         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                 NO. 2013-CP-01831-COA

TOMMY HAMBERLIN A/K/A TOMMY LEE                                           APPELLANT
HAMBERLIN

v.

STATE OF MISSISSIPPI                                                        APPELLEE

DATE OF JUDGMENT:                           10/02/2013
TRIAL JUDGE:                                HON. M. JAMES CHANEY JR.
COURT FROM WHICH APPEALED:                  WARREN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                     TOMMY HAMBERLIN (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:                    PETITION FOR POST-CONVICTION
                                            COLLATERAL RELIEF DISMISSED
DISPOSITION:                                AFFIRMED: 05/19/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., ISHEE AND MAXWELL, JJ.

       GRIFFIS, P.J., FOR THE COURT:

¶1.    Tommy Hamberlin appeals the dismissal of his motion for post-conviction collateral

relief (PCCR). Because we find that this motion is procedurally barred without an exception

and that it is without merit, we affirm the circuit court’s dismissal.

                         FACTS AND PROCEDURAL HISTORY

¶2.    A Warren County grand jury indicted Hamberlin for possession of a controlled

substance on January 26, 2000. The indictment included sentence enhancements due to

Hamberlin’s prior conviction for possession of a controlled substance in 1995 in which he
received a sentence of eight years.

¶3.    Hamberlin pleaded guilty in 2001 to the charges, and received a sentence of six years,

with 180 days to serve, and the remainder of the sentence suspended. Hamberlin served the

180 days and received post-release supervision for his remaining sentence.1

¶4.    Before Hamberlin completed his post-release-supervision term for the 2001

conviction, he was arrested and indicted for the sale and delivery of a controlled substance

on July 24, 2006. The grand jury indicted Hamberlin as a habitual offender based on his

prior 1995 and 2001 convictions.

¶5.    On February 7, 2007, Hamberlin pleaded guilty to the reduced charges of possession

of a controlled substance. The circuit court sentenced Hamberlin to seven years for one

count of possession of controlled substance, eight years for one count of possession of a

controlled substance as a habitual offender, and five years and 180 days for the revocation

of his prior suspended sentence from the 2001 conviction, all to run consecutively.

¶6.    Hamberlin subsequently filed a motion to vacate the judgment of conviction and

sentence, which the circuit court considered as one for post-conviction collateral relief, and

dismissed as time-barred. The circuit court also considered the substance of Hamberlin’s

arguments, but dismissed them as without merit. It is from this dismissal that Hamberlin

appeals.

¶7.    Hamberlin asserts the same arguments on appeal as in his PCCR motion, mainly: (1)

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         The circuit court in 2001 sentenced Hamberlin to six years with 180 days to serve
and the remainder suspended, with five years of post-release supervision. The circuit court
did not address the remaining 180 days in the sentencing order, but apparently suspended
the sentence at the hearing.

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he received ineffective assistance of counsel; (2) the circuit court could not revoke his 2001

suspended sentence because the sentence was illegal; (3) the 2001 indictment was

insufficient; (4) cumulative error necessitates a reversal; and (5) the errors violated his

fundamental constitutional right of due process.

                                STANDARD OF REVIEW

¶8.    This Court will not overturn a trial court’s dismissal of a PCCR motion on appeal

“unless the trial court’s decision was clearly erroneous.” Chapman v. State, 135 So. 3d 184,

185 (¶6) (Miss. Ct. App. 2013) (citation omitted). “When reviewing questions of law, this

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

                                        ANALYSIS

¶9.    The circuit court dismissed Hamberlin’s motion as time-barred under the Uniform

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

39-5(2) (Supp. 2014) 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.

¶10.   The circuit court accepted Hamberlin’s guilty plea and sentenced him on February 8,

2007. This gave Hamberlin until February 8, 2010, to file a motion. Hamberlin did not

submit his motion until May 29, 2013, well past the three-year limitation.

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

year time-bar for PCCR motions.

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       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].

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

¶12.   Hamberlin failed to argue that either an intervening decision or the discovery of new

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

and on appeal rests on his claims of ineffective assistance of counsel during his 2007 guilty-

plea proceedings and the illegality of his 2001 indictment and sentence.

¶13.   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)).

¶14.   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 Hamberlin’s claims result in the deprivation of a fundamental

constitutional right that would defeat the time-bar.

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       I.       Whether Hamberlin received ineffective assistance of counsel.

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

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)).

¶16.      “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).

¶17.   “To overcome this presumption, the [appellant] 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

Hamberlin 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)).

¶18.   Hamberlin argues his counsel performed in a deficient manner by lying and failing to

fully inform him regarding the length of his potential sentence if he pleaded guilty, by failing

to object to the circuit court’s revocation of his allegedly illegal sentence from 2001, by



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preventing him from pleading not guilty, and by failing to appeal his sentence in 2007. For

these reasons, Hamberlin asserts prejudice and that a different outcome likely would have

resulted.

¶19.   Hamberlin, however, offers his argument through his motion and briefs without any

supporting affidavits attesting to his ineffective-assistance-of-counsel claim. “In cases

involving post-conviction collateral relief, ‘where a party offers only his affidavit, then his

ineffective assistance of counsel claim is without merit.’” Evans v. State, 114 So. 3d 778,

782 (¶14) (Miss. Ct. App. 2013) (quoting Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995)).

¶20.   Because Hamberlin failed to meet his burden in proving ineffective assistance of

counsel and failed to overcome the procedural time-bar, we find this claim is without merit.

       II.    Whether Hamberlin received an illegal sentence.

¶21.   Hamberlin also contests his 2000 indictment and sentence by arguing the circuit court

could not revoke his suspended sentence because the sentence was illegal. However, mere

assertions are insufficient to overcome the time-bar, as “[t]here must at least appear to be

some basis for the truth of the claim before the procedural bar will be waived.” Cummings

v. State, 130 So. 3d 129, 132 (¶7) (Miss. Ct. App. 2013) (citation omitted).

¶22.   To support his argument, Hamberlin claims the circuit court sentenced him as a

habitual offender in that conviction. As a habitual offender, Hamberlin claims the circuit

court could not sentence Hamberlin to a suspended sentence because a habitual offender

cannot receive a suspended sentence. Hamberlin’s argument thus rest on the assertion that

he should have received a stricter sentence in 2001 because of this status.



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¶23.   Hamberlin correctly states a habitual offender cannot receive a suspended sentence.

See Miss. Code Ann. § 98-19-81 (Supp. 2014). Contrary to Hamberlin’s assertions,

however, the circuit court did not sentence him as a habitual offender in 2001. The grand

jury indicted Hamberlin as an offender with a sentence enhancement pursuant to Mississippi

Code Annotated section 41-29-147 (Supp. 2014), not as a habitual offender. Further,

Hamberlin pleaded guilty for a lesser sentence without any enhancement.

¶24.   “[A]n individual may not plead guilty to a crime, receive a lesser sentence than what

is prescribed by statute, and then use the more lenient sentence as a sword to attack the entire

sentence as illegal.” Cook v. State, 910 So. 2d 745, 747 (¶10) (Miss. Ct. App. 2005).

Hamberlin attempts to do just this. Hamberlin received a lesser sentence from his 2001

guilty plea and seeks to attack his prior sentence in order to avoid serving his suspended

term. Therefore, we find this issue is without merit.

¶25.   Because we find no error on any of Hamberlin’s claims, no cumulative error results

to warrant a reversal. For these reasons, we affirm the circuit court’s judgment.

¶26. THE JUDGMENT OF THE CIRCUIT COURT OF WARREN COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO WARREN
COUNTY.

     LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, MAXWELL AND
FAIR, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY. JAMES, J.,
NOT PARTICIPATING.




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