentence allowed under the law.



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Smith responded affirmatively.

¶7.    The circuit court judge thoroughly reviewed and discussed the petition. A transcript

of the plea colloquy shows that the judge throughly advised him of all constitutional rights

he was waiving by pleading guilty, and Smith acknowledged his waiver of these rights.

Smith also had discussions with the court over the nature and specific factual basis for the

charges against him. Furthermore, the court found that Smith’s plea was knowingly and

intelligently entered. Additionally, Smith stated under oath that he understood that the State

would make a sentencing recommendation to the court for thirty years in MDOC custody,

and Smith stated that he understood he could receive the maximum sentence of life

imprisonment.

¶8.    “[A] guilty plea is valid so long as it was voluntarily and intelligently made by the

criminal defendant before the trial court.” Larry v. State, 129 So. 3d 263, 265 (¶6) (Miss. Ct.

App. 2013). “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 that plea.” Id. During the plea hearing, Smith acknowledged that he

was waiving his constitutional rights, and he stated that he understood the nature of the

charges against him. Smith and the judge discussed in depth the meaning of Smith’s guilty

plea. At the end of this discussion, Smith stated, “It happened.” After this discussion, the

State provided additional factual information about the evidence against Smith, including

DNA evidence and a signed confession. Smith again swore he was guilty and the alleged

offense had happened. “Solemn declarations made in open court carry a strong presumption



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of verity.” Id. Smith’s assertion of involuntariness is without merit.

       III.     UNLAWFUL SENTENCE

¶9.    In addition to his involuntary-plea claim, Smith alleges that his thirty-year sentence

for statutory rape is unlawful because it is equivalent to life imprisonment. Smith pleaded

guilty under Mississippi Code Annotated section 97-3-65(1)(b) to sexual intercourse with a

child under the age of fourteen who was not his spouse and who was at least twenty-four

months younger than he was. The punishment for the statutory rape Smith pleaded guilty to

is found in section 97-3-65(3)(c): “Upon conviction for statutory rape, the defendant shall

be sentenced as follows: . . . If eighteen (18) years of age or older and convicted under

subsection (1)(b) of this section, to imprisonment for life in the State Penitentiary or such

lesser term of imprisonment as the court may determine, but not less than twenty (20)

years[.]”     In support of his claim of an unlawful sentence, Smith relies on the supreme

court’s holding in Stewart v. State, 372 So. 2d 257 (Miss. 1979). However, Smith’s reliance

on Stewart is misplaced.

¶10.   The defendant in Stewart challenged his conviction for armed robbery under

Mississippi Code Annotated section 97-3-79 (Supp. 1978). Under the provisions of that

section at the time of conviction, the sentencing judge did not have discretion to impose a life

sentence, even if the jury failed to impose such a sentence. Stewart, 372 So. 2d at 257 n.1.

Smith’s conviction is not governed by the same statute. As discussed previously, section 97-

3-65(3)(c) sets a maximum penalty of life imprisonment and a minimum of twenty years, “as

the court may determine.” A comparison of the two statutes clearly shows that section 97-3-



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79 intends for the jury to make the determination for or against a life sentence, while section

97-3-65(3)(c) clearly intends for the court to make such a determination. The judge’s

determination of Smith’s sentence was well within his statutorily defined discretion and did

not exceed the statutory limits. Thus, Smith’s assertion that the sentence is tantamount to life

imprisonment and is therefore unlawful is without merit. Accordingly, we affirm the trial

court’s judgment denying Smith’s PCR motion.

¶11. THE JUDGMENT OF THE WINSTON COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.

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




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