      IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

                       NO. 2014-CP-00583-COA

BOBBY JOE PINKNEY A/K/A BOBBY PINKNEY               APPELLANT

v.

STATE OF MISSISSIPPI                                  APPELLEE


DATE OF JUDGMENT:              04/14/2014
TRIAL JUDGE:                   HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED:     HINDS COUNTY CIRCUIT COURT,
                               SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:        BOBBY JOE PINKNEY (PRO SE)
ATTORNEY FOR APPELLEE:         OFFICE OF THE ATTORNEY GENERAL
                               BY: LISA L. BLOUNT
NATURE OF THE CASE:            CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:       MOTION FOR POSTCONVICTION RELIEF
                               DISMISSED
DISPOSITION:                   AFFIRMED – 11/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                       CONSOLIDATED WITH

                       NO. 2014-CP-00594-COA

BOBBY JOE PINKNEY A/K/A BOBBY PINKNEY               APPELLANT

v.

STATE OF MISSISSIPPI                                  APPELLEE


DATE OF JUDGMENT:              04/14/2014
TRIAL JUDGE:                   HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED:     HINDS COUNTY CIRCUIT COURT,
                               SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:        BOBBY JOE PINKNEY (PRO SE)
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: BARBARA WAKELAND BYRD
NATURE OF THE CASE:                     CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                MOTION FOR POSTCONVICTION RELIEF
                                        DISMISSED
DISPOSITION:                            AFFIRMED – 11/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

                             CONSOLIDATED WITH

                             NO. 2014-CP-00605-COA

BOBBY JOE PINKNEY A/K/A BOBBY PINKNEY                                APPELLANT

v.

STATE OF MISSISSIPPI                                                   APPELLEE


DATE OF JUDGMENT:                       04/14/2014
TRIAL JUDGE:                            HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED:              HINDS COUNTY CIRCUIT COURT,
                                        SECOND JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT:                 BOBBY JOE PINKNEY (PRO SE)
ATTORNEY FOR APPELLEE:                  OFFICE OF THE ATTORNEY GENERAL
                                        BY: LISA L. BLOUNT
NATURE OF THE CASE:                     CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION:                MOTION FOR POSTCONVICTION RELIEF
                                        DISMISSED
DISPOSITION:                            AFFIRMED – 11/24/2015
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

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

      JAMES, J., FOR THE COURT:

¶1.   Bobby Joe Pinkney (pro se) appeals from the dismissals of his motions for

postconviction relief (PCR) by the Circuit Court of Hinds County, Mississippi, Second



                                         2
Judicial District.1 We affirm each of the trial court’s dismissals.

                          FACTS AND PROCEDURAL HISTORY

¶2.    In 1984, Bobby Joe Pinkney murdered Tracey Thompkins Hickman during a burglary.

He was found guilty of capital murder and sentenced to death. Pinkney v. State, 538 So. 2d

329, 333 (Miss. 1988). The Mississippi Supreme Court affirmed his conviction and

sentence. Id. at 359. The United States Supreme Court granted certiorari, vacated the

judgment, and remanded the case to the supreme court "for further consideration in light of

Clemons v. Mississippi, 494 U.S. 738 (1990)." Pinkney v. Mississippi, 494 U.S. 1075 (1990).

On remand, the supreme court held that it had no authority to reweigh the aggravating and

mitigating circumstances of the case to determine whether Pinkney should receive the death

penalty. Pinkney v. State, 602 So. 2d 1177, 1179 (Miss. 1992). Consequently, the supreme

court remanded the case to the trial court "to impanel another sentencing jury to consider

punishment . . . ." Id.

¶3.    On remand, Pinkney and the State entered a plea agreement. Pinkney v. State, 757 So.

2d 297, 298 (¶4) (Miss. 2000) (overruled in part by Rowland v. State, 42 So. 3d 503, 508

(¶13) (Miss. 2010)). On August 7, 1995, to avoid the possibility of the death penalty,

Pinkney pled guilty to the lesser-included offense of murder and, by criminal information,

to burglary of an occupied dwelling. Id. at 298, 300 (¶¶4, 11). For murder, the trial court



       1
         On April 7, 2014, Pinkney filed three PCR motions in the Hinds County Circuit
Court, Second Judicial District. The trial court summarily dismissed all three PCR motions
on April 14, 2014. Pinkney has appealed all three dismissals. Because each motion pertains
to the same set of operative facts and a shared procedural history, this Court entered an order
consolidating all three appeals.

                                              3
sentenced Pinkney to life in the custody of the Mississippi Department of Corrections. Id.

at 298 (¶4). For burglary, the trial court sentenced Pinkney to fifteen years, to run

consecutively to his life sentence for murder. Id.

¶4.    On August 12, 1998, Pinkney filed an unsuccessful PCR motion. Id. at 301 (¶16).

On appeal, Pinkney argued that his constitutional prohibition against double jeopardy was

violated because “it was impermissible for the State to charge in one indictment capital

murder and the same burglary that was necessary to support the capital murder offense, and

then for the trial court to accept pleas in both the charges arising out of the same indictment.”

Id. at 298-99 (¶5). The supreme court held that "Pinkney's motion for post-conviction relief

is barred by two separate procedural bars: his failure to raise his claim in the circuit court[,]

and the three-year statute of limitations." Id. at 300 (¶16).

¶5.    Alternatively, the supreme court held that there was no merit to Pinkney's claim

because "[d]ouble jeopardy [was] not implicated[,] nor was Pinkney's sentence for burglary

in excess of the maximum allowed by statute." Id. at 301 (¶16). Further, the supreme court

found that “[t]he record clearly shows that Pinkney pled guilty to the lesser offense of murder

and to the offense of burglary. By pleading guilty to murder, Pinkney's maximum sentence

was life – not death.” Id. at 300 (¶12).

¶6.    In April 2014 – over eighteen years after his guilty pleas – Pinkney simultaneously

filed three PCR motions. In cause number 252-14-13, Pinkney claimed that accepting his

guilty plea to the lesser charge of murder amounted to double jeopardy, because he had

previously been convicted of capital murder of the same victim. Pinkney also alleged that



                                               4
the murder charge in the indictment was insufficient because it did not include all of the

essential elements of murder. Lastly, Pinkney claimed that he received ineffective assistance

of counsel because his attorney allowed him to plead guilty to murder when the indictment

was allegedly insufficient. The trial court summarily dismissed Pinkney's PCR motion.

¶7.    Pinkney's second 2014 PCR motion was cause number 252-14-14. Pinkney repeated

his claim that accepting his guilty plea to burglary amounted to double jeopardy because he

had once been charged with capital murder, and the underlying offense to that charge had

been burglary. Pinkney also claimed that the criminal information to which he pled guilty

was insufficient because it did not allege "the particular crime he intended to commit."

Pinkney also claimed that he received ineffective assistance of counsel because his attorney

allowed him to plead guilty to what he claimed was an insufficient criminal information. The

trial court summarily dismissed Pinkney's second PCR motion.

¶8.    Finally, in cause number 252-14-15, Pinkney claimed that the capital-murder

indictment was insufficient, and he received ineffective assistance of counsel when he was

convicted of capital murder and sentenced to death. Like Pinkney's other two PCR motions,

the trial court summarily dismissed it.

¶9.    The trial court summarily dismissed each of Pinkney’s motions because the trial court

found that the matters raised by Pinkney had been addressed in Pinkney’s previous PCR

appeal. Pinkney appeals all three denials.

¶10.   We affirm the trial court’s dismissals, but for different reasons than those relied on

by the trial court. This Court “may affirm a trial court's decision if the correct result is



                                             5
reached, even if the trial court reached the result for the wrong reasons.” Boone v. State, 148

So. 3d 377, 379 (¶7) (Miss. Ct. App. 2014) (internal citations omitted). The following issues

are before this Court on appeal: (1) whether Pinkney’s PCR claims are procedurally barred;

(2) whether the trial court erred by dismissing the PCR motions without an evidentiary

hearing; (3) whether Pinkney was subjected to double jeopardy; (4) whether the indictment

and information were fatally defective; and (5) whether Pinkney received ineffective

assistance of counsel.

                                STANDARD OF REVIEW

¶11.   When reviewing a trial court’s decision to deny a PCR motion, we review questions

of law de novo and will not disturb the circuit court's factual findings unless they are clearly

erroneous. Holloway v. State, 31 So. 3d 656, 657 (¶5) (Miss. Ct. App. 2010). The trial court

may summarily dismiss a PCR motion where 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. Miss. Code Ann. § 99-39-11(2) (Rev. 2015). "On appeal from the summary

dismissal of a motion for PCR, this Court determines whether the motion presents a claim

procedurally alive substantially showing denial of a state or federal right." Smith v. State,

149 So. 3d 1027, 1031 (¶7) (Miss. 2014) (citing Gable v. State, 748 So. 2d 703, 704 (¶3)

(Miss. 1999)).

                                       DISCUSSION

       I.     Evidentiary Hearing

¶12.   Pinkney argues that the trial court erred by denying his PCR motions without an



                                               6
evidentiary hearing. However, the right to an evidentiary hearing is not guaranteed. Garrett

v. State, 110 So. 3d 790, 792 (¶6) (Miss. Ct. App. 2012). “A trial 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)).

¶13.   A trial court may summarily dismiss a PCR motion without an evidentiary hearing

"[i]f 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 . . . ." Miss. Code Ann.

§ 99-39-11(2). “This court will affirm the summary dismissal of a PCR motion if the movant

fails to demonstrate ‘a claim [is] procedurally alive substantially showing the denial of a state

or federal right.’” White v. State, 59 So. 3d 633, 635 (¶4) (Miss. Ct. App. 2011) (quoting

Robinson v. State, 19 So. 3d 140, 142 (¶6) (Miss. Ct. App. 2009)). Because Pinkney failed

to demonstrate a claim that is procedurally alive substantially showing the denial of a state

or federal right, the trial court did not err in summarily dismissing Pinkney’s PCR motions.

       II.    Procedural Bars

¶14.   Under the Uniform Post-Conviction Collateral Relief Act (UPCCRA), a PCR motion

following a guilty plea is untimely unless it is filed within three years after entry of the

judgment of conviction. Watts v. State, 97 So. 3d 722, 725 (¶7) (Miss. Ct. App. 2012) (citing

Miss. Code Ann. § 99-39-5(2) (Rev. 2015)). Moreover, “[a]n order dismissing a PCR motion

is final and shall be a bar to a second or successive motion.” Madden v. State, 52 So. 3d 411,

412 (¶8) (Miss. Ct. App. 2010) (citing Miss. Code Ann. § 99-39-23(6) (Rev. 2015)). Pinkney



                                               7
filed his latest PCR motions over eighteen years following his judgment of conviction, which

is obviously beyond the applicable three-year limitations period. Also, Pinkney has

previously filed a PCR motion, which was dismissed. Consequently, his PCR motions are

time-barred and successive-writ barred unless he can show an exception to these procedural

bars. See Bell v. State, 95 So. 3d 760, 763 (¶10) (Miss. Ct. App. 2012) (citing White, 59 So.

3d at 635 (¶8)).

¶15.   Pinkney argues no statutory exception to the procedural bars. However, "errors

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

42 So. 3d at 507 (¶12). But the mere suggestion of a constitutional-right violation is not

sufficient to surmount the time-bar. Ross v. State, 87 So. 3d 1080, 1082 (¶8) (Miss. Ct. App.

2012) (citing Chandler v. State, 44 So. 3d 442, 444 (¶8) (Miss. Ct. App. 2010)). “There must

at least appear to be some basis for the truth of the claim before the limitation period will be

waived.” Id. (quoting Stovall v. State, 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004)).

We will evaluate each of Pinkney’s claims in order to determine whether the fundamental-

right exception applies to overcome the procedural bars.

       III.   Indictment and Information

¶16.   “This Court has held previously that [PCR] claims based on allegedly defective

indictments are subject to the time[-]bar.” Moss v. State, 45 So. 3d 305, 307 (¶10) (Miss. Ct.

App. 2010) (citing Davis v. State, 958 So. 2d 252, 254 (¶6) (Miss. Ct. App. 2007)). In Moss,

the movant argued that the criminal information was fatally defective because it omitted

some language from the armed-robbery statute. Id. at 306-07 (¶9). We held that the



                                               8
movant’s claims were insufficient to invoke the fundamental-rights exception to the time-bar.

Id. at 307 (¶10). Accordingly, we found that the PCR motion was subject to the time-bar.

Id. Likewise, Pinkney’s claims that the indictment and criminal information were defective

are time-barred. See Jordan v. State, 118 So. 3d 656, 658 (¶8) (Miss. Ct. App. 2013)

(holding that the three-year statute of limitations applies to claims that an indictment was

defective). Because Pinkney has previously filed a PCR motion, his claims are also

successive-writ barred.

¶17.   Notwithstanding the time-bar and successive-writ bar, his claims are without merit.

Pinkney argues that the capital-murder indictment charging the underlying crime of burglary

was fatally defective for failure to include the particular burglarious crime he intended to

commit. We disagree.

¶18.   Capital-murder indictments predicated on the underlying felony of burglary must

specifically name the intended crime that comprised an element of the burglary charge.

Lambert v. State, 941 So. 2d 804, 812 n.2 (Miss. 2006) (citing State v. Berryhill, 703 So. 2d

250, 255 (¶23) (Miss. 1997)). The supreme court has held:

       [T]he allegation of the ulterior felony intended need not, however, be set out
       as fully and specifically as would be required in an indictment for the actual
       commission of that felony. It is ordinarily sufficient to state the intended
       offense generally, as by alleging an intent to steal, or commit the crime of
       larceny, rape or arson.

Hodges v. State, 912 So. 3d 730, 774 (¶100) (Miss. 2005) (disagreed with on other grounds)

(quoting Booker v. State, 716 So. 2d 1064, 1068 (¶12) (Miss. 1998)).

¶19.   In Hodges, the indictment charged the defendant with capital murder, with the



                                             9
underlying felony of burglary. Id. The court found that the indictment was not defective

because all the State was required to do was state the intended offense generally by alleging

the intent to commit an assault, which it did. Id. Pinkney’s capital-murder indictment states

that Pinkney,

       . . . on/or about the 25th day of October . . . 1984[,] did then and there, without
       authority of law, wilfully, unlawfully and feloniously kill and murder Tracey
       Thompkins Hickman, a human being, while he, the said Bobby Joe Pickney
       [sic] was then and there engaged in the commission of the crime of burglary
       of said dwelling house of Tracey Thompkins Hickman, by . . . the said Bobby
       Joe Pickney [sic] then and there wilfully, unlawfully and feloniously breaking
       and entering the dwelling house of Tracey Thompkins Hickman, said dwelling
       house being then and there occupied by Tracey Thompkins Hickman, with his
       intent then and there unlawfully, feloniously and burglariously to take, steal
       and carry away the personal property of Tracey Thompkins Hickman, then and
       there situated in said dwelling house, in violation of Section 97-3-19(2)(e),
       Mississippi Code, 1972, . . . contrary to the form of the statute in such cases
       made and provided, and against the peace and dignity of the State of
       Mississippi[.]

¶20.   The indictment complies with Berryhill, which held that a capital-murder indictment

predicated on burglary must include notice of the crime comprising the burglary because

burglary requires as an essential element, the intent to commit another crime. Berryhill, 703

So. 2d at 257-58 (¶¶29, 34). Like the sufficient indictment in Hodges, Pinkey’s indictment

generally stated the intended offense by alleging the intent to take, steal, and carry away the

personal property of Hickman, which constitutes larceny. Accordingly, the indictment was

not defective, and this issue is without merit.

¶21.   Pinkney advances the same argument that the criminal information to which he pled

guilty was insufficient for failure to include the particular burglarious crime he intended to

commit. However, the criminal information specifically identified the burglarious crime he

                                               10
intended to commit by stating “his intent then and there unlawfully and feloniously and

burglariously to take, steal and carry away the personal property of Tracey Thompkins

Hickman then and there situated in said occupied dwelling house contrary to the form of the

statute in such cases made and provided, and against the peace and dignity of the State of

Mississippi.” This criminal information was sufficient.

¶22.   Pinkney’s sworn plea petition also undermines Pinkney’s argument that he was not

fully aware of the elements of the crimes based on the indictment and criminal information

to which he pled guilty:

       My lawyer advises me that the elements of the charge to which I am pleading
       guilty are as follows: The premeditated killing of a human being[;] without
       justification (murder)[;] the entry of the dwelling of another (unauthorized)[;]
       with the intent to commit a crime [t]herein[.] I submit the following facts
       which I state to be true, and feel that all of the above elements are proven by
       these facts: On October 24, 1984, I entered Ms. Hickman’s house without her
       permission, with the intent to take a plant in the house. While in the house, I
       killed Tracey Hickman without justification. Therefore, I am guilty and ask
       the Court to accept my plea of guilty.

¶23.   Notwithstanding the sworn plea petition, Pinkney acknowledged having been

informed of the essential elements of the crimes by his attorney at the plea hearing. Pinkney

was additionally informed of the factual basis for the plea by the prosecutor.

       Your Honor, the [S]tate would show that in Cause V-4432 that on or about
       October 25th, 1984, this defendant broke into the home of Tracy T[h]ompkins
       Hickman . . . [and] broke a rear window for the purpose of committing a crime
       within the home, to-wit: Stealing a plant which he had observed from the
       outside of the home.

¶24.   The trial court then asked Pinkney if he had any disagreement with the factual basis

of the plea, to which Pinkney replied, “No.” We find no merit to Pinkney’s claim that he was



                                             11
not informed of the essential elements of the crime of burglary. See Britton v. State, 130 So.

3d 90, 95 (¶15) (Miss. 2014) (holding that a prosecutor’s on-the-record statement made in

front of the defendant and his attorney at the plea hearing, which closely tracked the language

of the statute, sufficiently informed the defendant of the required elements of the crime).

¶25.   Pinkney also argues that the record contains no waiver of an indictment, which makes

his guilty plea to the criminal information of burglary invalid. We disagree.

¶26.   A “counseled waiver” is allowed “where at the time that waiver served to reduce the

accused’s maximum potential punishment.” Jefferson v. State, 556 So. 2d 1016, 1019 (Miss.

1989). We find that Pinkney effectively waived his right to an indictment for burglary

through a counseled waiver because he entered a voluntarily entered plea of guilty in order

to avoid the death penalty. See id; see also Dedeaux v. State, 155 So. 3d 924, 928 (¶14)

(Miss. Ct. App. 2001) (acknowledging that “because the defendant was indicted under the

jurisdiction of the circuit court, and he voluntarily entered his pleas of guilty, he had waived

the right to be indicted for the crimes to which he entered a plea of guilty”).

¶27.   Moreover, Pinkney was indicted for capital murder, with the underlying offense being

burglary. Burglary was a lesser-included offense to the capital-murder charge. The burglary

as charged in Pinkney’s capital-murder indictment clearly put Pinkney on notice that he was

charged with burglary as part of his capital-murder charge, which essentially had two

separate lesser-included offenses: simple murder and burglary. See Lay v. State, 75 So. 3d

1108, 1112 (¶8) (Miss. Ct. App. 2011) (holding that both simple murder and burglary

constituted lesser-included offenses of the capital-murder charge in the defendant’s



                                              12
indictment where he was charged with capital murder with the underlying predicate offense

of burglary). Accordingly, Pinkney effectively waived his right to be separately indicted for

burglary.

¶28.   Pinkney also argues that the indictment was insufficient because it did not contain all

of the essential elements of simple murder. This argument is without merit. The capital-

murder indictment contained a separate lesser-included offense of simple murder. See id.

       IV.    Double Jeopardy

¶29.   Pinkney claims that he was subjected to double jeopardy in violation of the Fifth

Amendment to the United States Constitution and Artcle 3, Section 22 of the Mississippi

Constitution. “The Double Jeopardy Clause prevents a second prosecution for the same

offense after acquittal, against a second prosecution for the same offense after conviction,

and against multiple punishments for the same offense.” Ewing v. State, 34 So. 3d 612, 616

(¶14) (Miss. Ct. App. 2009) (citing Thomas v. State, 930 So. 2d 1264, 1265-66 (¶5) (Miss.

Ct. App. 2005); Greenwood v. State, 744 So. 2d 767, 770 (¶14) (Miss. 1999)).

¶30.   The supreme court has already addressed a double-jeopardy argument on appeal from

Pinkney’s 1998 PCR motion. “Yet, due to the supreme court's holdings in Rowland and

Smith, when an appellant raises allegations of fundamental-constitutional-right violations,

it appears necessary to discuss those allegations on the merits.” Avery v. State, 2014-CP-

00767-COA, 2015 WL 3948769, at *5 (Miss. Ct. App. June 9, 2015). The protection against

double jeopardy is a fundamental right that is excepted from the procedural bars, so we will

address the merits of claim. Graves v. State, 969 So. 2d 845, 846-47 (¶6) (Miss. 2007).



                                             13
Pinkney argued in his previous PCR appeal “that it was impermissible [for] the State to

charge in one indictment capital murder and the same burglary that was necessary to support

the capital murder offense, and then for the trial court to accept pleas in both the charges

arising out of the same indictment.” Pinkney, 757 So. 2d at 298 (¶5). The supreme court

decided that Pinkney’s previous double-jeopardy claim was without merit:.

       After Pinkney's case was remanded to the trial court for another sentencing
       proceeding, Pinkney and the State entered into a valid plea agreement.
       Pinkney pled guilty to the lesser included offense of murder and by criminal
       information pled guilty to the offense of burglary of an occupied dwelling.
       Pinkney now cites Fuselier v. State, 654 So. 2d 519, 522 (Miss. 1995), as
       authority in his claim asserting he could not be convicted both of capital
       murder and of the underlying offense which provided the basis for the capital
       murder charge.

       The State correctly points out that Pinkney has made a correct assessment of
       the nature of the holding in Fuselier. However, he is incorrect in applying that
       holding to his case. The record clearly shows that Pinkney pled guilty to the
       lesser offense of murder and to the offense of burglary. By pleading guilty to
       murder, Pinkney's maximum sentence was life – not death. Consequently,
       Pinkney did not plead guilty to capital murder as in Fuselier. Double jeopardy
       is not implicated in this case.

Pinkney, 757 So. 2d at 300 (¶¶11-12). To the extent that Pinkney is advancing the same

argument, we agree with the supreme court’s analysis. This issue remains without merit.

¶31.   Pinkney argues that he was subjected to double jeopardy because he was twice

convicted for the crime of burglary. We disagree. Pinkney was originally found guilty of

capital murder and sentenced to death. Pinkney was not convicted of burglary until remand.

On remand, a separate criminal information was filed for the crime of burglary, and his guilty

plea to that offense was accepted. Pinkney was allowed to plead guilty to murder (less than

capital) and burglary in exchange for the State not seeking the death penalty. See Kincaid

                                             14
v. State, 711 So. 2d 873, 877 (¶18) (Miss. 1998) (holding that there was no double-jeopardy

violation by sentencing the defendant to life imprisonment for simple murder and an

additional forty years for armed robbery). Pinkney was not subjected to double jeopardy.

       V.     Ineffective Assistance of Counsel

¶32.   Pinkney argues that he received ineffective assistance of counsel. Pinkney’s

ineffective-assistance claims stem from his allegations that he was subjected to double

jeopardy, and that his indictment and criminal information were defective. Pinkney claims

that he has a fundamental constitutional right to effective counsel. However, "[t]he

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

App. 2009)). “The supreme court has not yet held that effective assistance of counsel is a

fundamental constitutional right that may overcome procedural bars in noncapital cases[.]”

Avery, 2015 WL 3948769, at *7 (¶16). Because Pinkney’s convictions stem from simple

murder and burglary, his ineffective-assistance claim is time-barred and successive-writ

barred. Notwithstanding the procedural bars, we also find that Pinkey’s claim is meritless.

¶33.   In order to demonstrate ineffective assistance of counsel, Pinkney 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)



                                             15
(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).

Here, Pinkney does not claim that he would have insisted on proceeding to trial rather than

enter a guilty plea to simple murder. As a result, Pinkney’s ineffective-assistance claim must

fail. Moreover, Pinkney has failed to prove either Strickland prong. We also find it

noteworthy that Pinkney requested that the same trial attorney offer assistance in pursuing

the instant PCR motions, to which Pinkney’s trial counsel responded to him via a letter:

       On the one hand you ask me for assistance in [this] matter. Yet I notice that
       one of your arguments for post-trial relief is regarding ineffective assistance
       by me as one of your appella[te] attorneys. I deny this. We spared you from
       the death penalty. I cannot offer you legal assistance on this matter while you
       also have an adversarial role with me.

Pinkney’s request to his trial counsel is consistent with his representations to the trial court

through his plea petition and statements under oath at the plea hearing that he was satisfied

with the services of his trial counsel. See Palmer v. State, 140 So. 3d 448, 453 (¶10) (Miss.

Ct. App. 2012) (noting that declarations during the plea colloquy that the defendant was

satisfied with the services of his lawyer are presumptively true).

¶34.   Pinkney was clearly put on notice that he was charged with lesser-included simple

murder and burglary. His trial counsel was not ineffective for allowing him to plead guilty.

With the assistance of his attorney, he was able to avoid the death penalty. Moreover, we

have concluded that Pinkney’s claim of a defective indictment and information is without

merit. Pinkney’s double-jeopardy claim is also without merit. Because Pinkney’s claims are



                                              16
without merit, his ineffective-assistance claim based on the counsel’s alleged failure to raise

these issues must also necessarily fail.

                                      CONCLUSION

¶35.   Smith's claims are time-barred, successive-writ barred, and without merit.

Accordingly, we affirm the trial court’s dismissals of Pinkney’s PCR motions.

¶36. THE JUDGMENTS OF THE HINDS COUNTY CIRCUIT COURT, SECOND
JUDICIAL DISTRICT, DISMISSING THE MOTIONS FOR POSTCONVICTION
RELIEF ARE AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HINDS COUNTY.

     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
