Avery v. State
95 So. 3d 765
Miss. Ct. App.2012Background
- Avery pleaded guilty to selling cocaine within 1500 feet of a church, under an Alford plea, and was sentenced to 30 years with most time suspended and post-release supervision (PRS).
- A year after sentencing, Avery violated PRS terms with additional offenses in Lauderdale County and his PRS was revoked, sending him back to MDOC custody for the remainder of the sentence.
- Avery filed a pro se/post-conviction relief motion in 2011, which the Lauderdale County Circuit Court denied, and he appealed to the Mississippi Court of Appeals.
- The trial court record shows Avery agreed to an Alford guilty plea, acknowledged advised representation, and signed a plea petition stating satisfaction with counsel.
- Counsel conducted discovery and investigation, including employing an investigator, and represented that continuances were within their authority; there was no forged-signature finding.
- The Court affirmed the circuit court’s denial of post-conviction relief, and recited that a guilty plea generally waives the right to a speedy trial, with additional findings that the continuances were treated as tactical by defense counsel.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Ineffective assistance in guilty-plea context | Avery alleges counsel forged continuances and failed to investigate, causing prejudice | Counsel had authority to file continuances; adequate pretrial discovery and investigation occurred | No ineffective-assistance error; no proof of forged documents or deficient performance |
| Right to a speedy trial | Avery asserts denial of speedy-trial rights | Plea waived speedy-trial rights; any claim is procedurally barred | Procedurally barred, and on merits no merit to claim; continuances were tactical and explained in counsel's letters |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 () (establishes two-prong test for ineffective assistance)
- Hannah v. State, 943 So.2d 20 (Miss. 2006) (two-prong Strickland standard applied in Mississippi)
- Mitchell v. State, 58 So.3d 59 (Miss.Ct.App.2011) (applies Strickland to guilty-plea cases)
- Carroll v. State, 3 So.3d 767 (Miss.Ct.App.2008) (speedy-trial waiver when plea entered)
- Rowe v. State, 735 So.2d 399 (Miss.1999) (speedy-trial waiver analysis source)