Lyndon B. Britain v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2016-CP-01474-COA

LYNDON B. BRITAIN A/K/A LYNDON BRITAIN APPELLANT
A/K/A LYNDON BRYAN BRITAIN A/K/A
LYNDON BRYON BRITAIN A/K/A LYNDON
BRIAN BRITAIN A/K/A BRIAN BRITTAN

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/07/2016
TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: LYNDON B. BRITAIN (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: KATY T. GERBER
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED: 10/17/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE GRIFFIS, P.J., CARLTON AND GREENLEE, JJ.

GRIFFIS, P.J., FOR THE COURT:

¶1. Lyndon B. Britain appeals the denial of his motion for post-conviction collateral relief

(PCCR). We find no error and affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On March 26, 2012, Britain entered a plea of guilty to possession of precursors with

intent to manufacture a controlled substance, and was sentenced to twenty years, with

nineteen years and 171 days suspended, leaving 194 days to serve in the custody of the

Mississippi Department of Corrections (MDOC), followed by five years of reporting post-
release supervision, and five years of nonreporting post-release supervision.

¶3. A petition for revocation of post-release supervision was subsequently filed. At the

revocation hearing, Britain admitted that while on post-release supervision, he committed the

felony crimes of possession of methamphetamine, possession of morphine, and possession

of Schedule II, III, IV, and V controlled substances. As a result, on August 24, 2012, the

circuit court entered an agreed order of revocation of post-release supervision and sentenced

Britain to serve nineteen years and 171 days in the custody of the MDOC.

¶4. On June 19, 2016, Britain filed a motion for PCCR. In his motion, Britain argued his

conviction and sentence were invalid due to an illegal search and seizure and ineffective

assistance of counsel. On November 7, 2016, the circuit court found Britain’s claims were

time-barred and denied the motion. Britain now appeals.1

STANDARD OF REVIEW

¶5. We will not disturb a circuit court’s denial of a motion for PCCR unless the factual

findings are clearly erroneous. Kennedy v. State, 179 So. 3d 82, 83 (¶5) (Miss. Ct. App.

2015). However, questions of law are reviewed de novo. Id.

ANALYSIS

I. Time-Bar

¶6. Pursuant to Mississippi Code Annotated section 99-39-5(2) (Rev. 2009), in the case

of a guilty plea, a motion for PCCR shall be filed “within three (3) years after entry of the

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By order entered November 29, 2016, Britain was declared indigent and allowed
to proceed on appeal in forma pauperis. On appeal, Britain challenges his original
conviction and sentence. He does not contest the revocation.

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judgment of conviction.” Here, Britain’s judgment of conviction was entered March 26,

2012. Thus, Britain had until March 26, 2015, to move for PCCR. However, Britain did not

file his motion for PCCR until June 19, 2016, over four years after his conviction.

Consequently, Britain’s motion is time-barred.

¶7. Britain acknowledges his motion for PCCR is untimely, but claims he is exempted

from the procedural bar under Rowland v. State, 42 So. 3d 503 (Miss. 2010). Pursuant to

Rowland, “errors affecting fundamental constitutional rights are excepted from the

procedural bars of the [Uniform Post-Conviction Collateral Relief Act].” Id. at 507 (¶12).

However, “the mere suggestion of a constitutional-right violation is not itself sufficient to

surmount the time-bar.” Jones v. State, 203 So. 3d 657, 659 (¶8) (Miss. Ct. App. 2016).

“There must at least appear to be some basis for the truth of the claim before the limitation

period will be waived.” Id. Thus, we address Britain’s claims.

II. Illegal Search and Seizure

¶8. Britain asserts that “due to the lack of probable cause and no search warrant by a

[j]udge, the search and seizure was unreasonable[,] resulting in illegally obtained evidence.”

However, the record reflects Britain entered a valid guilty plea. “A valid guilty plea

constitutes a waiver of certain constitutional claims, including illegal search and seizure.”

Garcia v. State, 14 So. 3d 749, 750 (¶6) (Miss. Ct. App. 2009).

¶9. “A guilty plea is voluntarily and intelligently made if the circuit court ‘advise[d] the

defendant of his rights, the nature of the charge against him, as well as the consequences of

the plea.’” Berryhill v. State, 197 So. 3d 938, 940 (¶7) (Miss. Ct. App. 2016) (quoting

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Burrough v. State, 9 So. 3d 368, 373 (¶11) (Miss. 2009)). Here, both the plea petition and

the plea-hearing transcript show Britain was advised of and understood his constitutional

rights, the nature of the charge against him, the minimum and maximum sentences for the

charge, and the consequences of his guilty plea. Thus, the record shows Britain’s guilty plea

was voluntarily and intelligently entered.

¶10. Since the record shows Britain entered a valid guilty plea, his claim of an illegal

search and seizure was waived.

III. Ineffective Assistance of Counsel

¶11. To prove ineffective assistance of counsel, Britain must show: his counsel’s

performance was deficient, and this deficiency prejudiced the defense. Liddell v. State, 7 So.

3d 217, 219 (¶6) (Miss. 2009) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

There is “a strong presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.” Strickland, 466 U.S. at 689. To overcome this

presumption, Britain “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Id. at 694.

¶12. Britain claims his counsel was ineffective since she “failed to acknowledge [the] fact

that probable cause and a search warrant were lacking.” The plea petition and the plea-

hearing transcript show Britain’s attorney counseled and advised him on the nature of the

charge, any lesser-included offenses, and all possible defenses that he might have had in this

case. Additionally, during his plea hearing, Britain advised the circuit court, under oath, that

he was satisfied with his counsel and the assistance she provided. “Solemn declarations in

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open court carry a strong presumption of verity.” Berryhill, 197 So. 3d at 941 (¶7).

¶13. Britain has failed to show that his counsel’s performance was deficient, and that the

alleged deficiency prejudiced his defense. Accordingly, Britain’s claim of ineffective

assistance of counsel fails.

¶14. We find Britain’s motion for PCCR is procedurally barred, and no exceptions apply.

Accordingly, we affirm the circuit court’s denial of Britain’s motion for PCCR.

¶15. AFFIRMED.

LEE, C.J., IRVING, P.J., BARNES, CARLTON, FAIR, WILSON, GREENLEE
AND WESTBROOKS, JJ., CONCUR. TINDELL, J., NOT PARTICIPATING.

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