        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                              NO. 2016-CP-00769-COA

ERIC PIERCE A/K/A ERIC V. PIERCE                                        APPELLANT

v.

STATE OF MISSISSIPPI                                                      APPELLEE

DATE OF JUDGMENT:                        05/13/2016
TRIAL JUDGE:                             HON. JOSEPH H. LOPER JR.
COURT FROM WHICH APPEALED:               ATTALA COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                  ERIC PIERCE (PRO SE)
ATTORNEY FOR APPELLEE:                   OFFICE OF THE ATTORNEY GENERAL
                                         BY: SCOTT STUART
NATURE OF THE CASE:                      CIVIL - POST-CONVICTION RELIEF
DISPOSITION:                             AFFIRMED - 08/29/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

      BEFORE LEE, C.J., BARNES AND WESTBROOKS, JJ.

      BARNES, J., FOR THE COURT:

¶1.   Eric Pierce, appearing pro se, appeals the judgment of the Circuit Court of Attala

County denying his motion for post-conviction relief (PCR) as a successive writ and time-

barred. Finding no error, we affirm.

            STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶2.   On February 3, 2009, Pierce was indicted for armed robbery. He pleaded guilty a few

weeks later. The robbery occurred in November 2008 when Pierce was eighteen years old.

The victim, Melton King, was the owner of a Sonic restaurant. He was walking across a

grocery-store parking lot with a bank bag containing $1,265 of Sonic’s funds. Pierce came

up to King, held a pistol to him, and instructed him to “give me the money.” King gave
Pierce money from his pocket and the bag of money. Pierce then fled. King pursued Pierce

in his vehicle, hitting and injuring him. Law-enforcement officers were able to arrest Pierce

in the parking lot. Pierce later confessed to the crime.

¶3.    The circuit court sentenced Pierce to serve seventeen years in the custody of the

Mississippi Department of Corrections (MDOC). On August 19, 2010, the circuit court

dismissed Pierce’s first PCR motion, wherein he argued that his plea was involuntary and

that he received ineffective assistance of counsel. He did not appeal the dismissal. His

second PCR motion, seeking relief on the same grounds as his first PCR motion, was

dismissed by the circuit court on February 3, 2012. Pierce appealed, and this Court affirmed

the dismissal in Pierce v. State, 115 So. 3d 869, 873 (¶14) (Miss. Ct. App. 2013), finding

his motion was barred as successive, and his arguments were without merit.1

¶4.    On April 25, 2016, Pierce filed his third PCR motion in the circuit court, arguing that

he is excepted from any procedural bars because his sentence is illegal, and that his attorney

misinformed him about pleading guilty. Pierce claims his initial plea was “not guilty,” but

his counsel persuaded him to plead guilty as “the best option,” and told him that MDOC

would release him once he turned twenty-one years old. The circuit court was not

persuaded, and denied his motion as time-barred and successive. Pierce timely appealed.

                               STANDARD OF REVIEW

¶5.    When considering a circuit court’s denial of a PCR motion, the appellate court will

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         Pierce argued that he was on painkillers for a broken back at the time of his guilty
plea, and thus it was involuntary. He also claimed ineffective assistance of counsel because
his attorney did not properly investigate his mental state at the time of his plea hearing.
Pierce, 115 So. 3d at 872-73 (¶¶9, 11).

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

of law, however, are reviewed de novo. Moore v. State, 986 So. 2d 928, 932 (¶13) (Miss.

2008) (citation omitted).

                                        ANALYSIS

¶6.    On appeal, Pierce submits several issues in the form of questions relating to his guilty

plea and the assistance of his counsel. We shall address each issue in turn; however, as the

circuit court ruled, Pierce’s PCR motion is both successive and time-barred.

¶7.    Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order

denying or dismissing a PCR motion bars a second or successive motion. Miss. Code Ann.

§ 99-39-23(6) (Rev. 2015). Additionally, a PCR motion challenging a guilty plea must be

filed within three years of the entry of the judgment of conviction. Miss. Code Ann. § 99-

39-5(2) (Rev. 2015). This PCR motion is Pierce’s third relating to his armed-robbery

charge, and was filed over seven years after his judgment of conviction; therefore, it is

procedurally barred.

¶8.    Pierce raises the same issues in this PCR motion as he did in his other two; he just

changes the nuance of his arguments. Pierce first asks whether errors affecting fundamental

constitutional rights are excepted from post-conviction procedural bars, which they are.

Under Rowland v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010), the Mississippi Supreme

Court specifically held that “errors affecting fundamental constitutional rights are excepted

from the procedural bars of the UPCCRA.” However, “the mere assertion of a constitutional

right violation does not trigger the exception”; rather, the claim must at least appear to have



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some basis of truth. Evans v. State, 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013)

(citations and internal quotation marks omitted). Here, Pierce has not demonstrated a basis

for a fundamental-constitutional-rights violation; so there is no exception to the procedural

bars.

¶9.     Next, Pierce argues that his PCR motion should not be dismissed because its facts

were proven by witness testimony – that of his mother. “To survive summary dismissal, a

collateral attack on a facially correct plea must include supporting affidavits of other

persons. Furthermore, [the movant] must allege ‘facts which require further inquiry’ in the

expanded setting of an evidentiary hearing.” Jones v. State, 949 So. 2d 872, 873 (¶3) (Miss.

Ct. App. 2007) (internal and external citations omitted). However, “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).

¶10.    Pierce attempts to support his assertions as truth and avoid summary dismissal by

attaching to his appellate brief a handwritten affidavit by his mother, which states that Pierce

was unable to understand his plea because he was under the influence of drugs for a back

injury.2 He also raised this issue in his second PCR motion. While a PCR motion could

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        In the affidavit, Pierce’s mother states that she was present during all of the talks
between Pierce and his attorney. She states he took Percocet and Flexeril for his broken
back, and he appeared “spaced out” and “a little confused” after court appearances and
speaking with his attorney. She claims his attorney told Pierce MDOC would release him
once he turned twenty-one. She maintains he would not have agreed to the plea if he had
known his attorney misinformed him, and if he were “in a better state of mind.”

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possibly avoid dismissal with certain witness testimony, here, his mother’s statement is

belied by Pierce’s own sworn testimony at the plea hearing and his plea petition that he was

competent and understood his plea.

¶11.   At the hearing, Pierce stated under oath that he had read his plea petition and

reviewed it with counsel; he was not under the influence of any drugs, alcohol, or

intoxicants at the time; and he had “no disabilities of the mind or problems that would in any

way interfere with [his] ability to understand the proceedings.” Further, in his plea petition,

Pierce signed a sworn statement that his decision to plead guilty was his alone – he did not

receive any outside coercive influences. He agreed that the sentence is up to the court, and

that the court is not required to follow the recommendations of the district attorney, who

made the recommendation of seventeen years. He stated he was satisfied with the advice

counsel had given him. Pierce’s sworn testimony and plea petition render his affidavit

ineffectual.

¶12.    Pierce also argues that ignorance, misunderstanding, and incompetency threaten the

validity of his guilty plea; and that the circuit court did not accurately determine if his plea

was intelligently made. “For a guilty plea to be valid[,] it must be entered into voluntarily,

knowingly, and intelligently”; that is, “the trial court must advise the defendant of his rights,

the nature of the charge against him, as well as the consequences of the plea.” Williams v.

State, 31 So. 3d 69, 74 (¶13) (Miss. Ct. App. 2010) (citation and internal quotation marks

omitted). “The burden of proving that a guilty plea [is] invalid rests with the defendant and

must be proven by a preponderance of the evidence.” Id. “Statements made in open court



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under oath carry a strong presumption of veracity.” Thomas v. State, 159 So. 3d 1212, 1216

(¶12) (Miss. Ct. App. 2015) (citations and internal quotation marks omitted).

¶13.   Additionally, for an ineffective-assistance-of-counsel claim, the defendant must

prove: “(1) his counsel was deficient[,] and (2) that the deficiency prejudiced his defense.”

Pierce, 115 So. 3d at 873 (¶11) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

A strong presumption exists that counsel’s performance was reasonable. Id. “[T]he

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.” Id.

¶14.   Again, Pierce’s sworn plea petition and statements under oath do not support any of

his assertions on his attorney’s incompetence or lack of intelligence. Additionally, there is

no evidence Pierce was incompetent at the hearing. Further, the judge thoroughly explained

that the proposed sentence was seventeen years, that the court could give Pierce a life

sentence, and that any sentence must be served day-for-day. When the judge asked if Pierce

understood, Pierce stated that he had not understood before, “but I do now.” Even if counsel

had misinformed Pierce, the judge correctly advised him. The record indicates Pierce was

thoroughly informed of the nature and consequences of his guilty plea and sentence, and the

circuit court properly accepted his plea. Accordingly, his guilty plea was intelligently and

voluntarily made.

¶15.   Regarding his counsel’s effectiveness, at the plea hearing, while Pierce stated that he

was not satisfied with his counsel’s representation, his dissatisfaction was with the

recommendation of the district attorney, not his counsel. Immediately prior to this comment,



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he had affirmed to the court that his attorney had gone over and counseled him on the

charges, advised him of the elements of armed robbery and the facts the State must prove,

discussed any possible defenses he might have, met the expectations of what he believed a

lawyer representing him should do for him, and had his best interests at heart, and Pierce had

no complaints at all about his representation. There is no indication in the record that

Pierce’s attorney’s performance was deficient or prejudicial to Pierce’s defense.

¶16.     Finally, Pierce argues that his guilty plea should be vacated “in the interest of

justice”; however, Pierce has failed to prove any grounds for reversal. His issues are without

merit.

                                       CONCLUSION

¶17.     The circuit court did not abuse its discretion in denying Pierce’s PCR motion because

it was successive and time-barred. Pierce failed to prove a fundamental-constitutional-rights

violation to circumvent the procedural bar. His substantive arguments regarding his guilty

plea and claims of ineffective assistance of counsel are also without merit. Therefore, we

affirm the circuit court’s denial.

¶18.     AFFIRMED.

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




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