Gaulden v. State

240 So.3d 503

John Frank GAULDEN a/k/a John Gaulden a/k/a John F. Gaulden, Appellant

v.STATE of Mississippi, Appellee

NO. 2017–CP–00378–COA

Court of Appeals of Mississippi.

March 13, 2018

ATTORNEY FOR APPELLANT: JOHN FRANK GAULDEN (PRO SE)

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSWORTH

BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ.

CARLTON, J., FOR THE COURT:

¶ 1. In June 2013, John Frank Gaulden pled guilty to two counts of unlawful possession of a motor vehicle and one count of aggravated assault of a jailer. More than three years after the Amite County Circuit Court entered its sentencing order, Gaulden filed a motion for post-conviction relief (PCR). The circuit court summarily dismissed it because it was time-barred and none of Gaulden's claims were exceptions to the three-year statute of limitations. Gaulden appeals and argues: (1) his PCR motion is not time-barred because he raises errors affecting his fundamental constitutional rights; (2) his guilty pleas were involuntary; (3) he received ineffective assistance of counsel; and (4) the multi-count bill of criminal information against him was improper. We find no error and affirm.

FACTS

¶ 2. In June 2013, Gaulden waived indictment and filed a petition to plead guilty to three charges listed in a bill of information:¹ two counts of unlawful possession of a motor vehicle and one count of aggravated assault of a jailer. Gaulden's guilty-plea hearing occurred on June 12, 2013. After accepting Gaulden's guilty pleas, the circuit court sentenced him to concurrent one-year sentences for each conviction for unlawful possession of a motor vehicle and a consecutive twenty-year sentence for aggravated assault. The circuit court entered its sentencing order on June 12, 2013.

¶ 3. Gaulden filed his PCR motion on November 7, 2016. He attached copies of his guilty-plea petition, the sentencing order, the bill of information, and a printout of the statute that criminalizes simple and aggravated assault. Gaulden also filed a supplemental memorandum of law on January 23, 2017. After reviewing the motion, its exhibits, and the supplemental brief, the circuit court summarily dismissed Gaulden's PCR motion because it was time-barred and no exceptions to the three-year limitations period applied.

¶ 4. Gaulden appeals and argues that: (1) his PCR motion was not time-barred because he raised errors affecting his fundamental constitutional rights; (2) his guilty pleas were involuntary; (3) he received ineffective assistance of counsel; and (4) the multi-count bill of information was improper.

STANDARD OF REVIEW

¶ 5. "When reviewing a circuit court's denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are clearly erroneous; however, we review the circuit court's legal conclusions under a de novo standard of review." Berry v. State , 230 So.3d 360, 362 (¶ 3) (Miss. Ct. App. 2017).

DISCUSSION

I. Time–Bar

¶ 6. The circuit court determined that Gaulden's PCR motion was time-barred and he did not raise any issues that were exceptions to the three-year limitations period under Mississippi Code Annotated section 99–39–5(2) (Rev. 2015). We agree.

¶ 7. Under the Uniform Post–Conviction Collateral Relief Act (UPCCRA), a PCR motion following a guilty plea must be filed within three years after the judgment of conviction is entered. Miss. Code Ann. § 99–39–5(2) (Rev. 2015). On June 12, 2013, the circuit court entered its sentencing order. Gaulden did not file his PCR motion until November 7, 2016, nearly five months past the three-year limitations period. On its face, Gaulden's PCR motion was untimely.

¶ 8. Gaulden, as the PCR movant, has the burden of demonstrating that his claims are not time-barred because an exception applies. See McComb v. State , 135 So.3d 928, 932 (¶ 10) (Miss. Ct. App. 2014). In this case Gaulden argues that his PCR motion is not time-barred because he raises errors affecting his fundamental rights. Specifically, he asserts that his guilty plea was involuntary; he received ineffective assistance of counsel; and the multi-count bill of information was defective. "[E]rrors affecting fundamental constitutional rights" also are excepted from the UPCCRA's time-bar.

Rowland v. State , 42 So.3d 503, 507 (¶ 12) (Miss. 2010). "[O]nly four types of ‘fundamental rights’ have been expressly 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." Salter v. State , 184 So.3d 944, 950 (¶ 22) (Miss. Ct. App. 2015).

¶ 9. Gaulden's involuntary-guilty-plea and ineffective-counsel claims are not excepted from the time-bar. "[T]he [Mississippi S]upreme [C]ourt has held that [ineffective-counsel and involuntary-guilty-plea] claims are not excepted from the time-bar; therefore, even though these claims involve fundamental constitutional rights, the procedural bars are applicable." Jones v. State , 174 So.3d 902, 907 (¶ 12) (Miss. Ct. App. 2015) (citing Kirk v. State , 798 So.2d 345, 346 (¶ 6) (Miss. 2000) ). Likewise, Gaulden's claim that the bill of information was defective because it did not meet the multi-count requirements of Rule 7.07 of the Uniform Rules of Circuit and County Court² is not excepted from the time-bar. Stokes v. State , 199 So.3d 745, 749 (¶ 13) (Miss. Ct. App. 2016) ("Claims alleging defective indictment are also barred when a [PCR motion] is not filed within the three-year time limitation.").

¶ 10. Gaulden also asserts that the aggravated-assault charge in the bill of information was insufficient because the charge failed to allege that the assault involved the use of a deadly weapon. Gaulden claims this is an essential element under Mississippi Code Annotated section 97–3–7(2) (Rev. 2014). Citing Conerly v. State , 607 So.2d 1153, 1156 (Miss. 1992), Gaulden then asserts that due to this alleged deficiency, the circuit court lacked jurisdiction over the aggravated-assault charge. He reasons that his guilty plea did not waive the failure to charge an essential element of that offense. We find no merit in this argument. As discussed below, the bill of information adequately charged the essential elements of aggravated assault on a jailer.

¶ 11. Time-bar notwithstanding, we also find that Gaulden's claims lack merit for each of the reasons discussed below.

II. Involuntary Guilty Plea

¶ 12. Gaulden asserts that he is bipolar and that he was suffering from untreated scabies when he pled guilty. He claims he had been told by the Amite County sheriff that he would not receive medical treatment while he was at the jail "outside a life-threatening emergency." Gaulden also asserts that his attorney told him that the quickest way to get medical treatment for his scabies would be to waive indictment and plead guilty. According to Gaulden, his desire to obtain proper medical treatment for his scabies induced him to involuntarily plead guilty. Gaulden provides no supporting affidavit from his lawyer or other evidence to corroborate his claim.

¶ 13. In order to be valid, a guilty plea must be entered voluntarily and intelligently, meaning that the defendant is "advised concerning the nature of the charge against him and the consequences of the plea." Holland v. State , 956 So.2d 322, 327 (¶ 11) (Miss. Ct. App. 2007) (citing Wilson v. State , 577 So.2d 394, 396–97 (Miss. 1991) ). Gaulden, as the movant, has the burden of establishing his involuntary-guilty-plea claim. Id. (citing Green v. State , 802 So.2d 181, 184 (¶ 19) (Miss. Ct. App. 2001) ).

¶ 14. The record does not support Gaulden's claim. "Great weight is given to statements made under oath and in open court during sentencing." Berry , 230 So.3d at 364 (¶ 13). Based on the circuit court's personal observation of Gaulden's demeanor, appearance, and manner in answering its questions, the circuit court found that Gaulden pled guilty voluntarily and intelligently. The circuit court determined that Gaulden was competent to understand the nature of the charges against him. Further, the circuit court closely questioned Gaulden at the hearing to determine his mental competency and whether he was induced to plead guilty. Gaulden confirmed at the hearing that: (1) he understood he was giving up his right to have his case go to a grand jury; (2) he was literate and obtained an eleventh grade education and a GED; (3) he was not under the influence of any intoxicating drugs or alcohol; (4) he had talked with his attorney about the charges he was facing and the best thing for him to do in this case; and (5) no one had threatened or induced him to plead guilty.

¶ 15. The circuit court also ensured that Gaulden understood the nature and consequences of his guilty pleas by: (1) discussing the maximum and minimum penalties provided by law; (2) explaining that by pleading guilty Gaulden was giving up the rights to vote, serve on a jury, and have firearms; and (3) informing Gaulden that by pleading guilty he was waiving his constitutional rights to a jury trial, to confront the witnesses against him, and avoid self-incrimination.

¶ 16. The circuit court was likewise careful to ensure that Gaulden understood the factual basis for each of the charges against him.³ The State described the factual basis for the aggravated-assault charge, explaining that Gaulden attacked a jailer by pushing her, beating her with a sock containing dominoes, and stabbing her with a shank that he made from a toothbrush and a pen. He then got a can of mace and sprayed the jailer's entire body. After hearing the State's description, Gaulden confirmed three times that he was guilty of the charge.

¶ 17. Gaulden was given the opportunity to speak before his sentencing. He apologized for assaulting the jailer and expressed his frustration at being unable to get medical treatment for his scabies. Although he said he...