269 So. 3d 207
Miss. Ct. App.2018Background
- Gregory L. Gill pleaded guilty (Feb. 3, 2014) to two separate counts of "touching a child for a lustful purpose" and was sentenced to 15 years on each count, to run consecutively, with 15 years suspended and five years post-release supervision.
- One conviction arose from Count II of Cause No. B2301-13-0120 (alleged touching of the victim’s vagina); the other from Cause No. B2301-14-0017 (alleged touching of the victim’s breasts).
- Gill filed a petition treated as a motion for postconviction relief (PCR) challenging: double jeopardy, failure to amend the indictment, admission of prior convictions, ineffective assistance of counsel, and denial of his speedy-trial right.
- The trial court denied the PCR, finding Gill’s guilty pleas were knowing and voluntary and that his claims lacked merit or were procedurally barred.
- On appeal, the Court of Appeals affirmed, holding (inter alia) the two convictions were for separate offenses under Blockburger, the plea waived many defects, Gill failed to prove ineffective assistance, and guilty pleas waived the speedy-trial claim.
Issues
| Issue | Plaintiff's Argument (Gill) | Defendant's Argument (State) | Held |
|---|---|---|---|
| Double jeopardy | Convicted twice for the same crime (two counts of touching a child) | Counts charged distinct acts (vagina vs. breasts); separate offenses | Affirmed—no double jeopardy; each count required proof the other did not (Blockburger) |
| Indictment/amendment | State failed to amend indictment to reflect two guilty counts; plea was to an untrue indictment | Gill failed to raise below; a knowing/voluntary plea waives non-jurisdictional defects | Affirmed—issue procedurally barred/waived; plea transcript shows Gill knew of and admitted both charges |
| Admission of prior convictions | Prosecutor’s reference to prior convictions induced maximum sentence and prejudiced the judge | Plea waived evidentiary issues; no showing of prosecutorial misconduct or judicial prejudice | Affirmed—procedurally barred and meritless on record review |
| Ineffective assistance of counsel | Counsel mischaracterized prior conviction location; counsel was uncaring and pressured plea | Record (plea colloquy, guilty-plea petition) shows counsel’s performance reasonable; Gill offered only unsupported allegations | Affirmed—no Strickland showing; plea voluntariness not undermined |
| Speedy trial | Incarcerated 479 days before court appearance; claim not waived | A voluntary guilty plea waives the right to a speedy trial; Gill does not claim involuntary plea | Affirmed—speedy-trial claim waived by knowing, voluntary guilty plea |
Key Cases Cited
- Blockburger v. United States, 284 U.S. 299 (1932) (test for whether two offenses are the same for double-jeopardy purposes)
- Strickland v. Washington, 466 U.S. 668 (1984) (two-prong standard for ineffective assistance of counsel)
- Byers v. State, 157 So. 3d 98 (Miss. Ct. App. 2014) (same statutory elements can be different offenses when factual allegations differ)
- Kelly v. State, 80 So. 3d 802 (Miss. 2012) (discussing Blockburger application)
- Joiner v. State, 61 So. 3d 156 (Miss. 2011) (knowing and voluntary guilty plea waives nonjurisdictional and many constitutional claims)
- Chapman v. State, 167 So. 3d 1170 (Miss. 2015) (standard of review for PCR denials)
- Brown v. State, 198 So. 3d 325 (Miss. Ct. App. 2015) (sufficiency of factual predicate for guilty plea)
- Kyles v. State, 185 So. 3d 408 (Miss. Ct. App. 2016) (guilty plea waives speedy-trial rights)