Gill v. State, 2016–CP–01618–COA
| Decision Date | 13 February 2018 |
| Docket Number | NO. 2016–CP–01618–COA,2016–CP–01618–COA |
| Parties | Gregory L. GILL a/k/a Gregory Gill, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: GREGORY L. GILL (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER
BEFORE LEE, C.J., CARLTON AND GREENLEE, JJ.
CARLTON, J., FOR THE COURT:
¶ 1. Gregory Gill pleaded guilty to two counts of touching a child for a lustful purpose in violation of Mississippi Code Annotated section 97–5–23(1) (Supp. 2017). The trial court sentenced Gill to fifteen years in the custody of the Mississippi Department of Corrections (MDOC) for each count, with the sentences to run consecutively, with fifteen years suspended and five years of postrelease supervision.
¶ 2. Gill filed a motion for postconviction relief (PCR), which the trial court denied. Gill now appeals, asserting the following assignments of error: (1) his right against double jeopardy was violated; (2) the State failed to amend his indictment; (3) the trial court erred in admitting evidence of Gill's prior convictions; (4) his counsel was ineffective; and (5) his right to a speedy trial was violated. Finding no error, we affirm the Hancock County Circuit Court's denial of Gill's PCR motion.1
FACTS
¶ 3. On February 3, 2014, Gill pleaded guilty to two counts of touching a child for lustful purposes.2 The trial court sentenced Gill to fifteen years in the custody of the MDOC for each count, with the sentences to run consecutively, with fifteen years suspended and five years of postrelease supervision.
¶ 4. On July 29, 2016, Gill filed a petition to vacate his conviction and sentence, which the trial court treated as a PCR motion. In his PCR motion, Gill argued that: (1) his right to a speedy trial was violated; (2) his counsel was ineffective; and (3) his right against double jeopardy was violated.
¶ 5. On September 21, 2016, the trial court entered an order denying Gill's PCR motion. Regarding Gill's speedy-trial claim, the trial court explained that a valid guilty plea operates as a waiver of the right to a speedy trial. The trial court found that since Gill entered a guilty plea and failed to show that his plea was not valid, his claim lacked merit.
¶ 6. The trial court also found that Gill's claim of ineffective assistance of counsel lacked merit because Gill "failed to show that his counsel's representation fell below an objective standard of reasonableness and that, but for his counsel's alleged errors, he would not have pled guilty." The trial court explained that Gill failed to present evidence to support his claim of ineffective assistance of counsel. Citing Mississippi Code Annotated section 99–35–101 (Rev. 2015), the trial court also provided that since Gill pleaded guilty to the charges against him, he had no right to directly appeal his sentence and no right to counsel for a direct appeal.
¶ 7. Finally, the trial court held that Gill was not subjected to double jeopardy because Gill "pled guilty to two (2) separate acts of touching of a child for a lustful purpose, both of which took place on or between January 1, 2004[,] and December 31, 2007."
¶ 8. Gill filed his notice of appeal on November 3, 2016.3
STANDARD OF REVIEW
¶ 9. "When reviewing a trial court's denial ... of a motion for PCR, we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review... legal conclusions under a de novo standard of review." Chapman v. State , 167 So.3d 1170, 1172 (¶ 3) (Miss. 2015) (quotation omitted).
DISCUSSION
¶ 10. Gill claims that he was subjected to double jeopardy because he was charged twice for the same crime—touching a child for a lustful purpose. "[T]he Fifth Amendment to the United States Constitution, as well as Article 3, Section 22 of the Mississippi Constitution, protect[s] against double jeopardy, providing that no person shall be prosecuted twice for the same offense." Williams v. State , 167 So.3d 252, 257 (¶ 15) (Miss. Ct. App. 2015). Specifically, "[t]he Double Jeopardy Clause prevents a second prosecution for the same offense after acquittal, protects against a second prosecution for the same offense after conviction, and protects against multiple punishments for the same offense." Avery v. State , 102 So.3d 1178, 1181 (¶ 9) (Miss. Ct. App. 2012) (quoting Ewing v. State , 34 So.3d 612, 616 (¶ 14) (Miss. Ct. App. 2009) ) (internal quotation marks omitted).
¶ 11. On August 1, 2013, a Hancock County grand jury indicted Gill on the charges of sexual battery (Count I) and touching a child for a lustful purpose (Count II) in Cause No. B2301–13–0120. The record also contains a bill of information entered on February 3, 2014, charging Gill with one count of touching of a child for a lustful purpose in a separate cause number, Cause No. B2301–14–0017. Gill pleaded guilty to two counts of touching a child for lustful purposes pursuant to section 97–5–23(1) : one count of touching of a child for lustful purposes as charged in Count II of B2301–13–0120, and one count of touching of a child for lustful purposes as charged in B2301–14–0017. As a result of his guilty pleas, the trial court sentenced Gill to serve fifteen years for each count, with the two sentences to run consecutively.
¶ 12. The charge in Count II of Cause No. B2301–13–0120 alleged that:
[Gill,] being at the time in question over the age of eighteen years, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, did unlawfully, willfully[,] and feloniously handle, touch[,] or rub with his hands, the vagina of the said G.A.G., a child who was at the time in question under the age of sixteen (16) years ....
(Emphasis added).
¶ 13. The bill of information in cause number B2301–14–0017 charged that:
[Gill,] being at the time in question over the age of eighteen years, for the purpose of gratifying his lust or indulging his depraved licentious sexual desires, did unlawfully, wilfully[,] and feloniously handle, touch or rub with his hands the breasts of G.A.G. a child who was at the time in question under the age of sixteen (16) years ....
(Emphasis added).
¶ 14. The plea-hearing transcript reflects that the trial court informed Gill that he was pleading guilty to two separate charges of touching a child for a lustful purpose—one count in Cause No. B2301–13–0120 and one count in Cause No. B2301–14–0017. The trial court then told Gill that each of the charges carried a minimum sentence of two years and a maximum sentence of fifteen years and a minimum fine of $1,000 and a maximum fine of $5,000. The trial court also asked, "Sir, do you understand if you plead guilty today, you could be sentenced to a maximum [of thirty] years in prison and imposed a maximum fine of $10,000?" Gill confirmed that he understood, and he informed the trial court that he still intended to plead guilty. Additionally, during the plea hearing, the State set forth the facts surrounding Gill's charges as follows:
[T]he juvenile victim brought out that she had experienced inappropriate sexual activity with the defendant between the years when she was between six and [eleven] years old, and she described the different things that occurred[,] which include[d] different types of touching all over her body, and it occurred multiple times in multiple locations both in Mississippi and outside Mississippi before and after Hurricane Katrina.
¶ 15. When reviewing double-jeopardy claims on appeal, we utilize the test established in Blockburger v. United States , 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932), which "instructs courts to determine whether each offense contains an element not present in the other; if not, they are labeled the same offense[ ] for double-jeopardy purposes." Kelly v. State , 80 So.3d 802, 805 (¶ 11) (Miss. 2012). The Mississippi Supreme Court has stated that "[t]he rule plainly states that ‘where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one[ ] is whether each provision requires proof of a fact which the other does not.’ " Id. (quoting Blockburger , 284 U.S. at 304, 52 S.Ct. 180 ).
¶ 16. In Byers v. State , 157 So.3d 98, 104 (¶ 17) (Miss. Ct. App. 2014), the defendant, Daniel Byers, was indicted for three counts of felony child abuse under Mississippi Code Annotated section 97–5–39(2) (Supp. 2011), and the jury found him guilty of two counts, Count I and Count III. Byers appealed, claiming that he was subjected to double jeopardy. Id. at 103 (¶ 16). This Court acknowledged that Byers was indicted under section 97–5–39(2) on both counts of felony child abuse, and as a result, "the statutory elements were the same." Byers , 157 So.3d at 104 (¶ 17). The Byers Court clarified, however, that "the types of injuries constituting the abuse in the two counts are different: Count I concerns the leg fracture
; Count III concerns the bruises and abrasions." Id. This Court cited Nelson v. State , 10 So.3d 898, 907 (¶ 37) (Miss. 2009), where the supreme court explained that "[e]ven though there may be a substantial overlap in the proof supporting the convictions of the different crimes, the Blockburger test is met where each offense requires proof of an element not necessary to the other." Byers, 157 So.3d at 104 (¶ 18). The Byers Court thus held that "Count III required ‘proof of a fact’ not found in Count I; namely, that [the victim] suffered serious bodily harm in the form of ‘severe bruising, abrasions, and lacerations.’ " Id.
¶ 17. In the present case, the record shows that Count II of Gill's indictment in Cause No. B2301–13–0120 charged Gill with "unlawfully, willfully[,] and feloniously handl[ing], touch[ing,] or rub[bing] with his hands, the vagina" of the victim. In contrast, the bill of information in Cause No. B2301–14–0017 charged Gill with "unlawfully, wilfully[,...
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