Avery v. State


<- Return to Search Results


Docket Number: 2002-CP-00516-COA
Linked Case(s): 2002-CA-00516-SCT

Court of Appeals: Opinion Link
Opinion Date: 01-21-2003
Opinion Author: Myers, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Voluntariness of plea - Defective indictments - Miss. Const. § 169 - Ineffective assistance of counsel
Judge(s) Concurring: McMillin, C.J., King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving and Chandler, JJ.
Non Participating Judge(s): Griffis, J.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 02-28-2002
Appealed from: Grenada County Circuit Court
Judge: Joseph H. Loper
Disposition: POST-CONVICTION RELIEF DENIED
District Attorney: Doug Evans
Case Number: 2001-0369-CV-L

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Kenaith Demario Avery




PRO SE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE  

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 - Voluntariness of plea - Defective indictments - Miss. Const. § 169 - Ineffective assistance of counsel

Summary of the Facts: Kenaith Avery pled guilty to three indictments charging him with sale of cocaine. Avery was sentenced to twenty-eight years with five years of post-release supervision following twenty-three years of incarceration for one of the offenses and to two ten-year terms to be served concurrently for the other two offenses. Avery filed a post-conviction relief motion which was denied. He appeals.

Summary of Opinion Analysis: Issue 1: Voluntariness of plea Avery argues that his guilty plea was not made voluntarily because of the threat of a ninety-year prison sentence if convicted and potentially life imprisonment based upon habitual offender status. A plea is voluntary where the defendant is advised concerning the nature of the charge against him and the consequences of the plea. Mississippi law allows an indictment to include the habitual offender status language if applicable. This cannot be called a threat. In addition, the judge carefully explained to Avery the situation, and Avery had the ability to understand the nature and consequences of the entry of a guilty plea. Issue 2: Defective indictments Avery argues that the indictments were defective because of the failure to follow Section 169 of the Mississippi Constitution. There were three indictments each of which listed the drug related charge followed by the Section 169 required language. The indictments continued with the habitual offender status followed by the Section 169 required language. When the language "against the peace and dignity of the State" is used at the end of each count in an indictment, there is no constitutional violation. Here, the Section 169 required language appears after the charge. In addition, Avery pled guilty and he failed to object to the indictments. Issue 3: Ineffective assistance of counsel Avery argues that he was denied effective assistance of counsel, because his counsel provided erroneous advice and failed to conduct a proper investigation. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Avery presents no evidence of his attorney providing erroneous advice other than that his counsel suggested that Avery should plead guilty. However, the choice to plead belonged to Avery. Pleading guilty in order to avoid the potential life sentence under the habitual offender status was a wise choice. With regard to an improper investigation, an attorney cannot twist facts and law to garner an acquittal in every case.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court