        IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                               NO. 2014-CA-00446-COA

ANTONIO VASHON SMITH A/K/A ANTONIO V.                                      APPELLANT
SMITH A/K/A ANTONIO SMITH

v.

STATE OF MISSISSIPPI                                                         APPELLEE


DATE OF JUDGMENT:                         02/25/2014
TRIAL JUDGE:                              HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED:                CLARKE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:                   JAMES A. WILLIAMS
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 – 11/10/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

       BEFORE GRIFFIS, P.J., BARNES AND JAMES, JJ.

       JAMES, J., FOR THE COURT:

¶1.    Antonio Vashon Smith appeals the dismissal of his postconviction-relief (PCR)

motion by the Clarke County Circuit Court. Finding no error, we affirm the circuit court’s

judgment of dismissal.

                         FACTS AND PROCEDURAL HISTORY

¶2.    On February 22, 2006, Smith was indicted on one count of sexual battery, in violation

of Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014), and one count of fondling,

in violation of Mississippi Code Annotated section 97-5-23(1) (Rev. 2014). On July 19,
2006, Smith filed a petition to enter a plea of guilty to the fondling charge, but maintained

his innocence under North Carolina v. Alford, 400 U.S. 25 (1970). As part of the plea

agreement, the sexual-battery count was dismissed. The same day, the circuit court

conducted a plea hearing and accepted Smith’s guilty plea. The circuit court accepted the

recommendation of the State and sentenced Smith to ten years, with all ten years suspended

and five years of supervised probation. Smith was given credit for five days of pretrial

incarceration and was ordered to pay a total of $1,269.50 in court assessments as well as a

probation-supervision fee at the rate of $45 per month.

¶3.    On March 29, 2007, Smith’s probation officer filed an affidavit stating that Smith

violated his probation for failing to register as a sex offender. After being continued, a

revocation hearing was held in circuit court on August 29, 2007. Smith was represented

again by his trial counsel at the hearing. Smith’s probation officer testified that Smith was

scheduled to reregister on February 5, 2007, and as of March 6, 2007, the date of his arrest,

he had not reregistered. Smith admitted that he failed to reregister as a sex offender and that

he knew it was a violation of his probation. Smith testified that he failed to register because

it “slipped my mind.” The circuit court revoked Smith’s probation and ordered Smith to

serve one year in the custody of the Mississippi Department of Corrections (MDOC). Smith

was given credit for 182 days of pretrial incarceration. The order revoking probation stated:

“If [Smith] fails to strictly abide by [the] probation terms[,] then he will be subject to

revocation of the remaining Nine (9) years of his original Ten (10) year sentence.” The order

also provided that Smith’s probation would end in July 2011. The State chose not to pursue



                                              2
Smith’s failure to register as a separate crime.

¶4.    On August 6, 2009, Smith’s probation officer filed a petition to revoke Smith’s

probation because Smith failed to register as a sex offender on two occasions. The petition

provided that despite Smith being warned twice not to let his sex-offender registration expire,

it expired in April 2009 and August 2009. The petition also stated that Smith failed to pay

court assessments of $1,269.50 and supervision fees, which were $551 in arrears.

¶5.    On September 1, 2009, the circuit court held a revocation hearing. Smith was not

represented by counsel at the hearing. Smith informed the court that he violated the terms

of probation because he “went through a lot.” Specifically, he claimed he was depressed, did

not have transportation, had a suspended license, and could not find employment. After

hearing testimony from Smith’s probation officer and arguments from Smith, the circuit court

found that Smith had violated each of the conditions identified by his probation officer. The

circuit court revoked Smith’s probation, and ordered him to serve the remaining balance of

his suspended sentence in the custody of MDOC, with credit given for twenty-three days of

pretrial incarceration.

¶6.    On December 18, 2012, Smith filed a PCR motion alleging various grounds for relief.

On February 26, 2013, the circuit court entered an opinion and order summarily dismissing

Smith’s PCR motion. The circuit court found that Smith’s PCR motion alleged an exception

to the three-year statute of limitations under Mississippi Code Annotated section 99-39-

5(2)(b) (Rev. 2015). The circuit court found that “excepted from this three-year statute of

limitations ‘are those cases in which the [movant] claims that his sentence has expired or his



                                              3
probation, parole or conditional release has been unlawfully revoked[.]’” For that reason,

the circuit court addressed the merits of Smith’s claims and found each one to be meritless.

¶7.    On appeal, Smith raises the following issues: (1) whether the second revocation

hearing subjected him to double jeopardy; (2) whether he was entitled to an evidentiary

hearing; (3) whether he was denied effective assistance of counsel. Smith also attacked the

voluntariness of his plea, which the circuit court addressed, as will this Court. Finding no

error, we affirm the circuit court’s dismissal of Smith’s PCR motion.

                                STANDARD OF REVIEW

¶8.    When reviewing a circuit court's denial or dismissal of a PCR motion, we will only

disturb the circuit court's factual findings if they are clearly erroneous. Rowland v. State, 42

So. 3d 503, 506 (¶8) (Miss. 2010). Questions of law are reviewed de novo. Id. Mississippi

Code Annotated section 99-39-11(2) (Rev. 2015) states: “If it plainly appears from the face

of the motion, any annexed exhibits and the prior proceedings in the case that the movant is

not entitled to any relief, the judge may make an order for its dismissal and cause the

petitioner to be notified.” “This Court will affirm the summary dismissal of a PCR motion

if the movant fails to demonstrate a claim procedurally alive substantially showing the denial

of a state or federal right.” Dickens v. State, 119 So. 3d at 1141, 1143-44 (¶6) (Miss. Ct.

App. 2013) (quoting Robinson v. State, 19 So. 3d 140, 142 (¶ 6) (Miss. Ct. App. 2009)).

                                       DISCUSSION

       I.     Whether Smith was subjected to double jeopardy.

¶9.    Smith argues that he is denied due process and fundamental fairness because he was



                                               4
subjected to double jeopardy when the circuit court revoked his probation for a second time

and reinstated the remaining balance of his originally suspended ten-year sentence. We will

address the merits of Smith’s claim because he argues that his probation was unlawfully

revoked, which is an exception to the three-year statute of limitations for filing a PCR motion

under section 99-39-5(2)(b).

¶10.   “It is well settled in Mississippi that courts have the authority to reinstate any sentence

that was previously suspended.” Edwards v. State, 123 So. 3d 936, 938 (¶6) (Miss. Ct. App.

2013) (citing Pruitt v. State, 953 So. 2d 302, 305 (¶8) (Miss. Ct. App. 2002)). Mississippi

Code Annotated section 47-7-37(5)(a) (Rev. 2015) provides in pertinent part:

       The probation and parole officer after making an arrest shall present to the
       detaining authorities a similar statement of the circumstances of violation. The
       probation and parole officer shall at once notify the court of the arrest and
       detention of the probationer and shall submit a report in writing showing in
       what manner the probationer has violated the conditions of probation. Within
       twenty-one (21) days of arrest and detention by warrant as herein provided, the
       court shall cause the probationer to be brought before it and may continue or
       revoke all or any part of the probation or the suspension of sentence.

Id. (emphasis added).

¶11.   Smith failed to abide by a condition of his probation by failing to register. Upon

revocation, a portion of his suspended sentence was reinstated. Following his release from

incarceration, while Smith was on probation, Smith again failed to abide by the conditions

of his probation. For that reason, the circuit court revoked Smith’s probation. The circuit

court ordered Smith to be reincarcerated for the remaining balance of his suspended sentence

as authorized by section 47-7-37(5)(a). The circuit court was vested with discretion to

revoke and reinstate the remaining portion of Smith’s suspended sentence. Agent v. State,

                                               5
30 So. 3d 370, 374 (¶11) (Miss. Ct. App. 2010) (holding that the trial judge has the discretion

to impose a lesser sentence, but also has the authority to reinstate the entire sentence under

section 47-7-37). The circuit court did not resentence Smith, nor did it lengthen his original

sentence upon the second revocation. Instead, the circuit court reinstated the remaining

balance of the suspended portion of his sentence. Accordingly, this issue is without merit.

       II.    Whether Smith was entitled to an evidentiary hearing.

¶12.   Smith argues that he was denied due process and fundamental fairness because he was

denied an evidentiary hearing on his PCR motion. In support of this argument, Smith claims

that (1) he was not informed that his sentence would be served day-for-day; (2) his probation

officer told him at the hearing that he would speak up for him at the hearing, but did not; and

(3) the circuit court erred in concluding that he did not pay any of his fines and fees. We

disagree.

¶13.   The circuit court may dismiss a PCR motion, without having held an evidentiary

hearing, when it is clear that the movant is not entitled to relief under the Uniform

Post-Conviction Collateral Relief Act (UPCCRA). State v. Santiago, 773 So. 2d 921, 923-24

(¶11) (Miss. 2000). “A [circuit court] enjoys wide discretion in determining whether to grant

an evidentiary hearing.” Williams v. State, 4 So. 3d 388, 392 (¶11) (Miss. Ct. App. 2009)

(citing Hebert v. State, 864 So. 2d 1041, 1045 (¶11) (Miss. Ct. App. 2004)).               “A

post-conviction claim for relief is properly dismissed without the benefit of an evidentiary

hearing where it is manifestly without merit.” Id. (citing Holland v. State, 956 So. 2d 322,

326 (¶7) (Miss. Ct. App. 2007)).



                                              6
¶14.   “[T]o be entitled to an evidentiary hearing, a [movant] must demonstrate, by affidavit

or otherwise, that there are unresolved issues of fact that, if concluded favorably to the

petitioner, would warrant relief.” Hamilton v. State, 44 So. 3d 1060, 1067 (¶21) (Miss. Ct.

App. 2010) (quoting McCuiston v. State, 758 So. 2d 1082, 1085 (¶9) (Miss. Ct. App. 2000)).

“Mere allegations in the pleadings themselves, otherwise unsupported, are not sufficient to

require a hearing.” McCuiston, 758 So. 2d at 1085-86 (¶9) (citing Cole v. State, 666 So. 2d

767, 777 (Miss. 1995)). “Claims by the [movant], even if supported by affidavit, that are

contradicted by the record of the plea acceptance hearing may be disregarded by the [circuit]

court.” Id. at 1086 (¶9) (citing Taylor v. State, 682 So. 2d 359, 363 (Miss. 1996)).

¶15.   Each of Smith’s arguments is manifestly without merit. Smith’s argument that he was

not informed any potential sentence could be day-for-day if his probation was revoked is

contradicted by the record. The record shows that he was given an estimate on the amount

of time he could serve. Moreover, he was aware that any violation, no matter how slight,

could potentially result in revocation of his entire suspended sentence. The argument that

the circuit court erred by finding that Smith had not paid any fines and fees is in direct

conflict with the record. At the second revocation hearing, an affidavit from the circuit

clerk’s office was introduced into evidence, confirming that Smith had made no payments,

with the entire balance of $1269 owed for court assessments. Moreover, Smith’s probation

officer testified that Smith was $551 in arrears for supervision fees.

¶16.   Smith argues that his probation officer informed him he did not need an attorney and

that he would “speak up for him” at the hearing. However, the probation officer’s petition



                                              7
and affidavit sought revocation. The probation officer testified and again confirmed that he

was requesting revocation. Smith was given an opportunity to cross-examine his probation

officer. What is more, Smith was provided written notice of his revocation hearing, which

expressly stated that he had the opportunity to make arrangements to hire an attorney. The

record does not indicate that Smith even requested an attorney. Regardless, a probation

officer is not an attorney, and any alleged reliance on him is misplaced. See Agent, 30 So.

3d at 373-74 (¶9) (holding that an ineffective-assistance claim would not be applicable to a

defendant’s probation officer because a probation officer does not hold the same position as

legal counsel with respect to a defendant).

¶17.   Smith offered no affidavit, other than his own, in support of his claims. Moreover,

his claims are either unsupported or contradicted by the record. Accordingly, we find that

the circuit court did not err by dismissing Smith’s PCR motion without an evidentiary

hearing.

       III.   Whether Smith received ineffective assistance at sentencing and
              during his first revocation hearing.

¶18.   Smith argues he was denied effective assistance of counsel at sentencing and during

his first revocation hearing. A PCR motion following a guilty plea is untimely unless it is

filed within three years after entry of the judgment of conviction. Smith v. State, 118 So. 3d

180, 182 (¶7) (Miss. Ct. App. 2013) (citing Watts v. State, 97 So. 3d 722, 725 (¶7) (Miss. Ct.

App. 2012) (citing Miss. Code Ann. § 99-39-5(2)). “The Mississippi Supreme Court has

consistently held that the UPCCRA's procedural bars apply to [PCR] claims based on

ineffective assistance of counsel." Williams v. State, 110 So. 3d 840, 844 (¶21) (Miss. Ct.


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

Chancy v. State, 938 So. 2d 267, 270 (¶11) (Miss. Ct. App. 2005))). Therefore, Smith’s

ineffective-assistance claim is time-barred. Notwithstanding the time-bar, we also find that

Smith’s claims are meritless.

¶19.   In order to demonstrate ineffective assistance of counsel, Smith must show (1) his

counsel's performance was deficient, and (2) the deficient performance prejudiced his

defense. Strickland v. Washington, 466 U.S. 668, 687 (1984). "Under Strickland, there is

a strong presumption that counsel's performance falls within the range of reasonable

professional assistance." Willis v. State, 66 So. 3d 740, 745 (¶21) (Miss. Ct. App. 2011)

(citing Strickland, 466 U.S. at 689). "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).

"Furthermore, a defendant 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) (citing Robertson v. State, 669 So.

2d 11, 13 (Miss. 1996)).

¶20.   Smith does not assert in his brief that but for his attorney’s alleged misrepresentation,

he would have insisted on proceeding to trial rather than enter his guilty plea, which alone

is fatal to his claim. See Burrough, 9 So. 3d at 375 (¶22). Thus, we cannot be sure that he

would have insisted on going to trial when he does not even claim that he would have, by

affidavit or otherwise. Nonetheless, we will address Smith’s arguments in support of his



                                               9
ineffective-assistance-of-counsel claim.

¶21.   Smith argues that his counsel was ineffective by not challenging the allegations of the

sexual-battery charge. Smith claims that the allegations of sexual battery are completely

unfounded, that the sheriff’s office abandoned those allegations, and they were only used to

force a plea to the fondling count. Smith submitted an affidavit claiming that “the charge of

fondling was for the purpose of my wife getting a divorce.”

¶22.   It is obvious that Smith’s counsel challenged the allegations of the sexual-battery

charge because this charge was dismissed based on Smith’s guilty plea to the fondling charge

according to the terms of the plea agreement entered by the State and Smith. In exchange

for the guilty plea, the State recommended that Smith’s entire ten-year sentence would be

suspended, and he would be placed on probation for five years and ordered to pay certain

costs and fines. We agree with the circuit court’s finding that “[a]ny allegations [Smith]

presented concerning counsel’s failure to expose the fabrication of either charge, is

undermined by the State’s proffer of evidence during the plea hearing.”

¶23.   Smith argues that his counsel was ineffective at his first revocation hearing for failing

to argue that, under Mississippi Code Annotated section 45-33-33(4) (Rev. 2015), an

individual may, but is not required to, be arrested for the first violation of his duty to register

as a sex offender. However, Smith’s counsel raised this very argument at the revocation

hearing by asserting that some tolerance is built into section 45-33-33(4), because the first

failure to register may result in arrest, but subsequent failures shall result in arrest. Smith

claims that his arrest following his first failure to register is a violation of his due-process and



                                                10
equal-protection rights. Smith was not indicted for the separate crime of failing to register

following his first violation and does not explain how this arrest violated his due-process and

equal-protection rights. Moreover, counsel presented mitigating testimony, and the circuit

court only imposed one year of his ten-year suspended sentenced following the first

revocation. This argument is without merit.

¶24.   Smith argues that his counsel was ineffective at sentencing and during the first

revocation hearing because he failed to advise him that if his probation was revoked, his

sentence would be served day-for-day. However, this argument is in direct conflict with the

record.

¶25.   Smith’s plea petition stated: "I further understand that my attorney may have made an

estimation to me of whether I might be released on parole, house arrest[,] or any other form

of early release, but whether said release is granted is entirely up to the Parole Board or the

[MDOC]." The following exchange at Smith’s plea hearing occurred:

       The Court:    . . . [I]f I accept the recommendation, you are going to initially
                     remain out, all right, but you will be on either post-release
                     supervision or probation. You understand that [the probation
                     officer] here is going to explain all of that supervision
                     responsibility to you. If you violate the terms of that
                     supervision, then you are subject to having confinement time up
                     to the amount that we’ve discussed in your particular case, and
                     how long exactly you have to serve in confinement is going to
                     be subject to the rules and regulations within the sentencing
                     order guidelines of what the Department of Corrections says in
                     your case. [Your attorney] explained all of that to . . . you?

       Smith:        Yes, sir.

       ....



                                              11
       The Court:     Make sure now . . . you that are going to remain out, that you
                      don’t leave here without understanding clearly what your
                      responsibilities are with the supervision. Because if you fail to
                      meet those terms, you are subject to being arrested, confined,
                      and you will serve the sentence up to what we discussed in each
                      of your cases. Clear [with] that Mr. Smith?

       Smith:         Yes, sir.

¶26.   Smith was issued a copy of the sentencing order, which stated the failure to abide by

any condition of probation was sufficient to revoke the suspended portion of his sentence for

even the slightest violation. Smith then provided the following sworn acknowledgment:

       I, the Defendant in this cause, acknowledge that this is my bargain, and I
       reaffirm that the information I have given to the Court is true and correct and
       that I fully understand the terms and conditions of this Order. I understand that
       Probation is a privilege and not a right and that the Court may revoke my
       probation for any violation of the conditions of this Order, however slight or
       serious it may be.

¶27.   Based on the record before us, Smith cannot genuinely say that he did not realize that

any sentence upon revocation could potentially be day-for-day. Smith failed to offer any

affidavit, other than his own, in support of his ineffective-assistance-of-counsel claim. See

Bell v. State, 117 So. 3d 661, 664 (¶10) (Miss. Ct. App. 2013) (“In PCR cases, where a party

offers only his affidavit, then his ineffective assistance of counsel claim is without merit.”).

Moreover, Smith stated in his sworn plea petition that he believed his lawyer “has done all

that anyone could do to counsel and assist me, and I am satisfied with the advice and help he

has given.” Again, during the plea colloquy, Smith represented to the circuit court that he

was satisfied with the assistance of his counsel. For these reasons, Smith’s ineffective-

assistance-of-counsel claim is without merit.



                                              12
       IV.    Whether Smith was denied due process and unconstitutionally
              denied his right to counsel at his second revocation hearing.

¶28.   Smith argues that he was denied due process and the right to counsel at his second

revocation hearing. An exception to the three-year statute of limitations for filing a PCR

motion exists when the movant’s probation has been unlawfully revoked. Miss. Code Ann.

§ 99-39-5(2)(b). The minimum due-process requirements for revocation hearings include:

       (a) written notice of the claimed violations of (probation or) parole; (b)
       disclosure to the (probationer or) parolee of evidence against him; (c)
       opportunity to be heard in person and to present witnesses and documentary
       evidence; (d) the right to confront and cross-examine adverse witnesses (unless
       the hearing officer specifically finds good cause for not allowing
       confrontation); (e) a “neutral and detached” hearing body such as a traditional
       parole board, members of which need not be judicial officers or lawyers; and
       (f) a written statement by the factfinders as to the evidence relied on and
       reasons for revoking (probation or) parole.

Jones v. State, 70 So. 3d 255, 260 (¶16) (Miss. Ct. App. 2011) (citing Gagnon v. Scarpelli,

411 U.S. 778, 786 (1973) (quoting Morrissey v. Brewer, 408 U.S. 471, 489 (1972))). We

agree with the circuit court’s finding that all of the due-process requirements were satisfied

and Smith was adequately afforded due process of law.

¶29.   Smith argues that he was unconstitutionally denied the right to counsel at his second

revocation hearing because “it is a high probability” that if he had the benefit of counsel, his

probation would not have been revoked and he would not have been ordered to serve the

balance of his suspended sentence.

¶30.    “It is well established in Mississippi that there is no per se right to counsel at

revocation hearings.” Pruitt, 953 So. 2d at 305 (¶9) (citing Riely v. State, 562 So. 2d 1206,

1209 (Miss. 1990) (quoting Lassiter v. Dep't of Social Servs., 452 U.S. 18, 26 (1981))).


                                              13
"However, when the issues relevant to the hearing are complex or difficult to develop, the

court should appoint counsel for the defendant." Smith v. State, 94 So. 3d 335, 341 (¶18)

(Miss. Ct. App. 2011). “[T]he presence and participation of counsel will probably be both

undesirable and constitutionally unnecessary in most revocation hearings[.]” Pruitt, 953 So.

2d at 305 (¶9) (quoting Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973)).

¶31.   The circuit court stated that “[Smith’s] revocation simply hinged on whether he

violated the terms of his probation by failing to register as a sex offender and failing to pay

his supervision fees and court assessments.” So the issues before the circuit court were not

complex or otherwise difficult to develop. Smith, who had attended two years of college,

was afforded a hearing before the circuit court where he was allowed to cross-examine his

probation officer. Smith was also allowed to present evidence, testify, and make any

statement to the circuit court as to why his probation should not be revoked. It was

undisputed that Smith failed to register on two occasions, and that alone was sufficient to

revoke his probation. See Bell, 117 So. 3d at 664 (¶15) (“Under Mississippi law, probation

may be revoked upon a showing that the defendant more likely than not violated the terms

of probation.”).

¶32.   The circuit court found that “[a]fter imposing one year of [Smith’s] suspended

sentence in his first revocation and then coming before the court on a second revocation for,

among other things, failing to register again, the [circuit court] disagrees with [Smith’s]

contention that there is a high probability that if [Smith] had the benefit of counsel [his

probation] would not have been revoked.”



                                              14
¶33.   We agree with the circuit court that Smith was not unconstitutionally denied the right

to counsel at his second revocation hearing.

       V.     Whether Smith’s plea was freely, voluntary, and intelligently
              entered.

¶34.   Although not specifically designated as an assignment of error, Smith attacks the

voluntariness of his plea. Smith advances the same arguments previously stated in support

of this contention.

¶35.   We find that Smith’s claim that his plea was involuntary is time-barred, as it was filed

outside of the three-year statute of limitations imposed by Mississippi Code Annotated

section 99-39-5(2).     The time-bar includes a movant’s PCR claim based on the

involuntariness of a guilty plea. Kirk v. State, 798 So. 2d 345, 346 (¶6) (Miss. 2000). Errors

affecting fundamental constitutional rights are excepted from the procedural bars. Rowland,

42 So. 3d at 507 (¶12). However, “the mere assertion of a constitutional right violation is

not sufficient to overcome the time bar.” Stovall v. State, 873 So. 2d 1056, 1058 (¶7) (Miss.

Ct. App. 2004). Smith filed his PCR motion over three years after entering his guilty plea.

Accordingly, any attack on the voluntariness of his plea is time-barred. Notwithstanding the

time-bar, the claim is without merit.

¶36.   "A guilty plea will be found valid if it is shown to have been voluntarily and

intelligently made by the criminal defendant before the trial court." Burrough, 9 So. 3d at

373 (¶11) (citing King v. State, 738 So. 2d 240, 241 (¶¶2-3) (Miss. 1999)). "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


                                               15
the plea." Id. (citing Harris v. State, 806 So. 2d 1127, 1130 (¶9) (Miss. 2002)). "The PCR

movant has the burden to show by a preponderance of the evidence that his plea was

involuntary." Woods v. State, 71 So. 3d 1241, 1244 (¶8) (Miss. Ct. App. 2011) (citing Sayles

v. State, 35 So.3d 567, 569 (¶7) (Miss. Ct. App. 2010)).

¶37.   Smith's assertions are completely contradicted by the record. His plea petition stated:

       After consulting with my lawyer, I am entering my plea of “GUILTY” freely
       and voluntarily and of my own accord and with full understanding of all
       matters set forth in the indictment and in this petition and in the certificate of
       my lawyer which follows.

¶38.   Under Alford, an individual accused of a crime may voluntarily, knowingly, and

understandably consent to a prison sentence even if he is unwilling or unable to admit his

participation in the alleged acts. Cole v. State, 918 So. 2d 890, 892-893 (¶4) (Miss. Ct. App.

2006) (citing Alford, 400 U.S. 25). His plea petition also stated:

       I plead “GUILTY” and request the Court to accept my plea of “GUILTY” and
       to have entered my plea of “GUILTY” . . . . ALTHOUGH I MAINTAIN
       THAT I AM INNOCENT UNDER ALFORD V. NORTH CAROLINA, I AM
       AWARE OF THE EVIDENCE THE STATE WOULD ADMIT IF I WENT
       TO TRIAL AND FEEL THAT A STRONG LIKELIHOOD EXISTS THAT
       I WOULD BE FOUND GUILTY OF THIS CHARGE IF I WENT TO TRIAL
       BEFORE A JURY, SO I AM ACCEPTING THE PLEA BARGAIN
       OFFERED.

¶39.   Smith unequivocally acknowledged his understanding of the Alford plea and its

consequences during the plea colloquy. He also confirmed that his attorney was not

“making” him submit a guilty plea on the fondling charge. The prosecutor presented the

facts that he was prepared to prove at trial on the fondling charge. Smith confirmed that he

understood what the State was prepared to prove and still wished to go forward with his



                                              16
guilty plea. Smith stated that after discussing the matter in detail, he was entering his guilty

plea freely and voluntarily. Based on Smith's statements made under oath, we find that

Smith's plea was entered freely and voluntarily. See King v. State, 679 So. 2d 208, 211

(Miss. 1996) (recognizing that there is a strong presumption of validity when a statement is

given while under oath).

¶40.   We agree with the circuit court’s finding that Smith’s plea was freely, voluntarily, and

intelligently entered.

                                      CONCLUSION

¶41.   For these reasons, the judgment of the circuit court dismissing Smith’s PCR motion

is affirmed.

¶42. THE JUDGMENT OF THE CIRCUIT COURT OF CLARKE COUNTY
DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

     LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, MAXWELL,
FAIR AND WILSON, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN
THE RESULT WITHOUT SEPARATE WRITTEN OPINION.




                                              17
