McCray v. State
Docket Number: | 2011-CA-00220-COA Linked Case(s): 2011-CA-00220-COA ; 2011-CT-00220-SCT |
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Court of Appeals: |
Opinion Link Opinion Date: 07-31-2012 Opinion Author: Fair, J. Holding: Affirmed |
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Additional Case Information: |
Topic: Post-conviction relief - Defective indictment - Ineffective assistance of counsel Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Barnes, Ishee, Roberts, Carlton, Maxwell and Russell, JJ. Procedural History: PCR Nature of the Case: PCR |
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Trial Court: |
Date of Trial Judgment: 01-05-2011 Appealed from: Wilkinson County Circuit Court Judge: Lillie Blackmon Sanders Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: 2010-0134 |
Party Name: | Attorney Name: | Brief(s) Available: | ||
Appellant: | Oliver Otis McCray a/k/a Otis McCray |
IMHOTEP ALKEBU-LAN |
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Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND |
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. |
Topic: | Post-conviction relief - Defective indictment - Ineffective assistance of counsel |
Summary of the Facts: | Oliver McCray pled guilty to manslaughter and robbery as a habitual offender. He was sentenced to fifteen and twenty years on the charges, respectively. McCray filed a motion for post-conviction relief which was dismissed. He appeals. |
Summary of Opinion Analysis: | Issue 1: Defective indictment McCray argues that his indictment was defective because it was not signed by either the foreman of the grand jury or the circuit clerk. This argument is procedurally barred on appeal. In his original PCR motion filed in the circuit court, McCray contended his indictment was defective, but he gave no reason why. He has made the supporting argument for the first time on appeal, and it is procedurally barred as a result. A trial judge cannot be put in error on a matter which was not presented to her for decision. In addition, the fact that an unsigned copy of the indictment exists somewhere has no effect on the fully executed indictment in the record. Issue 2: Ineffective assistance of counsel McCray argues that he received ineffective assistance of counsel, because his attorney failed to object to the defective indictment (already determined to be without merit), counsel failed to investigate the case, and McCray was induced to plead guilty by a promise he would serve his sentences concurrently. These contentions are supported in the record only by an affidavit executed by McCray himself. Bare allegations are insufficient to prove ineffective assistance of counsel. Additionally, McCray’s claims are contradicted by his own sworn statements in the record. |
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