IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-CP-00326-COA

GREGORY KENDALL ALLEN, JR. A/K/A GREGORY K. ALLEN, JR. A/K/A GREGORY ALLEN A/K/A GREGORY K. ALLEN APPELLANT

v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 02/14/2014 TRIAL JUDGE: HON. KATHY KING JACKSON COURT FROM W HICH APPEALED: JACKSON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: GREGORY KENDALL ALLEN JR. (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: STEPHANIE BRELAND W OOD NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED AND REMANDED FOR CORRECTION OF THE ORIGINAL SENTENCING ORDER – 04/14/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., ISHEE AND CARLTON, JJ. IRVING, P.J., FOR THE COURT: ¶1. The Jackson County Circuit Court sum m arily dism i ssed Gregory Allen’s m otion f or post-conviction relief (PCR). Allen, proceeding pro se, appeals and asserts: ( 1) he was unconstitutionally sentenced; (2) he was served with a def ective indictm ent; (3) his plea of guilty was involuntarily m a de; ( 4) he received inef f e c tive assistance of counsel; and (5) hewas denied a speedy trial.

¶2. W e a f

f irm t he o rder o f t h e c i r c u i t court deny ing s ubstantive relief

. However, we

rem and this case f

or correction of

the original sentencing order. FACTS ¶3. A l len was c harged w ith two c ounts of sexual bat t e r y f o r v a g i n a l l y a n d a n a l l y penetrating his six-y ear-old h a lf -s i ster. He was also charged w ith one count of touching a child f or l ustf ul purposes. He entered an agreem ent with t he S tate, wherein he a g r e ed to plead guilty to the two counts of sexual b attery , a n d the State agreed to dism iss Count III—the charge of touching a child f or lustf ul purposes. The c ircuit court a c cepted Allen’s plea, dism issed count three of the indictm ent, and sentenced Allen to two concurrent twenty

f ive-y ear term s, with thirteen y ears to serve and twelve y e ars of post-release supe r v i s ion (PRS), all in the custody

of the Mississippi Departm e nt of Corrections (MDOC). DISCUSSION ¶4. “In reviewi n g a trial court' s dism issal o f a [ PCR m o tion], our s tandard of review is well-[ settled]. W e w ill not disturb the trial court' s f actual f indings unless they

are f ound to be clearly erroneous.” W illiams v. State , 872 So. 2d 711, 7 12 (¶2) (Mi s s . C t

. A p p. 2004). “However, where questions of law are raised[ ,] the applicable standard of review is de novo.” Id. (quoting Pace v. State , 770 So. 2d 1052 (¶4) (Miss. Ct. App. 2000)). ¶5. Allen’s m ain a rgume n t f o r t h e f irst t hree issues on appeal stem s f rom the dism issal of C ount I II of the indictm ent. Allen argues that he c o uld not be cha r g e d f o r t h a t o f f ense under M ississippi Code Annotated section 97-5-23(1) (Rev. 2014) because h e was not above

2the age of

eighteen, as required by

the statute. Section 97-5-23(1) 1 states in pertinent part: Any person above the age of eighteen (18) y e ars , who, f or the purpose of gratif y ing his or her lust, o r i ndulg i n g his or her depraved licentious sexual desires, shall handle, touch or rub with hands or any part of his or her body or any m em ber thereof

, any c h i l d u n d er the age of sixteen (16) y ears, with or without the child’s consent, . . . shall be guilty of a f elony

. . . . W h ile it is true that A llen’s o riginal m ulti-count indictm ent included this charge, the circuit
court dism issed this charge in light of t he statute’s age requirem ent, leaving Allen f acing only
two c ounts, both being sexual battery

. The c o lloquy f rom the guilty -plea h earing conf i rm s this: STATE: Count III, Your Honor, is a f ondling charge. But, due to h is age, there is no statutory pr ovision f or a f ondling. So w e’d, at this tim e, ask that Count III be nol-prossed. COURT: O k a y . Mr. Allen, do y ou u nderstand those two charges o f

sexual battery ? In addition, Allen argues that he was ultim ately convicted of , and sentenced f

or, Count III, the count involving the touching o f a child f or l ustf ul purposes. He i s partially correct. He was not convicted of

Count III, as the sentencing transcript reveals: Court: S o, Mr. Allen, based upon y o ur pleas of g uilty to these two c harges of sexual battery , y ou are hereby sentenced to serve 25 y ears in the Mississippi Departm ent of Corrections on each charge. I will order those sentences to r un concurrently

. And I’m going t o o r der that y ou s erve 1 3 y ears of those sentences and the rem ainder of the tim e will be on post-release supervision. (Em phasis added). However, f o r som e unexplained reason, when the sentencing order was entered a f

ew day s later, it provided that Allen h ad been convicted of n ot only the two counts of sexual battery , b u t also Count III—touching a child f or lustf ul purposes—and was being

1 T h e title o f

th e statu te is “F o n d lin g ch ild

. ” 3sentenced f or all t hree counts. Theref ore, Allen is correct that the sentencing order does not ref lect what occurred during both the guilty -plea hearing and the sentencing hearing. ¶6. W h ile we do not f i n d t h a t A l l e n ’ s d e s c r i p t i o n o f t his error is proper—as an involuntary guilty plea, unconstitutional sentence, and def ective ind i c t m e n t—it is still an

error f or the sentencing order to ref lect that Allen h a d been convicted o f all three counts when the record clearly shows that the f ondling charge was dism i ssed. In W i llcutt v. State , 910 S o. 2d 1189, 1 196 ( ¶ 21) (Miss. Ct. App. 2005), this Court f ound that a sentencing order d i d n o t r e f

l e ct a sentence that was announced during a hearing on a m otion to vacate a judgm ent and sentence, and stated: Perhaps it was a scrivener' s error that c aused the incongruity between the sentence announced at the hearing and the s entence ref lected in the am ended sentencing order. In any event, the trial judge should be given an opportunity to c orrect the e rror, and we rem and this case to him f or entrance of a proper o r d er in conf

orm ity with the sentence given at t he hearing on the m ot i o n t o vacate judgm ent and sentence.
In light of the e rror com m i tted here, we rem and this case f or the circuit court to c orrect the sentencing order to accurately ref lect Allen’s convictions and sentences. ¶7. Allen also argues that he was denied a speedy trial; h owever, the Mississippi Suprem e Court h as held that a valid guilty p lea operates as a waiver of the right t o a speedy trial. See Anderson v. State , 5 77 So. 2d 390, 393 (Miss. 1991). Theref o re, this argum ent is without

m erit. ¶8. Allen’s argum ents respecting his counsel’s inef f ectiveness—f

ailure t o f ile a m otion
to dism iss based on denial of a speedy trial and f ailure to c h allenge the indictm ent based on

a f alse c h arge—are likewise without m erit. A s s tated, when A llen pleaded guilty , he waived

4the denial-of -a-speedy -trial issue. Moreover, he stated during the plea hearing that he was satisf i ed with t he services of his attorney

. “Great weight is given to statem ents m a de under oath a n d in open court during sentencing.” Peckinpaugh v
. S t a t e , 949 So. 2 d 86, 92 (¶16) (Miss. Ct. App. 2006). A l l e n ’ s a s s ertion that the indictm e n t contained a f alse charge is

erroneous. As we have already f ound, the charge that Allen has d enoted a s a “ f alse charge”

was dis m i s s ed b y the circuit court, and what is likely a s crivener’s error, contained in the sentencing order, will be corrected on rem and. ¶9. T H E J U D G M E N T O F T H E J A C K S O N C O U N T Y C I R C U I T C O U R T DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED, AND THIS CASE IS REMANDED F OR C ORRECTION OF THE S E NTENCING ORDER. ALL COSTS OF T HIS APPEAL ARE ASSESSED T O JACKSON COUNTY. LEE, C.J., GRIFFIS, P.J., BARNES, ISHEE, ROBERTS, CARLTON, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

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