        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2016-CP-00394-COA

MARK STEVEN LOPEZ A/K/A MARK S. LOPEZ                                      APPELLANT
A/K/A MARK LOPEZ

v.

STATE OF MISSISSIPPI                                                         APPELLEE

DATE OF JUDGMENT:                         01/21/2016
TRIAL JUDGE:                              HON. CHRISTOPHER LOUIS SCHMIDT
COURT FROM WHICH APPEALED:                HARRISON COUNTY CIRCUIT COURT,
                                          FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                   MARK STEVEN LOPEZ (PRO SE)
ATTORNEY FOR APPELLEE:                    OFFICE OF THE ATTORNEY GENERAL
                                          BY: BILLY L. GORE
NATURE OF THE CASE:                       CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                  DENIED MOTION FOR POSTCONVICTION
                                          RELIEF
DISPOSITION:                              AFFIRMED - 06/06//2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE LEE, C.J., ISHEE AND GREENLEE, JJ.

       ISHEE, J., FOR THE COURT:

¶1.    Mark Lopez was convicted as a habitual offender in the First Judicial District of the

Harrison County Circuit Court. This appeal stems from the circuit court’s denial of Lopez’s

motion for postconviction relief (PCR). Finding no error, we affirm.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.    On July 14, 2014, Lopez was charged with the unlawful transfer of less than ten

dosage units of hydrocodone, a Schedule III opioid. Because Lopez had previous felony

convictions, he was indicted as a habitual offender pursuant to Mississippi Code Annotated
section 99-19-81 (Rev. 2015). On December 11, 2014, Lopez voluntarily entered a plea of

guilty, and was thereafter sentenced as a habitual offender to serve a term of four years in the

custody of the Mississippi Department of Corrections (MDOC), without the possibility of

parole or probation.     On December 15, 2015, however, Lopez filed a motion for

resentencing, which the circuit court characterized as a PCR motion, pursuant to Mississippi

Code Annotated section 99-39-5 (Rev. 2015).

¶3.    In that motion, Lopez asserted that his sentence should be reduced for the following

reasons: (1) he received ineffective assistance of counsel and/or an illegal sentence; (2) he

did not satisfy the requirements to be classified as a habitual offender; (3) he completed long-

term drug and alcohol treatment, as ordered by the court; and (4) he had served one-fourth

of his sentence. Finding no merit to any of the issues raised by Lopez in his motion, the

circuit court summarily denied his motion. Lopez timely appealed.

                                STANDARD OF REVIEW

¶4.    “This Court reviews a circuit court’s [denial] of a PCR motion for abuse of

discretion.” Birmingham v. State, 159 So. 3d 597, 598 (¶4) (Miss. Ct. App. 2014). “We will

only reverse if the circuit court’s decision was clearly erroneous.” Id. (quoting Williams v.

State, 110 So. 3d 840, 842 (¶11) (Miss. Ct. App. 2013)). We review questions of law de

novo. Id.

                                       DISCUSSION

¶5.    To begin, we reaffirm that “[a]n evidentiary hearing is not necessary where the

allegations in a [PCR motion] are specific and conclusory.” Russell v. State, 44 So. 3d 431,



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434 (¶6) (Miss. Ct. App. 2010) (citing Cole v. State, 666 So. 2d 767, 777 (Miss. 1995)).

“The trial court is not required to grant an evidentiary hearing on every [motion] it

entertains.” Byrne v. State, 30 So. 3d 1264, 1266 (¶7) (Miss. Ct. App. 2010) (citation

omitted). Thus, we find at the outset that the circuit court’s summary denial of Lopez’s PCR

motion was not improper. See Miss. Code Ann. § 99-39-11(2) (Rev. 2015).

       I.     Ineffective Assistance of Counsel and Illegal Sentence

¶6.    Lopez first argues that he was ineffectively represented by his attorney because he was

not “made aware of . . . House Bill 585.” 2014 Miss. Laws ch. 457. Lopez further argues

that his sentence is illegal because the crime with which he was charged is “now considered

a misdemeanor.”

¶7.    It is well settled that our standard of review when discussing a claim of ineffective

assistance of counsel is the two-prong analysis originally set forth by the United States

Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). To prove ineffective

assistance of counsel, Lopez must demonstrate: (1) that his “counsel’s performance was

deficient,” in that it “fell below an objective standard of reasonableness,” and (2) that the

deficient performance prejudiced the defense—that is, there is “a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland, 466 U.S. at 687-88, 694. Moreover, “[i]n considering a claim of

ineffective assistance of counsel, an appellate court must strongly presume that counsel’s

conduct falls within a wide range of reasonable professional assistance.” Anderson v. State,

195 So. 3d 835, 840 (¶14) (Miss. Ct. App. 2016) (quoting Liddell v. State, 7 So. 3d 217, 219



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(¶6) (Miss. 2009)). In cases where a guilty plea has been entered, the first prong remains the

same, while “the second prong of prejudice is shown by proving that the ineffective

assistance of counsel affected the outcome of the plea process.” Wilson v. State, 81 So. 3d

1067, 1074 (¶10) (Miss. 2012) (citing Hill v. Lockhart, 474 U.S. 52, 58 (1985)).

¶8.      Reviewing the record, there is no evidence before this Court illustrating that Lopez’s

counsel’s representation fell below an objective standard of reasonableness. And, in fact,

Lopez acknowledged his counsel’s adequacy in his sworn and subscribed “petition to enter

[a] plea of guilty.” In addition, Lopez has offered no evidence showing that, but for his

counsel’s alleged errors, he would not have pleaded guilty, or the result would have somehow

come out differently. We therefore find that Lopez’s ineffective-assistance-of-counsel claim

fails.

¶9.      Regarding the legality of Lopez’s sentence, he voluntarily pleaded guilty to the illegal

transfer of less than ten dosage units of hydrocodone, a Schedule III controlled substance.

Pursuant to Mississippi Code Annotated section 41-29-139(b)(4) (Rev. 2013), Lopez was

subject to a maximum term of twenty years. Id. As Lopez only received a four-year

sentence, his sentence falls within the maximum parameter set forth under section 41-29-

139(b)(4) at the time he pleaded guilty, and we do not find it be reversible error.1 Lopez is

also mistaken that the current statute classifies his offense as a misdemeanor. Miss. Code

         1
         We note that because Lopez was a habitual offender, the trial judge was required
to sentence him to the statutory maximum, twenty years. See Miss. Code Ann. § 99-19-81.
Lopez’s sentence of four years was therefore “illegally lenient,” “[b]ut a convicted defendant
who receives an illegally lenient sentence suffers no prejudice. Thus, [Lopez’s] illegally
lenient sentence amounts to harmless error.” Tucker v. State, 93 So. 3d 913, 916 (¶15)
(Miss. Ct. App. 2012).

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Ann. § 41-29-139(b) (Supp. 2016); Miss. Code Ann. § 1-3-11 (Rev. 2014) (defining

“felony”). We therefore find these issues without merit.

       II.    Habitual-Offender Status

¶10.   Lopez next asserts that he should not have been classified as a habitual offender

because his prior felony convictions were approximately twenty years ago. Lopez was

sentenced as a habitual offender pursuant to section 99-19-81, which provides:

       Every person convicted in this state of a felony who shall have been convicted
       twice previously of any felony or federal crime upon charges separately
       brought and arising out of separate incidents at different times and who shall
       have been sentenced to separate terms of one (1) year or more in any state
       and/or federal penal institution, whether in this state or elsewhere, shall be
       sentenced to the maximum term of imprisonment prescribed for such felony,
       and such sentence shall not be reduced or suspended nor shall such person be
       eligible for parole or probation.

¶11.   The record reveals that in 1995, Lopez was previously convicted of three felonies, all

within Harrison County. Furthermore, Lopez received sentences of three years in MDOC

custody for two of the felonies, and five years for the third. Thus, the record illustrates that

Lopez has been convicted of a felony at least twice previously upon charges separately

brought and arising out of separate incidents at different times and was sentenced to separate

terms of one year or more in a state penal institution. The fact that it has been twenty years

since Lopez’s last felony conviction has no bearing on his status under section 99-19-81. See

Miss. Code Ann. § 99-19-81. Therefore, Lopez satisfies the requirements of section 99-19-

81, and thus, was properly sentenced as a habitual offender.

       III.   Long-Term Drug and Alcohol Treatment and Time Served

¶12.   Lopez argues that he is entitled to resentencing because he has successfully completed


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MDOC’s long-term drug and alcohol treatment program. We disagree. As the circuit court

highlighted in its order denying Lopez’s PCR motion, though participation in the treatment

program was court-ordered, Lopez’s sentence was not subject to modification should he

complete the program. And with respect to time served, Lopez states that he has “served

[one-fourth] of his court ordered [four-]year sentence.” Lopez, however, fails to provide

how this assertion entitles him to postconviction relief in the form of a new sentence. The

circuit court inferred that Lopez was likely arguing his parole eligibility under either House

Bill 585 or Mississippi Code Annotated section 47-7-3 (Supp. 2016). Assuming such, the

circuit court determined that would require Lopez to file a separate motion with the court.

Lopez has not contested this finding on appeal. As such, we find these issues are without

merit.

                                      CONCLUSION

¶13.     Reviewing the record before this Court, we cannot hold that the circuit court abused

its discretion in summarily denying Lopez’s PCR motion.

¶14. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCONVICTION
RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HARRISON COUNTY.

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




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