Lopez v. State
| Decision Date | 19 July 2022 |
| Docket Number | 2021-CP-00331-COA |
| Citation | 343 So.3d 408 |
| Parties | Gustavo LOPEZ a/k/a Gustavo Adolfo Lopez a/k/a Gustavo Adolfo Hernandez Lopez, APPELLANT v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: GUSTAVO LOPEZ (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALEXANDRA RODU ROSENBLATT
BEFORE CARLTON, P.J., GREENLEE AND McDONALD, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Gustavo Lopez appeals from the order of the Pearl River County Circuit Court denying his motion for post-conviction collateral relief (PCR). Finding no reversible error, we affirm.
¶2. In November 2016, Lopez was driving a GMC Sierra northbound on Interstate 59 when he was pulled over by Detective Daniel Quave with the Pearl River County Sheriff's Office for following another vehicle too closely. According to Detective Quave's incident report, Lopez was identified by his Guatemalan Identification Card, and Lopez stated he was in the United States on a visa. Detective Quave asked Lopez where he was headed, and Lopez stated that he had a small car dealership in Guatemala and that he was going to purchase at least one vehicle in Birmingham, Alabama.
¶3. For safety reasons, Detective Quave asked Lopez to exit the vehicle and sit in the passenger seat of his patrol vehicle while he completed the traffic citation. During that time, they continued their discussion. As Detective Quave asked Lopez questions, he believed that at least one of Lopez's answers was rehearsed. Detective Quave also noted that Lopez seemed "very familiar with the area," and it appeared that he had "traveled the area quite frequently."
¶4. Throughout their discussion, Detective Quave observed Lopez continuously staring at the GMC Sierra. Detective Quave asked Lopez if there was anything in the vehicle that he needed to be aware of, and Lopez responded "no" several times. When he asked Lopez if there were any illegal guns in the vehicle, Lopez responded no. Detective Quave asked if there was marijuana, cocaine, or crystal methamphetamine in the vehicle, and Lopez consistently stated no. However, when Lopez was asked specifically about heroin, "he seemed to all of the sudden be out of breath" but stated no. When Detective Quave asked about heroin again, Lopez did not say anything. According to Detective Quave, when he asked if there were any hidden compartments in the vehicle, Lopez looked directly at the bed of the GMC Sierra as he stated no. At that point, Detective Quave asked Lopez for permission to search the vehicle and explained that he could refuse the search. However, Lopez responded, "[N]o sir go ahead, everything is open."1
¶5. During the search of the vehicle, Detective Quave noticed "two metal bars that appeared to be tow saddles for tractor trucks." He also noticed that there was a large amount of grease, sand, and grass covering the tow saddles, which seemed odd to him. When he tapped one of the tow saddles, the metal sounded thin and the inside sounded hollow. Detective Quave retrieved his K-9 partner from his vehicle; the dog "began to show interest in the area where the [tow] saddles were located." At that point, the vehicle was moved to the Lenoir Rowell Criminal Justice Center Complex to safely continue the search. Detective Quave ran a knife across the tow saddles where the welding should have been, but he cut into white caulk instead. According to Detective Quave, Lopez told him that he had towed several eighteen-wheelers with the tow saddles, but "it was obvious that the saddles would not be able to stand the weight ...." When Detective Quave further dismantled the tow saddles, he recovered twelve packages wrapped in duct tape. A field test showed a positive result for heroin, and the Mississippi Forensics Laboratory later tested two of the bundles and confirmed that they contained heroin.
¶6. The next day, Detective Quave conducted a post- Miranda2 interview. During the interview, Lopez stated that he was paid $5,000 to pick up the tow saddles in Texas and drive them to Pennsylvania, which he had done several other times. Lopez stated that he knew something was not right with the tow saddles, and he "figured" that they contained drugs because he was getting paid so much money.
¶7. In July 2018, Lopez entered a petition to plead guilty to possession of 1,500.29 grams of heroin, a Schedule I controlled substance, with intent to traffic. The court accepted Lopez's plea, and after a pre-sentence investigation, Lopez was sentenced to serve thirty years in the custody of the Mississippi Department of Corrections with credit for time served in the county jail. The court further ordered Lopez to serve his sentence before being released on an immigration hold that was placed on him by Immigration and Customs Enforcement. The court waived all fines, fees, and court costs.3
¶8. In April 2020, Lopez filed a PCR motion suggesting that his plea was involuntary and expressly claiming (1) he was denied his right to a speedy trial, (2) he was denied his Fifth and Fourteenth Amendment rights against self-incrimination, (3) he was denied his Fourth Amendment right against unreasonable searches and seizures, and (4) he received ineffective assistance of counsel.4
¶9. Ultimately, the court denied Lopez's PCR motion. Now Lopez appeals.
¶10. "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." Taylor v. State , 313 So. 3d 1106, 1109 (¶5) (Miss. Ct. App. 2021) (quoting Williams v. State , 228 So. 3d 844, 846 (¶5) (Miss. Ct. App. 2017) ). "The [circuit] 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." Pinkney v. State , 192 So. 3d 337, 341 (¶11) (Miss. Ct. App. 2015). "[T]his 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." Porter v. State , 271 So. 3d 731, 732 (¶3) (Miss. Ct. App. 2018) (quoting Pinkney , 192 So. 3d at 341-42 (¶13) ).
¶11. We must decide whether the circuit court erred by denying Lopez's PCR motion. In his PCR motion and on appeal, Lopez claims (1) law enforcement violated his Fifth and Fourteenth Amendment right against self-incrimination, (2) the warrantless search of his vehicle and seizure of evidence were unreasonable and violated the Fourth Amendment, and (3) his counsel was ineffective for failing to file a motion to suppress and for misrepresenting the sentence he would receive if he pled guilty.5
¶12. We will address Lopez's claims regarding the alleged violations of his constitutional rights together. Lopez claims law enforcement violated his Fifth and Fourteenth Amendment right against self-incrimination. He seemingly argues that he was not advised of his Miranda rights prior to being interrogated, or, if he was, he could not validly waive his rights because he did not speak English proficiently. He also claims that the warrantless search of his vehicle was unreasonable and in violation of the Fourth Amendment. He seemingly argues that law enforcement lacked reasonable suspicion, that he did not validly consent to the search, and that the search was unreasonably prolonged.
¶13. However, this Court has held that "a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial." McDonald v. State , 180 So. 3d 780, 786 (¶21) (Miss. Ct. App. 2015) (quoting Logan v. State , 771 So. 2d 970, 972 (¶6) (Miss. Ct. App. 2000) ). This waiver includes Lopez's claim involving his Miranda rights. Montalto v. State , 119 So. 3d 1087, 1096 (¶20) (Miss. Ct. App. 2013). And it includes his claim involving the allegedly unreasonable search and seizure. Buckley v. State , 119 So. 3d 1171, 1173 (¶6) (Miss. Ct. App. 2013). Because Lopez pled guilty, he waived his claims regarding the alleged violations of his constitutional rights.
¶14. Next, Lopez claims that he received ineffective assistance of counsel. Specifically, he argues that his attorney failed to file a motion to suppress and that his attorney misrepresented the sentence he would receive if he pled guilty.
¶15. "A voluntary guilty plea waives claims of ineffective assistance of counsel ‘except insofar as the alleged ineffectiveness related to the voluntariness of the giving of the guilty plea.’ " Jones v. State , 284 So. 3d 855, 859 (¶12) (Miss. Ct. App. 2019) (quoting Rigdon v. State , 126 So. 3d 931, 936 (¶16) (Miss. Ct. App. 2013) ). Lopez does not contend in his appellate brief, and the record does not support, that he entered his guilty plea involuntarily. Therefore, this issue was waived.
¶16. Even if Lopez had not waived his ineffective-assistance-of-counsel claim, he could not meet the two-part test for such a claim set forth in Strickland v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland , a defendant must show that counsel's performance was deficient and that the deficiency was prejudicial. Id .
¶17. First, Lopez argues that had his attorney investigated the case, he would have filed a motion to suppress, and the failure to do so constituted ineffective assistance of counsel. This Court has held that "[t]he failure to file a [motion to suppress] does not constitute per se ineffective assistance of counsel." Wilkerson v. State , 307 So. 3d 1231, 1247 (¶41) (Miss. Ct. App. 2020) (quoting Shinstock v. State , 220 So. 3d 967, 971 (¶16) (Miss. 2017) ). However, "counsel may be deemed ineffective where counsel fails to move to suppress evidence obtained in violation of the...
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