IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2015-CP-01503-COA BRYAN F. FARIS A/K/A BRYAN FARIS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 09/02/2015 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: BRYAN F. FARIS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DISMISSED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED: 11/15/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., FAIR AND WILSON, JJ. FAIR, J., FOR THE COURT: ¶1. Bry an Faris p led guilty to possession of a sto l e n f i r e a r m in violation of Mississippi Code Annotated section 97-37-35 (Rev. 2 014). Alm o st three m onths later, he f iled a m otion f or post-conviction relief (PCR), seeking to set a s i d e h i s g uilty p lea and conviction. Faris claim ed that: (1) the trial court had no jurisdiction b ecause he was not i ndicted f o r p ossession of a s tolen gun; (2) he did not plead guilty voluntarily or knowingly because he was under

t h e inf luence of m edication a nd was of lim ited intelligence and understandin g w h e n h e entered the plea; a nd ( 3 ) his counsel was inef f ective because counsel l e t h i m plead guilty under such circum stances. The trial judge dism issed the PCR m o tion without an evidentiaryhearing. Finding no error, we af f irm

. FACTS ¶2. I n M a r c h 2 0 1 5 , F a r i s p led guilty to a crim inal inf orm ation chargi n g h i m w i t h possession of a stolen shotgun, which he had pawned shortly af ter i t had been stolen. 1 Faced with three pending indictm ents, he signed a w aiver of indictm ent, signed a petition to plead guilty to the crim inal inf

orm ation charge, a n d was e x tensively questioned b y the trial court during a f orm al plea colloquy

. ¶3. The trial judge accept e d F a r i s ’ s g u i l t y plea and sentenced h im t o f ive y ears in the custody of the Mississippi Departm ent of Corrections, t o be served “day f or day ” and not to be reduced n or suspended but with credit f or the sixteen m onths he had s erved awaiting trial. The sentence a lso provided he was not to becom e eligible f or p arole or p robation, n or f or any weekend or overnight passes. STANDARD OF REVIEW ¶4. The c ircuit court m ay sum m arily dism iss a P CR m otion without a n e v i d e n t i a

r y h e a r ing “[ i]f it p lainly appears f

rom the f ace of t h e mo t i o n, any annexed exhibits and the prior proceedin g s i n t he case that the m ovant is n ot entitled to any relief .” Miss. Code Ann. § 99-39-11(2) (Rev. 2 015). To succeed on appeal, t he petitioner m u st: (1) m ake a s u

bstantial showing of the denial of

a state or f

ederal right and (2) show that the claim is procedurally

1 H e h ad b e e n in d icted o n Jan u ary 2 9 , 2 0 1 4 , f o r th ree f

elo n ies, o n e o f w h ich em b raced h i s p o ssessio n o f a s to len s h o tg u n . T h e in d ictm en ts w ere n o t p u rsu ed an d , u p o n im p o s itio n o f th e sen ten ce in th e m atter b ef o re u s, w ere “retired to th e f iles.” 2alive. Y

oung v. State , 731 So. 2d 1120, 1122 (¶9) (Miss. 1999). ¶5. W h en reviewing t he d enial of a PCR m otion, a n appellate court “will not disturb the trial court’s f

actual f indings unless they are f

ound to be c l early erroneous.” Callins v. State , 975 So. 2d 219, 222 (¶8) (Miss. 2008). Our review of t h e s u mm ary dism issal o f a PCR

m otion, a question of

law, is de novo. Y

oung , 731 So. 2d at 1122 (¶9). ¶6. W h en a pet i tioner has sought and been denied an order setting aside his guilty plea based on incom

petence because of

m e ntal def

i ciencies, drug and/or alcohol use, or sim ilar im p edim ents to his understanding the consequences o f h i s plea, on review, the pertinent question is whether the trial judge received i n f o r ma t ion which, objectively c onsidered,

s h o u ld r easonably have raised a doubt about the def endant’s com

petence and alerte d t h e judge t o the possibility that the def e n d a n t c o uld n either u nderstand the proceedings, appreciate their signif

icance, nor rationally aid his attorney in his d ef ense. Neal v. State, 186 So. 3d 378, 381 (¶3) (Miss. Ct. App. 2016). DISCUSSION 1. Charge by Crim inal Inform ation ¶7. Faris was c harged under a crim inal inf orm ation rather than an i ndictm ent. W hen an of f ender seeks a cceptance of a guilty plea, a crim inal inf orm ation m a y be used in lieu of an indictm ent. Berry v
. S t a t e , 1 9 S o . 3d 137, 139 (¶7) (Miss. Ct. App 2009). However, the def endant m ust be r e presented by counsel and have w aived the indictm ent by a sworn
statem ent. Id

.

3¶8. Here, the trial judge strictly f ollowed the B erry guidelines. Faris sought acceptance of a g uilty plea. Representation by counsel and waiver of indictm ent are each contained in

a w ritten docum ent signed by both F a r i s a n d h i s c ounsel, a s well as contained in his plea colloquy : Q: Now w hen y ou p lead guilty to a crim inal inf o rm ation, like y ou’re doing this a f ternoon, did y ou know y o u give up the right to have this c a se presented to the grand jury ? A: Yes, sir. ¶9. Thus, Faris’s cla i m o f t h e i n v a lidity of the crim i nal inf orm ation as his charging instrum ent is without m e rit. 2. Voluntariness of Faris’s Plea ¶10. Faris asserts that his plea was not k nowing or volunta r y b e c a u s e he was under the inf luence of prescription m edication at the tim e he m ade it. But at his plea hearing the f ollowing exchange between Faris and the trial judge took place: Q: Today a r e y o u u n d e r t h e inf luence of any illegal drugs or alcohol or undergoing m ental treatm ent at this tim e[ ? ] A: I’m

on antidepressants. Q: W hat are y ou taking, Xanax or som ething like that? A: No, sir, I take Buspirone, Trazodone. Q: Any

thing about those that would keep y ou f rom understanding what we are talking about[ ? ] A: No, [ s]ir.

4¶11. In N eal, 186 So. 3d 378, the petitioner had m ade the sam e c laim

. Under questioning by the trial court, Neal h ad a dm itted that at the tim e of h is of f ense he was u nder the inf

luence of Trazadone and m orphine. I d . at 382 (¶12). Then, the f ollowing exchange ensued: Q: Are y ou on a ny

thing, illegal drugs, alcohol, beer, wine, whiskey , pills or any other ty pe of intoxicants right now ? A: Yes, sir. Q: And what are y ou on? A: M o r phine, Seroquel, Buspirone, L ortab and a couple of others, Y o u r Honor. Id . (em phasis added). ¶12. In Neal

we noted: “The def endant bears the b urden of proving the invalidity

of a guilty plea by a preponderance of the evidence.” W atson v. State , 100 S o . 3 d 1034, 1038 (¶10) (Miss. Ct. A pp. 2012) (citing W illiams v. State , 3 1 S o. 3d 69, 74 (¶13) (Mi s s . C t

. App. 2010)). “In assessing the voluntariness of a plea, the thoroughness of the trial court’s interrogation during the plea colloquy ‘is the m ost signif

icant evidence of all.’” Id

. at (¶12) (quoting W oods v. State , 7 1 So. 3d 1241, 1244 (¶9) (Miss. Ct. App. 2011) )

. T he def endant m ay not rely on bare assertions in his brief

. Id

. at (¶10). Neal, 186 So. 3d at 381 (¶6). ¶13. Thus, i n Neal we held that “this Court cannot f ind that Neal’s bare assertions in his brief overcom e the strong presum ption that his sworn statem ents in court were true.” Id. at 382 (¶9). For the sam e reason, Faris’s claim lacks m erit. 3. Effectiveness of Counsel ¶14. To prove his counsel was inef f ective, Faris m

ust s how (1) his counsel’s perf orm ance
5was d e f

icient, and (2) the def

icient p erf

o rm a nce prejudiced h is d ef ense. Strickland v. W ashington , 466 U.S. 668, 687 (1984). “Judicial scrutiny of counsel’s p erf o rm a nce m

ust be highly def

erential.” I

d

. at 689. A strong but rebuttable p resum pt i o n e x i s t s that counsel’s perf orm ance was ef

f e ctiv e . G illey v. State , 748 So. 2d 123, 129 (¶20) (Miss. 1999). “To

overcom e this presum

ption, ‘the def

endant m ust show that there is a reasonable probability that, b ut f o r counsel’s unprof

essio n a l errors, the result of the proceeding w ould have been dif f erent.’” Id

. (quoting Strickland , 466 U.S. at 694). Moreover, “the trial court m ay dism iss

a m otion f or post-conviction relief if the petitioner f ails to subm i t af

f idavits in support of his allegations” of inef

f ective assistance; the petitioner’s bare assertions are insuf f icient. Mayhan v. State , 26 So. 3d 1072, 1076 (¶10) (Miss. Ct. App. 2009). ¶15. F a r i s f

ailed to provide any evidence showing that his c ounsel’s perf orma n c e w a s def icient. Further, Faris explicitly represented to the C ourt in his plea petition and during his plea colloquy that he was satisf ied with h is attorney ’s services. Theref ore, we f ind this issue is without m erit. ¶16. T H E J U D G M E N T OF THE CIRCUIT COURT OF LOWNDES C O U N T Y DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY. LEE, C.J., IRVING AND G R I F F I S, P.JJ., BARNES, I SHEE, CARLTON, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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