Richard Kinney v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2015-CP-00942-COA

RICHARD KINNEY A/K/A RICHARD ALAN APPELLANT
KINNEY A/K/A RICHARD A. KINNEY A/K/A
RICHARD ALLEN KINNEY

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 05/21/2015
TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR.
COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: RICHARD KINNEY (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: DISMISSED MOTION FOR
POSTCONVICTION RELIEF
DISPOSITION: AFFIRMED - 10/25/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE ISHEE, P.J., CARLTON AND JAMES, JJ.

ISHEE, P.J., FOR THE COURT:

¶1. Richard Kinney appeals the dismissal of his motion for postconviction relief (PCR)

by the Lauderdale County Circuit Court. Kinney argues that his guilty plea for the

underlying offense of lustful touching of a child should have been withdrawn. Finding no

error, we affirm.

FACTS

¶2. On November 19, 2007, Kinney was indicted on one count of sexual battery and one

count of lustful touching of a child. On April 2, 2008, Kinney filed a petition to enter a
guilty plea. After a hearing, the trial court accepted his guilty plea and found him guilty of

lustful touching of a child. Pursuant to the plea agreement, the sexual-battery charge was

dismissed. Kinney was sentenced to fifteen years in the custody of the Mississippi

Department of Corrections (MDOC), with all fifteen years suspended and five years of

postrelease supervision. In addition, Kinney was required to register as a sex offender.

¶3. In 2009, Kinney violated his probation, including failing to register as a sex offender

and failing to notify his probation officer of a change of address and change of employment.

After a revocation hearing, his probation was revoked and he was ordered to serve the fifteen

years in the custody of MDOC. In 2014, Kinney filed a PCR motion arguing that his guilty

plea should have been withdrawn. The trial court dismissed the PCR motion because the

motion was procedurally barred. This appeal ensued.

LAW AND DISCUSSION

¶4. This Court will not reverse a trial court’s dismissal of a PCR petition unless the trial

court’s decision was clearly erroneous. Agent v. State, 30 So. 3d 370, 370 (¶5) (Miss. Ct.

App. 2010). A trial court may summarily dismiss a PCR motion where “it plainly appears

from the face of the motion, any annexed exhibits, and the prior proceedings in the case that

the movant is not entitled to any relief.” White v. State, 59 So. 3d 633, 635 (¶4) (Miss. Ct.

App. 2011) (quoting Miss. Code Ann. § 99-39-11(2) (Supp. 2010)). Questions of law

receive a de novo review. Id.

¶5. Because Kinney pleaded guilty, he had three years from the entry of the judgment of

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his conviction to file a PCR motion pursuant to Mississippi Code Annotated section 99-39-

5(2) (Rev. 2015). Kinney did not file his PCR motion within three years, and therefore, his

claim is procedurally barred. However, errors affecting fundamental constitutional rights are

excepted from the procedural bar. Rowland v. State, 42 So. 3d 503, 506 (¶9) (Miss. 2010).

“But mere assertions of constitutional-rights violations do not suffice to overcome the

procedural bar.” Chandler v. State, 44 So. 3d 442, 444 (¶8) (Miss. App. Ct. 2010). “There

must at least appear to be some basis for the truth of the claim before the [procedural bar]

will be waived.” Id.

¶6. Kinney asserts that a “person can’t maintain his innocence and plea [sic] guilty at the

same time.” Therefore, Kinney argues that the trial court’s acceptance of his guilty plea

violated his due-process and equal-protection rights.1

¶7. Kinney’s assertions that his constitutional rights have been violated are without merit.

The record indicates that Kinney entered an Alford plea. In North Carolina v. Alford, 400

U.S. 25 (1970), the United States Supreme Court found no constitutional error in accepting

a guilty plea despite a protestation of innocence when the defendant knowingly and

intelligently concluded that his best interests required entry of the guilty plea, and the trial

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Kinney also makes a cursory assertion that he received ineffective assistance of
counsel. However, the issue is waived for failure to support the ineffective-assistance-of-
counsel claim with authority. See Varvaris v. Perreault, 813 So. 2d 750, 753 (¶6) (Miss. Ct.
App. 2001) (“The law is well established in Mississippi that this Court is not required to
address any issue that is not supported by reasons and authority.” (Citation omitted). See
also M.R.A.P. 28(a)(6).

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court made a determination on the record that there was strong evidence of actual guilt. In

short, an Alford plea is when the trial court accepts a guilty plea despite a defendant’s

protestation of innocence when there is strong evidence of guilt.

¶8. Such is the case at bar. Despite Kinney’s contention, a defendant may accept a guilty

plea and maintain his innocence. The plea colloquy makes evident that Kinney was asked

several times regarding his understanding of the plea agreement. The trial court specifically

asked: “[Y]ou’re entering a plea of guilty on a lustful touching charge; however, you’re

alleging that you’re . . . not technically guilty of that offense; right?” To which Kinney

responded, “Correct.”

¶9. Statements such as these made in open court under oath are viewed as highly credible.

Gable v. State, 748 So. 2d 703, 706 (¶11) (Miss. 1999). Furthermore, if the defendant is

advised regarding the nature of the charge and the consequences of the plea, then the plea is

considered voluntary and intelligent. Alexander v. State, 605 So. 2d 1170, 1172 (Miss.

1992). If the defendant’s claims “are substantially contradicted by the court record of the

proceedings that led up to the entry of the judgment of guilt,” the trial court may disregard

such claims. Cole v. State, 918 So. 2d 890, 895 (¶14) (Miss. Ct. App. 2006). Kinney’s

assertions in his PCR motion are substantially contradicted by the record. As such, Kinney

has not overcome the procedural bar. Chandler, 44 So. 3d at 444 (¶8).

¶10. Since Kinney has not overcome the procedural bar, we affirm the trial court’s

dismissal of Kinney’s PCR motion.

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¶11. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POSTCONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUDERDALE COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR,
JAMES, WILSON AND GREENLEE, JJ., CONCUR.

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