James Allen Swaim v. State of Mississippi

203 So. 3d 697, 2016 Miss. App. LEXIS 700
CourtCourt of Appeals of Mississippi
DecidedNovember 1, 2016
DocketNO. 2015-CP-01341-COA
StatusPublished
Cited by1 cases

This text of 203 So. 3d 697 (James Allen Swaim v. State of Mississippi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
James Allen Swaim v. State of Mississippi, 203 So. 3d 697, 2016 Miss. App. LEXIS 700 (Mich. Ct. App. 2016).

Opinion

GRIFFIS, P.J.,

FOR THE COURT:

¶ 1. James Allen Swaim was convicted of felony DUI after he was arrested on June 1, 2011, for his third DUI offense in five years. Swaim previously received convictions for misdemeanor DUIs on June 25, 2008, and October 21, 2010. Based on these two prior DUI convictions within five years of each other, Swaim was indicted for felony DUI on March 12, 2012.

*699 ¶ 2. On March 4, 2013, Swaim entered a guilty plea to felony DUI, and the trial court sentenced him to five years, with two years to serve, three years suspended, and three years of post-release supervision.

¶ 3. Swaim filed a motion for post-conviction collateral relief (PCCR) on July 22, 2015. In his PCCR motion, Swaim alleged he was improperly convicted of felony DUI, he received ineffective assistance of counsel, his conviction stemmed from a Fourth Amendment right violation, and he entered an involuntary guilty plea. He also attempted to challenge his 2010 misdemeanor DUI conviction. On August 24, 2015, the trial court denied his PCCR motion. Swaim now appeals. We find no error and affirm.

STANDARD OF REVIEW

¶ 4. “In reviewing a trial court’s dismissal of a [PCCR] motion, our standard of review is well-settled; We will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Allen v. State, 164 So.3d 498, 499 (¶ 4) (Miss. Ct. App. 2015) (quoting Williams v. State, 872 So.2d 711, 712 (¶ 2) (Miss. Ct. App. 2004)). “However, where questions of law are raised, the applicable standard of review is de novo,” Id.

ANALYSIS

¶ 5. Swaim raised several issues in his PCCR motion. We address three of his contentions here. Swaim asserts that: (1) he was improperly convicted for felony DÚI when his prior convictions were for DUI, first offense; and (2) he received ineffective assistance of counsel, which resulted in an involuntary guilty plea.

¶ 6. Swaim also challenged his 2010 DUI conviction, but we decline to address this contention because Swaim attempted to collaterally attack multiple judgments contrary to the Uniform Post-Conviction Collateral Relief Act (UPCCRA). See Miss. Code Ann. § 99-39-9(2) (Rev. 2015) (The UPCCRA limits PCCR petitions “to the assertion of a claim for relief against one (1) judgment only. If a petitioner desires to attack the validity of other judgments under which he is in custody, he shall do so by separate motions.”).

¶ 7. Additionally, Swaim argues -a Fourth Amendment right violation occurred because his DUI stemmed from an illegal search and seizure. Swaim, however, does not state from which DUI this allegation arises or what illegal search occurred. Without more, this Court cannot address this contention. We address the remaining issues.

I. The trial court properly found Stoaim guilty of felony DUI.

¶8. Swaim initially contends that he was erroneously found guilty of a felony DUI when his two previous DUI convictions were for a first-offense DUI. As such, Swaim asserts that he could only be convicted for a second-offense DUI rather than for a third-offense, or felony, DUI,

¶ 9. Mississippi Code Annotated section 63-ll-30(2)(c) (Supp. 2016) defines third-offense DUI as:

Except as otherwise provided in subsection (3), for any third conviction of any person violating subsection (1) of this section, the offenses being committed within a period of five (5) years, the person shall be guilty of a felony and fined not less than Two Thousand Dollars ($2,000.00) nor more than Five Thousand Dollars ($5,000.00), and shall serve not less than one (1) year nor more than five (5) years in the custody of the Department of Corrections.

Based on this statute,. Swaim was convicted of third-offense DUI due to his two prior .convictions for DUI.

*700 ¶ 10. Swaim, however, asserts that his two prior convictions were for first-offense DUI, which meant he must be convicted of a second-offense DUI before a third-offense DUI.- This contention is in error.

¶ 11. To support this proposition, Swaim relies on Page v. State, 607 So.2d 1163, 1168 (Miss. 1992), and Ashcraft v. City of Richland, 620 So.2d 1210, 1211 (Miss. 1993). The Page court held that “each pri- or conviction is an element of the felony offense, and each must be specifically charged.” Page, 607 So.2d at 1168. In the DUI context, this meant that each DUI offense must be specifically charged as a first, second, or subsequent offense, and also that a defendant must have been convicted of first- and second-offense DUI before a conviction for third-offense DUI. Id. Ashcraft extended this holding. Ash-craft, 620 So.2d at 1211.

¶ 12. The Mississippi Supreme Court, however, overruled Page and Ashcraft “to the extent that they interpret the statute to require that the indictment must specifically show a previous conviction for D.U.I. First prior to being convicted for D.U.I. Second and a conviction of D.U.I. Second prior to being convicted for D.U.I. Third.” McIlwain v. State, 700 So.2d 586, 589 (¶ 9) (Miss. 1997). Thus, the only requirement for a felony DUI conviction is that “the indictment must ... ‘supply enough information to the defendant to identify with certainty the prior convictions relied upon by the State for enhanced punishment.’” Id. at (¶ 10) (quoting Benson v. State, 551 So.2d 188, 196 (Miss. 1989)).

¶ 13. Here, the indictment stated both of the prior convictions and the dates of those convictions. This information on the indictment sufficiently apprised Swaim of the charge of felony DUI. Additionally, Swaim’s petition to enter a guilty plea stated that he sought to plead guilty to felony DUI and that “[he] was arrested for [his] third offense DUI after two prior misdemeanor offenses.” For these reasons, Swaim was properly convicted of felony DUI.

II. Swaim did not receive ineffective assistance of counsel or enter an involuntary guilty plea.

[4] ¶ 14. Swaim next contends he received ineffective assistance of counsel due to his trial counsel’s failure to fully inform him of the applicable law. Swaim further asserts that he pleaded guilty in reliance on his attorney’s advice, which rendered his guilty plea involuntary. Therefore, this Court addresses the claims of ineffective assistance of counsel and an involuntary guilty plea together.

¶ 15. To support an ineffective-assistance-of-counsel claim, Swaim must show: (1) his counsel’s performance was deficient and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, “there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Hooghe v. State,

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Bluebook (online)
203 So. 3d 697, 2016 Miss. App. LEXIS 700, Counsel Stack Legal Research, https://law.counselstack.com/opinion/james-allen-swaim-v-state-of-mississippi-missctapp-2016.