IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2015-CA-00664-COA JOHN BEVALAQUE A/K/A JOHN MCANDREW BEVALAQUE A/K/A JOHN M. BEVALAQUE A/K/A JOHN ANDREW BEVALAQUE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 03/24/2015 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MICHAEL HADEN LAW YER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: PETITION FOR POSTCONVICTION RELIEF DISMISSED DISPOSITION: AFFIRMED - 08/02/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., WILSON AND GREENLEE, JJ. LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY ¶1. John Bevalaque was indicted on M ay 20, 2 011, in t he Circuit Court of Rankin County ,

on seven counts o f exploitation of a child under Mississippi Code Annotated section 97-5-33 (Supp. 2011). Bevalaque p l eaded guilty to si x c o u n ts, and the rem aining count was nolle prosequied. On Novem

ber 30, 2 011, the circuit court accepted Bevalaque’s guilty plea and sentenced him to thirty -f

ive y e ars on each count, with ten y ears suspended, in the custody of

t he Mississippi Departm ent of Corrections and f ive y ears of supervised probation. T h esentences were ordered to run concurrently

. And Bevalaque was ordered to pay c ourt costs

of $413 and a f

ine of $50,000 on each count, but t he circuit co u r t s u spended the f ine in Counts II through VI. The judgm ent of conviction was f

iled on Decem

b er 12, 2011. ¶2. Bevalaque f

i led a m otion f

or postconviction r e l i e f ( P C R ) o n Decem ber 12, 2014, claim ing (1) his guilty plea w as not knowing or voluntary , and (2) he receive d i n e f f e c tive assistance of counsel. The circuit court dism issed Bevalaque’s P C R m otion w ithout a hearing. Bevalaque tim ely appeals. STANDARD OF REVIEW ¶3. A circuit court m ay dism iss a P C R mo t i o n w ithout a hearing “if it plainly appears f rom the f ace of the m otion, any annexed exhibits and the prior proceedings i n the case that the m ovant is not e ntitled to any relief .” Thomas v. State , 159 So. 3d 1 212, 1214 (¶4) (Miss. Ct. App. 2015) ( quoting Miss. Code An n . § 99-39-11(2) (Rev. 2015)). W hen reviewing a denial of a PCR m otion, we will only disturb the c ircuit court’s f actual f indings if they are clearly erroneous. Id. DISCUSSION I. Know ing and Voluntary Plea ¶4. In h is f

irst issue, Bevalaque claim s his guilty plea was entered i nto unknowingly and involuntarily

. He argues that because of his m ental illness a nd his prescribed m edications, he was unable to com

prehend h i s rights, the nature of the c h a r g e s a g a inst him , and the consequences of

his plea. ¶5. However, the circuit c ourt questi o n e d B e v a l a q u e a b o u t h i s me ntal illness and

2prescribed m edications:

Q: Are y o u

under the inf

luence of a n y

drugs or alcohol? A: No, sir. Q: Have y ou ever been treated f o r any m ental illness or disorder? A: Yes, sir. Q: W hat was that? A: Manic depression, and a l s o ma nic depression here while I’ve been incarcerated. Q: W hat kind of

m edication are y ou taking? A: Six hundred m illigram s of lithium per day , and thirty m illigra ms of Prozac. Q: Did y o u

read and sign y our petition to enter a guilty plea? A: [ Pause]. Yes, sir. Q: . . . Do y ou understand every thing in it? A: Um m , y es, sir. ¶6. Then the circuit court thoroughly questioned Bevalaque about the waiver of certain rights—including the r ight to trial by jury , the right t o conf ront w itnesses, and the right to protection against self

-incrim ination; the charges against him

— i ncluding the elem ents of the crim e; and the c onsequences of his guilty plea—includin g the m inim um and m axim

um sentences and f

ines. ¶7. Bevalaq u e a l s o a r g u e s h i s a t t o r n e y c o e rced him into entering t he guilty plea. However, during t he plea hearing, Bevalaque was questioned about the voluntariness of his

3plea: Q: Have any t hreats b e e n ma d e against y ou or has there been any use of f orce or i ntim idation that m ight have cause d y o u to change y our plea f rom not guilty

to guilty ? A: No, sir. Q: Have any prom ises or h ope of reward been m ade to y ou in return f or y our changing y our plea f rom not guilty

to guilty ? A: No, sir. Q: Af t er y our discussions with y o ur attorney , are y ou the one that decided to plead guilty ? A: Yes, sir. Q: Are y o u

telling the court that y ou’re f r eely and voluntarily

adm itting y our guilt to the crim es y ou are pleading guilty to? A: Yes, sir. ¶8. Thus, we f

ind the plea transcript shows Bevalaque’s guilty p l e a w a s k n owing and voluntary

. See id. at 1 216 ( ¶12) (f inding “[ s]tatem e n ts m ade in open court under o ath ‘carry

a strong presum

ption of veracity ’”). W hile “an a t tack on a f acially correct plea m ay survive

sum m ary dism issal i f supporting af f idavits of other persons a r e a ttached,” Bevalaque attached no such evidence t o his PCR m otion. M itchener v State , 964 So. 2d 1188, 1194 (¶15) (Miss. Ct. App. 2007). This issue is without m erit.
II. Ineffective Assistance of Counsel ¶9. In h is second issue, Bevalaque claim s his counsel was inef f ective f or (1) f a i l i n g to

c o nduct any m eaningf

ul investigation, (2) f

ailing to ascertain whether Bevala q u e w a s

com petent to enter a guilty plea or assist in his own def ense, (3) f

ailing to properly advise

4Bevalaque of possible d ef enses, elem ents of the c rim e, or consequences of e ntering a guilty plea, and (4) coercing Bevalaque into pleading g uilty and agree i n g t o a disproportionate
sentence. ¶10. W e have already concluded that Bevalaque en t e r e d h i s g u i l ty plea knowingly and voluntarily

. “A voluntary guilty plea waives claim s of inef f ective assistance of counsel, ‘except insof

ar as the alleged inef

f ectiveness relates t o the voluntariness of the giving of the guilty plea.’” Thomas, 159 So. 3d at 1215 (¶10) (quoting Fortenberry v. State , 151 So. 3d 222, 225 ( ¶10) (Miss. Ct. App. 2014)). W hen a def endant pleads guilt y , a nd later asserts inef f ective assistance of couns e l , h e “m ust dem onstrate that his counsel’s ‘conduct proxim ately resulted in the guilty plea, and that but f o r counsel’s e r

rors, he would not have entered the plea.’” Id. (quoting Fortenberry , 151 So. 3d at 225 (¶11)). ¶11. But Bevalaque provides nothing bey o nd h is own assertions. See Ealey v. State , 967 So. 2d 685, 691 (¶18) ( Miss. Ct. App. 2007) (“It i s f irm ly established that m ere allegations

are insuf f icient to entitle a def

endant to an evidentiary hearing on a postconviction claim of inef f ective assistance o f counsel.”). Furtherm ore, Bevalaque’s assertions are contradicted by his prior sworn testim ony about his counsel’s representation. See Mitchener , 964 So. 2d

at 1194 (¶15) (holding t hat , w h ere a PCR m ovant’s assertions a re overwhelm ingly contradicte d by the “ unim p eachable docum entary evidence i n the record,” such as the

m ovant’s prior sworn testim ony , the court m ay conclude the allegations are a “sham ” and no hearing is required). This issue is without m e rit. ¶12. T H E J U D G M E N T O F T H E R A N K I N C O U N T Y C I R C U I T C O U R T DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.

5ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

IRVING AND G RIFFIS, P.JJ., BARNES, I SHEE, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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