IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2016-CP-01003-COA ALLEN GOUL APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 06/17/2016 TRIAL JUDGE: HON. CHRISTOPHER LOUIS SCHMIDT COURT FROM W HICH APPEALED: HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT ATTORNEY FOR APPELLANT: ALLEN GOUL (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA W . BYRD NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION COLLATERAL RELIEF DISPOSITION: AFFIRMED: 06/27/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ. GRIFFIS, P.J., FOR THE COURT: ¶1. Allen Goul a

ppeals the denial of hi s mo t i o n f or post-conviction c ollateral relief (PCCR). W e f

ind no error and af

f irm

. FACTS AND PROCEDURAL HISTORY ¶2. Goul entered a plea of guilty to the charge of

m urder. On Septem

ber 1, 1993, Goul was sentenced to lif

e in the custody

of the Mississippi Departm ent of Corrections. ¶3. On A p r il 18, 2016, Goul f iled a pro se m otion f

or PCCR and argued his guilty plea

was involuntarily entered and he received inef f ective assistance of c ounsel. The circuit courtdenied Goul’s m otion f or PCCR as tim e-barred. Goul now appeals. S TANDARD OF REVIEW ¶4. W e will not disturb a circuit court’s denial of a m otion f

or PCCR unless the f

actual f indings are clearly e rr oneous. Kennedy v. State , 179 So. 3d 8 2, 83 (¶5) (Miss. Ct. App. 2015). However, questions of law are reviewed de novo. Id. ANALYSIS ¶5. Pursuant to Mississippi Code Annotated section 9 9- 3 9

- 5 ( 2 ) (Rev. 2009), in case of

a guilty p lea, a m otion f

or P CCR sh a l l b e f

iled “within three (3) y ears af ter entry of the j u d g me n t of conviction.” Here, Goul’s judgm ent o f conviction was entered Septem ber 1 , 1993. Thus, Goul had until S eptem ber 1, 1996, to m o ve f

or PCCR. However, Goul did not f ile his m otion f

or PCCR until April 18, 2016, alm o st twenty -three y ears af ter his conviction. Consequently , Goul’s m otion is tim e-barred. ¶6. Goul adm its his m otion f or PCCR i s u ntim ely , but argues th e severity of his claim s
warrants t his Court’s review. W e disagre e . Ty pically , “errors af

f ecting f undam ental constitutional rights a re excepted f rom the procedural bars of the [ U nif orm Post-Conviction Collateral Relief Act].” Rowland v. S tate , 4 2 So. 3d 503, 507 (¶12) (Miss. 2 010). However, claim s of an involuntary guilt y p l e a a n d inef f ective assistance of counsel are not excepted f rom the tim e-bar, even though these claim s i nvolve f undam ental constitutio n a l rights. Jones

v
. S t a t e , 1 7 4 S o. 3 d 9 02, 907 (¶12) (Miss. Ct. App. 2015) (citing Kirk v. State , 798 So

. 2 d 345, 346 (¶6) (Miss. 2000)). In f act, “since Rowland , only f our ty pes o f ‘f undam ental rights’ have been expressly f

ound to survive PC[ C]R procedural bars: (1) the right against double

2jeopardy ; (2) t h e r i g h t t o b e f ree f rom an illegal sentence; (3) the right t o due process at sentencing; and (4) t he right not to be subject t o ex post f acto laws.” Salter v. State , 184 So. 3d 9 44, 950 (¶22) (Miss. Ct. App. 2015). As G oul’s c laim s are not excepted f rom the procedural bar, we f

ind his m otion f

or PCCR is tim e-barred. ¶7. Procedural bar notwithstanding, we f in d G o u l ’ s c l a i m s a

r e m eritless. Goul f

irst claim s his guilty p lea was i nvoluntarily entered. “A guilty plea is voluntarily a n d intelligently m ade if the circuit court ‘advise[ d] the def endant of his rights, the nature of the charge a gainst him ,

as well as the consequences of the plea.’” Berryhill v. State , 1 97 So. 3d 938, 940 (¶7) (Miss. Ct. App. 2016) (quoting Burrou g h v
. State , 9 So. 3 d 368, 373 (¶11) (Miss. 2009)). “However, a ‘ plea of guilty is not volun t a ry if induced b y f ear, v iolence, deception or im p roper inducem ents.’” Id

. at 940-41 (¶7) (quoting URCCC 8.04(A)(3)). The petitioner has the burden of

proving his plea is invalid. Id

. at 941 (¶7). ¶8. The plea petition and the plea-hearing transcript both show Goul was advised of and understood his constitutional rights, the nature of t he charge against him , the m inim um and

m axim u m sentences f

or the c harge, and the consequences of his guilty plea. Goul signed the plea petition and initialed each paragraph of the petition. ¶9. Additionally , the p l ea t ranscript i ndicates Goul was advised and understood that the circuit court would determ ine his sentence, and that the circuit court was not obligated to accept or f

ollow any a dvice o r recom m endations m ade by the State or his d ef e n se attorney

. Having been so advised, G oul chose to proceed with his plea. Im portantly , Goul represented
to the circuit court that his d ecision to enter a g uilty plea was his decision, and was not based

3on threats, coercion, o r any p rom ises m ade to him

. “Solem n declarations i n open court carry

a strong pr e s u mp t i o n o f v erity .” Id

. The record shows Goul’s g uilty p lea w as f reely , voluntarily , knowingly , and i ntelligently entered. T hus, Goul’s claim of a n involuntary plea f ails. ¶10. Goul next claim s he r eceived inef f ective assistance of counsel. To prove inef f ective assistance of c ounsel, Goul m ust show: (1) his counsel’s perf o rm ance was def

icient, and (2) this def iciency prejudiced the def ense. Liddell v. State , 7 So. 3d 217, 219 (¶6) (Miss. 2009) (quoting Strickla n d v
. Wa s h i ngton , 466 U.S. 668, 687 (1984)). There is “ a strong
presum ption that counsel’s c onduct f a lls within t he wide r a n ge of r easonable prof essional assistance.” Strickland , 466 U.S. at 689. To overcom e this presum ption, Goul “ m

ust show that there is a reasonable probability that, but f o r counsel’s unprof

essional errors, the result of the proceeding would have been dif f erent.” Id . at 694. ¶11. G o u l c l a i m s h i s g u i l t y plea was induced b y deception, m isrepresentation, a n d m i s t a k e n advice of counsel. Specif ically , G oul as s e r t s his counsel prom ised that in e xchange f or a guilty plea, he “would be b r o u ght back af ter seven y e a rs f

or reconsideration of sentence.” However, the record does not support Goul’s claim of inef f ective assistance of

counsel. ¶12. Both the plea petition a n d t h e p l ea t ranscript indicate Goul was satisf i ed with his

c o unsel. Goul w as advised and understood that his sentence w as up t o the circuit court regardless of a ny r ecom m endation by or agreem ents between the S tate and def e nse counsel. As previously noted, G oul advised the circuit court, under o ath, that his guilty plea was not based on any

prom ises m ade to him

.

4¶13. Shortly a f ter his c onviction, Goul’s counsel f iled a m oti o n f

o r r e consideration of
sentence. T h e c i r c u i t court did not rule on the m o tion, but f o und that “reconsideration of
sentence at som e f

uture date could s e rve t he interest of j ustice,” and theref ore retained j u r i s d i c t i o n over the m atter. However, Goul’s reliance on t his order i s m i splaced, as the order d oes not m a ndate reconsideration of Goul’s sentence, nor d oes it af f e c t the validity of his guilty plea. E ven a s s u ming Goul had been brought back af ter seven y ears f

or reconsideration, the circuit court was not obligated to reconsider his sentence. ¶14. The record shows Goul was advised of the m inim um a nd m axim

um sentences f

or the charge and the consequences of pleading guilty

. Goul v oluntarily e ntered his guilty plea with the knowledge and understanding of the sam e. Sim

ply because t he c ircuit c ourt has f ailed to reconsider his sentence does not am ount to inef f ective assistance of

counsel, nor does it warrant PCCR. ¶15. Goul has f

ailed to show that his counsel’s p erf orm ance was d e f

i c i e n t , and that the alleged def

iciency prejudiced his def ense. Goul has f

ailed to show that , b u t f

o r c o unsel’s

errors, the result of the p r o c e e ding would have been dif f erent. Accordingly , G oul’s claim of inef f ective assistance of

counsel f a ils. CONCLUSION ¶16. W e f

ind Goul’s m otion f

o r PCCR i s procedurally barred, and no statutory e xceptions apply . Accordingly , we af f i rm the circuit court’s denial of Goul’s m otion f

or PCCR. ¶17. THE JUDGMENT O F T H E HARRISON C OUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DENYING TH E MOTION F OR POST-CONVICTION COLLAT E R A L R ELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

5LEE, C .J., IRVING, P .J., ISHEE, CARLTON, FAIR , W ILSON, GREENLEE

AND W ESTBROOKS, JJ., CON C U R . B ARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION.

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