Kelly v. State
| Docket Number: | 2009-CP-01753-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-01-2011 Opinion Author: King, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Newly discovered evidence - Voluntariness of plea - Ineffective assistance of counsel Judge(s) Concurring: Lee, P.J., Myers, P.J., Irving, Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 10-14-2009 Appealed from: Hinds County Circuit Court Judge: W. Swan Yerger Disposition: Motion for Post-Conviction Relief Denied Case Number: 251-09-628 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Glenn M. Kelly |
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 - Newly discovered evidence - Voluntariness of plea - Ineffective assistance of counsel |
| Summary of the Facts: | Glenn Kelly pled guilty to statutory rape. Kelly was sentenced to serve five years, with four years and 363 days suspended, and five years of probation. Kelly filed a motion for post-conviction relief which was denied. He appeals. |
| Summary of Opinion Analysis: | Kelly argues that the motion for post-conviction relief was properly before the court because evidence, not available at the time of trial, is now available in the form of an affidavit from the victim. In the affidavit, the victim admits to lying to Kelly about her age and to consenting to the sexual encounter. In order to support the overturning of a conviction, newly-discovered evidence must be of such nature that it would be practically conclusive that it would cause a different result. The law is clear in this state that neither consent nor mistake of age is a defense to capital or statutory rape. Thus, there is no merit to this issue. Kelly also argues his plea was involuntary. Kelly admitted in his petition to enter a guilty plea that he understood the elements of statutory rape and was guilty of committing the crime. Kelly maintained his guilt during the plea hearing and the sentencing hearing. Great weight is given to statements made under oath and in open court during sentencing. Kelly admitted to having sexual intercourse with the victim at a time when she was fourteen years old and more than thirty-six months younger than he was. Therefore, the trial court correctly found that Kelly’s guilty plea was voluntarily and intelligently entered. Kelly argues that he was not given effective assistance of counsel because his attorney recommended a guilty plea even though Kelly continuously maintained that he had no knowledge of the victim’s age and that he did not knowingly and intentionally commit any crime. Because neither mistake of age nor consent is a defense to the crime, Kelly's claim fails on its face due to its failure to delineate facts that, if proven, would show the likelihood of success at trial. |
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