for the Court:
¶ 1. William Avery appeals the order of the Lauderdale County Circuit Court dismissing his motion for post-conviction relief (PCR) as time-barred under Mississippi Code Annotated section 99-89-5(2) (Supp.2011). Avery raises the following assignments of error: whether (1) he received an illegal sentence in violation of his double-jeopardy rights; (2) he was denied effective assistance of counsel; and (3) his guilty plea was entered unknowingly, involuntarily, and unintelligently. Finding no error, we affirm.
FACTS
¶ 2. In November 2002, a grand jury before the Lauderdale County Circuit Court indicted Avery for a drug offense under Mississippi Code Annotated section 41-29-139 (Supp.2011), with the sentencing enhancement for violations of the Uniform Controlled Substances Law while in possession of a firearm pursuant to Mississippi Code Annotated section 41-29-152 (Supp.2011).
¶ 3. On March 31, 2011, Avery filed a PCR motion, which the trial court dismissed as time-barred. Avery appeals.
STANDARD OF REVIEW
¶ 4. The standard for reviewing a circuit court’s summary dismissal of a PCR motion is well established. Mississippi Code Annotated section 99-39-11(2) (Supp.2011) states: “If 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, the judge may make an order for its dismissal and cause the petitioner to be notified.” “Pursuant to this section, the Mississippi Supreme Court has held that ‘a trial court may summarily dismiss a petition for PCR, without having held an evidentiary hearing, when it is clear that the petitioner is not entitled to relief under the Uniform Post-Conviction Collateral Relief Act.’ ” Parker v. State,
¶ 5. The trial court found that Avery filed his PCR motion outside of the three-year statute of limitations as set forth in Mississippi Code Annotated section 99-39-5(2); therefore, the PCR motion was time-barred. We agree. Section 99-39-5(2) provides that a PCR motion following a guilty, plea shall be made “within three (3) years after entry of the judgment of conviction.” In this case, Avery signed a petition to enter a guilty plea to possession of methamphetamine under section 41-29-139(c)(l)(e) on May 20, 2003. The trial court then entered a sentencing order on June 20, 2003. Avery filed his PCR motion on March 31, 2011—well past the three-year statute of limitations. Therefore, on its face, Avery’s PCR motion was untimely filed.
¶ 6. In Chandler v. State, 44 So.3d 442, 443 (¶ 6) (Miss.Ct.App.2010), this Court stated as follows:
Section 99-39-5(2) provides for some exceptions to the statute of limitations, such as those cases where there has been an intervening state or federal supreme court decision that would adversely affect the outcome of the conviction, new evidence not reasonably available at the time of trial which would cause a different result in conviction, or an expired sentence.
Here, the trial court determined that no such exceptions apply, and we agree.
¶7. Avery, however, argues that the filing of his PCR motion is excepted from the time bar because his fundamental constitutional rights are at stake. Specifically, Avery claims the trial court imposed a sentence exceeding that set forth in his guilty-plea petition in violation of his constitutional protection against double jeopardy. Thus, Avery contends that when his parole was revoked in 2010, he was subjected to an illegal sentence. In making this argument in his brief, Avery states as follows:
The [petitioner was sentenced under [Mississippi Code Annotated section] 41-29-139, to serve a term of fifteen (15) years in the custody of the [MDOC] with ten (10) years of such sentence suspended, five (5) years to serve[,] and five (5) years [of] reporting probation under the supervision of the [MDOC]. After the defendant has completed the service of five (5) years in the custody of the [MDOC] and is honorably discharged therefrom, the defendant is remanded to the supervision of the [MDOC] to complete the probationary portion of this sentence under the jurisdiction of court[.] Myers v. State,583 So.2d 174 (Miss.1991)[.] Avery was assured by his counsel and the prosecutor[,] that he would receive (5) years [i]f he excepted [sic] the plea of guilty ... for the amended charge of simple possession of methamphetamine. This was only double jeopardy. Rowland v. State,42 So.3d 503 [ (Miss.2010) ].
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The [petitioner should only receive ... five (5) years[,] because a cap was put on the guilty plea[,] and any time further then [sic] five (5) years would be an illegal sentence[.] [T]hat would violate a person [sic] fundamental right, and a fundamental right ... would be excepted from procedural bars.
Avery also argues that: (1) his counsel rendered ineffective assistance by failing to object to the trial court’s imposition of his “illegal” sentence; and (2) he entered an unknowing, unintelligent, and involuntary guilty plea.
¶ 8. While it is true that the statute of limitations does not apply to errors affecting fundamental constitutional rights, we recognize that “the mere assertion of a
¶ 9. We find no merit to Avery’s claim that he received an illegal sentence violating his double-jeopardy rights. “The Double Jeopardy Clause ‘prevents a second prosecution for the same offense after acquittal, [protects] against a second prosecution for the same offense after conviction, and [protects] against multiple punishments for the same offense.’” Ewing v. State,
¶ 10. Moreover, we recognize that Avery’s signed guilty-plea petition reflects that Avery understood that the trial court was not bound by the State’s sentencing recommendations. The record reflects that Avery’s plea petition states, in part, as follows:
a. I know also that the sentence is up to the court; that the court is not required to carry out any understanding made by me and my attorney with the [district [attorney, and further, that the [c]ourt is not required to follow the recommendation of the [district [attorney, if any....
b. I enter a blind plea; both the [district [attorney and I shall have the opportunity to present testimony and evidence at the sentencing hearing, as well as make a recommendation of sentence to the court.4
1111. It is well-established in Mississippi “that the imposition of a sentence upon a criminal conviction belongs within the sound discretion of the trial court (not the prosecutor) and generally is not subject to appellate review if it is within the limits prescribed by the applicable statute. This includes sentences based on guilty pleas.” Burrough v. State,
¶ 12. Next, Avery argues that his claims that he received ineffective assistance of counsel and entered an unknowing, involuntary, and unintelligent guilty plea are sufficient to invoke his fundamental-rights exception. We disagree. As previously stated, “the mere assertion of a constitutional[-]right violation is not sufficient to overcome the time bar.” Chandler,
¶ 13. Therefore, we find that none of the statutory exceptions under section 99-39-5(2) apply to Avery’s case. We further find that nothing in Avery’s PCR motion survived the procedural bar of section 99-39-5(2). The trial court committed no error in dismissing Avery’s PCR motion as time-barred.
¶ 14. THE JUDGMENT OF THE LAUDERDALE COUNTY CIRCUIT COURT DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAUD-ERDALE COUNTY.
Notes
. This Court is provided this information from the trial court's order dismissing Avery's PCR motion. Avery’s indictment is not in the record before us.
. The trial court’s order dismissing Avery's PCR motion states that Avery was released on parole on pending special conditions in 2004. Avery’s Discharge Certificate included in the record is dated May 1, 2008.
. Section 47-7-37 dictates that "the court ... may continue or revoke all or any part of the ... suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.”
. The following handwritten language was provided at the conclusion of this section: "with a cap of 5 yrs[.]/rec. by DA[.]"