IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-CP-00787-COA TRAVIS SHANKS A/K/A TRAVIS KEYCON SHANKS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 01/11/2016 TRIAL JUDGE: HON. LAMAR PICKARD COURT FROM W HICH APPEALED: CLAIBORNE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: TRAVIS SHANKS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 05/23/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ. CARLTON, J., FOR THE COURT: ¶1. On March 24, 2003, Travis Shanks p led guilty t o deliberate-design m urder f ollowing a plea hearing bef

ore the Claiborne County Circuit Court. Shanks f iled his current m otion f or p ostconviction relief (PCR) on Septem ber 11, 2015. 1 The trial court dism issed Shanks’s PCR m otion in a January 1 1, 2 016 order, f inding that the f

ace o f the m o ti o n a n d t h e p rior

1 T h e S tate su b m i ts th is is S h an k s’s th ird P C R m o tio n . In S h a n ks v. S ta te , 9 7 2 S o . 2 d 7 3 4 (M iss. C t. A p p . 2 0 0 7 ), t h is C o u rt c o n s i d e r e d a P C R m o tio n S h an k s f iled in 2 0 0 6

. H o w ev er, th e reco rd b ef

o r e u s is u n clear as to w h eth er S h an k s h as f iled an y o th er p rio r P C R m o tio n .proceedings clearly showed t hat Shanks was not entitled to any collateral relief

. Aggrieved, Shanks tim ely

appeals. ¶2. On appeal, Shanks a rgues: (1) h is m otion is n ot procedurally b arred because he raises

errors af f ecting his f

undam ental rights; (2) the trial court denied h im due process by f ailing

to inf orm him of the elem ents o f the crim e charged against him ; (3) he did n ot enter his guilty plea knowingly , intelligently , and voluntarily ; (4) he received inef f e c tive assistance of counsel; (5) the trial court f ailed to establish a f

actual basis f

or his guilty plea or inf

orm h im of the e l em ents o f t he crim e charged; (6) the trial court f ailed to conduct a com

petency hearing; and (7) he received an illegal sentence. ¶3. Because we f

ind that Shanks’s m o tion is both successive-writ barred and tim e-barred, we af f irm the trial court’s dism issal of his PCR m otion. FACTS ¶4. A g rand jury indicted Shanks on January 9, 2003, f o r capital m

urder under Mississippi Code Annotated section 97-3-19(2)(e) (Rev. 2000). The indictm ent charged: [ S h a n ks] did w ilf

ully , unlawf

ully , f eloniously , without the authority of law, and with or without d e sign t o ef f ect death, kill and m

u rder one David Sm all[ s], a hum a n being, at a tim e when he, [ Shanks,] w as t hen and there engaged in the com m ission of

the crim e of

robbery of the said [ Sm alls]. ¶5. By his March 2 4 , 2003 petition, i n a n e g o t i ated plea agreem ent, Shanks p led guilty

to deliberate-design m

urder in order to receive the district attorney ’s recom m endation o f a
sentence of lif

e im prisonm e nt. As proof of the elem e nts o f his charged of f ense, and to satisf

y the f actual basis of his p lea, S hanks subm itted under oath i n h is g uilty

- plea petition that the f ollowing f

acts were true: “I killed David Sm alls by shooting h im [ f ive] tim es o utside the

2liquor store in Claiborne County . . . .” ¶6. In addition to S hanks’s guilty -plea petition, Shanks’s attorney , B ill Barnett, certif ied that he discussed the contents of t h e p e t i t i o n with Shanks, he was s atisf ied Shanks f

ully understood the petition and executed it knowingly and voluntarily , and h e knew o f no reason f or the court to reject Shanks’s guilty plea. ¶7. In its M arch 2 4 , 2003 s e n t e n c i n g o r d e r , t h e trial c o urt sentenced Shanks to lif e im p risonm ent. The trial court also noted the f ollowing in its sentencing order: (1) Shanks

was a d vised of his legal a nd constitutional rights ; ( 2 ) S h a nks f reely , voluntarily , and intelligently waived those rights; (3) Shanks was advised of the consequences of his guilty plea; and (4) upon direct questioning, Shanks adm itted his guilt. Shanks , 9 72 So. 2d at 735 (¶4). ¶8. On March 30, 2006, Shanks f iled his f irst PCR m otion with the trial court, claim ing his guilty plea was involuntary “because he d id not f ully understand the elem ents of the crim e of m urder.” Id. at (¶5). The trial c ourt denied Shanks’s f irst PCR m o tion, f

inding it barred by the three-y ear tim e lim it set f orth in Mississippi Code Annotated section 99-39-5(2) (Rev. 2006). Id. at (¶¶5, 7). On appeal, this Court af f i rm ed. Id. at 735-36 (¶¶7, 11). ¶9. Shanks f

iled his c urrent and second PCR m otion o n Septem ber 11, 2015, m ore than twelve y e ars af

ter his sentencing o n March 24, 2003. The trial court sum m arily dism issed the m otion, and aggrieved, Shanks appeals. STANDARD OF REVIEW ¶10. “W hen reviewing a tria l c o u r t ’ s denial or dism issal of a PCR m o tion, we will only

3disturb the trial c ourt’s decision if it is clearly e rroneous; h owever, w e review the trial court’s

legal conclusions under a de novo standard of r eview.” Thinnes v. State , 196 So. 3d 204, 207-08 (¶10) ( Miss. Ct. App. 2 016) (quoting Carson v
. State , 161 So. 3d 153, 1 55 (¶2) (Miss. Ct. App. 2014)). DISCUSSION ¶11. As set f

orth below, we f

ind that Shanks f

ails to m eet his burden to show a violation of a f undam ental c onstitutional r ight or to support his other postconviction claim s f or relief

. “Mississippi Code Annotated secti o n 9 9

- 3 9

- 2 3 ( 6 ) ( R e v . 2 015) p rovides that a n order deny ing [ or dism issing] a PCR m otion is considered a f inal judgm ent and a bar to a s e cond or successive m otion.” Cummings v
. State , 2 03 So. 3d 1174, 1176 ( ¶7) (Miss. Ct. App. 2016). Mississippi Code Annotated section 9 9

- 3 9

- 5 ( 2 ) ( R e v . 2 0 15) provides a def e n dant who pleads guilty with three y ears f

r om the date of

his judgm ent of

conviction to f

ile his PCR m otion. Id. a t 1 175 (¶7). Shanks’s current PCR m otion is a successive writ t hat h e f iled outside the established three- y e a r t i me lim it. Theref ore, unless Shanks can show that an e xception applies, his m otion is both successive-writ barred and tim e-barred. ¶12. As the PCR m ovant, Shanks bears the burden t o demo n s t r a t e h i s c l aim s are not procedurally barred because an exception applies. See M cComb v. State , 135 So. 3d 928, 931-32 (¶¶10, 13) (Miss. Ct. A pp. 2 014). T h e r e are three statutory exceptions to the procedural bars. Cummings , 2 0 3 So. 3d at 11 7 6 ( ¶ 8 ) ( c i ting Miss. C ode Ann. §§ 99-39- 5(2)(a)-(b) & 99-39-23(6)). Also excepted are “errors af f ecting f undam ental constitutional

4rights.” Rowland v. State , 42 So. 3 d 503, 508 (¶16) (Miss

. 2 0 1 0 )

. 2 However, “m ere

assertions of c onstitutional rights violations do n ot suf f ice t o o v e rcom e the p rocedural bar[ s].” W

hite v. State , 59 So. 3d 633, 636 (¶11) (Miss. C t. App. 2011) (citing Chandler v. State , 44 S o. 3d 442, 444 (¶8) (Miss. Ct. App. 2010)). Here, S hanks contends his claim s are not procedurally

barred because they

raise errors af

f ecting his constitutional rights. ¶13. The Mississippi Suprem e Court has held “that a valid g uilty plea operates a s a waiver of all nonjurisdictional rights or def ects which are incident to trial.” Anderson v. State , 577 So. 2d 390, 391 ( Miss. 1991) (citing Ellzey v. State , 196 So. 2d 889, 8 92 (Miss. 1967)). Such rights include “those secured by the F i f t h , Sixth[ ,] and Fourteenth Am endm ents to the Constitution of t he United States, as well as those com p arable rights secured by S ections 14 and 2 6, Article 3, o f the Mississippi Constitution of 1890.” Sanders v. State , 440 So. 2d 278, 283 (Miss. 1983) (superseded b y statute on other grounds) (citing Boykin v. Alabama , 395 U.S. 238, 243 (1969); P hillips v. State , 421 So. 2d 476, 479 (Miss. 1982)). 3 A valid guilty plea is one entered voluntarily and intel l i g e n t l y , m eaning t he def endant was “advised concerning the nature of the charge against him and t he c o nsequences of the plea.” Holland

v. State , 956 So. 2d 322, 327 (¶11) (Miss. Ct. App. 2 007) (citing W ilson v. State , 577 So. 2d

2 S ee a lso B o

yd v. S ta te , 1 5 5 S o . 3 d 9 1 4 , 9 1 8 (¶1 3 ) (M iss. C t. A p p . 2 0 1 4 ) (“In M ississip p i, sin ce R o w la n d , o n ly f o u r ty p es o f ‘f u n d am en tal rig h ts’ h av e b een e x p ressly f o u n d to su rv iv e P C R p ro ced u ral b ars: (1 ) d o u b l e j eo p a r d y ; (2 ) illeg a l sen ten ce; (3 ) d en ial o f d u e p ro cess at sen ten cin g ; an d ( 4 ) ex p o st f a c to claim s.”). C

f. B ro o ks v. S ta te , 2 0 9 M iss. 1 5 0 , 1 5 5 , 4 6 S o . 2 d 9 4 , 9 6 -9 7 (1 9 5 0 ) (rev ersin g a co n v ictio n d esp ite p ro c e d u r a l d ef ects w h ere th e d e fe nda

nt ’ s f u n d am en tal rig h ts to b e f

ree f ro m u n reaso n ab le search es a n d seizu res an d to b e f

ree f ro m co m p u lsio n to g iv e ev id en ce ag ain st h im self w e re v io lated ).

3 S ee a lso U R C C C 8 .0 4 (d iscu ssin g th e rig h ts w a iv ed b y th e e n try o f a g u i lty p lea). 5394, 396-97 (Miss. 1 991)). “The burden o f establishing a claim f or an involuntary guilty plea is on the petitioner.” Id. (citing Green v. State , 8 02 So. 2d 181, 1 84 (¶19) (Miss. Ct. App. 2001)). ¶14. In the p resent case, t h e c i r c u i t c o u r t f o u n d : ( 1) Shanks f

reely , voluntarily , and intelligently w aived his legal a nd constitutional rights; (2) Sha n ks was a dvised of the
consequences of his guilty p l ea; and (3) Shanks knowingly and voluntarily entered his guilty plea. Further, in his guilty -plea petition, Shan k s swore under oath: (1) he was m entally

com petent to plead guilty ; ( 2) he was not under the inf luence o f drugs or alcohol or suf f ering f rom m e n t a l i l lness; (3) he understood the m atters in the indictm e nt against him ; (4) he understood the c onsequences of pleading guilty ; ( 5 ) h e f r eely and voluntarily of

f ered his guilty plea; and (6) he was satisf ied with his attorney ’s legal services. Shanks’s attorney also certif i ed his satisf

action t o these f

acts. As a result, the r ecord ref lects that Shanks has f

ailed

to m eet his burden to establish the involuntariness of his guilty plea. ¶15. Furtherm ore, e ven though Shanks asserts in the instant PCR m otion t hat the trial court denied him due process b y f ailing to inf

orm him of the elem ents of

second-degree m

urder, the record ref

l ects that Shanks pled guilty to and was sentenced f o r f i rst-degree (deliberatedesign) m urder. This Court previously determ ined during its r eview of Shanks’s 2006 PCR

m otion “that Shanks was suf f iciently inf

orm ed of the elem e nts of [ d eliberate-design] m urder and the consequ e n c e s o f p l e ading guilty to such a crim e.” See Shanks , 972 So. 2d at 736 (¶11). W e f

urther held in o ur prior opinion t hat Shanks’s c laim r egarding the voluntariness of his guilty plea was procedurally barred since “he voluntarily and k nowingly entered a

6guilty plea f o r m urder[ .]” I

d. N otwithstanding a ny applicable procedural bars, we f ind upon review of the r ecord a nd relevant caselaw that Shanks’s claim s regarding due process and the voluntariness of

his guilty plea lack m erit. ¶16. In f

urther addressing t h e c laim s Shanks asserts in his instant PCR m otion, we also recognize that claim s a s to the involuntariness of guilty pleas and the inef f e c t i v e n e s s of counsel ar e not e xcepted f rom the procedural bars although they involve f undam ental constitutional rights. Jones v. State , 174 So. 3d 902, 907 (¶12) (Miss. Ct. App. 2015) (citing Kirk v. S tate , 798 S o. 2d 345, 346 (¶6) (Miss. 200 0 ) )

. E v e n despite the application of relevant procedural bars, however, we acknowledge that a m ovant’s inef f ective-assistance claim “m ust dem onstrate: (1) his a ttor n e y ’s perf o rm ance w as def

i cient, and (2) this def iciency deprived him of a f air trial.” T

h ompson v
. State , 78 So. 3 d 939, 941 (¶4) (Miss. Ct. App. 2012) ( citing Strickland v. W ashington , 4 66 U.S. 668, 687 (1984)). A m ovant who relies solely on his own a f f idavit in m aking an inef f ective-ass i s tance-of

-counsel claim , however, does not m eet the pleading requirem ents of our PCR statute. See V

itela v. State , 183 So. 3d 104, 108 (¶14) (Miss. Ct. App. 2015); Miss. Code Ann. § 99-3 9

- 9 ( 1)(e) (Rev. 2015). ¶17. Notwithstanding t he applicable procedural bars, we f ind Shanks f

ails to provide any evidence, other than his own assertions, to supp o r t h i s inef f ective-assistance-of

-counsel claim

. See id. As a result, Shanks f a i l s t o me e t the s tatutory p leading requirem ents to dem onstrate t hat h i s counsel was inef f e ctive under Strickland

. Furthe r , in his guilty -plea petition, Shanks swore under oath that he was sa t isf ied with h is attorney ’s services.

7Theref

ore, Shanks’s claim

lacks m erit. ¶18. As to Shanks’s assertions about his m en t a l c o mp e t e n c y , w e a c k nowledge that a def endant’s right to be f

ree f r o m t r i a l o r conviction while incom petent c onstitutes a f undam ental right that m ay over c o me the p rocedural bars to PCR m o tions. See Smith v. State , 149 So. 3d 1027, 1031 (¶8) (Miss. 2014) (citing P ate v. Robinson , 383 U.S. 375, 385 (1966)). Once the trial court ha s r e a sonable ground to believe that the def endant is i ncom p etent, the trial c ourt m

ust subm it the def

endant to a m ental evaluation and then conduct a com

petency hearing. Sanders v. S tate , 9 So. 3d 1132, 1136 ( ¶¶15-16) (Miss. 2009) (discussing URCCC 9.06). ¶19. A s d iscussed, however, Shanks swore under oath in his g uilty -plea petition that h e w a s

m entally c om

petent t o m a ke the petition and was not under the inf luence of drugs or alcohol

or suf f ering f rom any m ental illness. His attorney also c ertif ied t hat he knew o f no reason the trial court should r eject Shanks’s guilty plea. F urtherm ore, according t o the trial court’s sentencing o rder, Shanks appeared personally bef o re the trial court, entered his guilty plea voluntarily a nd intelligently , a nd adm itted his guilt upon direc t q u estioning. Once again, Shanks f ails to present evidence bey ond h is own assertions t o support his claim of incom petency

. ¶20. This Court cannot consider “m atters which w ere never presented or argued in the trial

court and are not part o f the record.” Foster v. State , 148 S o . 3 d 1 0 1 2 , 1 0 15 (¶9) (Miss. 201 4 )

. I n an ef

f ort to establish his incom petency , Shanks attaches t o his appellate brief a

num ber of exhibits that purport t o docum ent h is educational and m ental health h istories f rom

8the late 1980s t hrough the late 1990s. However, Shanks presented none of these exhibits to

the trial court. Moreover, the docum ents f ail to c ontradict the evidence bef ore the trial court

or to provide a r easonable ground to question Shanks’s c o mp e t e n cy at the tim e h e entered his guilty plea in 2003. The record thus ref lects that t he trial court p ossessed n o r easonable ground to believe S hanks was incom petent a t the tim e of his guilty plea. As a result, the trial

court was not r equired to conduct a com petency hearing. See URCCC 9.06. W e theref ore f ind that Shanks’s claim on this issue lacks m e rit a n d f ails to overcom e the procedural bars. ¶21. In considering Shanks’s f inal assignm ent of error, we acknowledge the right to be f ree f rom an i l l e g al sentence is a f undam ental right that m ay overcom e the procedural bars to PCR m otions. See Vitela , 183 So. 3d a t 108 (¶15). “An illegal s e ntence is one that ‘does not conf orm to the applicable penalty statute.’” Foster v. State , 148 So. 3d 1012, 101 6 (¶12) (Miss. 2 014) (quoting Grayer v. State , 120 So. 3d 964, 969 (¶16) ( Miss. 2013)). However, Mississippi Code Annotated section 9 7-3-21 (Rev. 2000) provides a m a ndatory s e ntence of lif e im p risonm ent f

or d e f endants convicted of deliberate-design m urder. A s t he record

r e f lects, Shanks pled guilty to deliberate-design m urder. Theref

ore, the trial c o u r t w a s statutorily authorized and r equired to sentence Shanks t o lif e im prisonm ent. As a result, his claim of an illegal sentence f

ails to overcom e the procedural bars. CONCLUSION ¶22. The c ircuit court adjudicated Shanks guilty of d eliberate-de s i g n m u r d e r a n d sentenced him to lif e im prisonm ent on March 24, 2003. Shanks f iled his f irst PCR m otion on March 30, 2006, whi c h t h e t r ial court subsequently denied. Shanks f iled his c u rrent P CR m otion

9on Septem

ber 11, 2015, over twelve y ears a f t er h is judgm ent of conviction and well bey ond the three-y e a r l i mi t ations period set f orth in section 99-39-5(2). Because Shanks f ails to dem onstrate the applicability of a n exception to the successive-writ bar or the tim e-bar, we af f irm the trial court’s dism i ssal of his PCR m otion. ¶23. THE J UDGMENT OF THE CLAIBORNE COU N T Y CIRCUIT COURT DISMISSING THE M OTION FOR POSTCONVICTION RELIEF I S AFFIRMED . ALL COSTS OF THIS APPEAL ARE ASSESSED TO CLAIBORNE COUNTY. LEE, C.J., IRVING A ND GRIFFIS, P . J J . , ISHEE, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. B A R N E S , J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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