IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-CP-01039-COA THOMAS J. HOOGHE A/K/A THOMAS HOOGHE A/K/A THOMAS JAMES HOOGHE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 07/07/2016 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: THOMAS J. HOOGHE (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 10/03/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. IRVING, P.J., FOR THE COURT: ¶1. Thom as Hooghe a ppeals t he Madison County C i rcuit Court’s sum m ary denial and dism issal of his m otion f

or p ost-conviction relief (PCR). Af ter a consideration of the m any i s s u e s r a i sed by Hooghe, pro se, and discussed l ater in this opinion, we f i nd no er r o r . Theref ore, we af f irm

. FACTS ¶2. Many f

acts of this case were presented in Hooghe v. State , 187 S o . 3 d 6 8 2 , 8 2-83 (¶¶2-3) (Miss. Ct. App. 2 016). W e cite relevant f acts f rom that case and supplem ent them as needed.¶3. Hooghe was arrested on April 2 4, 2014, in connection with various thef ts t h at had occurred a t the Baptist Healthplex in Madison C o u n t y , M i ssissippi, where som eone had stolen patrons’ key s out of their gy m lockers and then used t hose key s to s t e a l a m otor vehicle and item s out of other v e hicles in the gy m parking lot. On June 1 2, 2014, a Madison County grand jury indicted Hooghe f or t hree counts, stem m ing f rom a com m o n schem e and plan occurring on A pril 22, 2014: (1) thef t of a m otor vehicle i n violation of Mississippi Code Annotated section 9 7-17-42 (Rev. 2006), as a subsequent m otor-vehicle- t hef t of f ender due to a previous conviction of the crim e i n T exas, and theref ore s ubject to enhanced punishm ent pursuant to Mississippi Code Annotated section 97-17-42(4); (2) g rand larceny f or the thef

t of a bicy cle and a sum of cash i n the am ount o f $500 or m ore, in violation of Mississippi Code Annotated section 9 7-17-41(1) (Rev. 2006); and (3) grand larceny f or the thef t of a sum of c ash i n the am ount of $500 or m ore, in violation of section 97-17-41(1). 1
On Septem

ber 1 8, 2014, Hooghe was i ndict e d f o r a n o ther single c o unt o f grand larceny : thef t, on April 19, 2014, o f a m en’s Rolex watch and a m o ney clip containing $500 or m ore, in violation of section 97-17-41(1). This s e cond i ndictm ent also c harged Hooghe as a habitual of

f ender in violation of Mississippi Code Annotated section 99-19-81 (Rev. 2015), due to a 2012 conviction of m otor-vehicle thef t in DeSoto County , Mississippi, and a 1996 conviction of

burglary in Ohio.

1 O f n o te is t h e f

act th at C o u n t s I an d II in v o l v e d p ro p ert y b elo n g in g t o Jo sep h A n th o n y H o u se, an d C o u n t III in v o lv ed p ro p e rty b elo n g in g to Jef

f ery C o x . 2¶4. On Septem ber 22, 2014, the circuit court c o nducted a plea hearing, wherein Hooghe entered a plea of

guilty to all f our of the charges against him . During the plea hearing, the State inf orm ed the court that it was abandoning the prosecution o f Hooghe a s a habitual and subsequent of

f ender, in exchange f

or his g uilty plea. On Septem ber 29 , 2 0 1 4 , the court sentenced him to a total of f orty -f ive y ears: f

if teen y e ars as a subsequent o f f e n d e r under

co u n t o n e f

or m otor-vehicle thef

t, ten y e ars under c ount two f or g rand larceny , ten y ears under count three f

or grand larceny , and ten y ears f or the second indictm ent’s single count of grand larceny , all to run consecutively

. ¶5. On Decem

ber 30, 2014, Hooghe, acting pro se, f i led an u nsworn PCR m otion in the circuit court, a lleging m

ultiple errors. On February 9 , 2015, he f iled a n am ended version of that PCR m otion, still unsworn. On March 4, 2015, the circuit court sum m arily dism issed Hooghe’s PCR m otion. O n March 29, 2016, this Court af f irm e d the circuit c ourt’s dism issal of Hooghe’s P CR m otion because it did not contain a sworn statem ent of f acts o r a verif

ied oath as required by Mississippi C ode Annotated section 99-39-9(1)(d) a n d (3) (Rev. 2015), but d id so without prejudice, s o that Hoog h e c o u ld f ile a p rocedurally proper m otion. Hooghe , 187 So. 3d at 683 (¶6). ¶6. On May 19, 2016, Hooghe f iled a new PCR m otion with a properly sworn statem ent of f acts a nd verif

ied oath a ttached. In this PCR m otion, Hooghe asserted the f o llowing bases f or p ost-convic t ion relief : (1) the State denied him prelim inary h earings; (2) his f irst indictm ent w as m

ultiplicitous; (3) both indictme n t s f a iled to allege the “proxim ate cause”

3elem ent of larceny ; (4) he w a s i l l e gally sentenced due to an am endm ent of the larceny

s t a t u tes; (5) the circuit c ourt was without jurisdiction to accept his guilty plea as t o t h e second indictm ent; (6) the auto-larceny statute under which h e was convicted is unconstitutionally vague; (7) t here was no f actual basis f

or his convictions; ( 8) he received inef f ective assistance of

counsel; and (9) these cum ulative errors prejudiced him

. Hooghe

m ade no m ention of t he argum ent he m akes on appeal, that his excessive sentence violated his right to be f

r e e f r o m c r uel and unusual punishm ent. O n July 7, 2016, the circuit court denied Hooghe’s PCR m otion. Hooghe tim ely f iled a notice of

appeal and was allowed to proceed in f

orm a pauperis. DISCUSSION ¶7. “W hen re v i e w ing a l ower court’s decision to deny a petition f or p ost[ -]conviction relief [ appellate courts] will n ot disturb the trial court’s f actual f indings unless they are f

ound

to be clearly erroneous. However, where questions of law are raised the applicable standard of review is d e novo.” Brown v. State , 731 So. 2d 595, 598 (¶6) (Miss. 1999) (citations

om itted). Mississippi Code Annotated section 99-39-23(7) (Rev. 2015) provides that postconviction relief shall n ot be granted unless a p e t i t i o ner proves by a preponderance of the evidence that he is entitled to such relief

. 1. Preliminary Hearing ¶8. Hooghe m aintains that he was wrongly deprived of prelim inary h e a r i ngs f or all charges brought against him , despite his repeated requests while i n c ustody

. Further, Hooghe

4contends that he w as denied his r ight t o due p rocess, as he was not served with the f irst indictm ent u n t i l J u l y 1 1 , 2014, nearly three m onths af ter his arrest, and he w as not served with the s e c o n d indictm e nt until Septem b er 18, 2014, f

ive m onths af

ter h is arrest. In
response, the State argues that Hooghe’s right t o a prelim inary hearing was waived once he had been indicted by a grand jury

. ¶9. Rule 6.05 o f the U nif orm R ules of Circuit and County Court Practice pro v i d e s , “A d e f e n d ant who has been indicted by a grand jury shall not b e entitled to a prelim inary hearing.” 2 “[ O]nce t he i ndictm ent occurs, even had a prelim inary hearing not been p rovided, that question becom es m oot.” Sanders v. State , 847 So. 2d 903, 907 (¶22) (Miss. Ct. App. 2003) ( citation om itted). “The indictm ent by a grand jury rem oves the purpose of the hearing and none need thereaf

ter be conducted.” I

d

. (citation om itted). A s H ooghe was f o r mally indicted b y t he M adison County Grand Jury , h is a rgum ent that he was denied a prelim inary hearing is without m erit. ¶10. Likewise, Hooghe’s argum ent that h e was denied his right to due process because of the length of t i m e between his arrest and his indictm e nts is without m erit. In Beal v. State , 118 So. 3d 162, 165 (¶9) (Miss. Ct. App. 2012), this Court held: The Due Process Clause of the Fif th Am endm ent would require dism issal of the indictm ent if it w ere shown a t trial that the pre-indictm e nt d elay i n this c ase caused substantial prejudice to the def endant’s rights to a f

air t rial and that the

2 T h e U n if

o rm R u les o f C ircu it an d C o u n ty C o u rt P ractice relatin g to crim i n al p ractice w ere recen tly su p e r s e d e d b y th e M ississip p i R u les o f C rim in a l P r o ced u re. T h e f o rm er ru les ap p ly h ere b ecau se th ey w ere in ef f ect d u rin g t h e p ro ceed in g s in H o o g h e’s case. 5delay w as an intentional device to g ain tactical advantage over the a ccused.

To determ ine if actual prejudice h as o ccurred, thre e f a ctors should be considered: t he l ength o f the delay , the reason f or t he delay , and the prejudice which the delay

m ay have caused the accused. (Internal citations and quotations om itted). Hooghe pleaded guilty to all charges a gainst him ; thus, there was no “substantial prejudice to [ his] rights to a f air trial.” Furtherm ore, Hooghe
p r e s ents no evidence to suggest that this delay “was an intentional device to gain tactic a l advantage over [ him ].” As such, we f ind no m erit to this issue. 2. Multiplicity in Indictment ¶11. Hooghe m aintains t hat his f irst indictm ent v iolated his right t o be f ree f rom m ultiple
p u n i shm ents f

or the sam e of

f ense, because it charged him f or three separate c o unts eve n though all counts stem m ed f rom the sa m e occurrence: thef t a t the Baptist H ealthplex in Madison, Mississippi, on April 22, 2014, at approxim ately 5:00 p .m . Hooghe contends that because the three counts were all part of a com m on plan a nd schem e, h e s h o uld o nly have b e e n c h arged with o ne count of larceny

. The S tate, in response, a r gues that Hooghe ’ s voluntary plea of guilty waived this argum ent. ¶12. “[ T]he entry of a knowing and voluntary guilty p lea wa i v e s all other def ects or insuf f iciencies in the indictm ent,” with only t wo exceptions: (1) “a guilty plea does not waive

an indictm ent’s f

ailure to charge an essential elem ent of the c r im e , ” a n d (2) a guilty plea “does not waive lack o f subject m atter j urisdiction.” J oiner v. State , 61 So. 3d 1 56, 159 (¶7) (Miss. 2011). The State points out that neither of these exceptions is at issue here. ¶13. Additionally , the Mississippi Suprem e Court has repeatedly held that the protection
6against double j eopardy is a f undam ental r ight, which is not subject to p r o c e dural bars. Rowland v. State , 42 So. 3d 5 0 3, 508 ( ¶14) (Miss. 2010) (citing G raves v. State , 969 So. 2d 845, 846-47 (Miss. 2007); Fuselier v. State , 654 So. 2d 519, 522 (Miss. 1995)). However, “[ c]haracterizing a constitutional right as ‘f u ndam ental’ does not m e an it is im possible to waive i t by p l e ading guilty .” Knight v. S tate , 1 92 So. 3d 360, 364 (¶13) (Miss. Ct. App. 2016). In Knight , this Court went on to specif y that certain d ouble-jeopardy claim s m ay be waived b y pleading guilty

. Id

. at 364-65 ( ¶¶13-15). Q u oting the United States Suprem e Court’s decision i n United States v. B roce , 488 U.S. 563, 5 76 (1989), t he Knight court held that “ prisoners who plead guilty to indictm ents that on their f ace described separate crim es essentially waive the right to cont radict t he adm issions inherent in their guilty pleas.

. . . Conscious waiver of d ouble jeopar d y is not required.” Knight , 192 So. 3d a t 365 (¶14) (internal quotations and citations o m itted). “Just as a def endant who pleads guilty to a single

count adm its guilt to the specif ied of f ense, so t oo d oes a d ef

endant w ho p leads guilty to two
counts w ith f

acial allegations or distinct of f e nses concede that he has com m itted two separate crim es.” Broce , 488 U.S. at 570. ¶14. Here, the indictm ent set f orth three distinct charges against Hooghe. Hooghe pleaded guilty to a ll charges, w ithout raising any a rgum ent regarding how the charges were organized

or d escribed in the i ndictm ent. As such, we f ind that w hen he pleaded guilty t o t he charges in the indictm ent that, on its f ace, described separate crim es, he waived the argum ent that he

now m akes—that he received m u ltiple punishm e nts f

or one of f e nse.

73. Sufficiency of Indictments

¶15. Hooghe argues that both indictm ents f ailed to set out the “proxim ate cause” elem ent of the grand-larceny counts. Hooghe goes on to a rgue t hat t he State f a iled t o prove how he

com m itted the alleged larceny

. W e are unable to discern exactly what H ooghe m eans by claim ing the indictm ents f ailed to set out t he “proxim ate cause elem ent” of the l arceny . W e

assum e he m eans that the indictm ents f ailed either to specif

y how he com m itted the of f enses

or to identif

y the e lem ents of the of

f enses. The State again argues that Hooghe’s v oluntary guilty plea waived this argum ent. As noted above, however, “a guilty plea does not waive an indictm ent’s f

a ilure to charge an essential elem e nt of the crim e . . . . ” Joiner, 61 So. 3d at 159 (¶7). W e brief

ly address the issue based on our perception of Hooghe’s argum ent. ¶16. Rule 7.06 of the U nif orm Rules of Circuit a nd County C o u r t P r a c t i ce 3 r equires an indictm ent to include, am ong other things, “ a plain, concise and def inite written statem ent of the essential f

acts constituting the of

f ense cha r g e d and [ that it] shall f ully notif y the def endant of the n ature a nd cause of the a c cusation.” At the tim e that Hooghe e ntered his guilty plea, Mississippi Code Annotated section 97-17-41 read as f ollows: Every person who shall be convicted of taking and carry ing a w ay , f eloniously , the personal property of another, of the value of Five Hundred Dollars ($500.00) o r m ore, shall be guilty of grand larceny , and shall be im prisoned in the Penitentiary f

or a term not exceeding ten (10) y e ars. The g r and-larceny counts in Hoog h e ’ s two indictm ents each s pecif y that Hooghe did

3 S ee su p r a n .2

. 8“wilf

u lly , unla w f

u l l y , f eloniously take, steal and carry away . . . the personal property of [ another]

. . . with t he inte n t t o p e r ma n ently deprive the owner thereof .” As such, these indictm ents set f

orth the essential elem ents of grand larceny

. The S t a t e i s n ot required to
prove h ow Hooghe m ay h ave com m itted the crim e, only that he did so bey ond a r easonable doubt. And because H ooghe entered a guilty plea, the State’s b urden to do so w as rem oved.
W e theref ore f ind no issue with the suf

f iciency of these indictm ents. 4. Illegal Sentencing ¶17. Hooghe argues that h i s sentence pursuant t o section 9 7-17-41 was illegal, because the

statute was am ended between the tim e that Hooghe w as arrested and the tim e t hat he w a s sentenced. Specif

ically , Hooghe ref

erences House Bill 585, passed on March 31, 2014, in which the m inim

um threshold value f

o r a charge of grand larceny w as increased f rom $500 of stolen personal property to $1,000. 2 0 1 4 M i s s . Laws ch. 457, § 1 5 (H.B. 585). In
response, the S t a t e c ontends that Hooghe f ailed to tim e ly o bject to his sentence, thereby waiving the m atter. The State also argues that Hooghe was sentenced unde r t h e c o r r e ct statute, pursuant to Missis s ippi caselaw (citing Flowers v. State , 3 5 So. 3d 516, 518 (¶5) (Miss. 2010), in which the Mississippi Suprem e Court held that “the statute in ef f ect at the tim e an of

f ense is com m itted is the one that m u st control the prosecution of the of f ense”). ¶18. W h ether pr o c e d u r a l l y barred or not, this issue is without m erit. Mississippi Code Annotated section 99-19-1 (Rev. 2015) provides:
No statu t o r y c h a n ge of any law af f e cting a crim e or its punishm ent or the c o l lection of a penalty shall af f ect or def

eat the prosecution of any c r i me 9com m itted prior to its enact me n t , or the collection of any penalty , whether

such p r o s e c u t i o n be instituted bef ore or af ter s uch enactm ent; and all laws def ining a crim e or prescribing its punishm ent, or f or the i mp o s i t i o n of p e nalties, shall b e c ontinued in operation f or the purpose of p rovidin g punishm e nt f

or c r i me s c om m itted under them , a nd f or collection o f such penalties, notwithstanding am endatory o r repealing statutes, unless o therwise specially provided in such statutes.
House B i l l 5 8 5 w a s passed on March 31, 2014; h owever, section 83 of the bill provides, “This act shall take ef

f ect and be in f

orce f rom and af

ter July 1, 2014.” 2014 Miss. Laws ch. 457, § 83 (H.B. 585). Thus, although the bill was passed bef ore Hooghe a l legedly com m itted the of f ense on April 22, 2 0 14, the am ended version of the statute was not y et in ef f ect. As such, Hooghe was properly sentenced under the f orm er version o f the statute, wherein $500

was the m inim

um threshold am ount of stolen personal p roperty f or a charge of grand larceny

. 5. Lack of Jurisdiction ¶19. Hooghe asserts that the circuit court “did not have jurisdiction to a ccept a guilty plea” with respect to his second indictm ent, on the b asis that it was never lawf ully s erved and no arraignm ent or prelim inary h earing was ever held. I n response, the State argues that Hooghe’s guilty

plea waived this argum ent a nd, alternatively , that the record indicates that Hooghe was served with the indictm e nt and waived arraignm ent. ¶20. Again, procedural bar notwithstanding, t h i s i ssue is w ithout m erit. The record includes a docum ent entitled “W aiver of Arraignm ent and Entry of P lea,” signed by Hooghe, wherein he a cknowledges service of the s econd indictm ent and waives arraignm e nt. Further,

as stated previously , the f a c t t h a t Hooghe received an indictm ent rem oves any entitlem ent

1 0to a prelim inary hearing that he m ay

have had. 6. Unconstitutional Statute ¶21. Hooghe m a intains that section 97-17-42, the auto-larceny statute under which he was convicted, is unconstitutional. In response, the State contends that Hooghe waived his right to this argum ent by f

ailing to raise it prior to f iling his PCR m otion. ¶22. Mississippi Code Annotated section 99-39-21(1) ( Rev. 2015) “prohibits a prisoner f rom raising certain issues in a PCR m otion if they should have been raised prior to f iling a PCR m otion, and f

ailure to raise these i ssues acts as a waiver.” Swilley v. State , 93 So. 3d 901, 904 (¶8) (Miss. C t

. App. 2012). “A valid guilty plea w aives the def endant’s right to

m ake certain constitutional challenges

. . . . ” I d. (quoting Battaya v
. State , 861 So. 2d 364, 366 (¶5) (Miss. Ct. App. 2003), in which this Court held that the d ef endant was barred f

rom bringing a claim that his rights w ere violated under t he Fourth Am endm ent af ter entering a guilty plea). The United States Suprem e Court explained in Tollett v. Henderson , 411 U.S. 258, 267 (1973): [ A] guilty p lea represents a break in the c hain of events which has preceded it in the crim inal process. W hen a crim inal def endant has solem nly adm itted in open court that he is in f

act guilty of the of

f ense with which h e is c h arged, he m any not thereaf

ter raise independent claim s relating to the deprivation of his constitutional rights that occurred prior to the entry of the guilty

plea. ¶23. Here, t he transcript of Hooghe’s plea hearin g r ef lects that he was f

ully inf orm ed of the charges against him and t he statutes h e was a ccused of violating. H ooghe f ailed to m ake
any objection to those s tatutes on the basis of their purported unconstitutionality

. As such,

1 1he is barred f rom raising this issue on appeal.
7. Guilty Pleas ¶24. Hooghe maintains that the circuit court abused its d iscretion in f ailing to determ ine whether there w as a f

actual basis suf

f icient to s ustain his convictions. Specif ically , Hooghe takes i ssue w i t h C o u nts I and I I of the f irst i ndictm ent, charging auto larceny and grand larceny , respectively , u nder which Hooghe was convicted f o r t a king b oth a vehicle and a bicy cle t hat was i n s i d e the vehicle. The State, in response, argues t hat Hooghe’s claim is

m aterially contradicted by t he r eco r d , p a r ticularly his adm i ssion of guilt during the plea hearing. ¶25. W e point out that w e h ave already a d dressed Hooghe’s argum ent with respect to

m ultiplicity in his indictm ent, and have f o und no violation in charging him wit h three separate counts because t hey were all part of a c o m m on schem e and plan. W e see no reason re-address this issue. ¶26. The r em a inder o f Hooghe’s argum e nt with respect to this issue has no m erit. “In order f or a guilty p lea to be accepted, t he record m ust c ontain enough that the court m ay say with conf idence the prosecution could prove t h e a c c u s ed guilty of the crim e charged.” Simoneaux v
. State , 29 So. 3d 26, 33 (¶20) (Miss. Ct. App. 2 0 0 9 ) (internal quotations and citation om itted). The record includes a s tatem ent by the Madison County police of f icer who arrested H ooghe , d e t a i l i n g the f act that Hooghe w as in t he a r ea o f the crim e and wearing sim ilar clothing to the suspect.

1 2¶27. The transcript of Hooghe’s plea hearing is included in the record. During the hearing,

the court read t o Hooghe the elem ents of each charge, and the State set f orth a f actual basis f or e a ch charge. The S tate represented that i t had video surveillance of Hooghe going in and

out of the locker room at the Baptist Healthplex on the evening t he crim es occurred, walking through the parking lot, and stealing a vehicle. Hooghe a greed that the S tate could prove the f actual basis o f each c harge b ey ond a r easonable doubt, and that it was m ore likely than not that he would be convicted of each charge if the m a tter proceeded to trial. Hooghe f urther testif i ed that the p robability of his conviction was greate r t h a n h i s acquittal, and that he wished t o take advantage of the plea bargain being of f ered by the S tate. W e theref ore f ind that this issue is without m erit. 8. Ineffective Assistance of Counsel ¶28. Hooghe asserts tha t h e received inef f ective assistance of counsel. Specif ically , Hooghe contends that, on Septem ber 22, 2014, he arrived at the courthouse f or his scheduled trial. However, f

i f teen m inutes bef

ore the trial was scheduled to begin, his court-appointed attorney inf

orm ed him f

or the f irst tim e that a second indictm ent had been h anded down by the grand jury , charging him with a single c o unt of grand l arceny , and that Hooghe was to be tried f or both indictm ents t hat d ay . 4 Hooghe argues that t his inf orm ation surprised him ,

4 H o o g h e m ain tain s t h at “ w h i l e [ h e ] h ad b een t o ld b y j ail staf f th at a d etain er h ad b een lo d g ed ag ain st h im b y th e R id g e lan d (M iss. ) P o lice D ep artm en t, t h e sp ecif ic ch arg e w a s n o t en tered (an d th u s u n k n o w n to h im u n til th at m o m en t).” H o o g h e f u rth er co n ten d s th at h e w r o te sev eral tim es t o th e R id g e lan d P o lice D ep artm en t to ask ab o u t th e n a tu re o f th e ch arg e; f

u rth er, H o o g h e h ad receiv ed a “N o t ice o f S ettin g ” o n e w e ek p r io r to S ep tem b er 1 3and that he pleaded with his attorney to se e k a n im m ediate continuance or severance.

However, according to Hooghe, his attorney stated that the judge would not a llow either and that the trial was going to com m ence right away . C onse q u e n tly , he pleaded g uilty to all charges against him

. In response, the State argues that Hooghe’s assertion is barred by his guilty plea. Alternatively , the State argues that H ooghe stated during his plea hearing that he was satisf

ied with his lawy er. ¶29. “A voluntary g u ilty plea waives claim s of inef f ective assistance of c ounsel except insof a r as the a lleged inef

f ectiveness relates to the v oluntariness of the giving of

the guilty plea.” Rigdon v
. S

tate , 126 S o. 3d 9 31, 936 ( ¶ 1 6 ) (Miss. Ct. App. 2 013) ( citations and quotations om itted). As Hooghe’s argum ent involves the voluntariness o f h is guilty plea, we address it here. ¶30. “T h e s t a n d a r d of review f o r claim s of inef

f ective assistance of counsel is the twoprong t est f

rom S trickland v. W

ashington , 466 U .S. 6 68, 687 (1984), w hich requires a showing that (1) counsel’s perf orm ance w as def

icient and (2) that the def

iciency prejudiced the def e nse.” D e l o a c h v
. State , 937 So. 2d 1010, 1011 (¶5) (Miss. Ct. App. 2006). The burden i s on the def

endant to prove both prongs. Id

. (citation om itted). For a d ef endant to challenge his g uilty plea on the basis of inef f ective a ssistance of c ounsel, “he m ust show that counsel’s errors proxim ately resulted in the guilty plea a n d, but f or counsel’s e rrors, he would

2 2 , 2 0 1 4 , n o tif

y in g h im th a t a p ro ceed in g h ad b een sch ed u l ed o n S e p tem b er 2 3 , 2 0 1 4 , in R i d g elan d Ju stice C o u rt. 1 4not have entered the guilty plea.” Id . (citation om i tted). ¶31. Hooghe presents insuf f icient evidence to show that he w as to be tried on both indictm en t s t h e s a me day

. Moreover, Hooghe stated during his plea hearing that he was satisf i ed with his lawy e r ’ s representation. Hooghe h ad am ple opportunity during his plea hearing to inf

orm the trial judge that he h ad b een told that his second indictm ent would be tried t hat day , despite h aving j ust received notice of it. However, H ooghe f ailed to m ention
any thing whatsoever pertaining to this argum e n t. As such, we f ind that Hooghe has f

ailed

to show that his c ounsel’s perf o r m ance was def

icient, o r that said d ef

iciency p rejudiced him

. 9. Cruel and Unusual Punishment ¶32. Hooghe was sentenced to serve a term of f orty -f ive y ears in the custody of MDOC; he m aintains that t his “de f acto lif e sentence” violated his Eighth Am endm ent right to be f ree f rom cruel and u nusual punishm ent. In response, the State argues that Hooghe waived this
argum ent by f

ailing to assert it at the tim e he entered his guilty plea. Further, the State points

to Hooghe’s signed plea p etition—wherein he acknowledged that the s t a t u t o ry m axim um punishm ent f

or his crim e i s f

orty -f ive y ears—in support o f its argum ent t h a t Hooghe understood the sentence that he was subject to receiving. ¶33. Hooghe f

ailed to a ssert this issue in h is PCR m otion, a nd raises it f o r the f irst tim e on appeal. For this reason, it i s procedurally b arred. However, we note that, “[ g]enerally , if a
sentence f

alls within t he lim its p rovided b y statute, it will n o t b e d isturbed on appeal.” Morgan v. State , 966 So. 2d 204, 206 (¶8) (Miss. Ct. App. 2007) (citation o m itted). During

1 5h i s p lea hearing, the trial judge explained to Hooghe that t he m axim um s entence f

or h i s crim es would be f

orty -f ive y ears. Hooghe stated that he understood. Hooghe also signed a plea petition explaining such. W e f ind no m erit to this issue. 10. Cumulative Error ¶34. Hooghe argues t hat the above cum u lative errors prejudiced him

. However, we f ind

no error. Hooghe has f

ailed to s atisf

y h is burden o f s howing t h a t he is entitled to postconviction relief by a preponderance of t he e vidence, pursuant to section 99-39-23. As such, we af f irm the circuit court’s denial of his PCR m o tion. ¶35. AFFIRMED. LEE, C.J., GRIFFIS, P.J., C A RLTON, FAIR, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. BA R N ES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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