IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-CP-00916-COA ELI ORR APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 05/23/2016 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ELI ORR (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: KAYLYN HAVRILLA MCCLINTON NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED: 10/17/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. FAIR, J., FOR THE COURT: ¶1. Eli Orr was indicted in 2009 on one count of the sale or transf

er of cocaine and one
count of possession of less than .1 gram of a controlled substance. I n 2013, the State m oved
to am end the indictm ent to charge Orr as a second or subsequent of f ender. ¶2. In the m i ddle of trial, Orr decided to plead guilty to Count I – the sale or transf er of cocaine. As part of his guilty plea, the State agreed t o retire Count I I to the f iles. The court held a hearing on Orr’s p etition to plead guilty , and Orr was senten c e d t o s e r v e thirty -f ive
y ears in t he custody of the Mississippi Departm e n t of Corrections (MDOC), with thirty y ears to serve and f

ive y ears’ post-release supervision. ¶3. In April 2013, Orr was indicted f or p ossession of a controlled substance w hile in jail.He f

iled a petition to plead guilty a nd was sentenced to serve three y ears in t he custody of the MDOC, consecutive to his previous sentence. ¶4. In January

2016, O rr f

i led a post-conviction relief (PCR) petition f

or his conviction

on his f irst sentence – the s ale or transf er of cocaine. The circuit court denied Orr’s petition af ter an evidentiary

hearing. Orr appealed.

DISCUSSION ¶5. W e rev i e w a c i r c u i t j u d g e ’ s d enial of a PCR petition f o r c lear error and will not disturb h is f

actual f indings absent such error. W renn v. State , 207 So. 3d 1252, 1256 (¶13) (Miss. Ct. A pp. 2017) (citing Brown v. S t a t e , 7 31 So. 2d 595, 5 98 (¶6) (Miss. 1999)). However, we review conclusions on questions of law de novo. Id

. 1. Voluntariness of Plea ¶6. Orr argues that his guilty plea was invo l u n t a r y b e c a u s e he w as threatened with a lengthier prison sentence if the c ase continued at trial. He f u r t h e r claim s that he was intoxicated at the tim e of

his plea and that the trial court m ade him believe he had to plead guilty

. L astly , Orr argues that, as part of his guilty plea, he was required to r ecite the f actual basis surrounding his plea, which he did not. W e address each contention below. ¶7. A guilty plea is valid and legal only if it is e n tered voluntarily a n d i n t e l l i g e n tly

. Myers v
. S

tate , 5 8 3 So. 2 d 1 7 4 , 1 76-77 (Miss. 1991) (citation o m itted). In Alexander v. State , 605 So. 2d 1170, 1172 (Miss. 19 9 2 ) ( c i t ing W ilson v. State , 577 So. 2 d 3 94, 396-97 (Miss. 1991)), t he Mississippi Suprem e Court held that a “plea is d eem ed ‘volu n t a r y a n d

2intelligent’ only where the def endant is advised concerning the nature of the charge against h i m a n d the consequences o f the plea.” Af t er a review of the record, we do not f i n d a n y evidence that Orr’s guilty plea was illegal, involuntary , or coerced. ¶8. At Orr’s plea hearing, the trial judge a sked him if he had been coerced into a guilty plea. He replied, “Naw, they ain’t said it like that. They just tell m e . . . I ’m scared, Judge

. . . . [ The things they said] m a de m e want to sign the g uilty plea because I don’t want to go
to prison the rest of m y lif e.” The judge i nf

orm ed him that t he only w ay he could be sentenced was if he pled not guilty and was convicted b y a jury

. Further, O r r was well aware of the m axim

um a nd m inim

um penalties he f

aced f or each count. The trial judge spel l e d these out to Orr, on the record, bef ore accepting the guilty p lea. The inf orm a tion was also handwritten on Orr’s petition to e nter a guilty plea, and Orr him self acknowledged u nder oath that he knew the penalties. ¶9. Regardi n g O r r ’ s c l aim that he was i ntoxicated, h e certif ied in his p etition to plead guilty that he was not under the inf luence of a n y drugs or intoxicants. His attorney testif ied
to t he sam e ef

f ect. However, Orr’s test results f rom the presentencing hearing s howed he tested positive f

or cocaine a nd m arijua n a . The court k new the test results during Orr’s sentencing, but determ ined that t h e r e w a s no evidence that his plea was not voluntarily , knowingly , a nd intelligently entered. He observed that O rr showed no signs of intoxication during his plea. Af

ter review, we f

ind no abuse of

discretion in the judge’s determ ination. ¶10. Finally , Mi s s i s s i p p i h a s no requirem ent that the d ef endant p ersonally provide the

3f

actual basis f

or his guilty plea. In f

act, our s uprem e court has held a f actual basis m ay

be

e s t ablished a variety of way s , including a prosecutor’s testim ony , a live witness, and p r i o r f actual proceedings. See Corley v. State , 585 So. 2d 765, 767 (Miss. 1991)

. H ere, the prosecutor gave a detailed account of the charges in Orr’s indictm ent. ¶11. Orr’s claim

is without m erit. 2. Statute of Lim itations ¶12. Orr next a rgues that the statute of lim itations h ad run o n his charge under Mississippi Code Annotated section 41-29-139 (Rev. 2013) – the sale o r t ransf er of cocaine. According
to Mississippi Code Annotated section 9 9-1-5 (Rev. 2015), the State h ad t wo y ears f rom the

com m ission of the of

f ense to indict Orr. The s a l e o f cocaine o ccurred on or about May 7, 2008. Orr was indicted on July 23, 2009, well within the two-y e ar tim e f ram e. ¶13. Orr’s claim

has no m erit. 3. Speedy Trial ¶14. “Unless g o o d c a u s e b e s h o w n , a n d a continuance duly granted by the court, all of f enses f or which indi c t me n t s a r e presented t o t he court shall be tried no later than two hundred seventy ( 2 7 0 ) day s af ter the accused h as been arraigned.” Miss. Code Ann. § 99-17-1 (Rev. 2 015). Review of a speedy t rial claim e n com p asses the f

act q uestion of whether the trial delay

rose f rom good cause. ¶15. “Under this [ c]ourt’s standard of r e v iew, this [ c]ourt w ill uphold a decision based on substantial, credible evidence. If no probative evidence s upports the trial court’s f inding of

4good cause, this [ c]ourt will ordinarily reverse. The [ S]tate bears the burden o f proving good

cause f or a s peedy trial delay , and thus bears the risk of non-persuasion.” D eLoach v. State , 722 So. 2d 512, 516 (¶12) (Miss. 1998) (internal citations om i tted). ¶16. I n Barker v. W

i ngo , 407 U .S. 514, 530 (1972), the United States Supre m e C o u r t provided a f

our-f actor balancing test to be used when d eterm ining w h e ther a def endant’s right to a speedy trial has been violated. The f actors are as f

ollows: ( 1) “[ l]ength o f delay ,” (2) “ the reason f

or t he delay ,” (3) “the def

endant’s assertion of his right,” and ( 4) “prejudice

to the def

endant.” The court m

ust consider the totality o f t h e c i r c um stances on a case-by -case basis. Boone v. State , 9 64 So. 2d 512, 519 (¶3) (Miss. Ct. App. 2006). “Any delay of over eight m onths is presum ptively prejudicial and triggers balancing of the other three f actors.” Robinson v. State , 920 So. 2d 1009, 1013 (¶13) (Miss. Ct. App. 2003). 1. Length of Delay ¶17. Orr’s right to a speedy trial attached on April 22, 2009, af ter he was arrested. His trial did not begin until February 26, 2013 – over f

our y e a rs l ater. Thus, prejudice is presum ed and we m ust look to the other f

actors. 2. Reason for the Delay ¶18. “Once there i s a f

i nding that the delay i s presum ptively prejudicial, the burden shif ts
to the prosecution to p roduce evidence justif y ing the delay

and to persuade the trier of f act of t he legitim acy o f these reasons.” DeLoach , 722 So. 2d at 517 (¶17). Orr w as indicted on July 23, 2009. The record shows that t here were e leven a g reed continuances, o n e m aster

5continuance, and one continuance granted because the prosecutor was in trial i n another case

and there w ere no other available d ates in the term

. The judge assigned f ault t o both Orr and the State f

or the delay

. 3. Assertion of Right to a Speedy Trial ¶19. The third f

a ctor concerns Orr’s assertion of his right to a s peedy trial. Orr did not f ile

a m otion f

or a speedy

trial at any point while awaiting h is t rial. Instead, he waited to raise the issue f

or the f irst tim e in his PCR m otion.
4. Prejudice to the Defendant ¶20. The f

ourth f actor considers prejudice s uf f ered b y the def

endant. “Prejudice

. . . should b e a s sessed in t he light of the interests o f def e ndants which the s peedy trial right wa s designed to protect. [ The U nited States Suprem e C ourt] has identif i ed three such interests: (i) to prevent oppressive pretrial incarceration; (ii) to m inim ize anxiety and concern of the accused; and (iii) to lim it the possibility that the d ef ense will be im

paired.” Barker , 407 U.S. at 532. Orr f

ailed to provide any

evidence showing he was prejudiced by the delay

. ¶21. Af ter review, w e f

ind no abuse of discretion in the judge’s f indings under the Barker f actors. 4. Ineffective Assistance of Counsel ¶22. Orr’s next contention is that he received inef f ective assistance of counsel. This Court applies the t wo-prong t est f ound in Strickland v. W

ashington , 466 U.S. 668, 687-89 (1984),
to claim s o f inef

f ective assistance of counsel. The f irst prong requires the appellant to show

6that counsel’s perf orm ance was def

icient. I d

. The second prong requires p roof that counsel’s d e f

i c i e n t perf

orm ance prejudiced t he appellant. I d

. There is a strong, but rebuttable, presum

ption that counsel’s p erf

orm ance a nd actions f

all “within the wide range of reasonable prof

essional assistance.” W

i lliams v. State , 89 So. 3d 676, 680-81 ( ¶10) (Miss. Ct. App. 2012) ( quoting Parker v. State , 30 So. 3d 1222, 1233 (¶37) (Miss. 2010)). Thus, counsel’s actions will only b e deem ed def i cient if it is shown that the o utcom e would have been dif f e rent otherwise. Id

. Additionally , in P CR cases, “where a party of f ers only his af f idavit, then his inef

f ective a ssistance of counsel claim is without m erit.” Brooks v. State , 89 So. 3d 626, 628 (¶6) (Miss. Ct. App. 2011) (quoting Vielee v. State , 653 So. 2d 920, 922 (Miss. 1995)). ¶23. Orr has f

a iled t o provide any af

f idavits to support his c o ntention that his attorney was inef f ective. A dditionally , Orr reaf f irm ed at his guilty -plea hearing and in his guilty -plea petition that he was satisf ied with his attorney ’s perf orm a nce. W ithout additional e vidence, we cannot f

ind that Orr’s attorney ’s perf orm a n ce was inef

f ective. ¶24. This issue is without m erit. ¶25. AFFIRMED. LEE, C.J., GRIFFIS, P.J., BARNES, CARLTON, WILSON, GREENLEE AND WESTBROOKS, JJ., CONCUR. IRVING, P.J., DISSENTS W ITHOUT SEPARATE WRITTEN OPINION. TINDELL, J., NOT PARTICIPATING.

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