Collins v. State
Decision Date | 23 February 2021 |
Docket Number | NO. 2019-CP-01760-COA,2019-CP-01760-COA |
Citation | 311 So.3d 1285 |
Parties | Kevin Barome COLLINS a/k/a Kevin Collins a/k/a Kevin B. Collins, Appellant v. STATE of Mississippi, Appellee |
Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: KEVIN BAROME COLLINS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALLISON ELIZABETH HORNE
BEFORE BARNES, C.J., GREENLEE AND WESTBROOKS, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Kevin Collins appeals from the Lincoln County Circuit Court's dismissal of his motion for post-conviction collateral relief (PCR). Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In 2014, Collins was indicted for murder, conspiracy to commit murder, aggravated assault, and possession of a firearm by a felon. In May 2015, Collins pled guilty to manslaughter and aggravated assault. For the manslaughter conviction, he was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections. For the aggravated-assault conviction, he was sentenced to ten years, with eight years suspended and two years to serve, and five years of post-release supervision. The circuit court ordered Collins's sentences to run consecutively, and he was ordered to pay a $5,000 fine, $5,858.95 in restitution, and $419.50 in court costs.
¶3. In March 2017, Collins filed a PCR motion claiming (1) his convictions were against the overwhelming weight of the evidence, (2) his guilty plea lacked a sufficient factual basis, (3) the court did not advise him of certain constitutional rights, (4) his indictment was defective, and (5) he received ineffective assistance of counsel. Subsequently, the circuit court entered an order dismissing Collins's motion. Collins filed a notice of appeal that our supreme court dismissed as untimely filed in July 2018. Collins filed a motion to reinstate the appeal after the mandate issued, which was denied.
¶4. In August 2019, Collins filed a second PCR motion reasserting the claims that he raised in his first PCR motion. The circuit court dismissed the motion as time-barred and barred as a successive motion. The court further held that Collins's claims did not overcome the procedural bars. Now Collins appeals.
STANDARD OF REVIEW
¶5. "When reviewing a [circuit] court's denial or dismissal of a PCR motion, we will only disturb the [circuit] court's decision if it is clearly erroneous; however, we review the [circuit] court's legal conclusions under a de novo standard of review." Williams v. State , 228 So. 3d 844, 846 (¶5) (Miss. Ct. App. 2017) (quoting Thinnes v. State , 196 So. 3d 204, 207-08 (¶10) (Miss. Ct. App. 2016) ).
DISCUSSION
¶6. Under the Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA), any order denying or dismissing a PCR motion is a bar to a second or successive PCR motion. Miss. Code Ann. § 99-39-23(6) (Rev. 2015). Additionally, Collins had three years after the entry of the judgment of conviction to file a PCR motion. Id . § 99-39-5(2) (Rev. 2015). Because Collins's PCR motion is not his first and was filed more than three years after the entry of the judgment of conviction, it is procedurally barred. Notwithstanding the bar, we briefly address his contentions below.
¶7. It is true that "errors affecting fundamental rights may be excepted from procedural bars." Rowland v. State , 42 So. 3d 503, 505-06 (¶7) (Miss. 2010) (internal quotation marks omitted). But "the mere assertion of a constitutional[-]right violation does not trigger the exception." Evans v. State , 115 So. 3d 879, 881 (¶3) (Miss. Ct. App. 2013) (internal quotation mark omitted) (quoting Wicker v. State , 16 So. 3d 706, 708 (¶5) (Miss. Ct. App. 2009) ). To find an exception to the bar, "there must at least appear to be some basis for the truth of the claim ...." Id . (quoting Stovall v. State , 873 So. 2d 1056, 1058 (¶7) (Miss. Ct. App. 2004) ).
¶8. Collins claims his convictions were against the overwhelming weight of the evidence. Collins notes that his indictment alleged he used both a "firearm" and a "handgun" to shoot the victims, and he suggests that it was impossible for him to have used two different weapons. He also argues that the aggravated-assault statute requires an intended victim to exist, and he did not intend to shoot at least one of the victims. However, this Court has held that challenges to the weight of the evidence are waived by pleading guilty. See Pegues v. State , 214 So. 3d 1080, 1083 (¶13) (Miss. Ct. App. 2017). Because Collins pled guilty, this issue was waived.
¶9. Collins claims that an insufficient factual basis existed for his guilty plea. "Prior to accepting a defendant's guilty plea, the circuit court must first decide whether the plea is voluntarily and intelligently made and whether a factual basis exists to support the plea." Tucker v. State , 294 So. 3d 690, 695 (¶9) (Miss. Ct. App. 2020) (citing Venezia v. State , 203 So. 3d 1, 2 (¶6) (Miss. Ct. App. 2016) ). "There are many ways to establish a factual basis, including a statement of the prosecutor, the testimony of live witnesses, and prior proceedings, as well as an actual admission by the defendant." Id . (quoting Jenkins v. State , 202 So. 3d 220, 222 (¶8) (Miss. Ct. App. 2016) ). "This Court reviews the entire record to determine whether a factual basis supported the defendant's plea." Id . (citing Smith v. State , 86 So. 3d 276, 280-81 (¶11) (Miss. Ct. App. 2012) ).
¶10. At the plea hearing, the court asked the State for a factual basis to support Collins's plea:
¶11. Collins heard the factual statements presented by the State and admitted that enough evidence existed to support convictions for manslaughter and aggravated assault. Upon reviewing the entire record, and based upon the statements made during the plea hearing by the State and Collins, we find that a sufficient factual basis was established to support Collins's plea.
¶12. Collins claims the circuit court failed to advise him of certain constitutional rights. "A guilty plea is binding where it is entered voluntarily, knowingly, and intelligently." Hill v. State , 60 So. 3d 824, 828 (¶11) (Miss. Ct. App. 2011) (citing Alexander v. State , 605 So. 2d 1170, 1172 (Miss. 1992) ). "A plea will be deemed to meet this standard where ‘the defendant is advised concerning the nature of the charge against him and the consequences of the plea.’ " Id . (quoting Mason v. State , 42 So. 3d 629, 632 (¶7) (Miss. Ct. App. 2010) ). "Specifically, the defendant must be advised that his guilty plea waives multiple constitutional rights." Id . (citing Hannah v. State , 943 So. 2d 20, 25 (¶12) (Miss. 2006) ).
¶13. Collins asserts that he was not advised that he had a right to counsel, a right to cross-examine witnesses, and a right against self-incrimination. However, the transcript from the plea hearing shows otherwise:
¶14. A review of the transcript shows Collins was advised that he had a right to counsel (and had hired counsel), and he was advised that by entering a guilty plea he would waive his right to cross-examine witnesses and his right against self-incrimination. Therefore, this issue is without merit.
¶15. Collins claims his indictment was defective because it did not conclude with the words "against the peace and dignity." Article 6, Section 169 of the Mississippi Constitution provides, in relevant part, that "all indictments shall conclude ‘against the peace and dignity of the State.’ " This Court has held that "while the concluding statement is, in fact, required, it is a matter of the form of the indictment."
Collins v. State , 270 So. 3d 63, 67 (¶13) (Miss. Ct. App. 2018) (quoting Pegues , 214 So. 3d at 1082 (¶5) ). "As such, claims regarding the concluding statement ‘must be raised as a demurrer to the indictment and are waived by a valid guilty plea.’ " Id . There is no indication in the record that Collins objected to his indictment prior to pleading guilty. Therefore, this issue was waived. Nevertheless, a review of the record shows that Collins's indictment concluded with the words "against the peace...
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