IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

N O. 2015-CP-00830-COA

JAMES F. PUTNAM A/K/A JAMES FRANKLIN PUTNAM A/K/A JAMES PUTNAM A/K/A J. PUTNAM APPELLANT

v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 07/14/2015 TRIAL JUDGE: HON. LAW RENCE PAUL BOURGEOIS JR. COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: JAMES F. PUTNAM (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 10/25/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ. CARLTON, J., FOR THE COURT: ¶1. Jam es F

. Putnam appeals the Harrison County Ci r c u i t C o u r t ’ s o r d e r d e ny ing his

m otion f or postconviction relief (PCR). Putnam argu e s that his claim s f o r inef f ective

a s s istance o f counsel and illegal sentence are m eritorious claim s and show that h i s
f undam ental cons t i t u t i onal rights were violated. Putnam thus a sserts that since his assignm ents of error allege violations of his f undam ental constitutional r ights, the trial court
erred in f indings t hese claim s procedu r a l l y b a r r e d

. Putnam f urther claim s that at the pleahearing, the State f a iled to of

f er f acts in support of the t rial court accepting Putnam ’s guilty plea. Finding no error, we af f irm the trial court’s denial of Putnam ’s PCR m otion.

FACTS ¶2. On Decem

b e r 18, 1 997, Putnam pleaded guilty t o a rm ed robbery , unlawf

ul possession
of a f irearm , and em

bezzlem ent. T he record ref lects that at h is g uilty

- plea hearing, Putnam

a d m itted t o entering a n Eckerd D rugs in Gulf port, Mississippi, and walking to the back o f
the s tore. Once Putnam s aw the pharm acist, Putnam pulled out a gun and “pointed it in [ the pharm acist’s] g e neral direction.” P utnam claim ed that he then stated “Hello, s w eetheart,”
put away t he weapon, and walked back out of t he store. W hen a sked by the trial court if he

t ook a ny thing, Putnam responded, “No, y our honor.” P utnam adm itted that when h e f i r s t
entered the store, “[ his] i ntentions were to rob t h e store[ ,]” but then he changed his m ind. ¶3. The t rial court s entenced Putnam , as a habitual of f ender, to s erve twenty y e ars in the

c u s t ody of the Mississippi Departm ent of Corrections (MDOC) f or the arm e d-robber y charge, o n e y ear in t he custody of the MDOC f or t he unlawf

u l-possession-of

-a-f irearm charge, and f

ive y ears in the custody of the M DOC f or t he em bezzlem ent charge. The trial

court o rdered these sentences to run concurrently , f or a total of t wenty y ears to b e s e r v e d.
The trial court f

urther orde red these s entences to run concurrently with a f ederal sentence

Putnam was already

serving at the tim e. ¶4. P u t n a m t im e ly f

iled his f irst PCR m o tion in which he clai me d t h a t h e r e c e i v e d
inef f ective assistance of c ounsel and that his “indictm ent to the charge of arm ed r obbery was
invalid

. . . because he was initially charged with a lesser crim e . . . [ and] because he never

2actually t ook and carried away the property o f another.” Putnam v

. State , 877 So. 2d 468,

470, 473 ( ¶¶6, 22) (Miss. Ct. App. 2003). Af ter reviewing Putnam ’s PCR m otion, the trial

court “issued an order vacatin g t h e habitual of f ender enhancem ent with regards to the

em bezzlem e nt and arm e d robbery charges” and “vacated t he f i rearm c harge altogether.” Id.

Af ter an e videntiary hearing on the issue of whether Putnam ’s plea w as i nvoluntary , the trial

court den i e d P u t n a m ’s PCR m otion and f ound that h is guilty plea w as k nowingly , intelligently , and voluntarily entered. I d

. Putnam appealed t he trial court’s denial of his PCR

m otion. On appeal, this C ourt af f irm ed the trial court’s d enial a nd f o und that P utnam ’s
indictm ent was valid. Id

. a t 474 (¶29). In so doing, t his Court explained that, “ [ a ]ccording

to statute, a person can be convicted of a r m ed robbery while attem pting to com

plete the
crim e.” Id

. at 4 71 (¶10); see Miss. Code A nn. § 97-3-79 ( Rev. 2014). This Court then
determ ined that Putnam ’s indictm ent p roperly tracked t he l anguage of the arm e d-robbery

statute. Id. ¶5. Regarding Putnam ’s inef f ective-assistance-of

-counsel claim , this Court f ound:

Putnam has f

ailed to m eet the requirem ents under Strickland [ v. W ashington , 4 6 6 U.S. 668, 687 (1984)]. O f all of the alleged errors of c o unsel, P u t n a m only applies the Strickland test to his counsel’s f ailure to inf

orm him as to the requirem ent that a person m ust t ake and carry a way t he property of another in order to be convicted of arm ed robbery . As noted above, this requirem ent is unnecessary

. T he law in this state allows f or a conviction of arm e d robbery in circum stances where the def endant has attem

pted the crim e. Suc h w a s the
s i t u a t i o n i n the present c ase. It is im p ossible f or Putnam to prove that the absence of this advice f

rom his attorney w ould have af f e cted the outcom e at trial.

Moreo ver, we f

ind Putnam ’s claim that h e received n o assistance of counsel at the evidentiary hearing to be without m erit. First, “[ a] crim inal def endant has neither a state nor a f ederal constitutional right to appoint e d c ounsel in

3post-conviction proceedings.” Moore v. State , 587 So. 2d 1193, 1195 (Miss.

1991) ( c i t i ng Pennsylvania v. Finley , 481 U.S. 551

. . . (1987)). The Mississippi [ Unif

orm Postconviction] Collateral Relief Act [ (UPCC R A )] states that a j udge m ay appoint counsel f o r a qualif

ied petitioner. Miss. Code Ann. § 99-39-23(1) (Rev. 2000) . .

. . I n o ther words, it is within the judge’s discretion. Second, the record indicates that the trial judge notif i ed Putnam ’ s attorney at the tim e regarding the hearing. As n o t e d above, this hearing took place telephonically due to the f act that Putnam was detained in a f e d eral prison in Pennsy lvania. . . .
The transcript f

rom t he h ea r i ng states that Putnam initiated the hearing t wo hours early because of tim e constraints at the f ederal prison along with a m istaken belief

about the tim e zone dif

f erential between the two states. The trial j udge notif

ied Putnam of this m istake. T h e t r i a l j udge then s pecif i cally asked Putnam if he still wished to proceed despite t h e f act that he was t wo hours ahead o f schedule. Putnam then proceeded t o present h is claim s over the telephone. W e f

ind this issue to be without m erit.
Id . at 473-74 (¶¶24-27). ¶6. The record ref

lects that since the den i a l o f h i s f i r s t P C R mo t i o n , Putnam has challenged h is conviction and sentence at least two additional tim es. See Putnam v. Epps , 63 So. 3d 547 (Miss. 2011); Putnam v. Epps , 963 So. 2d 1232 (Miss. Ct. App. 2007). ¶7. Putnam f

iled t he c urrent PCR m o tion on May 8, 2012, challenging only h i s a r me d

robbery conviction and sentence. 1 The record ref lects that over the next three y ears, Putnam
f iled num erous additional am endm ents and m otions regarding h is May 8 , 2012 PCR f iling.

On J uly 14, 2015, the trial court denied Putnam ’s P CR m otion af ter f inding the m otion
tim e-barred, a s u c c e s s i ve-writ, and w ithout m erit. Putnam n ow appeals, arguing that his

1 T h e reco r d co n tain s an o r d er f ro m th e M ississip p i S u p rem e C o u rt g ran t in g P u tn am leav e to f ile h i s P C R m o tio n

. T h e o rd er states: “A f ter d u e co n sid eratio n , t h e p an el f in d s th at th ere h as b een n o d irect ap p eal o f P u tn a m ’s co n v i ctio n an d sen ten ce.”
4claim s f

or inef f ective assistance of counsel and illegal sentence are me r i t orious claim s showing that h is f

undam ental constitutional rights were violated. Putnam thus asserts that
since his assignm e nts of error allege v iolations o f his f undam ental constitutional rights, the
trial court erred in f

indings these claim s procedurally barred.

STANDARD OF REVIEW ¶8. Wh e n r e v i e w i n g a t r i a l court’s sum m ary dism issal of a PCR m otion, this Co u r t

em ploy s a clearly -erroneous standard of review. Jones v. State , 1 74 So. 3d 9 0 2 , 9 0 5 (¶8) (Miss. Ct. App. 2015). H owever, when q uestions o f law are raised, we em ploy a de n ovo
standard of review. Id

. Mississippi Code Annotated section 99-39-11(2) ( R ev. 2015) provides: “If it plainly appears f r om the f ace of the mo t i o n, a ny annexed exhibits and the prior proceedings in the case that the m ovant is not entitled to any r elief , t he judge m ay m ake
an order f or its dism issal and cause the petitioner to be notif ied.” ¶9. “This Court will r everse the sum m ary dism issal o f a mo t i o n f or P CR i f the m otion
presents a claim procedurally alive substantially showing denial o f a state o r f ederal right.”
Fluker v. State , 170 So. 3d 471, 473 (¶7) (Miss. 2015) (internal quotation m arks om itted).

DISCUSSION ¶10. Putnam argues t hat at his plea hearing, the State f a iled to of f er f acts in support of

his guilty plea to the charge of a rm ed r obbery

. Putnam claim s that w ithout e v idence of a request

or dem a n d f

or m oney , his conduct f

ails t o show an overt act in f urtherance of attem

pting the
crim e of arm ed robbery a s required f or a co nviction f

o r that of f e nse. As a result, Putnam

argues t hat the t rial court erred in accepting hi s g u ilty plea without any f actual basis in

5support of the conviction, and thus Putnam received an illegal sentence. Putnam also claim s

that he could have easily b een charged with at t e mp ted aggravated a ssault or various other
lesser of f enses since he allegedly never m ade a req u e s t or dem and f or m oney

. Putnam
f urther argues that he was denied ef f ective assistance of c o unsel. ¶11. Unif

orm Rule of Circuit and County Court 8.04(A)(3) provides that “[ b]ef ore the trial

court ma y a c c e p t a plea o f g uilty , the court m ust determ ine that t he plea is voluntarily and intelligently m ade a n d t h a t there is a f actual basis f

or the plea.” W e recognize that “[ a]
suf f i cient f actual basis requires a n evidentiary f oundation in t he record which i s suf f iciently specif ic to allow the court to determ ine t hat the def endant’s conduct was within the am bit of
that de f i n e d a s c rim inal.” Smith v. State , 86 So. 3d 276, 280 (¶11) (Miss. Ct. A pp. 2012) (citations and quotations om itted). ¶12. At the Decem

ber 1 8, 1997 plea hearing, the record ref lects t hat t he prosecutor m ade

no prof f er of the f acts of the crim e. Instead, the t rial court asked Putnam to “tell [ the court]
about the arm ed robbery [ .]” P utnam then gave a recitation of the f acts u n d e rly ing the
of f ense. As stated, the pl e a - h e a r i ng t ranscript ref lects that at his plea h earing, Putnam
adm itted to entering an Eckerd Drugs in Gulf port and walking to the back of the store. Once

Putnam saw the pharm acist, Putn a m pulled out a gun and “pointed it in [ the pharm acist’s] general direction.” Putnam claim ed t hat he t hen s tated, “Hello, s weetheart,” put away the

weapon, and wal k e d o u t o f the store. W h en asked by the trial court if h e took any thing,

Putnam responded, “No, y our honor.” Putnam adm itted to the t rial court that when he f irst
entered the store, “[ his] intentions were to rob the store[ ,]” but then he c hanged his m ind.

6The trial court asked the prosecutor whether he needed any other i nf orm ation o n the arm ed robbery , and the prosecutor r esponded, “No, y our honor.” The record ref lects that P utnam ’s plea petition also contained a sim ilar r ecitation of the f acts that he provided at the p l e a hearing. 2 Putnam argues that the r ecord f ails to s upport a f

a ctual basis f

or h is g uilty plea to

arm ed robbery , and h e argues that the sentence im posed was theref

ore illegal and the legal
advice he received was inef f ective. ¶13. Mississippi C ode Annotated sect i on 99-39-5(2) (Rev. 2015), part of the UPCCRA, provides the tim e-bar f

or PCR m otions:

A m otion f

or relief under this article shall be m ade within three ( 3) y ears af ter the tim e in which the petitioner’s direct appeal is ruled upon b y the Suprem e Court of Mississippi or, in case no appeal is taken, within three (3) y ears af ter the tim e f or t aking an appeal f

rom the judgm ent o f conviction or sentence h as expired, or i n case of a guilty plea, within three (3) y ears af ter entry o f the judgm ent of conviction. Excepted f rom this three-y ear s t atute of lim itations are those cases in which the petitioner can dem onstrate either: (a)(i) That there has been an intervening d e c i s i o n of the Suprem e Court of ei t h e r t he State of Mississippi or the U nited States w hich w ould have a ctually adversely af f ected the outcom e of his conviction o r s e ntence o r that he has e vidence,

2 A lth o u g h P u tn am

d o es n o t raise th e v o lu n tarin ess o f h i s g u ilty p lea in th e p resen t P C R m o t io n , w e n o te t h at o n ap p eal o f P u tn am ’s p rio r P C R

m o tio n , th is C o u rt f

o u n d th at P u tn am ’ s g u ilty

p lea w as v o lu n tarily , in tellig e n tly , an d k n o w in g ly m ad e:
In th e p r esen t case, th e r eco rd ref lects t h a t P u tn am w as in f o rm ed o f th e ch arg es ag ain st h im , th e co n seq u en ces o f p lead in g g u ilty an d th e p o s s i b le
sen ten c e to b e im

p o sed

. A t th e p lea h e arin g , P u tn am stated th at h is in ten t w as to ro b th e sto re. P u tn a m stated t h at h e w a s , i n f act, actu a lly g u ilty o f
c o mm ittin g an arm ed ro b b ery

. In a d d itio n , P u tn a m stated th at h e h a d n o c o m p lain ts r eg ard in g h is leg al rep resen tatio n

. We f in d P u tn am ’s a r g u m e n t th at h is p lea w as in v o lu n tary to b e w ith o u t m erit.

P u tn a m , 8 7 7 S o . 2 d at 4 7 2 (¶1 5 ).
7not reasonably discoverable at the t im e of t rial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a d if f erent result in the conviction or sentence; or (ii) That, even if the petitioner pled guilty or nolo contendere,
or conf essed or adm itted t o a c r i me, there exists biological evidence not te s ted, o r, if previously tested, that can be subjected to ad d i t ional D NA testing that w ould provide a reasonable likelihood of m ore probative results, a n d that testing would dem onstrate by reasonable p robability that the petitioner would n ot have been convicted o r would h ave received a lesser sentence if f

avorable results had been obtained through such f orensic DNA testing at the tim e of the original prosecution. (b) Likewise excepted are those cases in w hich the p e t i t ioner claim s that his sentence has expired or his probation, parole or conditional r elease has been unl a w f u lly revoked. Likewise excepted are f

ilings f or post-conviction relief i n c a pital cases which shall be m a de within one (1) y ear af ter conviction. ¶14. Mississippi Code Annotated section 99-39- 2 3 ( 6 ) ( R e v
. 2015) a lso bars successive

PCR m otions:
The o rder as provided in subsection (5) of this section o r any o rder dism issing the petitioner’s m otion or otherwise deny ing relief under this article is a f i nal judgm ent and s h all be conclusive until reversed. It shall be a bar to a second
or successive m otio n u n d e r this article. Excepted f rom this prohibition is a m otion f i led under Section 99-19-57(2), raising t he issue o f t h e c onvict’s supervening m ental illness bef ore the exe cution o f a s entence of d eath. A dism i ssal or d enial of a m o t i o n r e l ating t o m ental illness under Section 99-19-57(2) s h all be r es judicata on the issue and shall likewise bar any second or successive m o tions on the issue. Likewise e xcepted f rom this prohibition
are those cases in which t he petitioner can d em onstrate e ither t hat there h as been an i ntervening decision of the S u p r e me C ourt of either t he State of Mississippi or the United States which would have actually adversely af f ected the outcom e of his conviction or senten c e or t hat he h as evidence, not
r e a s o n a b l y discoverable at the tim e of trial, w hich i s of such nature that i t would be practically conclusive that, if i t had been introduced at trial, it w ould have caused a d if

f erent result in the conviction or sentence. Likewise excepted
are those cases in which the petitioner c laim s that his sentence has expired or

8his probation, parole o r conditional release has been unlawf ully revok e d. Likewi s e e xcepted are those cases i n which the petitioner has f iled a prior petition and h a s r e q u ested DNA testing u nder this article, provided the petitioner a sserts new or d if f erent grounds f

o r relief related to DNA t esting not previously presented or the availability of m ore advanced DNA technology

. ¶15. The petitioner “bears the b urden of proving by a preponderance of the e v idence that
his claim s are not barred as s uccessive writs.” W illiams v. State , 110 So. 3d 840, 843 (¶13) (Miss. Ct. App. 2013). “Our case law has repeatedly held that once a prisoner’s claim s are
tim e[ -]barred, they m

ust f all into one of t he enum erated exceptions to rem ain viable.” Austin

v. State , 863 So. 2d 59, 61 (¶6) (Miss. C t. A pp. 2003); s ee also Salter v. State , 184 So. 3d
944, 950 (¶22) ( M iss. Ct. App. 2015). Errors a f f ecting f undam e ntal constitutional rights are

e x c e p t ed f

rom procedural bars. Evans v. State , 115 So. 3d 8 79, 881 ( ¶3) (Miss. Ct. A pp

. 2013). ¶16. Although Putnam f iled the present PCR m otion in May 2012, m ore than thirteen y ears
af ter his entering his guilty plea, he a sserts that his i llegal-sentence claim constituted a
violation o f his f

undam ental c onstitution a l r i g h t s, and thus h is m otion should be excepted

f rom the procedural bars under Rowland v. State , 42 So. 3d 5 03, 506 (¶9) (Miss. 2010). W e recognize that “errors af f ecting f undam ental constitutional rights are excepted f rom the

proce d u ral bars of the UPCCRA.” I d. at 507 (¶¶9, 12). However, “the suprem e court has

not held that a n i nef

f ective-assistance-of

-counsel claim invokes a ‘ f undam ental right’ that
circum vents all procedural bars that apply to P CR petitions.” Salter , 184 So. 3d a t 9 50 (¶22) (citing Riley v

. S

t ate , 150 So. 3d 138, 1 40 (¶8) ( Miss. C t. App. 2 014)). This Court has acknowledged the f

our ty pes of f u ndam ental rights f

ound t o survive PCR procedural bars:

9“(1) the right against double jeopardy ; (2) the right to b e f ree f r om an illegal s e n t e n c e ; (3)
the right to due process a t sentencing; and (4) the r ight not to b e subject t o e x post f a c t o
laws.” Id. ; see also Jones v. State , 174 So. 3d 902, 907 (¶12) (Miss. Ct. App. 2015). ¶17. As stated, we acknowledge that Putnam r aised a n i n e f f ective-assistance-of

-counsel
claim in a prior PCR m o tion wherein he a lleged, am ong other errors, that “his attorney f ailed

to investigate a nd inf

o r m him as to the elem ents of arm ed robbery .” Putnam , 877 So. 2d at
473 (¶22). Putnam argu e d t h a t “ h a d his counsel advised him that the taking and carry ing

away o f the personal p roperty o f another was a required elem ent of arm e d r obbery , he would
have not pled guilty

. ” I

d

. O n appeal, t his Court f ound that Putnam ’s allegation of error
lacked m e rit. Id

. at 474 ( ¶27). This Court ex p l ained t hat M ississippi law “allows f or a
conviction of arm ed robbery in circum stances where the def endant has attem

pted the crim e.”
Id

. at 473 (¶24). Thus, it was unnecessary f or Putnam ’s counsel to advise o f an unnecessary
elem ent, and this C ourt f

ound that Putnam

could not “prove that the absence of this advice

f rom his attorney would have a f f ected the outcom e at trial.” Id .; s ee Strickland , 466 U.S. at
6 8 7

. A s a r e s u l t , t

h i s C ourt d eterm ined that Putnam ’s inef f ective-assistance-of

-counsel clai m
lacked m erit. Putnam , 877 So. 2d at 474 (¶27). ¶18. Accordingly , w e f

ind Putnam ’s inef

f ective-assistance-of

-counsel claim p rocedurally
barred. W e now turn to exam ine Putnam ’s rem aining claim of an illegal sentence. ¶19. In S

mith v. State , 149 So. 3d 1027, 1031 (¶10) ( Miss. 2014), t he suprem e c ourt held:

“To deny relief f

or a f undam ental-rights violation brought to our atte n t i o n i n a successive

PCR [ m otion] would ignore the serious due-process concerns underly ing the

1 0f

undam ental-rights exception.” The S mith court f

urther reiterated that “ neither the com m on
law nor our own constitutional law applies the d o c t r i n e of res judicata to constitutional
claim s.” Id . at (¶11). ¶20. In Fluker , 170 So. 3d a t 4 7 5 (¶11), the suprem e c ourt explained: “Although errors
af f ecting f undam e ntal constitutional ri g h t s a r e excepted f rom the procedural bars of the

UP C C R A, m erely asserting a constitutional-right violation is i nsuf f icient to overcom e the procedural bars.” (Internal citations and quotation m arks om itted). “There m ust a t l e a s t

appear to be som e basis f

or the truth of the claim bef ore the [ procedural bar] will be waived.”
Id . (quoting Means v. State , 43 So. 3d 438, 442 (¶11) (Miss. 2010)). ¶21. As stated, the record ref lects that Putnam asserts his illegal-sentence claim a rises f r om
his conviction a nd sentence f or arm ed robbery

. As discussed, P utnam m ore speci f i c a l l y

m aintains that without a request or dem and f or m oney , his c onduct f

ails to constitute an overt

act in f u r t h e r a n c e of attem

pting the c rim e of arm e d robbery

. Putnam asserts that the trial

court erred i n accepting his guilty plea without any f actual basis in support o f the conviction,
and t hus Putnam received an illegal sentence. 3 In support of his claim , Putnam argues that

3 We ack n o w l ed g e th at th e reco rd , as w ell as th is C o u rt’s p rio r o p in io n , sh o w s th at P u tn am w as in d icted an d p led g u i lty to “w i llf u lly , u n law f

u lly a n d f elo n io u sly attem

p t[ in g ] to t ak e an d carry aw ay f

r o m th e p resen c e an d ag ain st th e w ill o f R o b ert E arl William so n , p erso n a l p ro p erty

. . . b y p u ttin g th e said R o b ert E a rl William s o n in f e ar o f im m e d i ate in

j u ry to h is p erso n , b y th e ex h ib itio n o f a d ead ly w eap o n , to w it a h an d g u n [ .] ” A lth o u g h P u tn am d o es n o t raise th e v o lu n tarin ess o f h is g u i lty p lea in t h e p resen t P C R m o t io n , w e reco g n ize th at o n r ev iew o f P u t n am ’s p rio r P C R m o tio n , th i s C o u rt f o u n d th a t P u tn am ’s g u ilty p lea
w a s v o lu n tarily , in tellig en tly , an d k n o w i n g ly m ad e:
In th e p resen t case, th e reco rd ref lects th at P u tn am w a s in f o rm ed o f th e ch arg es ag ain st h im , th e co n se q u e n c es o f p lead in g g u ilty a n d th e p o s sib le
sen ten c e to b e im

p o sed

. A t th e p lea h earin g , P u tn am stated th at h is in ten t w as

1 1t h e e v i dence was insuf f icient to convict him of arm ed robbery

. However, “[ b]y pleadi n g guilty , a n of

f ender waives a claim that there was insuf f icient evidence to f

ind h im gui lty .” Stamps v. State , 1 5 1 So. 3d 248, 255 (¶19) (Miss. C t

. A pp. 2014). M oreover, the plea colloquy shows that Putnam a dm itted, as a part of the f actual basis of his plea, that h e pointed

a g un in the pharm acist’s direction and that he intended to rob the store. Precedent ref lects
that evidence of deadly f

orce and threatening deadly f orce is s uf

f icient to place o ne in f

ear.
See Harper v. State , 434 So. 2 d 1367, 1 368 (Miss. 1983); Evans v

. State , 957 So. 2d 430, 436 ( ¶19) (Miss. Ct. App. 2007). W e thus f i nd that this f

a ctual basis f

or Putnam ’s guilty plea
suf f i ciently supports his conviction f or arm ed robbery

. See Miss. Code Ann. § 97-3-79. ¶22. In Putnam , 877 So. 2d at 471 (¶¶8-10), P utnam m ade a s im ilar argum ent under the

c l a i m of a f

atally def ective indictm ent. In addressing Putnam ’s claim on the m erit s , t h i s
Court held:

As to Putnam ’ s s econd alleged error, we a lso f ind it to be without m erit. Unif orm Circuit a nd County Court Rule 7.06 requires t h a t “the indictm ent upon which the de f

e n d ant is to be tried shall b e a plain, concise and def inite written statem ent of the essential f acts constituting the of

f ense charged and shall f u lly notif y t h e def endant of the nature and cause of the accusation.” Likewise, it is w ell s ettled that “every f act which is a n elem ent in a p rim a f acie case of guilty m u s t be stated in the indictm ent.”
The i ndictm ent states that Putnam “did willf ully , unlawf

u lly and f eloniously
a t tem pt to take and carry away f rom the presence and against the wi l l o f Robert Earl W illiam son, personal property

. . . by putting the said Robert Earl

to ro b th e sto re. P u tn a m stated t h at h e w a s , i n f act, actu a lly g u ilty o f
co m m ittin g an arm ed ro b b ery

. I n ad d itio n , P u t n am stated th at h e h ad n o c o m p lain ts r eg ard in g h is leg al rep resen tatio n

. We f in d P u tn am ’s a r g u m e n t th at h is p lea w as in v o lu n tary to b e w ith o u t m erit.

P u tn a m , 8 7 7 S o . 2 d at 4 7 2 (¶1 5 ).
1 2W i lliams o n in f ear of im m ediate injury to his person, by the exhibition of a deadly weapon, to w it a handgun, contrary t o the f orm of th e s t a t u te in such
cases m ad e and provided, and a gainst the peace and d ignity o f the State of Mississippi.” Moreover, the language o f the indictm ent tracks the statute. Under Mississippi Code A nnotated [ s ]ection 97-3-79

. . . , “every person w ho shall f e loniously take o r attem

pt to take f

rom the p erson or f

rom the presence the personal property of a nother and against his will by violence to his person or by putting such person in f ear of im m ediate injury to h i s p e rson by the exhibition of

a deadly weapon shall be guilty of robbery . . . .”

Putnam , 877 So. 2d at 471 (¶¶8-9) (citations om itted). ¶23. This Court concluded: According t o statute, a pe r s o n can be convicted of arm ed robbery while attem pting to com

plete the crim e. The language i n the indictm ent m i rrors this notion. The indictm ent against Putnam f or the c rime o f a r m ed robbery is valid. The trial court had the appropriate subject m atter jurisdiction.
Id. at ( ¶10). See Miss. Code Ann. § 97-3-79 ( “Every person who s hall f eloniously take or
attempt to take f

rom the person . . . the personal property of another and against his will . .

. by putting such person in f ear of im m ediate injury t o his pers o n b y t h e e x h i b i tion of a deadly weapon shall be guilty

of robbery .” (Em

phasis added)). ¶24. Upon review, we f ind no reason to rule dif

f erently on Putnam ’s claim a t this tim e. W e
theref ore af f irm the trial court’s denial of Putnam ’s PCR m otion. ¶25. THE JUDGM E N T O F T HE HARRISON C OUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DENYING T H E MOTION FOR POSTCONVICTION RELIEF IS A FFIRMED. ALL COSTS OF THIS A P P E A L ARE ASSESSED TO HARRISON COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, J A M ES, WILSON AND GREENLEE, JJ., CONCUR.

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