        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                                NO. 2015-CP-00765-COA

AMOS HICKS                                                                   APPELLANT

v.

STATE OF MISSISSIPPI                                                           APPELLEE

DATE OF JUDGMENT:                          04/17/2015
TRIAL JUDGE:                               HON. ROBERT P. KREBS
COURT FROM WHICH APPEALED:                 JACKSON COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                    AMOS HICKS (PRO SE)
ATTORNEY FOR APPELLEE:                     OFFICE OF THE ATTORNEY GENERAL
                                           BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                        CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:                   PETITION FOR POST-CONVICTION
                                           COLLATERAL RELIEF DISMISSED
DISPOSITION:                               AFFIRMED: 06/21/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

       GRIFFIS, P.J., FOR THE COURT:

¶1.    In 2006, Amos Hicks pleaded guilty to murder after killing his wife, Lena. The circuit

court sentenced him to life in the custody of the Mississippi Department of Corrections.

¶2.    In 2015, Hicks filed a petition for post-conviction collateral relief (PCCR), which was

dismissed by the circuit court as time-barred. Hicks now appeals, claiming that his guilty

plea was involuntary as a result of a defective indictment and that he received ineffective

assistance of counsel.

                                        ANALYSIS

¶3.    This Court reviews the dismissal of a PCCR motion under an abuse-of-discretion
standard. Randall v. State, 148 So. 3d 686, 688 (¶6) (Miss. Ct. App. 2014). We will reverse

if the circuit court’s decision was clearly erroneous. Id. Questions of law are subject to de

novo review. Id.

       I.     Whether Hicks’s PCCR motion is procedurally barred.

¶4.    “A defendant's post-conviction challenge to an indictment after a guilty plea must be

filed within three years of entry of the judgment of conviction.” Id. at (¶7). Hicks pleaded

guilty to murder on May 31, 2006. He filed his PCCR petition on April 13, 2015, nearly nine

years later. Hicks argues that his fundamental constitutional rights were violated when he

pleaded guilty under a defective indictment and when he received ineffective assistance of

counsel.

¶5.    It is true that “[e]rrors affecting fundamental constitutional rights are excepted from

the procedural bars of the Uniform Post-Conviction Collateral Relief Act.” Cummings v.

State, 130 So. 3d 129, 132 (¶7) (Miss. Ct. App. 2013). But the three-year statute of

limitations still applies to claims that an indictment was defective. Jordan v. State, 118 So.

3d 656, 658 (¶8) (Miss. Ct. App. 2013) (citing Moss v. State, 45 So. 3d 305, 307 (¶10) (Miss.

Ct. App. 2010)). Likewise, this time-bar also applies to PCCR claims of involuntary guilty

pleas and ineffective assistance of counsel. Smith v. State, 118 So. 3d 180, 184 (¶12) (Miss.

Ct. App. 2013); Crosby v. State, 16 So. 3d 74, 78 (¶8) (Miss. Ct. App. 2009). “Merely

asserting a constitutional right violation is not sufficient to overcome the time bar.”

Cummings, 130 So. 3d at 132 (¶7). “There must at least appear to be some basis for the truth

of the claim before the procedural bar will be waived.” Id. We find that the circuit court



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properly dismissed Hicks’s petition based on the time-bar. Notwithstanding the time-bar,

Hicks’s claims are without merit.

       II.     Whether Hicks’s indictment was defective.

¶6.    Hicks argues that his indictment for capital murder was defective. The underlying

felony in the capital-murder indictment was burglary, but the elements of the burglary charge

were not listed. The indictment states that Hicks “did . . . willfully, unlawfully and

feloniously, without the authority of law, and with or without any design to effect the death,

kill and murder Lena B. Hicks, a human being, while in the commission of the crime and

felony of [b]urglary . . . .”

¶7.    This Court has held that “[c]apital-murder indictments predicated on the underlying

felony of burglary must specifically name the intended crime that comprised an element of

the burglary charge.” Pinkney v. State, 2015 WL 7435243, *4 (¶18) (Miss. Ct. App. 2015).

The indictment “must include notice of the crime comprising the burglary because burglary

requires[,] as an essential element, the intent to commit another crime.” Id. at *5 (¶20)

(citing State v. Berryhill, 703 So. 2d 250, 257-58 (¶¶29, 34) (Miss. 1997)).

¶8.    Hicks’s indictment does not list the crime underlying the burglary. However, Hicks

pleaded guilty to murder, not capital murder. The supreme court has previously held that

deficiencies in a capital-murder indictment do not require “reversal of a conviction or

sentence obtained under the non-capital portion of the indictment” where the accused pleaded

guilty to simple murder. Lambert v. State, 941 So. 2d 804, 810 (¶28) (Miss. 2006). Here,

the prosecution dropped the capital portion of the indictment, and Hicks pleaded guilty to



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murder rather than capital murder. Accordingly, this issue is without merit.

        III.   Whether Hicks entered his guilty plea voluntarily, knowingly, and
               intelligently.

¶9.     Hicks next contends that his guilty plea was not voluntary because he did not know

of the defect in his indictment at the time of the plea. But Hicks did not plead guilty to

capital murder under the indictment; when he accepted the guilty plea, the charge was

reduced to murder. In considering whether a plea is knowingly, voluntarily, and intelligently

made,

        [the court] evaluate[s] . . . whether the defendant was advised of the nature of
        the charges against him, the rights which he would waive by pleading guilty,
        the maximum sentences that he could receive for the crimes charged, and
        whether he was satisfied with the advice and counsel of his attorney.

Richardson v. State, 856 So. 2d 758, 761 (¶10) (Miss. Ct. App. 2003).

¶10.    Hicks stated during the plea colloquy that he and his attorney discussed the indictment

and that he understood the charge against him. He knew that he could potentially be

sentenced to life in the custody of the Mississippi Department of Corrections. Hicks told the

court that he was satisfied with the services of his attorney. The judge stated clearly the

rights that would be waived if Hicks were to plead guilty. Further, Hicks admitted that he

killed his wife and gave his account of what happened the night of the murder. The circuit

court, at that time, found that Hicks’s plea was freely, voluntarily, and intelligently made and

accepted the plea. We agree. Accordingly, this issue is without merit.

        IV.    Whether Hicks received ineffective assistance of counsel.

¶11.    Hicks also claims ineffective assistance of counsel. To prove ineffective assistance



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of counsel, Hicks must show

       (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced
       his defense. The burden of proof rests with the defendant to prove both
       prongs. Under Strickland, there is a strong presumption that counsel’s
       performance falls within the range of reasonable professional assistance. To
       overcome this presumption, the defendant must show that there is a reasonable
       probability that, but for the counsel’s unprofessional errors, the result of the
       proceeding would have been different.

Maggitt v. State, 26 So. 3d 363, 365 (¶12) (Miss. Ct. App. 2009) (internal citations and

quotations omitted) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). “In the

context of guilty pleas, this means the defendant must show that, were it not for counsel’s

errors, he would not have pleaded guilty and would have insisted on going to trial.”

Burrough v. State, 9 So. 3d 368, 375 (¶22) (Miss. 2009) (citation omitted). A petitioner

“must plead claims of ineffective assistance of counsel with specificity, and the claim must

be supported by affidavits other than his own.” McBride v. State, 108 So. 3d 977, 980 (¶11)

(Miss. Ct. App. 2012) (citation omitted).

¶12.   Hicks argues that his attorney should have objected to the indictment. Yet he is

unable to show that he would have insisted on moving forward to trial, and he has provided

no affidavit to support his claims of ineffective assistance of counsel. From the record, it

does not appear that Hicks’s counsel was deficient, as Hicks pleaded guilty to a crime lesser

than that charged against him. During his plea hearing, Hicks told the court that his attorney

fully discussed the indictment with him. Hicks also stated that he was satisfied with his

attorney’s services and that he was properly advised prior to pleading guilty. This issue is

without merit.



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

    LEE, C.J., IRVING, P.J., BARNES, ISHEE, CARLTON, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.




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