Bevalaque v. State, 2015–CA–00664–COA.
| Decision Date | 02 August 2016 |
| Docket Number | No. 2015–CA–00664–COA.,2015–CA–00664–COA. |
| Citation | 196 So.3d 1149 |
| Parties | John BEVALAQUE a/k/a John McAndrew Bevalaque a/k/a John M. Bevalaque a/k/a John Andrew Bevalaque, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Michael Haden Lawyer, attorney for appellant.
Office of the Attorney General by Lisa L. Blount, attorney for appellee.
Before LEE, C.J., WILSON and GREENLEE, JJ.
LEE, C.J., for the Court:
FACTS AND PROCEDURAL HISTORY
¶ 1. John Bevalaque was indicted on May 20, 2011, in the Circuit Court of Rankin County, on seven counts of exploitation of a child under Mississippi Code Annotated section 97–5–33 (Supp.2011). Bevalaque pleaded guilty to six counts, and the remaining count was nolle prosequied. On November 30, 2011, the circuit court accepted Bevalaque's guilty plea and sentenced him to thirty-five years on each count, with ten years suspended, in the custody of the Mississippi Department of Corrections and five years of supervised probation. The sentences were ordered to run concurrently. And Bevalaque was ordered to pay court costs of $413 and a fine of $50,000 on each count, but the circuit court suspended the fine in Counts II through VI. The judgment of conviction was filed on December 12, 2011.
¶ 2. Bevalaque filed a motion for postconviction relief (PCR) on December 12, 2014, claiming (1) his guilty plea was not knowing or voluntary, and (2) he received ineffective assistance of counsel. The circuit court dismissed Bevalaque's PCR motion without a hearing. Bevalaque timely appeals.
STANDARD OF REVIEW
¶ 3. A circuit court may dismiss a PCR motion without a hearing “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.” Thomas v. State, 159 So.3d 1212, 1214 (¶ 4) (Miss.Ct.App.2015) (quoting Miss.Code Ann. § 99–39–11(2) (Rev.2015)). When reviewing a denial of a PCR motion, we will only disturb the circuit court's factual findings if they are clearly erroneous. Id.
DISCUSSION
¶ 4. In his first issue, Bevalaque claims his guilty plea was entered into unknowingly and involuntarily. He argues that because of his mental illness and his prescribed medications, he was unable to comprehend his rights, the nature of the charges against him, and the consequences of his plea.
¶ 5. However, the circuit court questioned Bevalaque about his mental illness and prescribed medications:
¶ 6. Then the circuit court thoroughly questioned Bevalaque about the waiver of certain rights—including the right to trial by jury, the right to confront witnesses, and the right to protection against self-incrimination; the charges against him—including the elements of the crime; and the consequences of his guilty plea—including the minimum and maximum sentences and fines.
¶ 7. Bevalaque also argues his attorney coerced him into entering the guilty plea. However, during the plea hearing, Bevalaque was questioned about the voluntariness of his plea:
¶ 8. Thus, we find the plea transcript shows Bevalaque's guilty plea was knowing and voluntary. See id. at 1216 (¶ 12) (). While “an attack on a facially correct plea may survive summary dismissal if supporting affidavits of other persons are attached,” Bevalaque attached no such evidence to his PCR motion. Mitchener v. State, 964 So.2d 1188, 1194 (¶ 15) (Miss.Ct.App.2007). This issue is without merit.
¶ 9. In his second issue, Bevalaque claims his counsel was ineffective for (1) failing to conduct any meaningful investigation, (2) failing to ascertain whether Bevalaque was competent to enter a guilty plea or assist in his own defense, (3) failing to properly advise Bevalaque of possible defenses, elements of the crime, or consequences of entering a guilty plea, and (4) coercing Bevalaque into pleading guilty and agreeing to a disproportionate sentence.
¶ 10. We have already concluded that Bevalaque entered his guilty plea knowingly and voluntarily. “A voluntary guilty plea waives claims of ineffective assistance of counsel, ‘except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea.’ ” Thomas, 159 So.3d at 1215 (¶ 10) (quoting Fortenberry v. State, 151 So.3d 222, 225 (¶ 10) (Miss.Ct.App.2014) ). When a defendant pleads guilty, and later asserts ineffective assistance of counsel, he “must demonstrate that his c...
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Bevalaque v. State
...counsel. After the trial court denied the motion, Bevalaque appealed, and this Court found that his guilty plea was voluntary. Bevalaque v. State , 196 So. 3d 1149, 1152 (¶8) (Miss. Ct. App. 2016). This Court also found that there was no evidence that he received ineffective assistance of c......