IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2015-CP-00370-COA JAMES CHARLES FUNCHESS A/K/A JAMES FUNCHESS A/K/A JAMES FUNCHES APPELLANT

v.
STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 02/10/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMES CHARLES FUNCHESS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POSTCONVICTION RELIEF DISMISSED DISPOSITION: AFFIRMED - 06/21/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED:
C ONSOLIDATED WITH
N O. 2015-CP-00680-COA JAMES CHARLES FUNCHESS A/K/A JAMES FUNCHESS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/15/2015 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JAMES CHARLES FUNCHESS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORENATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF

TRIAL COURT DISPOSITION: MOTION FOR POSTCONVICTION RELIEF DISMISSED DISPOSITION: AFFIRMED - 06/21/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND ISHEE, JJ. ISHEE, J., FOR THE COURT : ¶1. J a mes Funchess p leaded guilty i n the Madison County Circuit Court to the s a l e o f cocaine within 1 ,500 f

eet of a school. He was sentenced to serve sixty y ears in the custody of the Mississippi Departm ent of Corrections (MDOC), with thirty y ears suspended and f ive
y ears of p ostrelease sup e r v i s i o n (PRS). Funchess f iled his f irst m otion f

or p ostconviction relief ( PCR) arguing: (1) inef f ective assistance of counsel; (2) his plea was involuntary ; and (3) his sentence was illegal. The circuit court sum m arily dism issed the m otion. Funchess
f iled a second PCR m otion contending that he was denied his right to a speedy trial, which the circuit court also dism issed. Funchess a ppeals th e r u l i n g s on both PCR m otions. Because both PCR m otions s tem f rom the sam e p lea and are related, we have consolidated the appeals. Finding no error, we af f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Funchess was indicted f o r the sale of cocaine (Count I) and c onspiracy to sell cocaine (Count II), both with an enhancem ent due to the of f e nses b eing within 1,500 f eet o f a school. The State a m e nded the indictm ent to i nclude t he enhancem ents as a subsequent drug of f ender

a n d habitual o f

f ender. On J uly 22, 2013, Funchess e n tered a plea of guilty to the sal e o f cocaine within 1,500 f

eet o f a school. As a result of his guilty plea, the State n olle prossed

2Count II, a nd did not pursue the subsequent-drug-of f ender or the habitual-of

f ender portions of the am ended indictm ent. ¶3. O n Septem

b er 17, 2 013, f

ollowing a p resentence investi g a t i o n , t h e c i r c u it court sentenced Funchess to sixty y ears in the custody of MDOC, with thirty y ears suspended and
f ive y ears of PRS. On J anuary 9, 2015, F u n c h e s s t i mely f iled his f irst PCR m otion, which

was sum m arily d enied a nd dism issed. Funchess f iled a subsequent, successive PCR m otion

o n M a r c h 23, 2015, which was also d ism issed by the circuit court. Aggrieved, Funchess appeals both decisions.
DISCUSSION ¶4. W h en considering t h e d i s mi s s a l o f a PCR m otion o n appeal, “ w e review the trial
court' s f indings of f

act f o r clear error.” W

hite v
. State , 59 So. 3d 633, 635 (¶4) (Miss. Ct. App. 2011) (citing W

illiams v. State , 872 So. 2d 711, 712 (¶2) (Mis s . Ct. App. 2004)). In deciding Funchess’s f

irst PCR m o tion, the circuit c ourt stated that “it plainly appears that the Petitioner is not entitled to any relief and that the request should be d e n i e d a n d dism issed. The transcript of the guilty plea proceeding, including t he Petitioner’s sworn t e s t i mony , discredits the allegations he m akes in his m otion.” W e agree. A circuit court m ay dism iss

a PCR m otion “[ i]f it plainly a ppears f rom the f ace of the m otion, any annexed exhibits[ ,] and the prior proceedings in the case t hat the m ovant is not entitled to any r elief [ .]” Miss. Code Ann. § 99-39-11(2) (Rev. 2015). ¶5. Furtherm ore, F unchess did not provide af f idavits f rom any o ne, including h im self , to suggest h ow he would support his allegations. The “trial court m ay dism iss a [ PCR m otion]

3if the petitioner f ails to subm it af

f i davits in support of his allegations, thereby supporting his position with o nly his bare assertions.” W atson v. State , 100 So. 3d 1034, 1 040 (¶21) (Miss.
Ct. App. 2 0 1 3 ) ( c i t a tion om itted). Nevertheless, we will discuss the issues raised by Funchess in his PCR m otions.
I. Guilty Plea ¶6. Funchess f

i r s t argues t hat his guilty plea was not voluntarily and knowingly given. The f ollowing colloquy took place during Funchess’s entrance of a guilty plea i n open court: COURT: Do y ou u nderstand t h e m inim um a nd m axim

um punishm ent that c o uld be im posed f o r the crim e t hat y ou’re of f ering to plead guilty to?
FUNCHESS: Yes, sir.
COURT: F o r t he sale of cocaine. The m inim um period o f incarceration is zero y ears. T he m axim um period i s 30 y ears. The m inim

u m f ine is $5,000, and the m axim um f ine is $1 m illion. Do y o u understand that?
FUNCHESS: Yes, sir.
COURT: But because y ou’re charged with having done this within

1,500 f eet of a s chool, those m inim um s and m axim

um s are d oubled. So y ou’re looking at a m inim um period of incarceration o f zero y ears a nd a m axim um period of inc a r c e ration i s 60 y ears, a m inim um f ine of $10,000, and a m axim

um f ine of $2 m illion. Do y ou understand that?
FUNCHESS: Yes, sir.

. . . . COURT: H a s a n y o n e m ade y ou any prom ises of lenienc y i n a n

ef f ort to get y ou to change y our plea?

4FUNCHESS: No, sir.

COURT: Af

t er discussions with y o u r a t t o rney s , are y ou the one that decided to plead guilty ?
FUNCHESS: Yes, sir.

. . . . COURT: Do y ou understand there’s no recom m e n d ations to sentence in

this ca s e a n d t h a t this is an open plea, w hich m e ans that I will im pose whatever s entence I believe to be appropriate[ ? ]

. . . I’ll im pose a sentence t hat I think is appropriate u p to a s e ntence of 60 y ears and im

pose a $2 m illion f

ine, and I m ay order that that sentence runs consecutively to any other sentence that y ou m ay be serving. Do y o u understand that?
FUNCHESS: Yes, sir.
COURT: Do y ou understand that y ou can’t rely o n any representation that

any o n e m ay have m ade relative to how m uch tim e y ou m ay have to serve as a result of a s entence that I im pose?
FUNCHESS: Yes, sir. ¶7. W h en reviewing the voluntariness o f guilty plea, we “ will not s et aside f indings o f a trial c ourt sitting without a jury unless such f indings are clearly erroneous.” W alton v. State , 16 So. 3 d 66, 70 (¶8) (Miss. Ct. App. 2 009) (quoting House v. S tate , 754 So. 2d 1147, 1152 (¶ 2 4) (Miss. 1999)). Additionally , “[ t]he burden of proving that a g uilty plea is i nvoluntary is on the def

endant and m

ust be proven by [ a] preponderance of the evidence.” House , 754
So. 2 d at 1 152 ( ¶25) (c i t a t i o n o mi tted). “To determ ine whether the plea is voluntarily and intelligently given, the trial court m ust advise the d e f

e n d a n t o f his rights, the nature of the

c h a rge a gainst him , as well as the consequences of the plea.” Burrough v. State , 9 S o . 3 d 368, 373 (¶11) (Miss. 2009).

5¶8. Here, prior to e ntering h is plea, the circuit court advised Funchess that it was an open

plea, which allowed the circuit court to f ashion a sentence it d eem ed appropriate. T he circuit

court clearly s pelled out the m axim um and m inim

um sentences Funchess f

aced if he chose

to plead guilty to C ount I, which i ncluded the enhancem e n t. Funchess t akes issue with the
f act that he i s not e ligible f or p arole or a reduced sentence
S restrictions that he claim s were not convey ed to him

by his counsel. However, the record belies this assertion. During the plea colloquy , Funchess agreed that he could not rely on any representations that were m ade

to him as they pertained to his s en t ence. “Solem n declarations m ade i n open court carry a strong presum

ption of verity .” Jones v. State , 885 S o. 2d 83, 87 (¶8) (Miss. Ct. App. 2004) (citation om itted). As such, even if Funchess h a d b e e n told by his counsel t hat he could receive parole or a reduced sentence, the circuit court m ade clear that such representations

were invalid given the nature o f the plea. Funchess stated t hat he understood, and p roceeded with his plea hearing. Accordingly , we f ind this issue to be m eritless.
II. Assistance of Counsel ¶9. Funchess claim s that b e c a u s e h i s c o u n s e l a l l egedly m isinf orm e d him about the possibility of parole o r a reduced sentence, he was denied ef f ective assistance of counsel in entering his guilty plea. I t is well settled that in order f o r a def e ndant to prevail on an inef f ective-assistance-of

-counsel claim , he m

ust “ show by a preponderance of the evidence (1) t hat c ounsel’s perf

orm ance w as def

icient, a nd (2) [ t hat] b ut f

or the def iciencies, the trial

court outcom e would have been dif f erent.” Jones v. State , 9 76 So. 2d 407, 410-11 (¶6) (Miss.
C t

. A p p . 2 0 08) (quoting W ard v. State , 914 S o. 2d 332, 336 (¶12) (Miss. Ct. App. 2005 ) )

.

6Additionally , under Strickland v. W ashington , 466 U.S. 668, 687 (1984), a def endant m ust show “that counsel’s errors were so serious as to deprive the def endant of a f air trial . . . .” Finally , “a presum

ption exists that the a ttorney ’s conduct was adequate.” Hull v. State , 983
So. 2d 331, 333-34 (¶11) (Miss. C t. App. 2007) (citing Burns v. S tate , 813 So. 2d 668, 673 (¶14) (Miss. 2001)). ¶10. As discussed above, we f ind no m erit to the contention t hat Funchess’s guilty plea was involuntarily or unintelligently entered. Funchess asserted in his plea petition and again in
open court t hat h e u n d e r s tood t he ram if ications o f pleading g uilty

. He also acknowledged that hi s g u i l t y p l ea included the enhancem ent a n d its ef f ect o n his sentence. W ithout an af f idavit or other evidence to show otherwise, we f ind nothing in the r ecord t o indicate that Funchess’s counsel im

properly e xplained the sentence. Even if h e had been m isinf orm ed by his a ttorney , the circuit court clearly outlined the sentencing ram if i c a t ions of his plea. Finally , when asked i f he was satisf ied with his r epresenta t i o n , Funchess r esponded af f irm atively

. See Jones, 885 So. 2d at 87 (¶8) ( citation om i tted). Accordingly , F u n chess
f ails to establish a prim a f

acie case f

or inef f ective assistance of counsel. This issue i s without

m erit.
III. Enhancem ent ¶11. Funchess also argues that the enhancem ent should have been subm itted to a jury and
proven b ey ond a reasonable doubt. Funchess argues that he di d n o t p l ead guilty to the “alleged f act” that the sale of cocaine was m ade within 1,500 f eet of a school. ¶12. Mississippi Code Annotated section 41-29-142 (Rev. 2013) provides:

7[ A]ny person who violates or conspires t o vio l a t e Section 41-29-139(a)(1),

Mississippi Cod e o f 1972, by selling.

. . a controlled s ubstance, in or on, or within one thousand f

ive hundred (1,500) f

eet o f , a building or outbuilding which is all or part o f a p ublic or private elem entary , vocational or secondary school, or a ny church, public park, b allpark, public gy m n asium , y outh center or m ovie t heater or w it h in one thousand (1,000) f eet o f , the real property com prising such public or private elem entary , vocational or secondary school, or any church, public park, ballpark, p ublic gy m nasium , y outh center or m o vie theater s hall, upon conviction thereof , be punished b y t he term of im p risonm ent or a f

ine, or both, of that authorized by S e c tion 41-29-139(b) and, i n the discretion of the court, m ay be p unished by a term of i m prisonm ent or a f ine, or both, of

up to twice that authorized by Section 41-29-139(b). Funchess was f

ully advised t hat his plea included the enhancem ent and Funchess a greed on the record to the State’s recitation of all of the necessary

elem ents of

the enhancem ent: State: T h e State would show on Septem ber 17, 2007[ ,]

. . . [ t]hi s def e ndant arrived driving a v ehicle

. . . [ and] m et with a conf idential inf

orm ant

. . . within [ the] c ity lim its of Madison within Madi son County

. . . . [ T]his D ef endant sold the conf idential inf

orm a nt cocaine. All of this occurred within 1,500 f eet of Saint Joseph’s Catholic School.
Court: Mr. Funchess, y ou have any disagreem ent w it h t hat f actual basis. Funchess: No, sir. ¶13. Once again the record belies Funchess’s argum ent. Funchess a d m i t ted to the elem e nts of t he crim e, and at no point did Funchess object t o t h e e n h a n cem ent portion of his guilty plea. W e also point o ut t hat Funchess’s voluntary plea of guilty waived the State’s need to “f orm ally prove every e lem ent of the crim e bey ond a reasonable doubt.” Jewell v. State , 946
So. 2 d 810, 814 (¶16) (Miss. C t. App. 2006); see also Jones v. State , 174 So

. 3 d 9 0 2, 907 (¶11) (Miss. Ct. App. 2015).
IV. Subsequent PCR Motion

8¶14. In his second PCR m otion, Funchess sought relief by contending t hat h e was denied

his right to a speedy t rial. PCR m otions are barred f r om our review i f the m ovant has f iled

a p revious PCR m otion. Miss. C ode Ann. § 99-39-23(6) (Rev. 2015); See W hite , 59 So. 3d
635 (¶6). Furtherm ore, the circuit court, in its order deny i ng the PCR m otion, stated that, “by entering a plea of guilty , [ Funchess]

. . . w aived his right t o a speedy trial.” W e agree. This issue is also without m e rit. ¶15. THE JUDGMENTS OF THE MADISON COUNTY CIRC U I T C OURT D I S M I S S I N G T H E M O T I O N S F O R P O S T C O N V I C T I O N R E L I E F A R E A F F I R M E D . ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY

. LEE, C .J., IRV ING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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