IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2014-CP-01016-COA JERRY MAURICE ALFORD A/K/A JERRY M. ALFORD A/K/A JERRY ALFORD APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 07/03/2014 TRIAL JUDGE: HON. LESTER F. W I LLIAMSON JR. COURT FROM W HICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JERRY MAURICE ALFORD (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LADONNA C. HOLLAND NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION COLLATERAL RELIEF DISPOSITION: AFFIRMED: 02/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. GRIFFIS, P.J., FOR THE COURT: ¶1. Jerry Maurice Alf ord was indicted f

o r s ale o f a controlled s ubstance on August 6, 2010. Alf

ord pleaded guilty on Novem ber 14, 2 011, to the sale of approxim ately 0 .6 gram s of cocaine. The Lauderdale County Circuit Court sentenced Alf o rd to thirty y ears in prison. ¶2. Alf

ord f iled a m otion f

or post-conviction c ollateral relief (PCCR) on Septem ber 12, 2013, which the circuit court denied. Alf ord now appeals. Th i s C o u r t f i n ds no error and af f irm s. S TANDARD OF REVIEW¶3. This Court w ill not overturn a trial court’s dism issal of a PCCR m otion o n a p p e a l

“unless the trial court’s decision was clearly erroneous.” Chapman v. State , 135 So. 3d 184, 185 ( ¶6) (Miss. Ct. App. 2013) (citation om itted). “W hen reviewing questions o f law, this Court’s standard of

review is de novo.” I

d. (citation om itted). ANALYSIS ¶4. Alf

ord asserts the f

ollowing issues, con d e nsed and edited f or c larity : (1) he was convicted under a d e f

ective indictm ent; and (2) h e received i nef f ective assistance of counsel.
I. W hether Alford’s indictment was defective. ¶5. Alf

ord raises s everal i ssues stem m ing f rom his indictm ent. The indict me n t s t a ted Alf ord “did wilf

ull y , unlawf

ully , . . . f

eloniously [ ,] and knowingly sell, barter, transf er, distribute[ ,] or d ispense approxim ately 0.6 gram (s) of Cocaine, a s chedule II c o n trolled substance, to a conf

idential i nf

orm ant, in exchange f

o r sixty dollars

. . .” in violation of Mississippi Code A nnotated sec t i o n 41-29-139 (Supp. 2010). Alf ord contends the indictm ent f

ailed to allege the specif

ic am o unt of

cocaine, the m anner in which he sold the cocaine, and to whom

he sold the cocaine. ¶6. However, Alf

o rd pleade d g u i l t y , which bars certain challenges to an indictm ent. “[ T]he law is settled that[ ,] with o nly two exceptions, the entry of a knowing and v oluntary guilty plea waives all other def ects or insuf

f i ciencies i n the indictm ent.” Joiner v. State , 61 So. 3d 156, 159 (¶7) (Miss. 2011) (quoting C o nerly v. S

tate , 607 So. 2d 1153, 1156 (Miss. 1992)). “A guilty plea d oes not waive an indictm e nt’s f ailure to charge an essential elem ent

2of

the crim e, and it does not waive lack of subject m atter jurisdiction

. . . .” Id. Theref ore, this Court m

ust determ ine w he t h e r any of the om issions Alf o rd com plains of c onstitute essential elem e nts of

the crim e . ¶7. Alf

ord prim a rily

contends the f

ailure to state a specif

ic am o unt of cocaine rendered the i ndictm ent def

ective. Alf

ord pleaded guilty under s e ction 4 1-29-139, which, at the t im e of Alf ord’s crim e, did not specif y the am ount of cocaine requir e d f o r a s e n t ence of thirty
y ears. In a case analy zing a conviction under the sam e statute, this Court f ound that: Under Mississippi law, the p e n a l t y f or the sale of cocaine is the sam e regardless of the quantity sold. Theref ore, the am ount of

cocaine sold is not an essential elem ent of the crim e. As such, a n indictm ent is not def ective f or f ailing to list a quantity

of cocaine in the context of a sale of cocaine charge. In f act, Mississippi law is clear that a quantity or am ou n t o f c o caine is not required to be listed in the indictm ent f or a charge of

sale of cocaine.
Fair v. State , 93 So. 3 d 56, 58 (¶7) (Miss. Ct. App. 2012) (internal citations a n d quotations

om itted). Thus, Alf

ord’s contention f

ails. ¶8. As a second error, Alf ord claim s the om ission of the e x act m e thod through which he sold the drugs constitutes a def ect. “[ T] h e M i s sissippi S uprem e C o urt [ has] held that an indictm ent is generally suf f icient if it tracks the language of the r elevant c rim i nal statute.” Ludwig v. State , 147 So. 3d 360, 363 (¶9) (Miss. Ct

. A p p . 2014) (citing Tran v. State , 962 So. 2d 1237, 1241 (¶17) (Miss. 2007)). ¶9. Sectio n 41-29-139 dictates that “ i t is unlawf ul f or any person k

nowingly or intentionally : (1) To sell, barter, transf er, m anuf acture, distribute, dispense[ , ] or p ossess with intent to sell, b a r t e r , transf er, m anuf

acture, distribute[ ,] or dispense, a controlled
3substance[ .]” Alf ord’s indictm ent includes the term s “sell, barter, t r a n sf er, distribute[ ,] or dispense,” which suf

f iciently tracks the statute. Accordingly , this claim f ails. ¶10. Third, Alf

ord alleges the i dentity of the conf idential inf

orm ant c onstitutes an essential elem ent of the crim e . “[ T]he suprem e court has held that ‘the identity of the person to whom drugs are sold does not change the e sse n c e o f the o f f ense, since such identity is not an elem ent of the of

f ense.’” G arrett v. State , 110 So. 3d 790, 793 (¶11) (Miss. Ct. App. 2012) (quoting Jones v. State , 912 So. 2d 973, 976 (¶10) (Miss. 2 005)). T h eref ore, the indictm ent’s

use o f “conf

idential inf

orm ant” rather than the recipient’s nam e d oes not r esult in a def ect. ¶11. As separate issues regarding h i s indictm e nt, Alf ord argues the p lain-error and the actual- i n n o c e n c e doctrines apply

. “Only an error that af f ects the def

endant’s s u

bstantial rights r ises to the level o f plain error.” Stribling v. State , 81 So. 3 d 1155, 1162 (¶31) (Miss. Ct. App. 2011) ( citing Patrick v
. State , 754 So. 2d 1194, 1195-96 (¶¶ 7 , 1 2 ) (Miss. 2000)). Because no error occurred in Alf ord’s indictm ent, plain error does not apply

. ¶12. Alf

ord also invokes the doctrine of a ctual i nnocence. “In the context o f p o s tconviction proceedings, the United States Suprem e Court h as expl a i n e d t h a t a c t u a l innocence

m eans ‘ f actual i nnocence’ that the person did not com m it the crim e. B ut legal i nnocence is

a distinct concept that arises i n c i r c um s tances when a constitutional violation, by itself , requires reversal.” B o rden v. State , 122 So. 3d 818, 822 (¶9) (Miss. Ct. App. 2013) (internal citation om itte d )

. A l f

ord o nly a sserts his def

ective indictm ent c aused a constitutional violation that rises to actual i nnocence. Howe v e r, as previously discussed, Alf ord’s

4indictm ent was suf f icient; thus, no constitutional violation occurred. This i ssue is without

m erit.
II. W

hether Alford received ineffective assistance of counsel. ¶13. As a second issue, Alf ord contends his trial counsel f a i l ed to oppose the def

ective indictm ent, did not conduct discovery or i nterview witnesses, a nd t old Alf ord he had to plead guilty

. ¶14. To s u p port a n inef f ective-assistance-of

-counsel claim , Alf

ord m ust show: (1) his counsel’s perf

orm ance was def

i cient a nd (2) p rejudice resulted. Strickland v. W ashington , 466 U.S. 668, 687 (1984). Under Strickland , “there is a strong presum ption that counsel’s perf orm ance f alls within the range of reasonable prof essional assistance.” Hooghe v. State , 138 So. 3d 240, 247 (¶31) (Miss. Ct. App. 2014) (citing Strickland , 466 U.S. at 689). ¶15. However, A lf

ord pl e a d e d guilty , which “waives claim s of inef f ective assistance of counsel ‘except insof

ar as the alleged inef

f ectiveness r elates t o the voluntariness of the giving o f the guilty plea.’” Rigdon v. State , 1 26 So. 3d 9 31, 936 (¶16) (Miss. C t. A pp. 2013) (quoting Hill v. State , 60 S o. 3 d 824, 827 (¶6) (Miss. Ct. App. 2011)). Alf ord contends his counsel’s def

icient perf

orm ance occurred when he f a iled to o bject t o the indictm ent and to investigate the crim e. Alf ord’s guilty

plea, theref

ore, waives these claim s. ¶16. Despite this w aiver, Alf ord did ask in h is af

f idavit and a

p pellate brief the question of “[ w]hy the trial counsel t old Alf ord he had to plead guilty to the charge.” B u t Alf o rd of f ers

no evidence indicating a n involuntary guilty plea other than this allusion in his own af f idavit.

5“ In cases involving post-conviction collateral relief , ‘where a party of

f ers only his af

f idavit, then his ine f

f e c t i v e assistance claim is without m erit.’” Cherry v. State , 24 So. 3d 1048, 1051 (¶6) (Miss. C t. A pp. 2010) (quoting Vielee v
. State , 653 So. 2d 920, 922 (Miss. 1995)). Further, during the plea hearing, Alf ord stated he f

reely a n d volunta r i l y entered the plea. Theref ore, this issue is without m erit. ¶17. Alf

ord f ails t o present suf

f i cient evidence to prove that his indictm e n t was def ective

or his trial counsel rendered i nef f e ctive assistance. For these reasons, this Court af f irm s the judgm ent of

the circuit court. ¶18. THE JUDGMENT O F THE CIRCUIT COURT OF LAUDERDALE COUNTY DENYING THE M OTION F O R POST-CONVICTION COLLATERAL RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY. LEE, C.J., IRVING, P.J., BARNES, ISHEE, C ARLTON, FAIR AND WILSON, JJ., CONCUR. JAMES, J., C O N C U R S I N PART WITHOUT SEPARATE WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.

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