IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-CP-01290-COA CHAD JOSEPH VENEZ IA A/K/A CHAD VENEZ IA A/K/A CHAD J. VENEZ I A APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 08/14/2015 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO COURT FROM W HICH APPEALED: LAMAR COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: CHAD JOSEPH VENEZIA (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ALICIA MARIE AINSW ORTH NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DISMISSED DISPOSITION: AFFIRMED - 10/04/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., BARNES AND FAIR, JJ. BARNES, J., FOR THE COURT: ¶1. Chad Joseph Venezia, a ppearing pro se, appeals t he judgm ent of the Circuit Court of Lam ar County dism issing his m otion f or p ost-conviction relief (PCR). F inding no error, we af f irm

. STATEMENT OF FACTS AND PROCEDURAL HISTORY ¶2. In January 2012, a Lam ar County grand jury returned a two-count indictm ent against Venezia f

or possession of p recursors with th e i n t e n t to m anuf acture, and conspiracy to

m anuf ac t u r e a controlled substance – m etham phetam ine. The indictm ent charged theprecursors f ound in his poss e s s i on were ephedrine/pseudoephedrine, lithium , heptanes, sodium hy droxide, and sulf uric a cid. Initially , Venezia p leaded “not guilty ” to both counts. ¶3. In January 2013, his trial began. Venezia proceeded pro se, but advisory counsel was appointed to him

. 1 A f

te r voir d ire, jury selection, and a hearing o n Venezia’s m otion to
suppress, but bef

o re the presentation o f e v i d e n c e , Venezia decided to change h is plea to “guilty ” f or C ount 1; Count 2 was nolle p rossed. Af ter a plea hearing, Venezia was

s e n t e n c e d t o thirty y ears, with twenty y ears t o serve, a nd ten y ears of post-release supervision. He was also f i ned $5,000. In May 2 015, Venezia f iled a PCR m otion claim ing his g uilty plea was i nvoluntary , his indictm ent was def ective, and there was a violation o f an

ex post f acto law. T he trial court dism issed his PCR m otion, and Venezia tim ely a ppealed. STANDARD OF REVIEW ¶4. This Court will not disturb the trial court’s d ism issal of a PCR m otion a bsent a f inding that the trial court’s decision was clearly erroneous. Madden v. State , 7 5 So. 3d 1 130, 1131 (¶6) (Miss. Ct. App. 2011) (citation om itted). Questions of law are reviewed de novo. Id. ANALYSIS ¶5. On appeal, Venezia raises only o ne issue: whether t he trial court erred i n dism issing his PCR m otion when the trial c ourt accepted his g uilty p lea without a suf f icient f actual basis f or the charges against him

. ¶6. “Bef

ore t he trial c ourt m a y accept a plea of guilty , the court m ust determ ine that the plea is voluntarily a nd intelligently m ade and that there is a f ac t u a l b asis f

or the plea.”

1 V en ezia d isch arg ed h is atto rn ey in S ep tem

b er 2 0 1 2

. 2Palmer v. State , 140 So. 3d 448, 454 (¶16) (Miss. 2013) (quoting URCCC 8.04(A)(3)).

A f actual basis f

or a plea m ay be e stabli s h e d b y the adm ission of the def endant, but the adm ission m ust con t a i n f

actual statem ents constituting a c r i me or be accom

panied by independent e vidence of guilt. T his Court h a s held that a f

actual b asis is not established b y the m ere f a c t that a def

endant enters a plea of

guilty

. Hannah v. State , 943 So. 2d 2 0, 26-27 (¶16) (Miss. 2006) (internal c i tations om itted). A f actual basis a lso can be established by “a s tatem ent of the p rosecutor, the testim ony of live witnesses, and prior proceedings . . . .” W atkins v. State , 170 So. 3d 582, 587 (¶16) (Miss. Ct. App. 2014) (citations om itted). The reviewing court “m ay look b ey ond the plea transcript
to d eterm ine whether t h e r e w a s a f actual b asis f

or the charge,” and review the r ecord a s a whole. H annah , 943 So. 2d at 27 (¶18); Palmer , 140 So. 3d at 454 (¶16) (citation om itted). ¶7. V e n e z i a p l e a d e d g u ilty to violating Mississippi Code Annotated sectio n 4 1

- 2 9

- 313(1)(a)(i) (Supp. 2015), which states that “it is unlawf ul f or any person to knowingly or intentionally

. . . [ p]urchase, possess, transf er, m anuf acture, attem

pt to m anuf

acture or distribute any two (2) or m ore of the listed precursor chem icals or drugs in any am o unt with the intent to unlawf

ully m anuf

acture a controlled s ubstance.” V e n ezia is correct in noting that the plea and sentencing hearing transcript does not include a recitation o f the f acts and circum stances under which he com m itted the charged crim e. The Stat e c o n t ends that the f actual basis f

or the plea can be m et by the indictm ent if suf f iciently detailed. However, the indictm ent m

ust be read into the r ecord at the plea hearing. Drake v. State , 823 S o. 2d 593, 594 (¶6) (Miss. 2002); W

atkins , 170 So. 3d at 5 86 (¶17); Robinson v. State , 9 64 So. 2d 609, 613 (¶¶13-14) ( M i s s . C t

. A p p . 2007). H ere, the i ndictm ent was not read into the record

3during the plea colloquy

. This Court, on its own m o tion under Mississippi Rule of A ppellate

Procedure 1 0 ( c ) , o rdered the appellate record be supplem ented to include a certif ied transcript of Venezia’s crim i nal t rial, up to the p oint that he pleaded g uilty

. T his portion of the transcript included voir dire, jury selection, a nd a hearing on Venezia’s pretrial “m otion
to suppress a search warrant,” where he argued the warrant was invalid b ecause an unreliable conf idential inf

orm ant was used t o obtain it. The State presented t he t estim ony o f Deputy Keith Garner, a narcotics of f icer with the Lam a r County Sherif f ’ s Of f ice, i n response to the

m otion. ¶8. Deputy G a r n e r t e s t i f i e d t h a t Venezia was on a d atabase list m o nitored by law enf orcem ent t hat showed w hen n um erous purchases of Sudaf ed were m ade out of state. The authorities received inf

orm ation that Venezia was traveling t o Louisiana to m ake purchases of S udaf e d, and m a nuf

a cturing m etham

phetam ine in his hom e. The p u r chases were conf irm ed by the database. Deputy Garner testif ied that on February 1 4, 2011, a conf idential inf orm ant had purchased m etham phetam ine f

r om Venezia at his residence. On February 24, 2011, Louisiana and Mississippi narcotics units were on “Sudaf ed detail” m onitoring several pharm acies near t he Louisiana state line. It was learned Venezia had purchased S udaf ed, the

m ain ingredient in m etham phetam ine, and lithium b atteries, another ingredient, at a W alm art in Slidell, Louisiana. Constant s urveillance of Venezia was c onducted by n arcotics units until the Lam a r County n arcotics u nit could take over surveillance at Exit 6 of Interstate 59. The M ississippi Highway Patrol was requested t o conduct a routine traf f ic stop near Exit 41. Precursor chem icals ( Sudaf ed and lithium ) were f

ound in a vehicle operated by V enezia, who

4was arrested with another individual. Of f icers t hen secured Venezia’s residence i n Purvis, Mississippi, a nd applied f or a s e a r c h warrant, which was g ranted and executed. Other
precursors were f

o u nd at his residence, but the trial j udge stated those precursors were not at issue until trial. The m otion to suppress was denied. ¶9. The testim ony b y Deputy Garner on the m otion to suppress provided a s u f f i c i e n t f actual b asis f

or Venezia’s guilty plea to Count 1’s possession of p recursors with the intent
to m anuf acture. Venezia’s argum ent is without m erit. ¶10. T H E JUDGMENT O F THE CIRCUIT COURT OF L AMAR COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAMAR COUNTY. LEE, C.J., I RVING AND GRIFFIS, P.JJ., ISHEE, C ARLTON, FAIR, JAMES AND G REENLEE, JJ., CONCUR. WILSON, J ., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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