         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2013-CP-02059-COA

TYLER GRAHAM A/K/A TYLER LANE                                                APPELLANT
GRAHAM

v.

STATE OF MISSISSIPPI                                                           APPELLEE


DATE OF JUDGMENT:                           07/16/2013
TRIAL JUDGE:                                HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:                  CARROLL COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     TYLER GRAHAM (PRO SE)
ATTORNEY FOR APPELLEE:                      OFFICE OF THE ATTORNEY GENERAL
                                            BY: MELANIE DOTSON THOMAS
NATURE OF THE CASE:                         CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                    DENIED MOTION FOR POST-
                                            CONVICTION RELIEF
DISPOSITION:                                AFFIRMED - 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       CARLTON, J., FOR THE COURT:

¶1.    Tyler Graham appeals the Carroll County Circuit Court’s denial of his motion for

post-conviction relief (PCR). On appeal, Graham raises the following issues: (1) whether

his claim that his attorney gave him incorrect advice about parole eligibility was time-barred;

(2) whether he was entitled to any type of relief due to his attorney’s incorrect advice about

parole eligibility; (3) whether the circuit court failed to address his claim regarding

intervening decisions of the United States Supreme Court; and (4) whether his convictions

violated the Double Jeopardy Clause. Finding no error in the circuit court’s denial of
Graham’s PCR motion, we affirm.

                                           FACTS

¶2.    On October 24, 2006, a grand jury indicted Graham for aggravated assault and armed

robbery. On November 20, 2006, Graham pled guilty to both charges, and the circuit court

judge sentenced him to serve twenty years for Count I, aggravated assault, and twenty-five

years for Count II, armed robbery, both in the custody of the Mississippi Department of

Corrections, with the sentence in Count I to run concurrently with the sentence in Count II.

On June 7, 2013, Graham filed his PCR motion, and on July 12, 2013, he filed a motion to

vacate his conviction and sentence.

¶3.    The circuit court judge consolidated Graham’s motions after finding that both motions

sought to set aside Graham’s convictions and sentences due to a violation of the Double

Jeopardy Clause and incorrect advice from Graham’s attorney regarding parole eligibility.

In an opinion entered July 16, 2013, the circuit court judge found that Graham’s assignments

of error lacked merit and that his PCR motion was barred by the three-year statute of

limitations. See Miss. Code Ann. § 99-39-5(2) (Supp. 2014). Aggrieved by the circuit

court’s ruling denying his PCR motion, Graham now appeals to this Court.

                                STANDARD OF REVIEW

¶4.    “When reviewing a circuit court’s denial or dismissal of a PCR motion, we will

reverse the judgment of the circuit court only if its factual findings are ‘clearly erroneous’;

however, we review the circuit court’s legal conclusions under a de novo standard of

review.” Boyd v. State, 65 So. 3d 358, 360 (¶10) (Miss. Ct. App. 2011).

                                       DISCUSSION

                                              2
¶5.    Because Graham entered a plea of guilty to the counts charged in his indictment,

section 99-39-5(2) provides that he had three years from the entry of his judgment of

conviction to file his PCR motion. The record reflects that the circuit court entered Graham’s

judgment of conviction on November 20, 2006. However, Graham failed to file his PCR

motion until June 7, 2013, which fell well outside the three-year statute of limitations

provided by section 99-39-5(2). Therefore, unless Graham can demonstrate that he meets

an exception to the procedural bars of the Uniform Post-Conviction Collateral Relief Act

(UPCCRA), his PCR motion is time-barred.

¶6.    In previously addressing the UPCCRA’s time bar, this Court stated:

               Section 99-39-5(2)(a)-(b) provides three exceptions to the general
       three-year statute of limitations. 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
       of proving that one of the exceptions appl[ies].

Bates v. State, 126 So. 3d 990, 992 (¶8) (Miss. Ct. App. 2013) (internal citations omitted).

“In addition to the statutory exceptions afforded by the [UPCCRA], we have provided that

an exception to the procedural bars exists for errors affecting certain constitutional rights.”

Rowland v. State, 98 So. 3d 1032, 1036 (¶6) (Miss. 2012). However, “the mere assertion of

a constitutional right violation is not sufficient to overcome the time bar. There must at least

appear to be some basis for the truth of the claim before the limitation period will be

waived.” Stovall v. State, 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004).

       I.     Whether Graham’s claim that his attorney gave him incorrect
              advice about parole eligibility was time-barred.



                                               3
       II.    Whether Graham was entitled to any type of relief due to his
              attorney’s incorrect advice about parole eligibility.

¶7.    In his first assignment of error, Graham contends that the circuit court erroneously

held as time-barred his claim that he received incorrect parole-eligibility advice from his

attorney. Graham argues that, because this claim of ineffective assistance of counsel

concerns a constitutional-rights violation, the claim is excepted from the UPCCRA’s

procedural bars. Graham also argues in his second assignment of error that the circuit court

erroneously found his claim of ineffective assistance of counsel failed to entitle him to any

type of relief. Graham asserts that the circuit court should have held an evidentiary hearing

before dismissing his claim. For the sake of brevity, we address together these two

assignments of error regarding Graham’s claim of ineffective assistance of counsel.

¶8.    “Where a petitioner asserts a fundamental right, the courts must address the merits of

the petition for [PCR] regardless of procedural bars.” Salter v. State, 64 So. 3d 514, 517-18

(¶14) (Miss. Ct. App. 2010) (citing Rowland v. State, 42 So. 3d 503, 507-08 (¶12) (Miss.

2010)). In Salter, the defendant argued that his claims of ineffective assistance of counsel

and an involuntary guilty plea were sufficient to invoke the fundamental-rights exception to

the UPCCRA’s procedural bars. Id. at 518 (¶14). However, this Court disagreed with the

defendant’s assertions, recognizing that “[t]he supreme court has held that claims of

ineffective assistance of counsel and involuntary guilty pleas are indeed subject to the

procedural bars.” Id. (citing Kirk v. State, 798 So. 2d 345, 346 (¶6) (Miss. 2000)). We

therefore held that the circuit court correctly dismissed the defendant’s petition as a

successive writ. Id. at (¶15).



                                             4
¶9.    After reviewing relevant caselaw and the facts in the record, we find no error in the

circuit court’s ruling that Graham’s PCR motion was procedurally barred as untimely.

Notwithstanding the time bar, however, we recognize that Graham’s claim fails for other

reasons. As the record reflects, Graham acknowledged under oath during his plea colloquy

that he knew and understood the maximum punishment for both crimes charged in his

indictment. Graham also stated under oath during the plea colloquy that he was completely

satisfied with the representation provided by his attorney.

¶10.   In addition to Graham’s admissions during his plea colloquy, we recognize that

Graham fails to support his allegation of ineffective assistance of counsel with any

supporting affidavits. “Our appellate courts routinely hold that [PCR] claims of ineffective

assistance are properly dismissed where the defendant offers only his affidavit in support of

his allegations.” Edwards v. State, 995 So. 2d 824, 826 (¶11) (Miss. Ct. App. 2008)

(citations omitted). “A [PCR] motion unsupported by affidavits other than the petitioner’s

own fails to meet the pleading requirements of Mississippi Code Annotated section 99-39-9

[(Supp. 2014)] and, thus, is deficient on its face and properly dismissed without an

evidentiary hearing.” Id. at 826-27 (¶11) (citations omitted).

¶11.   Based on the record and our applicable caselaw, we find no merit to Graham’s

assignments of error regarding his ineffective-assistance-of-counsel claim.

       III.   Whether the circuit court failed to address Graham’s claim
              regarding intervening decisions by the United States Supreme
              Court.

¶12.   Graham next asserts that the circuit court failed to address his claim that two

intervening decisions by the Supreme Court require review of his guilty plea and subsequent


                                             5
convictions and sentences. Graham argues that, although the circuit court’s opinion touched

on his first two claims, the circuit court completely failed to recognize or address his claim

regarding intervening Supreme Court decisions.

¶13.   As reflected in the record, Graham cites Padilla v. Kentucky, 559 U.S. 356 (2010), and

Missouri v. Frye, 132 S. Ct. 1399 (2012), to support his assertion that his attorney’s incorrect

advice regarding parole eligibility entitles him to relief. In Padilla, the Supreme Court found

an attorney’s performance deficient because the attorney failed to inform the defendant of

the immigration consequences of his guilty plea. Padilla, 559 U.S. at 356. In Frye, the

Supreme Court found an attorney’s performance deficient because the attorney failed to

inform the defendant of a formal offer to accept a plea on possibly more favorable terms and

conditions before the offer’s expiration. Frye, 132 S. Ct. at 1408.

¶14.   In his opinion denying Graham’s PCR motion, the circuit court judge acknowledged:

       On several occasions, it has been held that a criminal defendant [who] is given
       incorrect advice from his attorney concerning parole eligibility might be
       entitled to [PCR]. Fairley v. State, 834 So. 2d 704 (Miss. 2003); Garner v.
       State, 928 So. 2d 911 (Miss. [Ct.] App. 2006); Thomas v. State, 881 So. 2d 912
       (Miss. [Ct. App.] 2004). This was the law at the time [Graham] entered his
       guilty pleas, and not some intervening appellate court decision that was
       rendered after [Graham] pleaded guilty.

The circuit court judge thus found “Graham’s claim that he [was] entitled to have his

convictions and sentences set aside, due to incorrect advice from his attorney concerning

parole eligibility, to be barred” by the UPCCRA’s three-year statute of limitations.

¶15.   As previously discussed, we find no error in the circuit court’s ruling that Graham’s

claims of ineffective assistance of counsel are time-barred. Despite Graham’s assertions to

the contrary, a review of Padilla and Frye fails to demonstrate that these cases impact the


                                               6
outcome of Graham’s convictions and sentences. As a result, we find no merit to Graham’s

argument that these two Supreme Court decisions constitute intervening caselaw requiring

the reversal of his convictions and sentences.

       IV.    Whether Graham’s convictions violated the Double Jeopardy
              Clause.

¶16.   Graham asserts that his convictions for armed robbery and aggravated assault violate

the Double Jeopardy Clause. Graham argues that “violence to the victim’s person” was a

necessary element of both crimes, and he contends that his “conviction for two crimes based

on the same single violent act[, which served] as a required element for both crimes, is a

violation” of the Double Jeopardy Clause.1

¶17.   In Thomas v. State, 930 So. 2d 1264, 1266 (¶5) (Miss. Ct. App. 2005), this Court

found no merit to the defendant’s claim that his convictions for armed robbery and

aggravated assault, which were based on a single set of events, amounted to double

jeopardy.2   We recognized that Mississippi jurisprudence applies the test set forth in

Blockburger v. United States, 284 U.S. 299, 304 (1932), to determine whether double

       1
         As reflected in Graham’s plea colloquy, the State was prepared to prove at trial that
Graham hit the victim in the head multiple times, causing traumatic brain injury, a skull
fracture, and multiple facial bone fractures. The State was further prepared to prove that
Graham then left the victim in this injured condition and stole the victim’s truck.
       2
         To support his argument that his convictions violate the Double Jeopardy Clause,
Graham cites Rowland, where the supreme court found that the defendant “was placed in
double jeopardy when he was convicted of capital murder (killing while engaged in the
commission of armed robbery) and the included offense of armed robbery . . . .” Rowland,
98 So. 3d at 1039 (¶14). Graham asserts on appeal that the circuit court relied on a string of
pre-Rowland cases, including Thomas, to reach a generic holding that Graham’s convictions
failed to violate the Double Jeopardy Clause. Despite Graham’s assertions, a review of
Rowland confirms that our holding in Thomas and similar cases is still good law and was not
overturned by the supreme court’s decision in Rowland.

                                              7
jeopardy applies to a defendant’s claim. Thomas, 930 So. 2d at 1266 (¶6). “The Blockburger

test states that ‘a single act may be an offense against two statutes; and if each statute

requires proof of an additional fact which the other does not, an acquittal or conviction under

either statute does not exempt the defendant from prosecution and punishment under the

other.’” Thomas, 930 So. 2d at 1266 (¶6) (quoting Blockburger, 284 U.S. at 304).

¶18.   “In determining whether two charged offenses actually constitute but one crime, we

look to the elements of each crime. Where one crime charged requires proof of an additional

fact not required of the second charge, the charges are, in fact, two separate crimes.” Stovall,

873 So. 2d at 1058 (¶10) (citing State v. Thomas, 645 So. 2d 931, 933 (Miss. 1994)).

Furthermore, “Mississippi has long recognized that separate offenses, though committed

under a common nucleus of operative fact, [do] not present a legal impediment to multiple

prosecutions under the [D]ouble [J]eopardy [C]lause of both the federal and the state

constitutions.” Henley v. State, 749 So. 2d 246, 249 (¶12) (Miss. Ct. App. 1999) (citations

omitted).

¶19.   As our precedent establishes, “[a]ggravated assault does not require the taking or

attempt to take property. Armed robbery does not require an attempt to cause bodily injury.”

Thomas, 930 So. 2d at 1266 (¶9).3 Based on our statutory law and previous caselaw, we find

that each of Graham’s charges required proof of an additional fact not required by the other

charge. Therefore, Graham’s convictions for armed robbery and aggravated assault clearly




       3
        See also Miss. Code Ann. § 97-3-7(2) (Rev. 2006) (providing the elements required
for aggravated assault); Miss. Code Ann. § 97-3-79 (Rev. 2006) (providing the elements
required for armed robbery).

                                               8
constituted two separate offenses. As a result, we find no merit to Graham’s argument that

his convictions for armed robbery and aggravated assault violate the Double Jeopardy

Clause.

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

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




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