           IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CP-01314-COA

ANDREW LEON BRADLEY A/K/A ANDREW L.                                        APPELLANT
BRADLEY A/K/A ANDREW BRADLEY

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         08/02/2016
TRIAL JUDGE:                              HON. JAMES MCCLURE III
COURT FROM WHICH APPEALED:                TATE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   ANDREW LEON BRADLEY (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
NATURE OF THE CASE:                       CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                              AFFIRMED: 08/15/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       FAIR, J., FOR THE COURT:

¶1.    Andrew Bradley pled guilty to one count of possession of cocaine with intent to

distribute, as a habitual offender. He did so pursuant to a plea bargain, where in exchange

for his guilty plea the prosecution agreed to eliminate a recidivist enhancement, to

recommend a maximum of a ten-year sentence,1 and to retire to the file charges in another


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          The sentence recommended and imposed was contrary to the habitual offender
statute, which requires that the defendant be sentenced to the maximum term permitted for
the underlying offense. See Miss. Code Ann. § 41-29-139(b)(1)(B) (Supp. 2016); Miss.
Code Ann. § 99-19-81 (Rev. 2015). The record reflects no proportionality analysis. See
generally Clowers v. State, 522 So. 2d 762, 764 (Miss. 1988). But Bradley does not, and
indeed cannot, complain that he received an illegally lenient sentence. See, e.g., Chambliss
v. State, 188 So. 3d 1262, 1267 (¶17) (Miss. Ct. App. 2016).
case. The circuit court sentenced Bradley to ten years, as a habitual offender and without the

possibility of probation or parole. Less than a year later, Bradley filed the instant motion for

post-conviction relief. The circuit court dismissed it without an evidentiary hearing, and after

reviewing the record, we affirm.

                                STANDARD OF REVIEW

¶2.    The circuit court may summarily dismiss a PCR motion without an evidentiary hearing

“[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior

proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann. §

99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial

showing of the denial of a state or federal right and (2) show that the claim is procedurally

alive. Young v. State, 731 So. 2d 1120, 1122 (¶9) (Miss. 1999).

¶3.    Our review of the summary dismissal of a PCR motion, a question of law, is de novo.

Id.

                                       DISCUSSION

       1.     Voluntariness of Plea

¶4.    In his first issue, Bradley contends that his guilty plea was involuntary. He alleges

that he only agreed to plead guilty because the prosecutor threatened him with a life sentence

if he went to trial. He also claims that defense counsel “coached” him into testifying at the

hearing that his plea was voluntary.

¶5.    These contentions are supported only by Bradley’s claims in his PCR motion and his


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brief on appeal, and they are directly contradicted by his sworn petition to enter a guilty plea

and by his testimony at the hearing. The record reflects that Bradley repeatedly admitted

under oath that he had not been threatened, intimidated, or coerced and that he was pleading

guilty of his own free will.

¶6.      Bradley’s own claims in his PCR motion are insufficient to require an evidentiary

hearing, given his prior sworn statements. No hearing is required “where an affidavit is

overwhelmingly belied by unimpeachable documentary evidence in the record such as, for

example, a transcript or written statements of the affiant to the contrary to the extent that the

court can conclude that the affidavit is a sham.” Wright v. State, 577 So. 2d 387, 390 (Miss.

1991).

         2.     Factual Basis

¶7.      Under the umbrella of his first issue, Bradley also claims that there was no factual

basis for his guilty plea. Suffice it to say that, at the guilty plea hearing, Bradley admitted

under oath to every element of the offense.

¶8.      Bradley’s post-conviction challenge actually consists of factual contentions that

challenge the strength of the evidence against him and the ability of the prosecution to prove

its case at trial. For example, the prosecutor stated, and Bradley admitted under oath, that

Bradley threw a bag containing cocaine out of his vehicle while fleeing from the police. In

his PCR motion, however, Bradley contends that the prosecution would not really have been

able to prove that he was the one who threw the bag, as he had a passenger in the vehicle at


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the time.

¶9.    But Bradley pled guilty, and “[a] valid guilty plea waives the right to challenge the

sufficiency of the State’s evidence.” Belton v. State, 138 So. 3d 237, 239 (¶9) (Miss. Ct.

App. 2014) (citation omitted). This issue is without merit.

       3.     Weight of the Evidence

¶10.   Bradley’s next issue is essentially a rehashing of his factual basis argument, which we

addressed in the previous issue and found without merit. Again, “[a] valid guilty plea waives

the right to challenge the sufficiency of the State’s evidence.” Belton, 138 So. 3d at 239.

       4.     Preliminary Hearing

¶11.   Bradley next contends that he did not receive a timely preliminary hearing, and if he

had, that it would have determined that the prosecution could not make a case against him.

The record reflects, in fact, that Bradley was indicted by a grand jury, which both disproves

Bradley’s claims about the evidence and renders the question of a preliminary hearing moot.

In Sanders v. State, 847 So. 2d 903, 907 (¶22) (Miss. Ct. App. 2003), this Court explained:

       The record does not show whether Sanders had a preliminary hearing.
       However, once the indictment occurs, even had a preliminary hearing not been
       provided, that question becomes moot. The purpose of a preliminary hearing
       is to explore whether there is probable cause to believe that the defendant has
       committed an offense. The indictment by a grand jury removes the purpose of
       the hearing and none need thereafter be conducted. Sanders’ indictment
       appears in the record; therefore, the preliminary hearing issue is unavailing.

(Citations omitted).

¶12.   This issue is without merit.


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       5.     Indictment

¶13.   In Bradley’s next issue, he contends that his indictment was defective. Some of his

arguments here are difficult to comprehend – he appears to argue that his indictment

conflicted with another indictment rendered against him several months prior, but that

indictment is not found in the record. The various assertions made by Bradley on this point

do not even suggest that he might be entitled to relief; even based on Bradley’s own

contentions, it appears he faced indictments for two entirely separate incidents occurring

some time apart from each other.

¶14.   Bradley also contends that his indictment was defective because it did not allege the

specific amount of cocaine he ultimately admitted to possessing – 2.15 grams – but instead

tracked the language of the statute and accused him of possessing two or more grams, but

less than ten grams, of cocaine. See Miss. Code Ann. § 41-29-139(b)(1)(B) (Supp. 2016).

¶15.   “The purpose of the indictment is to provide the accused reasonable notice of the

charges against him so that he may prepare an adequate defense.” Warren v. State, 187 So.

3d 616, 621 (¶10) (Miss. 2016) (citation omitted). “It is generally sufficient that an

indictment set forth the offense in the words of the statute itself, as long as those words of

themselves fully, directly, and expressly, without any uncertainty or ambiguity, set forth all

the elements necessary to constitute the offence intended to be punished.” Tran v. State, 962

So. 2d 1237, 1241 (¶17) (Miss. 2007). “The ultimate test, when considering the validity of

an indictment on appeal, is whether the defendant was prejudiced in the preparation of his


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defense.” Warren, 187 So. 3d at 621-22 (¶10) (citation omitted).

¶16.   Under our statute, it is not an element of the offense that the State prove the amount

of drugs the defendant possessed to two decimal places; it is only required to prove that the

defendant possessed them in an amount punishable under the statute. See § 41-29-139. That

was alleged by the indictment here. This contention is without merit.

       6.     Sentencing as a Habitual Offender

¶17.   Finally, Bradley presents several challenges to his indictment and sentencing as a

habitual offender, some of which are repeated under more than one issue heading in his brief.

We have combined all of Bradley’s challenges to his conviction and sentence as a habitual

offender into one discussion for convenience.

¶18.   The indictment detailed three prior convictions and sentences, all over one year in

length. Bradley alleges that one of the prior convictions and sentences was “fabricated” in

the sense that he was actually sentenced to a term of less than one year. He also contends

that one of the convictions could not be used because he was presently serving that sentence

at the time he was sentenced in the instant case; apparently his suspended sentence in that

case had been revoked after he committed the instant offense.

¶19.   First of all, Bradley did not object to his sentencing as a habitual offender. He is

therefore procedurally barred from raising these issues on appeal. See Martin v. State, 214

So. 3d 217, 220 (¶6) (Miss. 2017).

¶20.   Notwithstanding the procedural bar, Bradley appears to misunderstand the habitual


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offender statute. It requires only that Bradley have been sentenced to a year or more; the

length of the sentence controls, not how much of it is actually served. See § 99-19-81;

Jackson v. State, 381 So. 2d 1040, 1042 (Miss. 1980). Moreover, the record says nothing

about the prior convictions beyond what was alleged in the indictment, which Bradley

specifically admitted as true and accurate in both his sworn petition to enter a plea of guilty

and his testimony at the guilty plea hearing. Again, “where an affidavit is overwhelmingly

belied by unimpeachable documentary evidence in the record such as, for example, a

transcript or written statements of the affiant to the contrary to the extent that the court can

conclude that the affidavit is a sham no hearing is required.” Wright v. State, 577 So. 2d 387,

390 (Miss. 1991).

¶21.   We find no merit to these contentions.

¶22.   AFFIRMED.

    LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON,
WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.




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