IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-CP-01911-COA BRIAN WILLIAMS A/K/A BRYAN WILLIAMS A/K/A BRIAN ANDREW WILLIAMS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 11/06/2015 TRIAL JUDGE: HON. CAROL L. W HITE-RICHARD COURT FROM W HICH APPEALED: SUNFLOW ER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BRIAN W ILLIAMS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 01/24/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND FAIR, JJ. LEE, C.J., FOR THE COURT: ¶1. B r i a

n W i l l i a m s a

ppeals the s um m ary d ism issal of his f o urth m otion f

or postconviction relief (PCR). Finding that W i lliam s’s m otion is both successive-writ barred and tim e-barred, and not excepted f

rom the procedural bars, we af f i rm . FACTS AND PROCEDURAL HISTORY ¶2. W i lliam s w as indicted by a Sunf lower County grand jury f or various of

f enses arising f rom the com m ission of a r obbery

. W illiam s pled guilty to one count of arm ed robbery and
one count of aggravated assault. For each c ount, he was sentenced to eighteen y e ars, withf

ive y ears suspended and thirteen y ears to serve, a nd f ive y ears of

postrelease supervision. The sentences were ordered to run concurrently

. ¶3. W i l l i a m s’s f

irst PCR m otion alleged speedy -trial v iolations and w as denied b y t h e t r i a l court; we af

f irm ed in W

i lliams v. State, 98 So. 3d 1090, 1093 (¶18) (Miss. Ct. App. 2012). His second PCR m otion challenged the voluntariness of his g u i lty plea and alleged inef f ective assistance o f counsel. Finding no m erit to his c l aim s, we again af f irm ed the trial court’s dism issal o f his PCR m otion and also f ound his PCR m otion was procedurally barred

as a s uccessive writ. W

illiams v. S

tate, 110 So. 3d 840, 845 ( ¶23) ( Miss. Ct. App. 2013). In W i lliam s’s t hird PCR m o t ion, a lso dism issed by the trial c o u rt, he claim ed the indictm ent

was def e ctive f o r f ailure t o allege all the essential elem ents of arm ed robbery and aggravated assault and inef

f ective assistance of cou

n s e l f or his attorney ’s f

ailure to c hallenge t he def

ects. In W illiams v. S

tate 158 So. 3d 1171, 1175 (¶14) (Miss. C t. App. 2014), we af f irm e d the trial court’s dism issal of W illiam s’s third PCR m o tion, both on the m erits a nd f inding t he m otion procedurally

barred as a successive writ. ¶4. W i lliam s f

iled a f ourth P CR mo t i o n. The trial court dism i ssed the m otion as both tim e-barred and successive-writ barred. W illia ms n ow appeals, asserting that (1) the trial
court e rred b y dism issing h is PCR m otion without reviewing t he evidence he presented to support his claim s ; (2) the trial court violated his Sixth Am e ndm e nt right to d ue process by f ailing to advise him of

his constitutional right to cross-exam ine adverse witnesses; (3) the evidence subm itted by the State was insuf f icient as a m atter of

law to sustain a conviction; and (4) he received inef

f ective assistance of

counsel.

2STANDARD OF REVIEW

¶5. “W hen reviewing a t r i a l c o u r t’s denial or dism issal of a PCR m o tion, we will only disturb the trial c ourt’s decision if it is clearly e rroneous; h owever, w e review the trial court’s legal conclusions unde r a de novo standard of r eview.” Thinnes v. State, 196 So. 3d 204, 207-08 (¶10) ( Miss. Ct. App. 2016) (quoting Carson v . State, 161 So. 3d 153, 1 55 (¶2) (Miss. Ct. App. 2014)). DISCUSSION ¶6. Under the Unif

o r m P o s t c o n v i c t i o n C o l l a teral Relief Act (UPCCRA), “any order dism issing the p etitioner’s m otion o r o t herwise deny ing relief under this article is a f inal judgm ent and s h all be conclusive until reversed. I t shall be a b ar t o a s econd or successive

m otion under this article.” Miss. Code A n n . § 99-39-23(6) (Rev. 2015). However, a successive writ m ay b e perm itted if the m ovant c an show t hat a statutory exception applies. W illiams, 158 So. 3d at 1173 ( ¶ 4). The UPCCRA also im poses a tim e-bar f

or PCR m otions: “A m otion f

or relief under this article shall be m ade[ ,]

. . . in c a s e o f a guilty plea, within three (3) y ears af

ter entry of the judgm ent o f conviction.” Miss. Code Ann.§ 99-39-5 (Rev. 2015). “ Errors af

f ecting f undam ental constitutional rights are excepted f r om the p rocedural bars of the UPCCRA. But m ere assertions of c onstitutional-rights violations do n ot suf f ice
to overcom e the procedural b ar.” W illiams, 158 So. 3d a t 1173 (¶4) (citation om itted). This PCR m otion i s Wi l l i a m s ’s f ourth. And it was f

iled over three y ears f

rom his conviction. Theref ore, to survive both the successive-writ bar and tim e-bar, W illiam s bears t he burden of showing he has m e t a statutory exception to these procedural bars. Id.

3I. Defective Indictm ent

¶7. O n a p p e a l , W illiam s argues his m o tion survives any procedural bars because h i s indictm ent w as d ef

ective in that it charged D avid Gardner, the victim , with the c o m m ission of the c rim es. This i s not so. W illiam s m isrepresents the indictm ent. The i ndictm ent clearly

s t a tes “That Brian W illiam s[ ,]

. . . in a nd upon David Gardner[ , ] did [ com m it arm ed robbery .]” T his language clearly charges W illiam s as the w r o ngf ul actor, who com m itted

ar me d r o b bery “in and upon” David Gardner

– the victim

. And while this C ourt has previously ac k n o w ledged that t he indictm ent is gram m atically im perf ect, we f ound that it suf f i ciently charged W illiam s with all the elem ents o f arm ed robbery

. See W illiams , 158 So. 3d at 1174 (¶8). W illiam s’s attem pt to i gnore p ortions of the indictm ent nam ing him self as the perpetrator in ef

f orts to m i sconstrue the indictm ent is disingenuous. II. Sum m ary Dism issal ¶8. Wi l l i a ms also contends that the trial court erred when i t sum m arily dism issed h i s f ourth P CR m otion without reviewing t h e e v i d ence supporting h is claim

. T he UPCCRA states that “[ i]f it plainly appears f rom the f ace o f t he m otion, any annexed exhibits and the prior proceedings in the case that t he m ovant is not entitled to any r elief , t he judge m ay m ake

an order f o r its dism issal and cause the petitioner t o be notif ied.” M iss. Code Ann. § 99-39- 11(2) ( Re v . 2 0 1 5 )

. T h e trial court did just that. It is plain f rom the f ace of W illiam s’s

m otion t hat he is n o t e n t i t l e d t o relief as his claim s lack m erit

– notwithstanding that his claim s have been considered by t he t rial court and this C ourt at least f our tim es. The trial court, citi n g R o w l and v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010), properly noted that

4“f

undam ental c onstitutional rights are exceptions f rom the procedural b ars of the UPCCRA, [ but] m ere assertions of constitutional-rights violations do not suf f ice to overcom e this bar.” The t rial court f

o und – a nd we agree – that W illiam s f ailed t o do m ore than m erely assert his constitutional rights had b een v i o l a t e d

. And he did not point to a ny new evidence or

m eritorious argum ents that dif f e r f rom his previous three PCR m otions. W e f ind no error by the trial court. III. Right to Cross-Ex am ine Adverse Witnesses ¶9. W i lliam s a lleges the t rial court violated his S ixth A m endm ent right to due process by f ailing to a dvise him of his c onstitutional right to cross-exam ine a dverse w itnesses bef ore it accepted his guilty

pleas. It is true that a def endant m u st be told t hat a g uilty plea involves

a waiver of the right to conf ront adverse witnesses. Mosley v. State, 150 S o. 3d 1 2 7 , 132 (¶17) (Miss. Ct. App. 2014). ¶10. The guilty -plea t ranscript shows that W illiam s u nderstood t hat he h ad the right to trial by jury , the right to challenge adverse evidence presented at trial, and the right a gainst self

incrim ination

. D u ring his plea colloquy , W illiam s specif ically acknowledged and waived his “right to be present and t o challenge any evidence that com es in against [ h im ] at trial.” Certainly this encom

p asses the right to cross-exam i ne adverse witnesses. ¶11. R e g a r d l e s s , o n l y f u n d a m e n tal

- c o n s t i t u t i o n a l

- r i g h t s v i o l a t i o n s o v e r c o me t h e UPCCRA’s procedural bars. In Mississippi, “ only f our ty pes o f f undam ental r ights have been expressly f

o und to survive PCR procedura l b a r s : ( 1 ) double jeopardy ; (2) illegal sentence; (3) denial of d

ue pro c e s s at sentencing; and (4) ex post f acto claim s.” Boyd v.

5State, 155 So. 3 d 914, 918 ( ¶13) (Miss. Ct. A pp. 2014). A nd just as this Court has previously

determ ined that a trial court’s f ailure to inf

o r m a d e f

e n d a nt t hat he has a right against self -incrim ination d oes not violate a f undam ental c o n s t i t

u t i o n al right, l ikewise, a trial court’s f a i l u r e to specif

i cally enum erate the def

endant’s r ight to cross-exam ine adverse witnesses is not a violation of a f

undam ental right. See id. (citing McGriggs v. State, 117 So. 3d 626, 629 (¶10) (Miss. Ct. App. 2012)). Here, we f ind no violation of a f

undam ental constitutional right; thus, W illiam s cannot overcom e the procedural bars. IV. Ineffective Assistance of Counsel ¶12. W i lliam s again a sserts inef f ective assistance of counsel in h is f ourth PCR m otion. To p r e v a i l on a claim f

or inef f ective assistance of counsel, W illiam s m ust prove t h a t ( 1 ) “counsel’s perf

orm ance was def

icient,” and (2) “the def

icient p erf

o rm a nce pre

judiced the def ense.” Strickland v. W

ashington , 466 U.S. 6 68, 687 (1984). This Court has h eld in PCR

cases that “where a party of f ers only his af

f idavit, then his inef

f ective[ -]assistance claim is without m erit.” Alford v. S tate, 185 So. 3d 429, 432 (¶16) (Miss. Ct. App. 2016). W illiam s of f ers nothing – apart f

rom h is o wn assertions – to d em onstrate that he received inef f ective assistance of counsel. And because W illiam s’s inef f ective-assistance claim rests upon his other claim s, which we have f ound have no m erit, this claim is also without m erit. ¶13. THE J U D G M E N T O F T H E S U N F L O W E R C OUNTY CIRCUIT COURT DISMISSING THE M OTION FOR POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER COUNTY. IRVING AND GRIFFIS, P.JJ. , B A R N E S , ISHEE, C ARLTON, FAIR, W ILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

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