IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2016-CP-01314-COA ANDREW LEON BRADLEY A/K/A ANDREW L. BRADLEY A/K/A ANDREW BRADLEY APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/02/2016 TRIAL JUDGE: HON. JAMES MCCLURE III COURT FROM W HICH APPEALED: TATE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ANDREW LEON BRADLEY (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED: 08/15/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., CARLTON AND FAIR, JJ. FAIR, J., FOR THE COURT: ¶1. Andrew Bradley pled guilty to one c o u n t o f p o s s e s s i o n of cocaine with intent to distribute, as a habitual of f e nder. He did so pursuant t o a plea bargain, where in exchange
f or h i s g u i lty plea the prosecution agreed to elim inate a r ecidivist enhancem ent, to

recom m end a m axim

um of a ten-y ear sentence, 1 and t o r etire to the f ile charges in another

1 T h e s en ten ce reco m m en d ed an d i mp o s e d w as c o n trary to th e h ab itu a l o f f en d er statu te, w h ich req u i res th at th e d ef en d an t b e sen ten ced to th e m ax im u m term p erm itted f

o r th e u n d erly in g o f

f en se. S ee M i ss. C o d e A n n . § 4 1 -2 9 -1 3 9 (b )(1 )(B ) (S u p p . 2 0 1 6 ); M iss. C o d e A n n . § 9 9 -1 9 -8 1 (R e v . 2 0 1 5 )

. T h e reco rd ref lects n o p ro p o rtio n ality a n aly sis. S ee g en era lly C lo w ers v. S ta te , 5 2 2 S o . 2 d 7 6 2 , 7 6 4 (M iss. 1 9 8 8 ). B u t B r ad ley d o es n o t, an d in d eed can n o t, co m

p lain th at h e receiv ed an illeg ally len i en t sen ten ce. S ee, e.g ., C h a m b liss v. S ta te , 1 8 8 S o . 3 d 1 2 6 2 , 1 2 6 7 (¶1 7 ) (M iss. C t. A p p . 2 0 1 6 ).case. The circuit court sentenced Bradley to ten y e ars, as a habitual of f ender and w ithout the possibility of probation o r p arole. Less than a y ear later, B r adley f iled the i nstant m otion f

or post-conviction relief

. T he circuit court dism issed it without an ev i d e n t i a ry hearing, and af

ter reviewing the record, we af f irm

. STANDARD OF REVIEW ¶2. The c irc u i t c o u

r t m a y s u m m arily dism iss a PCR m otion w ithout an e videntiary hearing “[ i]f it p lainly appe a r s f

r o m the f ace of the m o tion, any annexed exhibits and the prior proceedings in the case that the mo v a n t is n ot entitled to any relief .” Miss. Code Ann. § 99-39-11(2) (Rev. 2 015). To succeed on appeal, the petitioner m ust: (1) m ake a s u

bstantial showing of t he denial of

a state or f

ederal right and (2) show that the claim is procedurally alive. Y oung v. State , 731 So. 2d 1120, 1122 (¶9) (Miss. 1999). ¶3. Our review of the sum m a ry dism issal of a PCR m otion, a question of law, is de novo. Id

. DISCUSSION
1. Voluntariness of Plea ¶4. In his f

irst issue, Bradley contends that his g uilty plea w as in v o l u n tary

. He alleges that he only agreed to plead guilty because t he p rosecutor threatened him with a lif e sentence if he went to trial. H e also claim s that def ense counsel “coached” him into testif y ing at the hearing that his plea was voluntary

. ¶5. These contentions are supported only by B radley ’s c laim s in his PCR m otion and his

2brief on appeal, and they are directly contradicted by his sworn petition to e nter a guilty plea

and by his testim ony at the h e a r i n g . The record ref lects that Bradley repeatedly adm itted under oath that h e had not been t hreatened, i ntim idated, or coerced and that he w as pleading guilty of his own f

ree will. ¶6. Bradley ’s own c laim s i n his PCR m otion are insuf f icient to r e q u i re a n evidentiary he a r i n g , g iven his p r ior sworn statem ents. No hearing is required “where an af f idavit is overwhelm ingly belied by unim peachable docum entary

evidence in the record such as, f or

exam ple, a t ranscript or written statem ents of the af f i ant to the contrary to the extent that the

court c an conclude that the af f i davit is a sham .” W

right v. State , 577 So. 2d 3 87, 3 90 (Miss. 1991).
2. Factual Basis ¶7. U n d e r t he um

b rella of his f

irst issue, Bradley also claim s that there was no f actual basis f or his guilty plea. Suf

f ice it to say that, a t t h e guilty plea h earing, B radley adm itted under oath to every

elem ent of

the of f ense. ¶8. Bradley ’s post-conviction c h a l l e n g e a c t u a l l y consists of f actual c ontentions that challenge the strength of the evidence against h im and t he ability o f the prosecution to prove its c a s e a t t rial. For e xam ple, the prosecutor stated, and Bradley a d m itted under oath, that Bradley threw a bag c ontaining cocaine out of his vehicle while f leeing f r om the police. In his PCR m otion, however, Bradley contends t hat the prosecution would not really have been able to prove that he was t he one w ho threw the b ag, as he h ad a passenger in the vehicle at

3the tim e.

¶9. But Bradley pled guilty , and “ [ a] valid guilty plea w aives the right to challenge the

s u f f i ciency of the State’s evidence.” Belton v. State , 138 So. 3d 237, 2 39 (¶9) (Miss

. C t

. App. 2014) (citation om itted). This issue is without m erit.
3. Weight of the Evidence ¶10. Bradley ’s next issue is essentially a r ehashing of his f actual basis argum ent, which we addressed in the previous issue and f ound without m erit. Again, “[ a] valid guilty plea waives the right to challenge the suf f i ciency of the State’s evidence.” Belton , 138 So. 3d at 239.
4. Prelim inary Hearing ¶11. Bradley n ext contends that he did not receive a tim ely prelim inary hearing, and if he had, that it would have determ ined that the prosecution could not m ake a case against him

. The record ref

lects, in f act, that Bradley w as indicted by a g rand jury , which both disproves Bradley ’ s claim s about the evidence and renders the question of a prelim inary hearing m oot.
In Sanders v
. State , 847 So. 2d 9 03, 907 (¶22) (Miss. Ct. App. 2003), this Court explained: The record does not show whether S anders had a p re l i m i n a ry hearing. However, once the indictm ent o ccurs, even had a prelim inary hearing not been provided, that question becom es m oot. The purpose of a prelim inary hearing is to explore whether there is probable cause to b elieve that the d ef endant h as com m itted an of

f ense. The indictm e nt by a grand jury rem oves the purpose of t h e h e a ring and n one need thereaf ter be conducted. Sanders’ indictm ent appears in the record; theref ore, the prelim inary hearing issue is unavailing. (Citations om itted). ¶12. This issue is without m erit.

45. Indictm ent

¶13. In Bradley ’s next issue, he contends t hat his indictm e nt was def ective. Som e of

his
argum ents here a re dif

f icult to com

prehend – he ap p e a r s t o argue that his indictm ent conf li c t e d with another indictm ent rendered against him several m onths prior, but that indictm ent is not f

ound in t he r ecord. The various a ssertions m ade by Bradley on this point do not even suggest that he m ight b e entitled to relief ; even b a s e d on Bradley ’s own contentions, it appears he f aced indictm ents f

or t w o e n tirely separate i ncidents occurring

som e tim e apart f

rom each other. ¶14. Bradley a lso contends that his indictm ent was d ef ective because i t did not allege the specif ic am ount of c ocaine h e ultim ately adm itted to possessing – 2.15 gram s – but instead tracked the language of the s tatute and accused him of possessing two or m ore gram s, but less than ten gram s, of cocaine. S ee Miss. Code Ann. § 41-29-139(b)(1)(B) (Supp. 2016). ¶15. “ T h e p u r p o s e of the indictm ent is to provide t he accused r easonable notice of the charges against him so that he m ay prepare an adequate def ense.” W arren v. S tate , 187 So. 3d 616, 621 ( ¶ 1 0 ) ( Miss. 2016) (citation om itted). “It is generally suf f icient that an indictm ent set f

orth the of

f ense in the words of the statute itself , a s long as those words of them selves f

ully , directly , and e xpressly , without any uncertainty or am biguity , set f

orth all the elem ents necessary to constitute the of f ence intended to be punished.” T ran v. State , 962
So. 2d 1237, 1241 (¶17) (Miss. 2007). “The ultim ate test, when considering the validity of

an indictm ent on appeal, is whether t he def e ndant was prejudiced in the preparation of his

5def

ense.” W arren , 187 So. 3d at 621-22 (¶10) (citation om itted). ¶16. Under our statute, it is not an elem ent o f the of f ense that the State prove the am o unt of drugs the def

endant p o ssessed to two decim al places; it is only r equired to prove that the def endant possessed them in an am ount punishable under t he statute. S ee § 41-29-139. That was alleged by

the indictm ent here. This contention is without m erit.
6. Sentencing as a Habitual Offender ¶17. Finally , Bradley p resents s everal challenges to hi s i n d i c t me nt and sentencing as a habitual o f

f ender, som e of which are repeated under m ore than o ne i ssue heading in his brief

. W e have com

bined all of Bradley ’s challenges to his conviction and sentence as a habitual of f ender into one discussion f or convenience. ¶18. The indictm ent detailed three prior convicti o n s a nd sentences, all over o ne y ear in length. Bradley alleges that one of the prior convictions and s entences w as “f abricated” in the se n s e t h a t h e w a s actually sentenced to a term of less than one y ear. He also contends that one of the convictions could not be used because he was presently serving that sentence
at t he tim e he was sentenced i n the instant case; apparently h i s suspended sentence in that case had been revoked af ter he com m itted the instant of f ense. ¶19. First of a ll, B radley did not o bject to his s e n t e n c ing as a habitual of f ender. He is theref ore procedurally barred f

rom raising these issues on appeal. See Martin v. State , 214 So. 3d 217, 220 (¶6) (Miss. 2017). ¶20. Notwithstanding t he procedural bar, Bradley appears to m isunderstand the habitual

6of

f ender statute. It require s only that Bradley h ave been sentenced to a y ear or m ore; the length of the sentence controls, not how m uch of it is actually s e r

ved. See § 99-19-81; Jackson v. State , 3 8 1 So. 2 d 1040, 1042 ( Miss. 1980). M o reover, the r ecord say s nothing about the prior convictions bey ond what was alleged in t h e indictm ent, w hich Bradley specif ically adm itted as true and accurate in b oth his sworn petition to enter a plea of guilty and h is testim ony at the g uilty plea hearing. Again, “where an a f f idavit is overwhelm ingly belied by unim

peachable docum entary evidence in the r e c o r d such as, f o r e xam ple, a transcript or written s tatem ents of the af f iant to the contrary to the e xtent t hat the court can conclude that the af

f i davit is a sham no hearing is required.” W right v. State , 577 So. 2d 387, 390 (Miss. 1991). ¶21. W e f

ind no m e rit to these contentions. ¶22. AFFIRMED. LEE, C.J., IRVING AND GR I F F I S , P.JJ., BARNES, I SHEE, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR.

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