Lewis v. State
| Docket Number: | 2008-CP-01752-COA Linked Case(s): 2008-CP-01752-COA ; 2008-CT-01752-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-25-2010 Opinion Author: Myers, P.J. Holding: The judgment of the Circuit Court of Pike County dismissing the motion for post-conviction relief is affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Time bar - Section 99-39-5(2) - Factual basis - Voluntariness of plea - Recusal of judge - Ineffective assistance of counsel Judge(s) Concurring: Lee, P.J., Irving, Griffis, Barnes, Ishee, Roberts and Maxwell, JJ. Concurs in Result Only: King, C.J. Procedural History: PCR; Dismissal Nature of the Case: CIVIL - POST-CONVICTION RELIEF; Dismissal |
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| Trial Court: |
Date of Trial Judgment: 09-25-2008 Appealed from: PIKE COUNTY CIRCUIT COURT Judge: Michael M. Taylor Disposition: DISMISSED MOTION FOR POSTCONVICTION RELIEF Case Number: 08-019-PCT |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Gary Lewis |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: W. GLENN WATTS | ||
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 - Time bar - Section 99-39-5(2) - Factual basis - Voluntariness of plea - Recusal of judge - Ineffective assistance of counsel |
| Summary of the Facts: | Gary Lewis pled guilty to conspiracy to sell cocaine. He was sentenced to twenty years. At the sentencing hearing in 2004, Lewis was sentenced on three additional counts of conspiracy to sell cocaine, for which he was sentenced to twenty years imprisonment on each count. Lewis was also sentenced to twenty-five years imprisonment for a single count of sale of cocaine. In 2008, Lewis filed a motion for post-conviction relief which was dismissed. Lewis subsequently filed a motion for an out-of-time appeal, which the circuit court granted. |
| Summary of Opinion Analysis: | Issue 1: Statute of limitations Lewis’s motion was filed more than four years after the entry of his conviction and sentence. Section 99-39-5(2) states that a motion for post-conviction relief in case of a guilty plea, shall be made within three years after entry of the judgment of conviction. The time bar is generally applicable to Lewis’s petition. Issue 2: Factual basis Lewis argues that his guilty plea lacked a sufficient factual basis, because he was required to admit that he subjectively knew, at the time of the conspiracy, that his actions were illegal. However, knowledge of the illegality of such acts is not required to support a conviction for conspiracy. Lewis argues that he did not admit during the plea colloquy that he had “knowingly” entered the conspiracy or that the events had occurred within the jurisdiction of the circuit court. However, Lewis admitted that he had reviewed the State’s discovery material with his attorney and that he was satisfied that the State could have proven him guilty of conspiracy beyond a reasonable doubt. Issue 3: Voluntariness of plea Lewis argues that his guilty plea was not voluntarily entered, because the trial court failed to advise him of his right to appeal his sentence through a direct appeal. This issue is procedurally barred by the statute of limitations. In addition, a trial court is not required to inform the defendant of his right to direct appeal his sentence after he enters a guilty plea. Issue 4: Recusal of judge Lewis argues that the circuit judge who presided over his guilty plea was illegally appointed to the case after the original circuit judge recused. He argues that the successor judge had a conflict of interest that precluded him from presiding over the case, although Lewis does not explain what this alleged conflict of interest was. Lewis’s allegations provide little more detail and are unsubstantiated except by his own affidavit. Furthermore, it appears that Lewis waived the recusal issue because he made no contemporaneous objection. Issue 5: Ineffective assistance of counsel This issue is barred by the statute of limitations. In addition, it is without merit as Lewis’s claim is supported only by his own affidavit. |
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