         IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2018-CP-00517-COA

JAMES CHARLES FUNCHESS A/K/A JAMES C.                                       APPELLANT
FUNCHESS A/K/A JAMES FUNCHESS

v.

STATE OF MISSISSIPPI                                                          APPELLEE

DATE OF JUDGMENT:                          03/26/2018
TRIAL JUDGE:                               HON. JOHN HUEY EMFINGER
COURT FROM WHICH APPEALED:                 MADISON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    JAMES CHARLES FUNCHESS (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BILLY L. GORE
NATURE OF THE CASE:                        CIVIL - POSTCONVICTION RELIEF
DISPOSITION:                               AFFIRMED - 03/26/2019
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE J. WILSON, P.J., GREENLEE AND McCARTY, JJ.

       McCARTY, J., FOR THE COURT:

¶1.    James Charles Funchess pleaded guilty to one count of sale of cocaine within 1,500

feet of a school. He was sentenced to sixty years, with thirty years suspended and five years

of postrelease supervision. Funchess filed two prior motions for postconviction relief (PCR).

This appeal concerns Funchess’s third motion for PCR. His first two were dismissed by the

trial court, and he appealed both dismissals. This Court consolidated the appeals and

affirmed the trial court’s decisions. Funchess v. State, 202 So. 3d 1286, 1288 (¶1) (Miss. Ct.

App. 2016) (Funchess I).

¶2.    Funchess now appeals, asserting (1) his indictment was insufficient, (2) his plea was
involuntary, (3) he received ineffective assistance of counsel, and (4) the sentence was

illegal. Finding no error, we affirm.

                                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; however, we review the

trial court’s legal conclusions under a de novo standard of review.” Bass v. State, 237 So.

3d 172, 173 (¶4) (Miss. Ct. App. 2017).

                                        DISCUSSION

¶4.    When a prisoner has already filed a PCR motion, the second or a successive PCR

motion is barred. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Because this is Funchess’s

third PCR motion, it is barred as successive.

¶5.    Yet “[e]rrors affecting fundamental constitutional rights are excepted from the

procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Williams v. State,

158 So. 3d 1171, 1173 (¶4) (Miss. Ct. App. 2014). However, “mere assertions of

constitutional-rights violations do not suffice to overcome the procedural bar.” Id. In

addition to the successive-writ bar, Funchess argues similar issues as those set forth in his

prior PCR motions, which we addressed fully in Funchess I. Regardless, we will review the

issues to determine whether Funchess has overcome the procedural bar.

       I.     Indictment

¶6.    Funchess argues that his indictment was defective because it did not include an

essential element of the crime charged, namely the quantity of cocaine. In Funchess I, we



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determined that Funchess had knowingly and voluntarily entered his guilty plea. Funchess

I, 202 So. 3d at 1289 (¶8). By pleading guilty, Funchess waived “all technical and

non-jurisdictional defects contained in the indictment . . . .” Clark v. State, 54 So. 3d 304,

308 (¶9) (Miss. Ct. App. 2011). Even if Funchess had not pleaded guilty, the quantity of

cocaine sold was not an essential element of the crime at the time of his offense. Belton v.

State, 968 So. 2d 501, 506 (¶18) (Miss. Ct. App. 2007).

¶7.    Funchess also argues that the indictment omitted the word “on” from the beginning

of the phrase “or about the 17th Day of September, 2007.” However, this is a technical

defect that Funchess waived when he pleaded guilty. This issue is without merit.

       II.    Plea

¶8.    As previously stated, we addressed this issue in Funchess I, and so it is barred.

Funchess I, 202 So. 3d at 1288-90 (¶¶6-8). Funchess also argues that “the trial court failed

to ascertain a factual basis that [he] was actually guilty.” However, during the plea hearing,

the trial court required the State to demonstrate what it would have proved had Funchess

elected to go to trial. After the State’s offer of proof, the trial court asked both Funchess and

his attorney whether they disagreed with the State’s factual basis. Both replied no. This

issue is without merit.

       III.   Assistance of Counsel

¶9.    Funchess raised this issue in Funchess I. See id. at 1289-90 (¶¶9-10). Here, he claims

his trial attorney was ineffective for different reasons: he failed to explain the State’s burden

of proof, he failed to act on evidence that Funchess was innocent, and he coerced Funchess



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into pleading guilty. To prevail on a claim for ineffective assistance of counsel, Funchess

must prove that (1) “counsel’s performance was deficient,” and (2) “the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).

This Court has held in PCR cases that “where a party offers only his affidavit, then his

ineffective[-]assistance claim is without merit.” Alford v. State, 185 So. 3d 429, 432 (¶16)

(Miss. Ct. App. 2016). Funchess offers nothing—apart from his own assertions—to

demonstrate that his counsel was ineffective. As we noted in Funchess I, Funchess

responded affirmatively when asked if he was satisfied with his representation. Funchess I,

202 So. 3d at 1209 (¶10). This issue is without merit.

       IV.    Sentence

¶10.   In this issue, Funchess argues that his sentence is illegal because his indictment was

defective for not including the quantity of cocaine. As discussed in the first issue, this

argument is without merit.

¶11.   AFFIRMED.

    BARNES, C.J., CARLTON AND J. WILSON, P.JJ., GREENLEE,
WESTBROOKS, TINDELL, McDONALD, LAWRENCE AND C. WILSON, JJ.,
CONCUR.




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