Fair v. State
| Docket Number: | 2011-CP-00151-COA Linked Case(s): 2011-CP-00151-COA ; 2011-CT-00151-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-24-2012 Opinion Author: Carlton, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Double jeopardy - Ineffective assistance of counsel - Voluntariness of pleas - Elements of burglary - Right to appeal - Evidentiary hearing Judge(s) Concurring: Lee, C.J., Griffis, P.J., Barnes, Ishee, Roberts, Maxwell, Russell and Fair, JJ. Concur in Part, Concur in Result 1: Irving, P.J., Concurs in Part and in the Result Without Separate Written Opinion Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 01-20-2011 Appealed from: Coahoma County Circuit Court Judge: Charles E. Webster Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: 14-CI-10-0030 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Gregory Fair |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Double jeopardy - Ineffective assistance of counsel - Voluntariness of pleas - Elements of burglary - Right to appeal - Evidentiary hearing |
| Summary of the Facts: | Gregory Fair pled guilty to two counts of burglary of a dwelling and one count of conspiracy to commit burglary of a dwelling. He filed a motion for post-conviction relief which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Double jeopardy Fair argues that the multi-count indictment subjected him to double jeopardy. While the double-jeopardy constitutional provisions assure protection from multiple punishments for the same offense, the record shows that Fair pleaded guilty and was sentenced for three separate offenses. Issue 2: Ineffective assistance of counsel Fair argues that he received ineffective assistance of counsel when his attorney advised him to plead guilty, allegedly without any investigation into the legality of the multiple-count indictment nor any challenge to it. While defense counsel’s motion to sever does not appear in the record, the circuit court’s order denying Fair’s PCR motion states that Fair’s attorney in fact challenged the multi-count indictment. Additionally, the record shows that Fair, in his plea petition and during his plea colloquy, declared that he was satisfied with his attorney’s services. Fair has failed to present any specific evidence of his attorney’s deficient performance or the prejudice he suffered as a result of the alleged deficient performance. Thus, his claim is without merit. Issue 3: Voluntariness of pleas Fair argues that his attorney conspired with the State to use an illegal multi-count indictment to mentally coerce him into entering his guilty pleas. However, the record shows no evidence contrary to the circuit court’s finding that Fair entered knowing, voluntary, and intelligent pleas. Issue 4: Elements of burglary Fair argues the circuit court erred in accepting his guilty pleas since he never admitted to the elements of burglary during the plea proceedings. However, the transcript of the plea hearing shows the circuit court ensured Fair was made aware of the elements of the charges against him, and Fair admitted that he committed each of the three separate offenses. Issue 5: Right to appeal Fair argues that the circuit court failed to inform him that he could appeal the sentences imposed on him as a result of his guilty pleas. Because Fair entered guilty pleas, a direct appeal was not available to him. Issue 6: Evidentiary hearing A petitioner in post-conviction relief matters is only entitled to an evidentiary hearing if, under the facts within his knowledge and/or attached affidavits, he states a cognizable claim for relief, and absent that claim, a trial court may summarily dismiss the petition. Because no such claim is present in Fair’s PCR motion, the circuit court properly denied Fair’s motion without holding an evidentiary hearing. |
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