Gregory Kendall Allen, Jr. v. State of Mississippi
164 So. 3d 498
Miss. Ct. App.2015Background
- Gregory K. Allen Jr. pleaded guilty to two counts of sexual battery for sexual acts against his six-year-old half-sister; a third count (touching a child for lustful purposes) was in the original indictment.
- Plea agreement: Allen pleaded guilty to the two sexual-battery counts; the State nol-prossed (dismissed) Count III at plea hearing because the fondling statute applies only to persons over 18.
- The circuit court accepted Allen’s guilty plea and announced concurrent 25-year sentences with 13 years to serve and 12 years post-release supervision.
- The written sentencing order erroneously listed conviction and sentencing on all three counts (including Count III) contrary to the plea and the sentencing hearing.
- Allen filed a pro se post-conviction relief (PCR) motion raising claims of unconstitutional sentencing, defective indictment, involuntary plea, ineffective assistance of counsel, and denial of speedy trial; the circuit court summarily dismissed the PCR.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Allen was unconstitutionally sentenced (sentencing order lists conviction on Count III) | Sentencing order shows conviction/sentence on Count III contrary to plea and hearings | Sentencing transcript reflects conviction only on two sexual-battery counts; written error is a scrivener’s error | Court affirmed conviction/sentence but remanded to correct the written sentencing order to match oral pronouncement |
| Whether the indictment/Count III was defective because Allen was under 18 | Count III (fondling statute) is invalid because statute applies only to persons over 18 | State conceded Count III was not viable and nol-prossed it at plea hearing | Court found Count III was dismissed at plea; indictment issue resolved by nol-pros; no relief granted |
| Whether Allen’s guilty plea was involuntary | Plea was involuntary because of the defective indictment and sentencing error | Plea colloquy shows Allen knowingly pleaded guilty and was satisfied with counsel; plea waives certain defects | Court denied claim of involuntary plea; plea deemed voluntary and knowing |
| Ineffective assistance (failure to move to dismiss for speedy trial; failure to challenge indictment) and denial of speedy trial | Counsel failed to raise speedy-trial or indictment issues | A valid guilty plea waives speedy-trial claim; Allen expressed satisfaction with counsel at plea; Count III was dismissed | Court rejected ineffective-assistance and speedy-trial claims; plea waiver and on-the-record statements foreclose relief |
Key Cases Cited
- Williams v. State, 872 So. 2d 711 (Miss. Ct. App. 2004) (standard of review for PCR dismissals)
- Pace v. State, 770 So. 2d 1052 (Miss. Ct. App. 2000) (questions of law reviewed de novo)
- Willcutt v. State, 910 So. 2d 1189 (Miss. Ct. App. 2005) (remand for correction of scrivener’s error in sentencing order)
- Anderson v. State, 577 So. 2d 390 (Miss. 1991) (valid guilty plea waives right to speedy trial)
- Peckinpaugh v. State, 949 So. 2d 86 (Miss. Ct. App. 2006) (statements made under oath in court carry great weight)