text:
    James F. PUTNAM a/k/a James Franklin Putnam a/k/a James Putnam a/k/a J. Putnam, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-00830-COA
    Court of Appeals of Mississippi.
    10/25/2016
    Rehearing Denied February 28, 2017

      JAMES F. PUTNAM (PRO SE), ATTORNEY FOR APPELLANT ■
    OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, ATTORNEY FOR APPELLEE.
    BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. .
   CARLTON, J.,

FOR THE COURT:

¶1. James F. Putnam appeals the Harrison County Circuit Court’s order denying his motion for postconviction.relief (PCR). Putnam argues that his claims for ineffective assistance of counsel and illegal sentence are meritorious claims and show that his fundamental constitutional rights were violated. Putnam thus asserts that since his assignments of error allege violations of his fundamental constitutional rights, the trial court erred in findings these claims proceduraUy barred. Putnam further claims that at the plea hearing, the State failed to offer facts in support of the trial court accepting Putnam’s guilty plea. Finding no error, we affirm the trial court’s denial of Putnam’s PCR motion.

FACTS

¶2. On December 18, 1997, Putnam pleaded guilty to armed robbery, unlawful possession of a firearm, and embezzlement. The record reflects that at his guilty-plea hearing, Putnam admitted to entering an Eckerd Drugs in Gulfport, Mississippi, and walking to the back of the store. Once Putnam -saw the pharmacist, Putnam pulled out a gun and “pointed it in [the pharmacist’s] general direction.” Putnam claimed that he then stated “Hello, sweetheart,” put away the weapon, and walked back out of the store. When asked by the trial court if he took anything, Putnam responded, “No, your honor.” Putnam admitted that when he first entered the store, “[his] intentions were to rob the store[,]” but then he changed his mind.

¶3. The trial court sentenced Putnam, as a habitual offender, to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) for the armed-robbery charge, one year in the custody of the MDOC for the unlawful-possession-of-a-firearm charge, and five years in the custody of the MDOC for the embezzlement charge. The trial court ordered these sentences to run concurrently, for a total of twenty years to be served. The trial court further ordered these sentences to run concurrently with a federal sentence Putnam was already serving at the time.

¶4. Putnam timely filed his first PCR motion in which he claimed that he received ineffective assistance of counsel and that his “indictment to the charge of armed robbery was invalid ... because he was initially charged with a lesser crime ... [and] because he never actually took and carried away the property of another.” Putnam v. State, 877 So.2d 468, 470, 473 (¶¶6, 22) (Miss. Ct. App. 2003). After reviewing Putnam’s PCR motion, the trial court “issued an order vacating the habitual offender enhancement with regards to the embezzlement and armed robbery charges” and “vacated the firearm charge altogether.” Id. After an evidentiary hearing on the issue of whether Putnam’s plea was involuntary, the trial court denied Putnam’s PCR motion and found that his guilty plea was knowingly, intelligently, and voluntarily entered. Id. Putnam appealed the trial court’s denial of his PCR motion. On appeal, this Court affirmed the trial court’s denial and found that Putnam’s indictment was valid. Id. at 474 (¶29). In so doing, this Court explained that, “[according to statute, a person can be convicted of armed robbery while attempting to complete the crime.” Id. at 471 (¶10); see Miss. Code Ann. § 97-3-79 (Rev. 2014). This Court then determined that Putnam’s indictment properly tracked the language of the armed-robbery statute. Id.

¶5. Regarding Putnam’s ineffective-assistance-of-counsel claim, this Court found:

Putnam has failed to meet the requirements under Strickland [v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)]. Of all of the alleged errors- of counsel, Putnam only applies the Strickland test to his counsel’s failure to inform him as to the requirement that a person must take and carry away the property of another in order to be convicted of armed robbery. As noted above, this requirement is unnecessary. The law in this state allows for a conviction of armed robbery in circumstances where the defendant has attempted the crime. Such was the situation in the present case. It is impossible for Putnam to prove that the absence of this advice from his attorney would have affected the outcome at trial.
Moreover, we find Putnam’s claim that he received no assistance of counsel at the evidentiary hearing to be without merit. First, “[a] criminal defendant has neither a state nor a federal constitutional right to appointed counsel in post-conviction proceedings.” Moore v. State, 587 So.2d 1193, 1195 (Miss. 1991) (citing Pennsylvania v. Finley, 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987)). The Mississippi [Uniform Postconviction] Collateral Relief Act [ (UPCCRA) ] states that a judge may appoint counsel for a qualified petitioner. Miss. Code Ann. § 99-39-23(1) (Rev. 2000) .... In other words, it is within the judge’s discretion.
Second, the record indicates that the trial judge notified Putnam’s attorney at the time regarding the hearing. As noted above, this hearing took place tele-phonically due to the fact that Putnam was detained in a federal prison in Pennsylvania. ...
The transcript from the hearing states that Putnam initiated the hearing two hours early because of time constraints at the federal prison along with a mistaken belief about the time zone differential between the two states. The trial judge notified Putnam of this mistake. The trial judge then specifically asked Putnam if he still wished to proceed despite the fact that he was two hours ahead of schedule. Putnam then proceeded to present his claims over the telephone. We find this issue to be without merit.

Id. at 473-74 (¶¶24-27).

¶6. The record reflects that since the denial of his first PCR motion, Putnam has challenged his conviction and sentence at least two additional times. See Putnam v. Epps, 63 So.3d 547 (Miss. 2011); Putnam v. Epps, 963 So.2d 1232 (Miss. Ct. App. 2007).

¶7. Putnam filed the current PCR motion on May 8, 2012, challenging only his armed-robbery conviction and sentence. The record reflects that over the next three years, Putnam filed numerous additional amendments and motions regarding his May 8, 2012 PCR filing. On July 14, 2015, the trial court denied Putnam’s PCR motion after finding the motion time-barred, a successive-writ, and without merit. Putnam now appeals, arguing that his claims for ineffective assistance of counsel and illegal sentence are meritorious claims showing that his fundamental constitutional rights were violated. Putnam thus asserts that since his assignments of error allege violations of his fundamental constitutional rights, the trial court erred in findings these claims procedurally barred.

STANDARD OF REVIEW

¶8. When reviewing a trial court’s summary dismissal of a PCR motion, this Court employs a clearly-erroneous standard of review. Jones v. State, 174 So.3d 902, 905 (¶8) (Miss. Ct. App. 2015). However, when questions of law are raised, we employ a de novo standard of review. Id. Mississippi Code Annotated section 99-39-11(2) (Rev. 2015) provides: “If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified.”

¶9. “This Court will reverse the summary dismissal of a motion for PCR if the motion presents a claim procedurally alive substantially showing denial of a state or federal right.” Fluker v. State, 170 So.3d 471, 473 (¶7) (Miss. 2015) (internal quotation marks omitted).

DISCUSSION

¶10. Putnam argues that at his plea hearing, the State failed to offer facts in support of his guilty plea to the charge of armed robbery. Putnam claims that without evidence of a request or demand for money, his conduct fails to show an overt act in furtherance of attempting the crime of armed robbery as required for a conviction for that offense. As a result, Putnam argues that the trial court erred in accepting his guilty plea without any factual basis in support of the conviction, and thus Putnam received an illegal sentence. Putnam also claims that he could have easily been charged with attempted aggravated assault or various other lesser offenses since he allegedly never made a request or demand for money. Putnam further argues that he was denied effective assistance of counsel.

¶11. Uniform Rule of Circuit and County Court 8.04(A)(3) provides that “[bjefore the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea.” We recognize that “[a] sufficient factual basis requires an evidentiary foundation in the record which is sufficiently specific to allow the court to determine that the defendant’s conduct was within the ambit of that defined as criminal.” Smith v. State, 86 So.3d 276, 280 (¶11) (Miss. Ct. App. 2012) (citations and quotations omitted).

¶12. At the December 18, 1997 plea hearing, the record reflects that the prosecutor made no proffer of the facts of the crime. Instead, the trial court asked Putnam to “tell [the court] about the armed robbery[.]” Putnam then gave a recitation of the facts underlying the offense. As stated, the plea-hearing transcript reflects that at his plea hearing, Putnam admitted to entering an Eckerd Drugs in Gulfport and walking to the back of the store. Once Putnam saw the pharmacist, Putnam pulled out a gun and “pointed it in [the pharmacist’s] general direction.” Putnam claimed that he then stated, “Hello, sweetheart,” put away the weapon, and walked out of the store. When asked by the trial court if he took anything, Putnam responded, “No, your honor.” Putnam admitted to the trial court that when he first entered the store, “[his] intentions were to rob the store[,]” but then he changed his mind. The trial court asked the prosecutor whether he needed any other information on the armed robbery, and the prosecutor responded, “No, your honor.” The record reflects that Putnam’s plea petition also contained a similar recitation of the facts that he provided at the plea hearing. Putnam argues that the record fails to support a factual basis for his guilty plea to armed robbery, and he argues that the sentence imposed was therefore illegal and the legal advice he received was ineffective.

¶13. Mississippi Code Annotated section 99-39-5(2) (Rev. 2015), part of the UP-CCRA, provides the time-bar for PCR motions:

A motion for relief under this article shall be made within three (3) years after the time in which the petitioner’s direct appeal is ruled upon by the Supreme Court of Mississippi or, in case no appeal is taken, within three (3) years after the time for taking an appeal from the judgment of conviction or sentence has expired, or in case of a guilty plea, within three (3) years after entry of the judgment of conviction. Excepted from this three-year statute of limitations are those cases in which the petitioner can demonstrate either:
(a)(i) That there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed or admitted to a crime, there exists biological evidence not tested, or, if previously tested, that .can be subjected to additional DNA testing that would provide a reasonable likelihood of more probative results, and that testing would demonstrate by reasonable probability that the petitioner would not have been convicted or would have received a lesser sentence .if favorable results had been obtained through such forensic DNA testing at the time of the original prosecution, (b) Likewisé excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted ,are filings for post-conviction relief in capital cases which shall be made within one (1) year after conviction.

¶14. Mississippi Code Annotated section 99-39-23(6) (Rev. 2015) also bars successive PCR motions:

The order as provided in subsection (5) of this section or any order dismissing the petitioner’s motion or otherwise denying relief under this article is a final judgment and shall be conclusive until reversed. It shall be a bar to a second or successive motion under this article. Excepted from this prohibition is a motion filed under ■ Section 99-19-57(2), raising the issue of the convict’s supervening mental illness before the execution of a sentence of death. A dismissal or denial of a motion relating to mental illness under Section 99-19-57(2) shall be res judicata on the issue and shall likewise bar any second or successive motions on the issue. Likewise excepted from this prohibition are those cases in which the petitioner can demonstrate either that there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence or that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that, if it had been introduced at trial, it would have caused a different result in the conviction or sentence. Likewise excepted are those cases in which the petitioner claims that his sentence has expired or his probation, parole or conditional release has been unlawfully revoked. Likewise excepted are those cases in which the petitioner has filed a prior petition and has requested DNA testing under this article, provided the petitioner asserts new or different grounds for relief related to DNA testing not previously presented or the availability of more advanced DNA technology.

¶15. The petitioner “bears the burden of proving by a preponderance of the evidence that his claims are not barred as successive writs.” Williams v. State, 110 So.3d 840, 843 (¶13) (Miss. Ct. App. 2013). “Our case law has repeatedly held that once a prisoner’s claims are time[-]barred, they must fall into one of the enumerated exceptions to remain viable.” Austin v. State, 863 So.2d 59, 61 (¶6) (Miss. Ct. App. 2003); see also Salter v. State, 184 So.3d 944, 950 (¶22) (Miss. Ct. App. 2015). Errors affecting fundamental constitutional rights are excepted from procedural bars. Evans v. State, 115 So.3d 879, 881 (¶3) (Miss. Ct. App. 2013).

¶16. Although Putnam filed the present PCR motion in May 2012, more than thirteen years after his entering his guilty plea, he asserts that his illegal-sentence claim constituted a violation of his fundamental constitutional rights, and thus his motion should be excepted from the procedural bars under Rowland v. State, 42 So.3d 503, 506 (¶9) (Miss. 2010). We recognize that “errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA.” Id. at 507 (¶¶9, 12). However, “the supreme court has not held that an ineffective-assistance-of-counsel claim invokes a ‘fundamental right’ that circumvents all procedural bars that apply to PCR petitions.” Salter, 184 So.3d at 950 (¶22) (citing Riley v. State, 150 So.3d 138, 140 (¶8) (Miss. Ct. App. 2014)). This Court has acknowledged the four types of fundamental rights found to survive PCR procedural bars: “(1) the right against double jeopardy; (2) the right to be free from an illegal sentence; (3) the right to due process at sentencing; and (4) the right not to be subject to ex post facto laws.” Id.; see also Jones v. State, 174 So.3d 902, 907 (¶12) (Miss. Ct. App. 2015).

¶17. As stated, we acknowledge that Putnam raised an ineffective-assistance-of-counsel claim in a prior PCR motion wherein he alleged, among other errors, that “his attorney failed to investigate and inform him as to the elements of armed robbery.” Putnam, 877 So.2d at 473 (¶22). Putnam argued that “had his counsel advised him that the taking and carrying away of the personal property of another was a required element of armed robbery, he would have not pled guilty.” Id. On appeal, this Court found that Putnam’s allegation of error lacked merit. Id. at 474 (¶27). This Court explained that Mississippi law “allows for a conviction of armed robbery in circumstances where the defendant has attempted the crime.” Id. at 473 (¶24). Thus, it was unnecessary for Putnam’s counsel to advise of an unnecessary element, and this Court found that Putnam could not “prove that the absence of this advice from his attorney would have affected the outcome at trial.” Id.; see Strickland, 466 U.S. at 687, 104 S.Ct. 2052. As a result, this Court determined that Putnam’s ineffective-assistance-of-counsel claim lacked merit. Putnam, 877 So.2d at 474 (¶27).

¶18. Accordingly, we find Putnam’s ineffective-assistance-of-counsel claim proee-durally barred. We now turn to examine Putnam’s remaining claim of an illegal sentence.

¶19. In Smith v. State, 149 So.3d 1027, 1031 (¶10) (Miss. 2014), the supreme court held: “To deny relief for a fundamental-rights violation brought to our attention in a successive PCR [motion] would ignore the serious due-process concerns underlying the fundamental-rights exception.” The Smith court further reiterated that “neither the common law nor our own constitutional law applies the doctrine of res judi-cata to constitutional claims.” Id. at (1Í11).

¶20. In Fluker, 170 So.3d at 475 (¶11), the supreme court explained: “Although errors affecting fundamental constitutional rights are excepted from the procedural bars of the UPCCRA, merely asserting a constitutional-right violation is insufficient to overcome the procedural bars.” (Internal citations and quotation marks omitted). “There must at least appear to be some basis for the truth of the claim before the [procedural bar] will be waived.” Id. (quoting Means v. State, 43 So.3d 438, 442 (¶11) (Miss. 2010)).

¶21. As stated, the record reflects that Putnam asserts his illegal-sentence claim arises from his conviction and sentence for armed robbery. As discussed, Putnam more specifically maintains that without a'request or demand for money, his conduct fails to constitute an overt act in furtherance of attempting the crime of armed robbery. Putnam asserts that the trial court erred in accepting his guilty plea without any factual basis in support of the conviction, and thus Putnam received an illegal sentence. In support of his claim, Putnam argues that the evidence was insufficient to convict him of armed robbery. However, “[b]y pleading guilty, an offender waives a claim that there was insufficient evidence to find him guilty.” Stamps v. State, 151 So.3d 248, 255 (¶19) (Miss. Ct. App. 2014). Moreover, the plea colloquy shows that Putnam admitted, as a part of the factual basis of his plea, that he pointed a gun in the pharmacist’s direction and that he intended to rob the store. Precedent reflects that evidence of deadly force and threatening deadly force is sufficient to place one in fear. See Harper v. State, 434 So.2d 1367, 1368 (Miss. 1983); Evans v. State, 957 So.2d 430, 436 (¶19) (Miss. Ct. App. 2007). We thus find that this factual basis for Putnam’s guilty plea sufficiently supports his conviction for armed robbery. See Miss. Code Ann. § 97-3-79.

¶22. In Putnam, 877 So.2d at 471 (¶¶8-10), Putnam made a similar argument under the claim of a fatally defective indictment. In addressing Putnam’s claim on the merits, this Court held:

As to Putnam’s second alleged error, we also find it to be without merit. Uniform Circuit and County Court Rule 7.06 requires that “the indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation.” Likewise, it is well settled that “every fact which is an element in a prima facie case of guilty must be stated in the indictment.”
The indictment states that Putnam “did willfully, unlawfully and feloniously attempt to take and carry away from the presence and against the will of Robert Earl Williamson, personal property ... by putting the said Robert Earl Williamson in fear of immediate injury to his person, by the exhibition of a deadly weapon, to wit a handgun, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.” Moreover, the language of the indictment tracks the statute. Under Mississippi Code Annotated [sjection 97-3-79 ..., “every person who shall felo-niously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery ....”

Putnam, 877 So.2d at 471 (¶¶8-9) (citations omitted).

¶23. This Court concluded:

According to statute, a person can be convicted of armed robbery while attempting to complete the crime. The language in the indictment mirrors this notion. The indictment against Putnam for the crime of armed robbery is valid. The trial court had the appropriate subject matter jurisdiction.

Id. at (¶10). See Miss. Code Ann. § 97-3-79 (“Every person who shall -feloniously take or attempt to take from the person ... the personal property of another and against his will ... by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery.” (Emphasis added)).

¶24. Upon review, we find no reason to rule differently on Putnam’s claim at this time. We therefore affirm the trial court’s denial of Putnam’s PCR motion.

¶25. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCON-VICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . The record contains an order from the Mississippi Supreme Court granting Putnam leave to file his PCR motion. The order states: "After due consideration, the panel finds that there has been no direct appeal of Putnam’s conviction and sentence.”

      . Although Putnam does not raise the volun-tariness of his guilty plea in the present PCR motion, we note that on appeal of Putnam’s prior PCR motion, this Court found that Putnam’s guilty plea was voluntarily, intelligently, and knowingly made:
      in the present case, the record reflects that Putnam was informed of the charges against him, the consequences of pleading guilty and the possible sentence to be imposed. At the plea hearing, Putnam stated that his intent was to rob the store. Putnam stated that he was, in fact, actually guilty of committing an armed robbery. In addition, Putnam stated that he had no complaints regarding his legal .representation. We find Putnam’s argument that his plea was involuntary to be without merit.

        Putnam, 877 So.2d at 472 (¶15).

      . We acknowledge that the record, as well as this Court’s prior opinion, shows that Putnam was indicted and pled guilty to “willfully, unlawfully and feloniously attempting] to take and carry away from the presence and against the will of Robert Earl Williamson, personal property ... by putting the said Robert Earl Williamson in fear of immediate injury to his person, by the exhibition of a deadly weapon, to wit a handgun[.]” Although Putnam does not raise the voluntariness of his guilty plea in the present PCR motion, we recognize that on review of Putnam’s prior PCR motion, this Court found that Putnam's guilty plea was voluntarily, intelligently, and knowingly made:
      In the present case, the record reflects that Putnam was informed of the charges against him, the consequences of pleading guilty and the possible sentence to be imposed. At the plea hearing, Putnam stated that his intent was to rob the store. Putnam stated that he was, in fact, actually guilty of committing an armed robbery. In addition, Putnam stated that he had no complaints regarding his legal representation. We find Putnam’s argument that his plea was involuntary to be without merit.

        Putnam, 877 So.2d at 472 (¶15).


source: Caselaw Access Project

author: ISHEE, P.J.,

license: Public Domain

text:
    Jerry P. ROARK a/k/a Jerry Roark a/k/a Jerry Roark, Jr. a/k/a Jerry P. Roark, Jr., Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CA-01201-COA
    Court of Appeals of Mississippi.
    10/25/2016
    Rehearing Denied March 7, 2017

      KEVIN DALE CAMP, JOEL CHARLES REYNOLDS JR., ATTORNEYS FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL, BY: ALICIA MARIE AINS-WORTH, JASON L. DAVIS, ATTORNEYS FOR APPELLEE
    BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.
   ISHEE, P.J.,

FOR THE COURT:

¶1. On July 19, 2004, Jerry Roark pleaded guilty in the Rankin County Circuit Court to charges of gratification of lust and sexual battery. He was sentenced to fifteen years, with six years suspended, for gratification of lust, to be served concurrently to twenty years, with seven years suspended, for sexual battery, all in the custody of the Mississippi Department of Corrections (MDOC). Roark was also sentenced to serve five years of postrelease supervision (PRS) following his release from jail.

¶2. In 2011, after Roark served his sentence with MDOC, he had his PRS transferred to Nevada pursuant to an interstate-compact agreement between Nevada and Mississippi. In 2018, the probation officer assigned to him while in Nevada found that Roark had violated the agreement, and Roark was sent back to Mississippi. In Mississippi, it was alleged that Roark violated the terms of his probation and, after a revocation hearing, the circuit court revoked his probation. Roark filed a motion for postconviction relief (PCR) asserting that his probation was wrongfully revoked, which the circuit court dismissed. Aggrieved, Roark filed this appeal. Finding no error, we affirm.

FACTS

¶3. In 2011, Roark was granted a transfer of his PRS to Nevada pursuant to an interstate-compact agreement, which required Roark to abide by Nevada probation rules along with the required terms and conditions for sex offenders. After being released from MDOC custody, Roark moved to Nevada, where he was supervised by the division of parole and probation of the Nevada Department of Public Safety (NDPS). Nevada’s terms and conditions for sex offenders included that Roark not possess sexually explicit material that is deemed inappropriate by the parole officer assigned to him.

¶4. In 2013, Roark’s parole office filed a petition and affidavit alleging Roark violated Nevada’s sex-offender terms and conditions. Roark received notice that he would have a preliminary hearing to determine whether he had violated the terms of his parole. Specifically, Roark was accused of possessing sexually explicit material and accessing the internet through an electronic device that was not approved by his parole officer. However, instead of having a preliminary hearing, Roark signed a waiver admitting to violating his PRS in Nevada. Thereafter, Roark was transferred to Mississippi.

¶5. On February 10, 2014, Roark appeared in the Rankin County Circuit Court for a formal revocation hearing. The State argued that, in addition to violating the interstate-compact agreement, Roark failed to pay court costs. The circuit court found Roark violated his parole and revoked Roark’s PRS. Roark filed a PCR motion, which the circuit court dismissed. This appeal ensued.

LAW AND DISCUSSION

¶6. This court will not reverse a circuit court’s dismissal of a petition for PCR unless the circuit court’s decision was clearly erroneous. Agent v. State, 30 So.3d 370, 370 (¶ 5) (Miss. Ct. App. 2010). A circuit court may summarily dismiss a PCR motion where “it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is .not entitled to any relief.” White v. State, 59 So.3d 633, 635 (¶ 4) (Miss. Ct. App. 2011) (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2010)). Questions of law receive a de novo review. Id.

¶7. Roark argues that he did not violate the terms of his PRS and, therefore, it was wrongfully revoked. At the hearing, eleven images, which were gathered from the computer used by Roark, depicting naked children between the ages of eight and twelve were entered into evidence. There were also computer screen-shots that provided the computer user’s information and proved that Roark had viewed the images. At the hearing, Roark testified that the images were from a popular video-sharing website, YouTube, depicting “Adam and Eve.” Roark argued that the website filters out sexually explicit content and, therefore, he did not violate the conditions of his parole. Roark further testified that the computer he used to access the video was being monitored and had been approved by his parole officer.

¶8. The circuit court found that the images “were not sexually explicit in the terms of sex acts being depicted” and that they were not necessarily pornographic. Nonetheless, the circuit court concluded that nude images of children under the age of sixteen, particularly in light of Roark’s underlying offenses with females in a similar age group, were inappropriate for Roark to view.

¶9. Furthermore, as the circuit court noted, there is no indication from the images provided to the court that they were taken from a video-sharing website. Assuming it was viewed on the particular website noted by Roark, there is still no evidence of a filter having been used to prohibit pornographic or illegal content. We also point out that what might be deemed sexually explicit or inappropriate by a parole officer may not be filtered out by a website, as this determination is on a case-by-case basis for a parole officer. Roark violated his agreement by possessing “sexually explicit material that is deemed inappropriate by the parole and probation officer assigned to the defendant.” We find the record supports the circuit court’s finding, and this argument is without merit.

¶10. Roark also argues that he was coerced into signing the waiver in Nevada and, thus, his admission is inadmissable. However, Roark’s testimony is the only support for his claim that the admission was coerced due to the threat of incarceration in Nevada before returning to Mississippi for a hearing. Waiver aside, Roark admitted at the formal revocation hearing to having watched a video with naked children. Despite the admission contained in the waiver, the circuit court made an independent finding that the images were inappropriate for Roark to view. Finally, the record indicates that Roark failed to pay court costs. We find that the circuit court did not err in revoking Roark’s PRS. Hence, we affirm the circuit court’s dismissal of Roark’s PCR motion as it was not clearly erroneous.

¶11. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR. IRVING, P.J., NOT PARTICIPATING.

      . Nothing in the record disproves that Roark may be incarcerated in Nevada for violating his probation while there and prior to his transfer to Mississippi.


author: FAIR, J„

text:
    Jeremiah ALLEN a/k/a Jeremiah F. Allen, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-KA-00506-COA
    Court of Appeals of Mississippi.
    11/08/2016
    Rehearing Denied March 14, 2017

      PHILLIP BROADHEAD, FOR APPELLANT
    OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE, FOR APPELLEE
    BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ.
   FAIR, J„

FOR THE COURT:

¶ 1. Jeremiah Allen, an employee at Wendy’s in Richland, Mississippi, confessed to helping his brother rob the restaurant. The Rankin County Circuit Court rejected Allen’s claims that his confession was involuntary because it was elicited by promises from law enforcement. While we find that the confession was properly admitted, the trial court did err in denying Allen the opportunity to present evidence to the jury attacking the confession’s truthfulness. This error denied Allen a fair trial, and so we reverse his convictions and remand the case for a new trial. We address Allen’s remaining contentions because they concern the sufficiency of the evidence or are “likely to arise once again on remand.” Newell v. State, 175 So.3d 1260, 1268 (¶ 5) (Miss. 2015) (citations omitted).

DISCUSSION

1. Admissibility of Confession

¶ 2. Allen unsuccessfully moved at trial to suppress his confession based on his claim that it was elicited through promises of leniency from the interviewing police officers. Allen initially became a suspect after surveillance video showed him talking on a cell phone and moving around near a door that had been left unlocked, through which the robber entered the restaurant after it closed. Allen actually made several statements on two separate days separated by about a week, and some of the statements concerned another robbery in another county. The first day, Allen was without the benefit of counsel, but he made a second and final statement in the presence of his defense attorney, Sarah Gregory, who ultimately did not represent him at trial.

¶ 3. “The general rule is that for a confession to be admissible it must have been given voluntarily, and not as the result of any promises, threats[,] or other inducements.” Giles v. State, 187 So.3d 116, 125 (¶ 31) (Miss. 2016) (citation omitted). “A confession is voluntary when, taking into consideration the totality of the circumstances, the statement is the product of the accused’s free and rational choice.” Wilson v. State, 936 So.2d 357, 361-62 (¶ 8) (Miss. 2006). “The burden lies with the State to prove that a confession is voluntary.” Scott v. State, 8 So.3d 855, 861 (¶24) (Miss. 2008). “[T]he burden is met by the testimony of an officer, or other person having knowledge of the facts, that the confession was voluntarily made without any threats, coercion, or offer of reward. This makes out a prima facie case for the State on the question of voluntariness.” Id. (citation and quotation marks omitted). In order to admit the statement after hearing all the evidence, the trial judge must find beyond a reasonable doubt that it was given voluntarily. Id. at (¶ 23).

¶ 4. Each of the three officers involved in questioning Allen testified unequivocally that no one ever promised him leniency or otherwise led him to believe he would receive it if he confessed. According to the officers, Allen had attempted to elicit a promise of leniency by writing out a confession but refusing to sign it unless he was given a deal. Allen’s offer was refused, and some time later, after retaining counsel, he gave another statement and signed it, all without ever receiving any promises.

¶ 5. Conversely, Allen testified that two of the officers had at several points offered him a lower bond and a reduction in his charges from armed robbery to conspiracy in exchange for his statement. In support of his claims, Allen points to the fact that after his final confession, the municipal court lowered his bond and apparently reduced his charges to conspiracy. Also, Gregory testified that she believed one of the officers had offered to reduce the charges in exchange for Allen’s statement. Based on this evidence, Allen contends on appeal that the trial court’s decision to admit the statement was against the overwhelming weight of the evidence.

¶ 6. “The circuit court sits as a fact finder when determining [the] volun-tariness of a confession, and its 'determination will not be reversed unless manifestly wrong.” Horne v. State, 825 So.2d 627, 639 (¶ 44) (Miss. 2002). This Court can reverse a trial court’s denial of a motion to suppress “only when an incorrect legal standard was applied, manifest error was committed, or the decision is contrary to the overwhelming weight of the evidence.” Williams v. State, 115 So.3d 774, 778 (¶ 11) (Miss. 2013) (quoting Martin v. State, 871 So.2d 693, 701 (¶80) (Miss. 2004)). Most importantly, “the resolution of conflicting testimony regarding voluntariness is a question of fact to be resolved by the trial judge at the suppression hearing.” Chase v. State, 645 So.2d 829, 841 (Miss. 1994) (citation omitted).

¶ 7. We reiterate that the officers testified that no promises were made to anyone. In response to Allen’s claims, the officers admitted they did not know why his charges were noted to be reduced on the mittimus. And they conceded they would have expected to be consulted as to the charges to be brought. But the prosecutors and the grand jury had the authority to make the charging decision, not the police. There was also testimony that it was routine in the jurisdiction to reduce bond when an accused waived his right to a preliminary hearing, which Allen did.

¶ 8. In addition to the officers’ testimony, there was other evidence refuting Allen’s claims. His second written statement, which he signed, recites that it was given “without promises of any kind.” Allen likewise executed a written Miranda waiver immediately prior to giving that statement; it too recited that no promises had been made. The waiver was signed by Allen’s attorney, Gregory, as a witness. And Gregory admitted she had represented Allen and was acting as his attorney at the time, his decision to speak with law enforcement the second time was made after consulting with her, and she was present during the interview. Presumably, Gregory knew that prosecutors, not police officers, have the authority to reduce charges against a defendant.

¶ 9. At one point in her testimony, Gregory conceded that “there was no specific promise” but simply an “understanding [of some benefit] any time I let my client speak to law enforcement.” Later, she did seem to suggest there was a more specific promise from one of the officers, but she could not remember when it was made or who had made it. Gregory also could not exclude the possibility that her understanding of a promise may have come from Allen himself.

¶ 10. Keeping in mind our deferential standard of review, we cannot say that the trial court’s resolution of the conflicting testimony here was against the overwhelming weight of the evidence.

2. Limitation of Defense

¶ 11. While we find no error in the decision to admit Allen’s confession into evidence, the trial judge also found that Allen’s contentions regarding the surrounding circumstances were irrelevant and precluded Allen from presenting evidence attacking the confessions to the jury.

¶ 12. During the prosecution’s case-in-chief, Allen attempted to set up this defense by asking one of the interviewing officers, Detective Lee Drake, about what Gregory, Allen’s former defense attorney, had testified at the suppression hearing. The trial judge opined that he did not believe the question called for hearsay, but he sustained an objection that the question of whether leniency had been offered was irrelevant, remarking that it was “a matter for the court” and “not relevant to whether or not [Allen] committed this crime.” After hearing more arguments, the judge reiterated: “It all goes to the issue of his expectation of leniency, and that’s not relevant as to his guilt or innocence.” Allen’s attorney nonetheless proceeded to ask Detective Drake whether there had been any offers of leniency, which Drake denied, and then the attorney asked about how they would go about ’deciding what charges to bring against a suspect. But when Allen attempted to question Drake about the apparent reduction in Allen’s charges after his confession, the prosecution objected, and the objection was sustained.’ This exchange followed:'

THE COURT: [A]ll of that is not relevant. And even .if it were relevant, I do believe it would probably be confusing to the jury, because the issue is whether or not the State can prove, according to their burden of proof, the defendant is guilty of conspiracy to commit armed robbery [or] armed robbery. Those were the indictment charges handed down by the grand jury, and what happened below is not relevant. And to allow you to get into that would be confusing to the jury, so that will not be allowed.
[DEFENSE ATTORNEY]: All right. Just to clarify, because I don’t want to get myself in trouble with the Court. Obviously, you’re ruling this is inadmissible. Are you ruling I can’t ask him if the charge was—if his bond was dropped down and the charge was changed? Can I ask him that?

The judge then asked the .prosecutor for a response, and the prosecutor suggested that there might be a question about whether Detective Drake had personal knowledge about what charges were brought against Allen. The judge then asked the prosecutor whether that was an objection, and the prosecutor responded that he “thought so.” The judge ruled that it was “[sustained as to relevancy, it’s the same issue.”

¶ 13. Thus, it is apparent that the trial court did not simply rule on objections to individual questions or answers on the cross-examination of Detective Drake; it made a sweeping finding of irrelevance that precluded Allen from presenting to the jury his version of the circumstances of his confession. This was contrary to well-settled Mississippi law, which our supreme court has articulated as follows:

The admissibility of a confession is for the determination of a trial judge. The admissibility of the confession, however, is to be distinguished from the issue of its credibility and its weight. The distinction has been enunciated by this Court. In McNeal v. State, 405 So.2d 90 (Miss. 1981), this Court stated that “the competency of a confession as evidence is for the court to decide as a matter of law, while the weight and credibility of a confession is for the jury to decide along with other testimony and physical evidence.”
Once a confession is admitted into evidence, a defendant is entitled to submit evidence and have the jury pass upon the factual issues of its truth and volun-tariness and upon its weight and credibility. The defendant may offer proof to show that the confession is untrue and explain why he made the untrue statement.
Once this rebuttal or impeachment testimony is offered, then the jury may conclude that the confession, though found by the court to be voluntary, is untrue and not entitled to any weight. Confessions are not conclusive and may be weighed as to their credibility under the circumstances by the jury. This is a matter for the jury and not the court.

Wilson v. State, 451 So.2d 724, 726 (Miss. 1984) (citations omitted); see also Harden v. State, 59 So.3d 594, 609 (¶ 40) (Miss. 2011); Scott v. State, 878 So.2d 933, 968-69 (¶ 96) (Miss. 2004) (overruled on other grounds by Lynch v. State, 951 So.2d 549, 557 (¶ 24) (Miss. 2007)).

¶ 14. Refusing to allow the defendant to attack the truthfulness of his confession is error of a constitutional dimension that denies a defendant fundamental constitutional rights, but it can still be subject to a harmless error analysis. Crane v. Kentucky, 476 U.S. 683, 687-91, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); Rhone v. State, 254 So.2d 750, 754 (Miss. 1971); Anderson v. State, 241 So.2d 677, 678 (Miss. 1970).

¶ 15. But we cannot find the error here to be harmless, as Allen’s confessions were critical to the prosecution. And although Allen was not permitted to present his side of the story, the State was allowed to bolster the confessions by making its case for their reliability to the jury. The other evidence of Allen’s guilt consisted almost entirely of the account of his brother’s girlfriend, who was the getaway driver. She had turned State’s witness in exchange for leniency, and she admitted that she had no communication with Allen directly and that her understanding of his role in the robbery came from his brother. The testimony of coconspirators is to be regarded “with great caution and suspicion.” Williams v. State, 32 So.3d 486, 490 (¶ 12) (Miss. 2010). Underscoring the point, the prosecutor even stated in his rebuttal closing argument that the jury could “throw out” the girlfriend’s testimony because of the strength of Allen’s confessions.

¶ 16. Considering the prosecution’s dependence on the confessions, we cannot find the error here to be harmless, and so we reverse Allen’s convictions and remand for a new trial.

3. Sufficiency of the Evidence

¶ 17. We next consider Allen’s challenge to the sufficiency of the evidence supporting his convictions. In evaluating the sufficiency of the evidence, we must decide whether it allows a jury to find “beyond a reasonable doubt that [the] accused committed the act charged, and that he did so under such circumstances that every element of the offense existed; and where the evidence fails to meet this test it is insufficient to support a conviction.” Bush v. State, 895 So.2d 836, 843 (¶ 16) (Miss. 2005). “[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443 U.S. 307, 315, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)).

¶ 18. Allen contends that armed robbery was not proven, because there was only “inconclusive” proof a gun was used. But he seems to misunderstand the elements of armed robbery. The use of an actual gun is noted required, only an overt act of the perpetrators that would cause a reasonable person to believe a deadly weapon is present. “[A] victim is not required to have definite knowledge of a deadly weapon.” Dambrell v. State, 903 So.2d 681, 683 (¶ 6) (Miss. 2005). Moreover, the manager of the store testified without equivocation that she was robbed at gunpoint, the surveillance video appears to show the robber armed with a handgun, and the getaway driver admitted she saw Allen’s brother with a gun when he came out of the store. Allen does not say what would amount to “conclusive” proof, but this was more than sufficient under our relevant standard of review.

¶ 19. Allen next argues that he could not be found guilty of conspiracy to commit armed robbery because, although he admitted to an agreement to commit robbery, he adamantly denied that there was ever an agreement to commit an armed robbery. He points out that the only other member of the conspiracy whose account was presented corroborated Allen’s claim (made in the confessions) that his brother did not own the gun and had borrowed it for the robbery.

¶ 20. The State was required to produce evidence from which a reasonable juror could find beyond a reasonable doubt that Allen agreed with one or more persons to commit an armed robbery. See Miss. Code Ann. § 97-1-1(1) (Rev. 2014). “The agreement need not be formal or express, but may be inferred from the circumstances, particularly by declarations, acts, and conduct of the alleged conspirators.” Taylor v. State, 62 So.3d 962, 965-66 (¶ 13) (Miss. 2011). And conspiracy may be proved entirely by circumstantial evidence. Davis v. State, 485 So.2d 1055, 1058 (Miss. 1986).

¶21. “In a criminal prosecution, the jury may accept the testimony of some witnesses and reject that of others, and may accept in part and reject in part the testimony of any witnesses, or may believe part of the evidence on behalf of the [S]tate and part of that for the accused, and the credibility of such witnesses is not for the reviewing court, but only for the jury.” Groseclose v. State, 440 So.2d 297, 300-01 (Miss. 1983) (citations omitted). Here, a reasonable juror could accept Allen’s confession that he conspired with his brother to rob the restaurant, but still reject his claim that no gun was contemplated as a self-serving attempt to minimize his culpability. The jury could go on to infer that an armed robbery was agreed as Allen’s brother did, in fact, bring a gun into the restaurant and use it in the robbery, We find sufficient evidence to support a conviction for conspiracy to commit armed robbery.

4. Lesser-Included-Offense Instruction

¶22. Finally, we address Allen’s contention that the trial court erred in refusing a lesser-included-offense instruction on simple robbery. “A defendant is entitled to jury instructions on his theory of the case whenever there is evidence that would support a jury’s finding on that theory[, but] a trial court may refuse a jury instruction when it is an incorrect statement of law, fairly covered in other instructions, or has no foundation in the evidence.” Thomas v. State, 48 So.3d 460, 469 (¶ 23) (Miss. 2010) (citations omitted). “To be entitled to a lesser-included-offense instruction ... the defendant must point to evidence in the record from which a jury reasonably could find the defendant not guilty of the crime with which the defendant is charged and at the same time find the defendant guilty of the lesser offense.” Id. at 472 (¶ 29) (citations omitted).

¶ 23. Allen presents two arguments here. His first tracks his contentions on the sufficiency of the evidence, and is patently without merit—Allen contends there was no showing that his brother was armed during the robbery. Having reviewed the surveillance video of the robbery and the testimony of the witnesses, we agree with the trial court that no reasonable juror could find that a gun was not used in the robbery.

¶24. Allen’s real goal in offering the instruction seems to have been hope that the jury would believe his claims that the ■ robbery was not planned to be an armed one. It is the general rule that an accomplice “need not necessarily have intended the particular crime committed by the principal” but “is liable for any criminal act which in the ordinary course of things was the natural or probable consequence” of the intended offense. 22 C.J.S. Criminal Law § 179 (2016). “The fact that the crime is not committed in the particular way designated by the procurer or conspirator does not prevent him ... from being liable as an accessory before the fact.” Id. Mississippi follows that rule. Our supreme court has recently reiterated: “If two or more persons enter into a combination or confederation to accomplish some unlawful object, any act done by any of the participants in pursuance of the original plan and with reference to the common object is, in contemplation of law, the act of all,” Roby v. State, 183 So.3d 857, 875 (¶ 71) (Miss. 2016) (quoting Shedd v. State, 228 Miss. 381, 386, 87 So.2d 898, 899 (1956)).

¶ 25. Allen points to Welch v. State, 566 So.2d 680, 684 (Miss. 1990), where the defendant was an accessory to a kidnapping that ended in the killing of the victim by an accomplice. The Mississippi Supreme Court held that a jury should have been instructed on a lesser-included offense of manslaughter. It did state that the accessory “defendant must possess the mens rea for the commission of the crime.” Id. But, just as the supreme court recently held in Roby, this was not just any mens rea, but the specific intent required to commit murder—deliberate design to effect death. Roby, 183 So.3d at 874 (¶ 70). Even assuming this holding can be generalized to apply outside the homicide context, the specific-intent element in armed robbery is the same as in simple robbery—to permanently deprive the victim of her property. See Williams v. State, 590 So.2d 1374, 1379-81 (Miss. 1991). Armed robbery requires no specific intent not present in simple robbery.

¶26. In fact, the Mississippi Supreme Court has addressed the robbery/armed robbery issue before, and it held that the defendant “was criminally responsible [for armed robbery] whether he had specific advance knowledge of [his accomplice’s] possession and intended use of the weapon or not.” Eakens v. State, 289 So.2d 687, 688 (Miss. 1974). This is because, as we said, accessories are guilty “of any crime committed by any [other accessory] in the execution of the common purpose, as one of its natural and probable consequences, even though none of the parties intended at the outset to do the particular thing constituting the crime.” Id. (citations omitted).

¶ 27. We find no error in the refusal of the lesser-included-offense instruction.

¶ 28. THE JUDGMENT OF THE RANKIN COUNTY CIRCUIT COURT IS REVERSED, AND THIS CASE IS REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF THIS APPEAL ARE ASSESSED TO RANKIN COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, WILSON AND GREENLEE, JJ., CONCUR. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.

      . Phillip W. Broadhead, clinical professor and director of the University of Mississippi School of Law Criminal Appeals Clinic, was appointed as Allen's appellate counsel. Third-year law students Sean S. Boers and Jillian E. Chance were appointed as special counsel pursuant to Mississippi Code Annotated section 73-3-207 (Rev. 2012) and assisted in the preparation of Allen’s briefs on appeal under Professor Broadhead’s supervision.

      , We discuss the sufficiency of the evidence because, if the evidence had been insufficient, it would require the rendering of an acquittal rather than a retrial. As the supreme court required in Newell, we will address the remaining issues because we find them likely to arise again on remand. But to the extent that our analysis depends on the facts in the record before us, our decision should not be read as precluding a different result on remand if additional or different facts are presented.

      . An abstract from the municipal court indicated that Allen had been charged with armed robbery, but testimony at trial was that his charges were reduced by that court. A note on a mittimus executed by the municipal court also stated that Allen’s charges would be reduced.

      . Even if we did not affirm the trial court's finding that there was no offer, the fact that Allen was represented and had counsel present would surely be relevant in deciding, in the totality of the circumstances, whether the second confession was voluntary notwithstanding an offer of reward. The fact that a promise may have been made does not necessarily require suppression; "[t]he test ... is whether the inducement is of a nature calculated under the circumstances to induce a confession irrespective of its truth or falsity.” Taylor v. State, 789 So.2d 787, 795 (¶ 34) (Miss. 2001).


author: FAIR, J.,

text:
    Bryan F. FARIS a/k/a Bryan Faris, Appellant v. STATE of Mississippi, Appellee
    NO. 2015-CP-01503-COA
    Court of Appeals of Mississippi.
    11/15/2016
    Rehearing Denied March 14, 2017

      ATTORNEY FOR APPELLANT: BRYAN F. FARIS (PRO SE)
    ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS
    BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
   FAIR, J.,

FOR THE COURT:

¶ 1. Bryan Faris pled guilty to possession of a stolen firearm in violation of Mississippi Code Annotated section 97-37-35 (Rev. 2014). Almost three months later, he filed a motion for post-conviction relief (PCR), seeking to set aside his guilty plea and conviction. Faris claimed that: (1) the trial court had no jurisdiction because he was not indicted for possession of a stolen gun; (2) he did not plead guilty voluntarily or knowingly because he was under the influence of medication and was of limited intelligence and understanding when he entered the plea; and (3) his counsel was ineffective because counsel let him plead guilty under such circumstances. The trial judge dismissed the PCR motion without an evidentiary hearing. Finding no error, we affirm.

FACTS

¶ 2. In March 2015, Faris pled guilty to a criminal information charging him with possession of a stolen shotgun, which he had pawned shortly after it had been stolen. Faced with three pending indictments, he signed a waiver of indictment, signed a petition to plead guilty to the criminal information charge, and was extensively questioned by the trial court during a formal plea colloquy.

¶ 3. The trial judge accepted Faris’s guilty plea and sentenced him to five years in the custody of the Mississippi Department of Corrections, to be served “day for day” and not to be reduced nor suspended but with credit for the sixteen months he had served awaiting trial. The sentence also provided he was not to become eligible for parole or probation, nor for any weekend or overnight passes.

STANDARD OF REVIEW

¶ 4. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). To succeed on appeal, the petitioner must: (1) make a substantial showing of the denial of a state or federal right and (2) show that the claim is procedurally alive. Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss. 1999).

¶ 5. When reviewing the denial of a PCR motion, an appellate court “will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss. 2008). Our review of the summary dismissal of a PCR motion, a question of law, is de novo. Young, 731 So.2d at 1122 (¶ 9).

¶ 6. When a petitioner has sought and been denied an order setting aside his guilty plea based on incompetence because of mental deficiencies, drug and/or alcohol use, or similar impediments to his understanding the consequences of his plea, on review, the pertinent question is whether the trial judge received information which, objectively considered, should reasonably have raised a doubt about the defendant’s competence and alerted the judge to the possibility that the defendant could neither understand the proceedings, appreciate their significance, nor rationally aid his attorney in his defense. Neal v. State, 186 So.3d 378, 381 (¶ 3) (Miss. Ct. App. 2016).

DISCUSSION

1. Charge by Criminal Information

¶7. Faris was charged under a criminal information rather than an indictment. When an offender seeks acceptance of a guilty plea, a criminal information may be used in lieu of an indictment. Berry v. State, 19 So.3d 137, 139 (¶ 7) (Miss. Ct. App 2009). However, the defendant must be represented by counsel and have waived the indictment by a sworn statement. Id.

¶ 8. Here, the trial judge strictly followed the Berry guidelines. Faris sought acceptance of a guilty plea. Representation by counsel and waiver of indictment are each contained in a written document signed by both Faris and his counsel, as well as contained in his plea colloquy:

Q: Now when you plead guilty to a criminal information, like you’re doing this afternoon, did you know you give up the right to have this case presented to the grand jury?
A: Yes, sir.

¶ 9. Thus, Faris’s claim of the invalidity of the criminal information as his charging instrument is without merit.

2. Voluntariness of Faris’s Plea

¶ 10. Faris asserts that his plea was not knowing or voluntary because he was under the influence of prescription medication at the time he made it. But at his plea hearing the following exchange between Faris and the trial judge took place:

Q: Today are you under the influence of any illegal drugs or alcohol or undergoing mental treatment at this time[?]
A: I’m on antidepressants.
Q: What are you taking, Xanax or something like that?
A: No, sir, I take Buspirone, Trazodone.
Q: Anything about those that would keep you from understanding what we are talking aboutt?]
A: No, [s]ir.

¶ 11. In Neal, 186 So.3d 378, the petitioner had made the same claim. Under questioning by the trial court, Neal had admitted that at the time of his offense he was under the influence of Trazadone and morphine. Id. at 382 (¶ 12). Then, the following exchange ensued:

Q: Are you on anything, illegal drugs, alcohol, beer, wine, whiskey, pills or any other type of intoxicants right nowñ
A: Yes, sir,
Q: And what are you on?
A: Morphine, Seroquel, Buspirone, Lor-tab and a couple of others, Your Honor.

Id. (emphasis added).

¶ 12. In Neal we noted:

“The defendant bears the burden of proving the invalidity of a guilty plea by a preponderance of the evidence.” Watson v. State, 100 So.3d 1034, 1038 (¶ 10) (Miss. Ct. App. 2012) (citing Williams v. State, 31 So.3d 69, 74 (¶ 13) (Miss. Ct. App. 2010)). “In assessing the voluntariness of a plea, the thoroughness of the trial court’s interrogation during the plea colloquy ‘is the most significant evidence of all.’ ” Id. at (¶ 12) (quoting Woods v. State, 71 So.3d 1241, 1244 (¶ 9) (Miss. Ct. App. 2011)). The defendant may not rely on bare assertions in his brief. Id. at (¶ 10).

Neal, 186 So.3d at 381 (¶ 6).

¶ 13. Thus, in Neal we held that “this Court cannot find that Neal’s bare assertions in his brief overcome the strong presumption that his sworn statements in court were true.” Id. at 382 (¶ 9). For the same reason, Faris’s claim lacks merit.

3. Effectiveness of Counsel

¶ 14. To prove his counsel was ineffective, Faris must show (1) his counsel’s performance was deficient, and (2) the deficient performance prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “Judicial scrutiny of counsel’s performance must be highly deferential.” Id. at 689, 104 S.Ct. 2052. A strong but rebuttable presumption exists that counsel’s performance was effective. Gilley v. State, 748 So.2d 123, 129 (¶ 20) (Miss. 1999). “To overcome this presumption, ‘the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’ ” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052). Moreover, “the trial court may dismiss a motion for post-conviction relief if the petitioner fails to submit affidavits in support of his allegations” of ineffective assistance; the petitioner’s bare assertions are insufficient. Mayhan v. State, 26 So.3d 1072, 1076 (¶ 10) (Miss. Ct. App. 2009).

¶ 15. Faris failed to provide any evidence showing that his counsel’s performance was deficient. Further, Faris explicitly represented to the Court in his plea petition and during his plea colloquy that he was satisfied with his attorney’s services. Therefore, we find this issue is without merit.

¶ 16. THE JUDGMENT OF THE CIRCUIT COURT OF LOWNDES COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

      . He had been indicted on January 29, 2014, for three felonies, one of which embraced his possession of a stolen shotgun. The indict-mente were not pursued and, upon imposition of the sentence in the matter before us, were “retired to the files.”