IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-01705-COA
WILLIE WASH APPELLANT

v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/05/2015 TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN COURT FROM W HICH APPEALED: DESOTO COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: W I LLIE W ASH (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED DISPOSITION: AFFIRMED - 05/02/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND FAIR, JJ. BARNES, J., FOR THE COURT: ¶1. W i llie W ash appeals the C ircuit Court of DeSoto C o u n t y ’ s j udgm ent deny ing his

m otion f or post-conviction relief (PCR). Finding no error, we af f irm

. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. In Novem

ber 2013, W a sh was indicted f o r o n e c o u n t o f t h i r d

- o f f e n s e f e l o ny shoplif ting, in violation of Mississippi Code Annotated section 9 7-23-93(6) (Rev. 2006), f or stealing e i ght conta i n e r s of Gain washing detergent and one pack of Bounty paper towels
f rom a W alm art. W ash was charged as a habitual of f ender under Mississippi Code Annotated section 99-19-83 (Rev. 2015), as two of his num erous other prior f elonies wereviolent in nature. 1 On May 1 , 2014, W ash pleaded guilty to the shoplif ting as charged, and

as a result, the State agreed to lower his habitual-of f ender s tatus to section 99-19-81, thereby allowing W ash to receive the ma x i mu m term of im prisonm ent p rescribed f

o r the crim e of

s h o p l i f i n g rather than l if

e im p risonm ent. The court sentenced W ash to serve f ive y ears in the custody

of the Mississippi Departm ent of Corrections, and to pay a f ine of $1,000. ¶3. On April 23, 2015, W ash f iled a lengthy PCR m otion claim ing inef f ective assistance
of c ounsel, irregularities i n h i s i n d i c t m e n t , involuntary plea, vindictive prosecution, and other
constitutional violation s
. M o re specif ically , W ash argued that he never r eceived a prelim i n a r y hearing and that one of his prior c rim es was l isted twice on the indictm ent.
Attached to his m otion were num erous letters written b y W ash to his counsel f rom January through April 2014, as well a s bar-com plaint inf o rm ation. 2 In the letters, W a s h com plained
about h is c ounsel’s assistance and the f alsity of his indictm e nt; he requested the “discovery package” f

or h i s case and a r u l e b o o k

. I n May 12, 2015, W ash f iled an am ended PCR

m otion, m aking sim i lar c laim s, but additionally arguing that t he State breached the plea

agreem ent in violation o f the State and Fe d e r a l Constitutions because he w as prom ised eligibility f or parole af

ter serving f

if ty percent of

his sentence. ¶4. On June 5, 2015, t he circuit court denied W ash’s m otion, f inding his c laim s without

1 T h e m aj o rity o f Wash ’s 5 4 5 -p ag e r eco rd o n a p p eal is a p en -p a c k a n d o t h er d o cu m en tatio n o f h is p rio r crim in al h i sto ry f o r sh o p l i f

tin g , b u rg lary , an d o t h er crim es, sta r tin g as early as 1 9 7 2 , an d m o stly o ccu rrin g in t h e M em p h is, T en n essee area. H is t w o v io len t f e lo n ies w ere ag g rav ated assau lt w ith a d ead ly w eap o n in 2 0 0 1

.
2 H o w ev er, Wash n ev er p u rsu ed an eth ical co m p lain t w ith th e M ississip p i B ar alleg in g v io latio n o f

th e R u les o f

P ro f e ssio n al C o n d u ct. 2m erit. N early f ive m onths later, on Novem b er 9 , 2 015, W ash appealed the denial. The next day , the circuit c ourt issued an order granting leave f o r W ash to p roceed on appeal in f orm a pauperis, and this Court subsequently perm itted W ash’s out-of

- tim e appeal. 3
STANDARD OF REVIEW ¶5. W h en reviewing a circuit court’s denial of a PCR m otion, the appellate court will only
disturb the circuit court’s f actual f indings if they are clearly

erroneous. Matters of

law are
reviewed de novo. Doss v. State , 19 So. 3d 690, 694 (¶5) (Miss. 2009) ( citations om itted).
ANALYSIS ¶6. W a sh m akes several a ssertions in his l engthy brief bef ore this Court, b ut they all relate

to inef f ective assistance o f counsel. To succeed o n this claim , the def endant m ust s how that
his trial counsel’s p erf

orm ance w as d e f

i cient, a n d he was prejudiced by that def iciency

. McCollum v
. State , 81 So. 3d 1 1 9 1 , 1192-93 (¶8) ( Miss. Ct. App. 2 012) (citing S trickland

v. W ashington , 466 U.S. 668, 687 (1984)). In the context of a guilty plea, the def endant m ust
show that his “counsel’s errors proxim ately resulted in the guilty plea and, but f or counsel’s

3 T h e circu it co u rt n o ted in its N o v em b er 1 0 o rd er th at w h ile th e o rd e r d en y i n g W a s h ’ s P C R m o t io n h ad b een m ailed to Wash o n J u n e 5 , 2 0 1 5 , Wash ap p a ren t l y d i d n o t receiv e it in a tim ely m an n er, b ecau se o n O cto b er 1 2 , 2 0 1 5 , Wash f iled a p etitio n f

o r a w rit o f m an d am

u s req u estin g th e circu it co u rt ru le o n h is P C R m o t io n
. A cco r d in g ly , o n th e sam e d ay t h e circu it c o u rt receiv ed Wash ’s p etitio n f o r a w r i t o f m an d a m

u s, t h e co u rt m ailed an o th er co p y o f th e J u n e 5 o rd er to Wash , an d o n N o v em b e r 9 , 2 0 1 5 , th e co u rt receiv ed Wash ’s n o tice o f ap p eal, d ated N o v em b er 3 , 2 0 1 5

. O n F eb r

u ary 9 , 2 0 1 6 , th is C o u rt g ran ted Wash an o u t-o f

-tim e ap p eal f

o r g o o d cau se. Wh ile th e ru les o n th e trial co u rt ex ten d in g th e t im e to f ile a n o tice o f

ap p eal u n d er M ississip p i R u le o f A p p ellate P ro c ed u re 4 (g ) are v ery strict, th e co m m en t to R u le 4 (g ) states th e co u rt m ay su sp en d R u le 4 to p erm it o u t -o f -tim e a p p e a ls in crim in al cases. P o stco n v ictio n -relief

p ro ceed in g s are g o v ern ed b y th is ru le. M .R

. A .P . 4 (g ) cm t. 3error, the def endant would not ha ve e ntered the guilty plea.” Id. at 1193 (¶8) (quoting
Deloach v. State , 937 So. 2 d 1010, 1011 (¶5) (Miss. C t. App. 2006)). The def e ndant “m

ust
show unprof

essional errors o f substantial gravity ,” and allege such f acts with “specif

icity and
detail.” C

ole v. State , 918 So. 2d 890, 894 ( ¶10) (Miss. C t. App. 2006) (citation om itted);
K i n n ey v. State , 737 So. 2d 1038, 1041 (¶8) (Miss. Ct. App. 2 006) (citation om i t t e d )

. However, there is a stron g r e b u t t able presum p tion t hat counsel’s conduct f alls “within the
wide range o f r easonable prof e ssional assistance.” K

i nney , 737 So. 2 d at 1041 (¶8) (citation

om itted). ¶7. W a sh f

ails to prove inef

f ective assistance. He claim s his c ounsel f ailed to conduct an
in v e s t i g a t i o n of h is case and any possible def enses. H owever, f

or claim s of f

ailure to investigate, “the def

endant m ust state with particularity what the investigation would have

r e v e aled and how it w ould h ave a ltered the outcom e.” Madden v
. State , 991 So. 2 d 1 2 3 1 , 1238 (¶31) (Miss. Ct. App. 2008) (citation om itted). W ash vaguely com m ents about a plausible def

e nse r e l a t e d t o a warrant in Shelby County , but he f ails to explain how the
warrant relates to his def

ense, or how it would alter his case’s outcom e. ¶8. Additionally , Wa s h c l a i ms h i s c o u n s e l s h o u l d have objected t o def e cts in his
i ndictm ent; specif

ically , he should have “challenged” two prior violent convictio n s f r o m Tennessee that enhanced his sentence. However, W ash adm i tted to all of his prior crim es, including these t wo, in h i s p l ea colloquy

. Moreover, “ a g uilty plea waives any claim to a def ective indictm ent.” P hillips v. State , 25 So. 3d 404, 4 0 7 ( ¶ 6) (Miss. Ct. App. 2010) (quoting Harris v. State , 757 So. 2d 195, 197 (¶9) (Miss. 2000)). W e f ind n o m erit to this
contention.
4¶9. W a sh also contends his counsel was ignorant of t he l a w , a n d u sed intim idation and

scare tactics. As a result, W ash states he was f o rced to enter a plea agreem e nt and accept a
f ive-y ear sentence. However, W a sh provides no proof of t hese allegations except his own
bare assertions in his b rief , which a re contradicted by the record. The reviewing court cannot
decide issues “based on assertions f rom the b rief

s alone. The issues m

ust be supported and proved b y the record.” Bell v
. S tate , 117 So. 3d 661, 6 63 (¶8) ( Miss. Ct. A pp. 2013) (quoting Pulphus v. State , 782 So. 2d 1220, 1224 (¶ 1 5 ) (Miss. 2001)). The plea-hearing transcript
indicates W ash’s c ounsel had adequate t im e to prepare and investigate the case. During his plea colloquy , W ash represented that he had no d isagreem ents with the S tate’s p roof , agreed
that his counsel exp l a i n ed his potential sentence, and stated he had n ot been threatened or coerced into pleading guilty

. He also claim ed to be satisf ied with his counsel’s advice and representation. W ash signed a plea agreem e nt to t he sam e e f f e ct, stating h i s c o u n s e l w a s

com petent. ¶10. W a sh f

ails to prove that his counsel’s perf orm ance was def

i cient. A ccordingly , this
issue is without m erit. W e af f irm the circuit court’s denial of his PCR m otion. ¶11. THE JUDGMENT OF THE CIRCUIT COURT OF D E S O T O COUNTY DENYING T H E M O T I O N F O R P O S T

- C O N V I C T I O N R E L I E F I S A F F I RMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY. LEE, C .J., IRVIN G A N D G R I F F I S , P
. J J
. , I S H E E , C A R L T O N , F A I R , W I L S ON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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