Avery v. State, 2011–CP–01078–COA.

• Decision Date: 14 August 2012
• Docket Number: No. 2011–CP–01078–COA.,2011–CP–01078–COA.
• Citation: 95 So.3d 765
• Parties: William Antonio AVERY a/k/a William Avery, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

95 So.3d 765

William Antonio AVERY a/k/a William Avery, Appellant

v.STATE of Mississippi, Appellee.

No. 2011–CP–01078–COA.

Court of Appeals of Mississippi.

Aug. 14, 2012.

William Antonio Avery, appellant, pro se.

Stephanie Breland Wood, attorney for Appellee.

Before IRVING, P.J., BARNES and CARLTON, JJ.

BARNES, J., for the Court:

¶ 1. William Antonio Avery pleaded guilty to selling cocaine within 1500 feet of a church and was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC), with twenty-nine years and three hundred fifty-nine days suspended and five years of reporting post-release supervision, to be followed by five years of non-reporting post-release supervision. Avery violated the conditions of his post-release supervision, and his post-release supervision was revoked. He was returned to MDOC custody to serve the remainder of his sentence. Avery filed a motion for post-conviction relief, which the Lauderdale County Circuit Court denied. On appeal, we affirm the circuit court's judgment.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. In 2007, Avery was indicted for the sale of cocaine within 1500 feet of a church. After several continuances, Avery entered an Alford guilty plea on June 8, 2009.¹ He was sentenced to thirty years in the custody of the MDOC, with twenty-nine years and three hundred fifty-nine days suspended, five years of reporting post-release supervision, and five years of non-reporting post-release supervision. A year later, Avery violated the terms of his post-release supervision by committing “the offense[s] of sale of cocaine and felon fleeing in Lauderdale County Cause No. 439–10.” On October 13, 2010, Avery's post-release supervision was revoked by order of the circuit court, and he was ordered into the custody of the MDOC to serve the remainder of his sentence.

¶ 3. Avery filed a motion for post-conviction relief on March 31, 2011, which the circuit court denied. Appealing the circuit court's denial of his motion, Avery contends that defense counsel's performance was deficient, and he was denied his right to a speedy trial. Finding no error, we affirm the circuit court's judgment.

STANDARD OF REVIEW

¶ 4. This Court will not disturb a circuit court's denial of a motion for post-conviction relief unless the findings “are found to be clearly erroneous.” Turner v. State, 78 So.3d 347, 348 (¶ 6) (Miss.Ct.App.2011) (quoting Presley v. State, 48 So.3d 526, 529 (¶ 10) (Miss.2010)). Questions of law, however, are review de novo. Id.

I. Whether Avery was denied effective assistance of counsel.

¶ 5. Avery argues that his attorney “forged” his name to several motions for continuance, which he claims were “instrumental in the denial of [Avery's] right to a speedy trial.” He alleges these continuances also cost him several thousand dollars in attorney's fees and constituted extortion. Avery further alleges that counsel failed to conduct any pretrial investigation, and counsel's advice to plead guilty constituted ineffective assistance of counsel.

¶ 6. This Court has held:

In order to demonstrate ineffective assistance of counsel, a petitioner must satisfy the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the convicted defendant must show that counsel's representation fell below an objective standard of reasonableness. Second, the defendant must show there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006) (internal citations omitted).

Mitchell v. State, 58 So.3d 59, 62 (¶ 14) (Miss.Ct.App.2011). As this case involves a guilty plea, Avery must show that, but for counsel's performance, he would have gone to trial, and the outcome would have been different. See id. at (¶ 15).

¶ 7. On the morning of his trial, Avery agreed to enter an Alford guilty plea and testified that he was satisfied with his counsel's representation.

Q. Now, you have gone over those facts that led to this charge on August 8 of 2006 where it is alleged you sold the cocaine in detail with your attorney, Mr. Wright, correct?

A. Yes, sir.

Q. Yes?

A. Yes, sir.

Q. And he's explained to you exactly what the State would have to prove to find you guilty there. He's gone over with you, I know, in detail defenses you have. You've considered lesser included offenses; you are pleading to a lesser included offense?

A. Yes, sir.

....

Q. And after considering all of that, you are satisfied with the legal counsel that Mr. Wright has given you as your attorney?

A. Yes, sir.

Furthermore, the “Petition to Enter Plea of Guilty,” that Avery signed and initialed, stated:

I believe that my 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 me. 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 the matters set forth in the indictment and in this petition and in the certificate of my lawyer which follows.

¶ 8. Counsel had the authority to represent Avery in all matters before the court, including the filing of motions for continuance. Further, when the attorney signed the documents that Avery alleges were forged, the attorney clearly noted he was signing as counsel on Avery's behalf. There was no representation that Avery actually signed the documents. The record also shows that sufficient pretrial discovery and investigation was conducted. Counsel filed a motion for discovery, requesting that the State provide all “documents, pictures and articles” prior to trial. Avery's attorney also employed a private investigator to interview a possible witness. Accordingly, we find nothing to supportAvery's claim of ineffective assistance of counsel.

II. Whether Avery was denied his right to a speedy trial.

¶ 9. Avery argues that he was denied his right to a speedy trial. However, as this Court has consistently noted, “a valid ‘guilty plea waives the right to a speedy trial, whether that right is of constitutional or statutory origin.’ ” Carroll v. State, 3 So.3d 767, 774 (¶ 14) (Miss.Ct.App.2008) (quoting Rowe v. State, 735 So.2d 399, 400 (¶ 3) (Miss.1999)). At the plea...