IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-CP-01342-COA ANTONIO BURGIN APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/04/2014 TRIAL JUDGE: HON. JAMES T. KITCHENS JR. COURT FROM W HICH APPEALED: LOW NDES COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: ANTONIO BURGIN (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED APPELLANT’S MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 10/06/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., CARLTON AND WILSON, JJ. CARLTON, J., FOR THE COURT: ¶1. Antonio Burgin appeals t he Lowndes County C ircuit Court’s denial of his m otion f or postconviction relief (PCR). On appeal, Burgin raises the f o llowing issues: (1) w hether his
sentence is illeg a l ; ( 2 ) w h e ther his plea was i nvoluntary ; (3) whether there was suf f icient evidence to support h is conviction; a nd (4) whether he received inef f ective a s sistance of counsel. Finding no error, we af f irm

. FACTS ¶2. In April 2011, a grand jury indicted Burgin f o r C ount I , a rm ed r obbery , and Count II,aggravated assault. Although Burgin’s indictm ent correctly identif ied M ississippi Code Annotated section 97-3-7 (Supp. 2010) as the charging statute f or Count II, the indictm ent incorrectly identif

ied M ississippi Code Annotated s ection 97-3-73 (Rev. 2006) as the charging statute f

o r Count I. Section 97-3-73 pertains to sim ple robbery . For the crim e of

arm ed robbery , Count I of Burgin ’ s i n d ictm e nt should have identif ied Mississippi Code Annotated section 97-3-79 (Rev. 2006) as the applicable statutory section. ¶3. Despite identif

y i ng t he incorrect charging statute, the heading of Burgin’s indictm ent correctly s tated that arm ed robbery was the of f ense charged in Count I. In addition, the body of Burgin’s indictm ent charged the statutory e lem ents of arm ed robbery and stated in pertinent part: [ Burgin] did unlawf

ully , willf ully , and f eloniously [ ] attem

pt to take, steal, and carry away f rom the person or presence of [ the victim ] the personal property of [ the vic t i m ] , t o - wit: [ m ]oney , against the will of the said [ victim ] and without his consent by putting the said [ victim ] in f ear of im m e diate injury to his person by

the exhibition of

a deadly weapon, to-wit: a pistol[ .]
Count I of Burgin’s indictm ent f o r arm ed robbery theref

ore tracked the statutory language in section 97-3-79, which def ines arm e d robbery as the “ f eloniously t ak[ ing] or attem pt[ ing]
to take f rom the p e rson or f

rom the presence the personal p roperty of another and against his will by violence to his person o r b y putting such p erson in f ear of im m ediate injury to his person by the exhibition of a deadly weapon . . . .” ¶4. On Novem

b e r 20, 2012, the circu i t c o u r t granted the State’s m otion to am end Burgin’s indictme n t to ref

lect his status as a habitual of f ender under Mississippi Code Annotated section 9 9-19-81 (Rev. 2007). O n N o v em ber 26, 2012, Burgin s igned and f iled a plea

2petition acknowledging h is intention to p lead guilty to the c rim e of ar me d r o b bery

. The

petition a c knowledged Burgin’s u nderstanding t hat he could receive a sentence between three y ears and lif

e im prisonm ent f

or arm ed robbery

. In exchange f or Burgin’s guilty plea
t o a r me d r o b b ery , t he S tate recom m ended that t he circuit c ourt retire Count II of Burgin’s indictm ent f

or aggravated assault. The State f urther recom m ended t hat t he circuit c ourt f ine Burgin a n am ount t o be set by t h e court and sentence Burgin to twenty -three y ears in the

c u s t o dy of the Mississippi Departm ent of Corrections (MDOC), with f ive y ea r s o f postrelease supervision (PRS). ¶5. At Burgin’s plea hearing, the State m oved to withdraw its e arlier m otion to sentence Burgin a s a habitual of

f ender and instead asked t hat t he circuit c ourt a llow B u rgin to plead
g uilty to arm ed robbery as a non-habitual o f f ender. Although the circuit court dec i d e d t o hold its ruling i n abey ance until com pleting Burgin’s plea, the circuit c ourt stated that it would proceed under the prem ise that Burgin was n ot a habitual o f f ender. Burgin inf

orm ed the c i rcuit court of his i ntention to plead guilty to Count I of his indictm e nt f or arm ed robbery

. In response to the circuit court ’ s q u e s t ioning, Burgin acknowledged that he understood t he c ircuit c ourt could im pose a sentence ranging f

rom three y ears to som ething just less than his lif

e expectancy

and could f

ine him up to $10,000. ¶6. W h ile under o ath, Burgin adm itt e d t h a t h e u n d e r s t o o d t h e r ights he w aived by pleading guilty , that he was satisf ied with the legal representation provided by his attorney , that h e h ad discussed the consequences of his guilty p lea a n d the contents of his plea petition with his attorney , and that h e was, in f act, g uilty of the crim e of arm ed robbery

. Burgin

3f

u r t h e r s t a t e d while under oath that h e was n ot im paired in any w ay and t hat no one h a d of f ered him an inducem ent in exchange f or his guilty

plea or threatened him

to com pel his guilty plea. ¶7. During Burgin’s plea hearing, the State of f ered t o p rove the f

o llowing f

acts if the case proceeded to trial: [ O]n the date t hat’s alleged in the indictm ent, the victim in this particular c ase

. . . had a business here in t he [ C]ity of Colum bus. That [ Burgin,] along with another individual[ ,] entered the [ victim ’s] business with g uns and attem p ted to take the p e rsonal property f rom the victim in this particular case. And in the m idst of that robbery , the victim was actually shot.
Af ter hearing f

rom the State, the circuit court asked Burgin whether the f acts presented by the State were true, a nd Burgin responded af f ir ma t i v e ly

. T he circuit court then inf orm ed Burgin one m ore tim e of t he m inim um and m axim

u m p enalties he could receive f or the crim e of arm ed robbery

. ¶8. Bef

ore a ccepting Burgin’s guilty p lea, t he circuit c our t a s k e d B u r g i n ’ s a t torney whether she knew of any legal reason why the circuit court should not accept Burgin’s plea.
In response, Burgin’s attorney answered that she did not. Burgin’s attorney stated that she and Burgin h ad reviewed the discovery p rovided by the State and that Burgin h ad identif ied several f acts that w ere of interest to her. In addition, Burgin’s attorney stated that Burgin had dem onstrated a good understanding of the case and had been helpf ul in reviewing the case and m aking decisions. F or the purpose of m aking a record, Burgin’s attorney explained that the f ollowing f

acts led to Burgin’s decision to p l e a d g uilty : (1) B urgin received gunshot wounds during the com m ission of t h e arm ed robbery that required h im to s eek m edical

4treatm ent; and (2) Burgin’s blood was discovered at the crim e scene.

¶9. Af ter hearing f

rom the State and f

rom B u r g i n ’ s a t t o r n e y , t h e c ircuit c ourt asked Burgin f or a third tim e how he pleaded to the charge of arm ed robbery

. Like the prior two tim es, Burgin stated his intention to p lead g uilty

. F inding B urgin’s plea to be voluntarily , knowingly , a nd intelligently given, the circuit court accepted Burgin’s plea of guilty to arm ed robbery

. Following Burgin’s plea colloquy , the circuit court accepted the State’s s e ntencing

recom m endation and sentenced Burgin to twenty -three y ears in MDOC’s custody , with f ive
y ears o f PRS. A lthough the circuit court did n ot order Burgin to pay any court c osts or f ines, the court did order him to pay restitution. A f ter determ ining t hat the victim ’s m e dical bills, l o s t w a ges, and property d am age totaled $48,775, the circuit court ordered Burgin to pa y $23,377.50 as his portion of the restitution owed to the victim

. ¶10. Less than t wo y ears a f ter his sentencing, Burgin f iled the instant P CR m otion. Af ter f inding that each of Burgin’s claim s l acked m erit, the circuit court denied B urgin’s m otion. Aggrieved by the circuit court’s d e nial of his PCR m otion, Burgin now a ppeals to t his Court.
STANDARD OF REVIEW ¶11. “W hen reviewing a trial court’s denial o r d i s mi s sal of a PCR m o tion, we will only disturb the trial c ourt’s decision i f it is c learly erroneous; however, we review the trial court’s legal conclusions under a de novo standard of review.” Carson v. State , 161 So. 3d 153, 155 (¶2) (Miss. Ct. App. 2014) (citing Hughes v. State , 106 So. 3d 836, 838 (¶4) ( Miss. Ct. App. 2012)).
DISCUSSION

5I. Whether Burgin’s sentence is illegal.

¶12. In his f

irst assignm ent o f error, Burgin asse r t s t h a t t h e c i r cuit court violated due
process by im

posing a n illegal sentence on him that e xceeds the m a xim um p enalty provided by statute. Burgin argues that he was i ndicted f or and pled g uilty to s im

ple robbery pursuant
to section 97-3-73, w hich carries a m axim um sentence of only f

if teen y ears. See Miss. Code
Ann. § 97-3-75 (Rev. 2006). B urgin f urther contends that t h e circuit court erroneously sentenced him to twenty -three y ears in prison f or com m itting arm ed robbery pursuant to section 97-3-79. On appeal, Burgin argues his sentence e xceeds the m a x im um penalty authorized by statute by eight y ears and m ust theref ore b e vacated. In response to Burgin’s
argum ent, the State asserts that the i ncorrec t l y identif ied charging statute was m erely a scrivener’s error and that Burgin was correctly sentenced f or arm e d robbery

. ¶13. “A sentence is n o t i l l e g a l unless it exceeds the m axim u m statutory penalty f

or the crim e . ” Foster v. State , 148 So. 3 d 1012, 1016 (¶12) (Miss. 2014) (citation om itted). “In Mississippi, the law is well-settled that sentences which are within the statutory lim its will generally be upheld.” W

i lkins v. State , 57 So. 3d 19, 24 (¶13) ( Miss. Ct. App. 2 010) (citation

om itted). “Sentencing is within the com plete discretion of the trial court and not subject to appellate r eview i f it is within the lim its prescribed by statute. As a general rule, a sentence that does not exceed the m axim um period allowed by statute will not b e disturbed o n appeal.”
Carson , 161 So. 3d at 156-57 (¶7) (citations om itted). ¶14. In r e v i e w i n g B u r g i n’s assignm ent of error, we a cknowledge that Burgin correctly
asserts that his i ndictm ent erroneously identif ied section 97-3-73 a s the r e l e v ant statutory

6section f

or Count I. E ven so, w e f

ind no m erit to Burgin’s claim that he was i ndicted f or and pled guilty to sim

ple r obbery pursuant to section 97-3-73 rather than arm ed robbery pursuant
t o s e c t i o n 97-3-79. In Medlin v
. State , 35 So. 3d 564, 5 66 (¶6) (Miss. Ct. App. 2 010) , t h e def endant asserted a n argum ent sim ilar to t he one raised by Burgin. In addressing the issue in Medlin , this Court stated:
An indictm ent s erves a s notice to t he def endant of t he c harges against him

. W h en reviewing an i n dictm ent, we c onsider the substance of t he indictm ent over the f orm of the indictm ent. There is n o requirem ent that an indictm ent m ust include the statute num ber of the crim es charged. Thus, the statute num ber ref erenced in the i ndictm ent is of no c onsequence because we l ook to the substance of the indictm ent t o d eterm i ne whether it suf f i ciently gave notice of the pending charges. Id. at (¶7) (internal citations om itted). In the present case, the s ubstance of Count I of
B u r g i n ’ s i n d i ctm ent provided B urgin with suf f icient notice of the pending charge against hi m f or arm ed robbery

. ¶15. Our c aselaw clearly establishes that “the incorrect citation of a statute num ber does
not alone render an indictm ent def ective, but rather is ‘ m ere surplusage’ and not p rejudicial
to a def endant.” Evans v. State , 9 16 S o. 2d 550, 552 (¶6) (Miss. Ct. A pp. 2005) ( q u oting
W hite v. S t a t e , 1 6 9 Miss. 332, 332, 153 So. 387, 388 (1934)). As previously discussed, although Burgin’s indictm ent identif ied the charging s tatute as s ec t i o n 9 7-3-73, which proscribes sim

ple robbery , the substance of Burgin’s i ndictm ent tracked the language of section 97-3-79 and p r operly c harged Burgin w i t h arm e d robbery by t he exhibition of a deadly weapon. As a result, despite Burgin’s argum ents to t he contrary , the record ref lects that the substance o f Burgin’s indictm e n t clearly charged him with arm ed robbery and

7provided suf f icient notice of

the charge against him

. ¶16. “Section 97-3-79 of t h e M i s s i s s i p p i C ode requires a court to sentence a def endant convicted of arm e d robbery to a term less than lif e but not less than three y ears, if the jury does n ot return a lif

e sentence.” F

oster , 148 So. 3d at 1016 (¶12) (citation om itted). Thus, Burgin’s sentence of twenty -three y ears in MDOC’s custody , with f ive y ears of

PRS, f alls within the statutory s entencing guidelines. As a r esult, we f ind no m erit to Burgin’s claim that his sentence is illegal.
II. Whether Burgin’s plea w as involuntary . ¶17. Burgin next claim s that his g u i l t y p l e a w as not given v oluntarily and intelligently because he was not advised “concern i n g t h e n a t u r e o f the charge against him and [ the] consequences of

his plea.” ¶18. “The def

e ndant bears the burden of proving that a guilty plea was involuntary

. If this burden i s not m e t, t he g uilty plea m ust be upheld as knowing, i ntelligent[ ,] and v oluntary .” Jewell v
. State , 9 46 S o. 2d 810, 814 (¶15) (Miss. Ct. App. 2006) ( citations om itted). “A plea is voluntary if t he def

e ndant knows what the elem ents are of the charge against him including

an understanding of the charge and its r elati o n to him , what ef f ect t he plea will have, and what the possible sentence m i ght be because of his plea.” Id. at (¶16) (citation om itted). ¶19. Despite Burgin’s a ssertions on appeal, the record dem onstrates that the c ircuit court thoroughly quest i o n e d Burgin b ef ore accepting his g uilty plea t o ensure that Burgin understood the charge against him and the consequences o f his guilty plea. A t t wo dif f erent tim es during Burgin’s plea h earing, the circuit court asked whether Burgin understood that,

8b y p l e a d i n g guilty to arm ed r obbery , he could receive a sentence between three y ears i n

prison to “som ething just less than [ his] lif e e xpectancy .” Each tim e the circuit court asked whether Burgin understood the m inim um and m axim

um sente n c es of his arm ed-robbery charge, Burgin answered af f irm atively

. ¶20. In response to f

urther questioning by the c ircuit court, Burgin a d m itted under oath that he underst o o d t he rights he waived by pleading guilty a nd that he had d iscussed the
consequences of his g uilty plea and the c ontents of his plea petition with his attorney

. Burgin also inf orm ed the circuit court that he w as satisf ied with the legal representation provided by his attorney , that he was not im p a i r e d i n a n y w ay , and that no one had o f f ered h im
any thing to induce him

or to com

pel him to plead guilty

. ¶21. Our c aselaw recognizes that “[ s]olem n declarations in open court by a def e ndant carry

a strong presum

ption of veracity .” Jewell , 946 S o. 2d at 815 (¶16). Based on a r eview of the plea-hearing transcript a n d t h e s o lem n declarations Burgin m ade under o ath, we f ind the record ref utes Burgin’s claim that his guilty plea was not given voluntarily , knowingly , and intelligently . As a result, we f ind that this issue lacks m erit.
III. Whether there w a s s ufficient e vidence to s upport Burgin’s conviction. ¶22. W h ile not specif

ically identif

ied as an issue on appeal, Burgin’s b rief appears to also challenge the suf

f iciency of the evidence supporting his a rm ed-robbery c onviction. W hen properly entered a nd accepted, “ [ a] guilty plea operates to waive the def endant’s

. . . right that the prosecution prove each e lem ent of the of f e n se bey o nd a reasonable doubt.” Jefferson

v
. S t a t e , 556 So. 2d 1016, 1019 (Miss. 1989). A f ter the circuit court explained the cha r g e
9against h i m f or arm ed robbery , Burgin answered the charge by pleading guilty

. As previously discussed, we f ind that Burgin’s g uilty plea was entered voluntarily , k nowingly , and intelligently

. 1 T heref ore, we f ind that Burgin waived his righ t t o have the State prove each elem ent of arm e d robbery bey ond a reasonable doubt, a nd we ref use to address any
at t e m pts by Burgin on appeal to l itigate the question of his actual guilt. Accordingly , this
argum ent lacks m erit.
IV. Whether Burgin received ineffective assistance of counsel. ¶23. In his f

inal assignm ent of error, Burgin a s serts t hat he received inef f e ctive assistance of counsel because his attorney f ailed to f ully advise him

of the consequences of

his guilty plea, allowed him to e nter a n involuntary guilty p lea, and a llowed the circuit c ourt to im pose

an illegal sentence on h im

. Howeve r , B u r g i n f ails to present a n y e vidence to support his assertions, and the record clearly contradicts his claim s. ¶24. To establish i nef

f e ctive assistance of counsel, Burgin mu s t d e mo n s t r a t e t hat his attorney ’s perf

orm ance was def

icient and that h e suf

f ered prejudice a s a result of the def iciency

. Strickland v. W

ashington , 466 U.S. 668, 687 (1984). “In the context of guilty pleas, this m eans the def

e ndant m ust show that, were it not f o r c ounsel’s errors, he would not have p leaded guilty and would have insisted on going t o trial.” Burrough v
. State , 9 So. 3d 368, 375 (¶22) ( Miss. 2009) (citation om itted). “The b urden o f proving that both prongs of Strickland have been m et is on the def endant[ ,] w ho f

a ces a rebuttable presum

ption that trial

counse l ’ s c o n duct i s within the wide range of r easonable conduct and that decisions m ade

1 S ee U R C C C 8 .0 4 ( A ) (d iscu ssin g th e en try o f g u ilty p leas). 1 0by counsel are s trategic.” Fair v. State , 102 So. 3d 1165, 1169 (¶12) (Miss. Ct. App. 2012)

(citation om itted). ¶25. As previously discussed, this Court f i nds that Burgin voluntarily entere d a p l e a of guilty to arm ed robbery a n d t h a t the circuit court sentenced Burgin within the a pplicable statutory sentencing guidelines. In addition, the record ref lects that Burgin stated under oath du ring his plea colloquy that he was satisf i ed with the l egal representation his attorney provided. “A def

endant’s d eclarations during the plea colloquy that he was s atisf ied with the services of

his lawy er are presum

p tively true.” Palmer v. S

tate , 140 So. 3d 448, 453 (¶10) (Miss. C t. App. 2 0 14) (citation o m itted). Af ter reviewing the record, we f ind that Burgin’s

u nsupported assertions f ail to satisf

y his burden to dem onstrate that his a ttor n e y ’ s perf orm ance w as def

i cient and caused h im prejudice. As a result, we f ind that this claim lacks m e rit. ¶26. T H E J U DGM E N T O F T H E L O W N D E S C O U N T Y C I R C U I T C O U R T DENYING THE MOTION FOR POSTCONVICTION R ELIE F I S AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY. LEE, C.J., IRVING A ND G R I F F IS, P.JJ., BARNES, ISHEE, M AX WELL, FAIR, JAMES AND WILSON, JJ., CONCUR.

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