        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2013-CP-01147-COA

FREDDRICK STAMPS                                                         APPELLANT

v.

STATE OF MISSISSIPPI                                                       APPELLEE


DATE OF JUDGMENT:                        06/18/2013
TRIAL JUDGE:                             HON. M. JAMES CHANEY JR.
COURT FROM WHICH APPEALED:               SHARKEY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  FREDDRICK STAMPS (PRO SE)
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: LADONNA C. HOLLAND
NATURE OF THE CASE:                      CIVIL – POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                 POST-CONVICTION RELIEF DENIED
DISPOSITION:                             AFFIRMED - 11/18/2014
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., ISHEE, ROBERTS AND JAMES, JJ.

      ROBERTS, J., FOR THE COURT:

¶1.   Freddrick Stamps pled guilty to burglary.      The Sharkey County Circuit Court

sentenced him to fifteen years in the custody of the Mississippi Department of Corrections

(MDOC), with ten years suspended and five years to serve, followed by three years of post-

release supervision. By pleading guilty to burglary, Stamps avoided prosecution for sexual

battery. Additionally, Stamps avoided prosecution as a habitual offender under Mississippi

Code Annotated section 99-19-81 (Rev. 2007). After he pled guilty, Stamps filed a motion

for post-conviction relief (PCR), and later “amended” his PCR motion to raise additional

issues. The circuit court found no merit to Stamps’s PCR motion and summarily denied his
request for relief. Stamps appeals. Finding no error, we affirm.

                       FACTS AND PROCEDURAL HISTORY

¶2.    Stamps was indicted for sexual battery and burglary of a dwelling. Additionally, the

prosecution alleged that Stamps qualified for enhanced sentencing as a habitual offender1

under section 99-19-81. Accordingly, Stamps faced a potential sentence of twenty-five years

for burglary. Miss. Code Ann. § 97-17-23(1) (Rev. 2014). He also faced a maximum

sentence of thirty years for sexual battery. Miss. Code Ann. § 97-3-101(1) (Rev. 2014).

Later, the prosecution offered to drop the sexual-battery charge and the habitual-offender

portion of the indictment if Stamps agreed to plead guilty to burglary. The prosecution also

agreed to recommend that the circuit court sentence Stamps to fifteen years in the custody

of the MDOC, with ten years suspended and five years to serve, followed by three years of

post-release supervision. Stamps took the deal. He pled guilty to burglary on October 9,

2012. The circuit court sentenced him consistent with the prosecution’s recommendation.

¶3.    In January 2013, Stamps filed a PCR motion. He claimed that his conviction and

sentence for burglary should be vacated because he did not receive an initial appearance

within forty-eight hours of his arrest. Stamps also claimed he received ineffective assistance

of counsel because his attorney did not make the circuit court aware of alleged variations

between the victim’s statement and the statement discussed in a police report. He also

argued that his lawyer was ineffective because she did not inform the circuit court of the


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        Stamps had previously been convicted of grand larceny in 1998. During 2007, he
was convicted of burglary and aggravated assault.

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delay in Stamps’s initial appearance. Finally, Stamps claimed that his guilty plea was

involuntary because he told his lawyer that he wanted to go to trial before he decided to plead

guilty.

¶4.       Two months later, Stamps filed an “amendment” to his PCR motion. Within his

“amendment,” Stamps raised four new issues. He claimed that there was insufficient

evidence that he was guilty of burglary, because there was insufficient evidence that he broke

into the victim’s house with the intent to commit sexual battery. Stamps also claimed that

the burglary charge in the indictment was fatally defective. It appears that he attempted to

raise a new issue regarding his delayed initial appearance, but he essentially repeated the

claim he raised in his original PCR motion. Lastly, he claimed that the sexual-battery charge

in the indictment was fatally defective because it did not allege that he committed an overt

act in furtherance of attempted sexual battery.

¶5.       The circuit court considered the merits of the claims that Stamps raised in his original

PCR motion and the “amendment” that he filed two months later. However, the circuit court

found no merit to Stamps’s claims. Stamps appeals.

                                  STANDARD OF REVIEW

¶6.       In reviewing a circuit court’s decision to deny a PCR motion, an appellate court will

not disturb the circuit court’s factual findings unless they are clearly erroneous. Rowland v.

State, 42 So. 3d 503, 506 (¶8) (Miss. 2010). We review questions of law de novo. Id.

                                           ANALYSIS

          I.     INITIAL APPEARANCE

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¶7.    Stamps’s first issue stems from the fact that his initial appearance before the Sharkey

County Justice Court did not occur within forty-eight hours of his arrest. According to

Stamps, because his initial appearance was approximately eighty-one hours after he was

arrested, his guilty plea should be set aside, his sentence should be vacated, and both charges

in the indictment should be dismissed with prejudice. Stamps does not claim that he

experienced any particular prejudice because his initial appearance was delayed. In other

words, Stamps suggests that he is immune to prosecution simply because his initial

appearance was approximately thirty-three hours too late.

¶8.    Rule 6.03 of the Uniform Rules of Circuit and County Court Practice provides that

“[e]very person in custody shall be taken, without unnecessary delay and within 48 hours of

arrest, before a judicial officer or other person authorized by statute for an initial

appearance.” Rule 6.03 further states:

       Upon the defendant's initial appearance, the judicial officer or other person
       authorized by statute shall ascertain the defendant’s true name and address,
       and amend the formal charge if necessary to reflect this information. The
       defendant shall be informed of the charges against him/her and provided with
       a copy of the complaint. If the arrest has been made without a warrant, the
       judicial officer shall determine whether there was probable cause for the arrest
       and note the probable cause determination for the record. If there was no
       probable cause for the warrantless arrest, the defendant shall be released. The
       judicial officer shall also advise the defendant of the following:

       1. That the defendant is not required to speak and that any statements made
       may be used against him . . . ;

       2. If the defendant is unrepresented, that the defendant has the right to
       assistance of an attorney, and that if the defendant is unable to afford an
       attorney, an attorney will be appointed to represent him . . . ;


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       3. That the defendant has the right to communicate with an attorney, family or
       friends, and that reasonable means will be provided to enable [him] to do so;

       4. Conditions under which the defendant may obtain release, if any; [and]

       5. That the defendant has the right to demand a preliminary hearing while [he]
       remains in custody.

Stamps does not claim that his initial appearance, though delayed, was otherwise insufficient

in any way. Although he claims that he experienced prejudice because of the delay, he does

not elaborate regarding exactly how he was prejudiced.

¶9.    The record reflects that Stamps exercised his right to remain silent, and otherwise

refused to cooperate with the investigation after he was arrested.         Consequently, the

prosecution did not obtain any evidence against Stamps while he was waiting for his initial

appearance. Additionally, there is no indication that the prosecution obtained some sort of

tactical advantage by virtue of the delay. “[T]he failure to provide an initial appearance for

the accused within forty-eight hours does not itself mandate reversal of his . . . convictions”

when the accused did not suffer prejudice as a result of the delay. McClendon v. State, 124

So. 3d 709, 714 (¶13) (Miss. Ct. App. 2013). A broad allegation of unspecified prejudice is

insufficient. Because Stamps did not carry his burden to prove that the delay caused him

some form of specific prejudice, we find no merit to this issue.

       II.    DOUBLE JEOPARDY

¶10.   Next, Stamps claims that the circuit court should have dismissed the indictment

against him because he was charged twice for the same crime. That is, Stamps claims he

experienced double jeopardy because he was charged with sexual battery and burglary of a

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dwelling. Stamps’s reasoning is based on the premise that the burglary charge was related

to his intent to commit sexual battery after he broke into the victim’s house.

¶11.   Stamps raises this issue for the first time on appeal. Mississippi Code Annotated

section 99-39-21(1) (Rev. 2007) states:

       Failure by a prisoner to raise objections, defenses, claims, questions, issues or
       errors either in fact or law which were capable of determination at trial and/or
       on direct appeal, regardless of whether such are based on the laws and the
       Constitution of the state of Mississippi or of the United States, shall constitute
       a waiver thereof and shall be procedurally barred, but the court may upon a
       showing of cause and actual prejudice grant relief from the waiver.

However, the Mississippi Supreme Court has held that the constitutional right to be free from

double jeopardy is a fundamental right, and the procedural bars referenced in the Mississippi

Uniform Post-Conviction Collateral Relief Act do not apply to double-jeopardy claims.

Rowland, 42 So. 3d at 508 (¶15). Additionally, “[e]rrors affecting fundamental rights are

exceptions to the rule that questions not raised in the trial court cannot be raised for the first

time on appeal.” Read v. State, 430 So. 2d 832, 837 (Miss. 1983). Consequently, Stamps

may raise this issue for the first time on appeal. However, Stamps is mistaken regarding his

claim that he experienced double jeopardy.

¶12.   A person’s life or liberty may not be placed in jeopardy twice for the same offense.

U.S. Const. amend. V; Miss. Const. art. 3, § 22. “The double-jeopardy clause affords three

protections: (1) protection from a second prosecution for the same offense after acquittal,

(2) protection from a second prosecution for the same offense after conviction, and (3)

protection from multiple punishments for the same offense.” Foreman v. State, 51 So. 3d


                                                6
957, 960 (¶8) (Miss. 2011). The circumstances of Stamps’s case do not fall under any of

those three categories. He was never prosecuted twice for the same offense. “[P]rosecuting

a defendant for separate and distinct statutory offenses does not violate the constitutional

prohibition against double jeopardy – even if those offenses arise out of the same set of

facts.” Adams v. State, 117 So. 3d 674, 678 (¶12) (Miss. Ct. App. 2013). “The applicable

rule is that, where the same act or transaction constitutes a violation of two distinct statutory

provisions, the test to be applied to determine whether there are two offenses or only one, is

whether each provision requires proof of a fact which the other does not.” Blockburger v.

United States, 284 U.S. 299, 304 (1932).

¶13.   Under Mississippi Code Annotated section 97-3-95(1)(a) (Rev. 2014), “[a] person is

guilty of sexual battery if he or she engages in sexual penetration with . . . [a]nother person

without his or her consent[.]” To prove that someone is guilty of burglary, there must be

proof beyond a reasonable doubt that the accused committed a “breaking and entering [of a]

dwelling house . . . with the intent to commit some crime therein[.]” Miss. Code Ann. § 97-

17-23(1) (Rev. 2014).      Burglary and sexual battery require proof of different facts.

Consequently, even if the prosecution had pursued the sexual-battery charge, Stamps would

not have been subjected to double jeopardy because he pled guilty to burglary. See also

Norman v. State, 543 So. 2d 1163, 1164 (Miss. 1989) (holding that no double-jeopardy

violation results from convictions for rape and burglary even where both charges arose from

a common set of facts). There is no merit to this issue.

       III.   EFFECTIVE ASSISTANCE OF COUNSEL

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¶14.   Next, Stamps claims the circuit court erred when it did not find that he received

ineffective assistance of counsel. Although Stamps raises a myriad of claims related to the

underlying concept that he received ineffective assistance of counsel, he does not support his

claims with any affidavits. “[W]here a party offers only his affidavit, then his ineffective

assistance of counsel claim is without merit.” Vielee v. State, 653 So. 2d 920, 922 (Miss.

1995). Furthermore, most of Stamps’s claims are not specific enough to review. He claims

that his attorney was ineffective because: (1) she failed to file unspecified “critical motions,”

(2) she failed to investigate unspecified information “relating to his innocence,” (3) she

would not assist him with some requests that he does not specify, and (4) she “attacked” him

in some unspecified way. Such broad and conclusory allegations are insufficient for us to

review.

¶15.   “A voluntary guilty plea waives claims of ineffective assistance of counsel except

insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty

plea.” Adams, 117 So. 3d at 677 (¶10). To prove ineffective assistance of counsel, Stamps

is obligated to prove: (1) his counsel’s performance was deficient, and (2) the deficiency was

prejudicial. Strickland v. Washington, 466 U.S. 668, 687 (1984). Stamps’s most developed

claims were that his lawyer told him that he did not have a defense, and she did not point out

a discrepancy between the victim’s statement and a police report that briefly summarized the

victim’s statement. Stamps does not demonstrate how his lawyer’s performance was

deficient for advising him that he did not have a defense. What is more, he does not even

elaborate as to what defense he supposedly had. As for any discrepancy between the victim’s

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actual statement and the statement that was relayed in a police report, it was irrelevant. The

discrepancy was relevant as to the sexual-battery charge. Stamps pled guilty to burglary.

The prosecution did not pursue the sexual-battery charge. It would make no sense to point

out a discrepancy that related to a charge for which Stamps was not being prosecuted. This

issue has no merit.

       IV.    VOLUNTARY GUILTY PLEA

¶16.   Stamps claims the circuit court erred when it found no merit to his claim that his guilty

plea was involuntary. According to Stamps, his lawyer coerced him to accept the plea deal.

He also claims that his guilty plea was involuntary because he told his lawyer that he wanted

to go to trial before he decided to plead guilty.

¶17.   “[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 guilty-plea hearing, Stamps swore that he

wanted to plead guilty. He was thirty-six years old at that time, and he had a twelfth-grade

education. He said he understood his guilty-plea petition, and he signed it. On six separate

occasions as the circuit court explained the rights that he was waiving, Stamps swore that he

still wanted to plead guilty. “Solemn declarations made in open court carry a strong

presumption of verity.” Id. There is entirely no merit to this issue.

       V.     FACTUAL BASIS FOR THE GUILTY PLEA

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¶18.   For the first time on appeal, Stamps claims that there was no factual basis for his

guilty plea. “[A petitioner] who fails to raise an issue in his motion for post-conviction relief

before the trial court may not raise that issue for the first time on appeal.” Fluker v. State,

17 So. 3d 181, 183 (¶5) (Miss. Ct. App. 2009) (citing Gardner v. State, 531 So. 2d 805,

808-09 (Miss. 1988)). This issue is procedurally barred.

       VI.     SUFFICIENCY OF THE EVIDENCE

¶19.   Next, Stamps claims there was insufficient evidence that he was guilty of burglary.

By pleading guilty, an offender waives a claim that there was insufficient evidence to find

him guilty. Welch v. State, 958 So. 2d 1288, 1289 (¶5) (Miss. Ct. App. 2007). There is no

merit to this issue.

       VII.    DISCOVERY VIOLATION

¶20.   Stamps also claims that the prosecution did not provide him with his clothes and

pictures of the window that he used to access the victim’s home. Stamps did not raise this

issue in his PCR motion. “[A petitioner] who fails to raise an issue in his motion for

post-conviction relief before the trial court may not raise that issue for the first time on

appeal.” Fluker, 17 So. 3d at 183 (¶5). Consequently, this issue is procedurally barred.

       VIII. SPEEDY TRIAL

¶21.   Next, Stamps seems to claim that he was denied his right to a speedy trial, because

436 days passed between the time of his arrest and the date he pled guilty. Stamps did not

raise this issue in his PCR motion. “[A petitioner] who fails to raise an issue in his motion

for post-conviction relief before the trial court may not raise that issue for the first time on

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appeal.”     Id.   Procedural bar notwithstanding, “[a valid] guilty plea waives all

non-jurisdictional rights or defects, . . . including the right to a speedy trial.” Fulton v. State,

844 So. 2d 1171, 1172 (¶4) (Miss. Ct. App. 2003).

       IX.     SUFFICIENT INDICTMENT

¶22.   Finally, Stamps claims the burglary charge in the indictment was insufficient. The

precise nature of Stamps’s claim is unclear. As best we can tell, Stamps reiterates his claim

that he could not be charged with sexual battery and burglary, where the underlying intent

of the burglary was to commit sexual battery. Essentially, this is simply a revised version

of his meritless double-jeopardy claim.         In any event, a guilty plea waives all non-

jurisdictional defects in an indictment. Maggitt v. State, 26 So. 3d 363, 365 (¶10) (Miss. Ct.

App. 2009). There is no merit to this issue.

¶23. THE JUDGMENT OF THE SHARKEY COUNTY CIRCUIT COURT IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SHARKEY
COUNTY.

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




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