William Antonio Avery a/k/a William A. Avery a/k/a William Ken Avery a/k/a William A. Ken Avery a/k/a William Avery a/k/a Ken Avery v. State of Mississippi

• Court: Court of Appeals of Mississippi
• Decided: November 5, 2019
• Docket: NO. 2018-CP-01494-COA
• Status: Published

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CP-01494-COA

WILLIAM ANTONIO AVERY A/K/A WILLIAM APPELLANT A. AVERY A/K/A WILLIAM KEN AVERY A/K/A WILLIAM A. KEN AVERY A/K/A WILLIAM AVERY A/K/A KEN AVERY

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 10/03/2018 TRIAL JUDGE: HON. LESTER F. WILLIAMSON JR. COURT FROM WHICH APPEALED: LAUDERDALE COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: WILLIAM ANTONIO AVERY (PRO SE) ATTORNEY FOR APPELLEE: ALICIA MARIE AINSWORTH NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/05/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE J. WILSON, P.J., WESTBROOKS AND LAWRENCE, JJ.

J. WILSON, P.J., FOR THE COURT:

¶1. William Antonio Avery is serving sentences totaling ninety-nine-plus years for

felonies that he committed between 2002 and 2010. Avery has filed a number of motions for

post-conviction relief (PCR) attacking his convictions and sentences. The circuit court has

denied all of Avery’s motions, and we have affirmed when Avery has appealed. Avery’s

convictions, sentences, and prior PCR motions are discussed in Avery v. State, No. 2017-CP-

00187-COA, 2019 WL 350636, at *1-*2 (¶¶2-8) (Miss. Ct. App. Jan. 29, 2019), cert.

dismissed, 276 So. 3d 661 (Miss. 2019).

¶2. Avery’s present PCR motion attacks his 2003 guilty plea to possession of methamphetamine. As part of Avery’s plea bargain, the district attorney recommended a

sentence of five years. However, Avery acknowledged in his plea petition that he was

entering a “blind plea” and that the court was not required to follow the district attorney’s

recommendation. After accepting Avery’s plea, the court sentenced Avery to serve fifteen

years in the custody of the Department of Corrections with ten years suspended, five years

to serve, and five years of reporting probation.

¶3. In his present PCR motion, which he filed in April 2018, Avery alleged that his

attorney provided ineffective assistance of counsel by failing to move the court to allow him

to withdraw his guilty plea after his sentence was pronounced. The circuit court denied his

motion as time-barred, successive, and without merit. The circuit court also observed that

Avery was facing a possible sentence of one hundred twenty years if he had not pled guilty1

and that Avery would not have served more than five years in prison if he had not violated

his probation by committing additional crimes. Avery filed a notice of appeal.

¶4. We affirm. Avery’s present PCR motion is barred because it was filed more than

three years after he pled guilty and because he has attacked the same conviction without

success in prior motions. Miss. Code Ann. § 99-39-5(2) (Rev. 2015) (PCR motions are

subject to a three-year statute of limitations.); Miss. Code Ann. § 99-39-23(6) (Rev. 2015)

1 Avery was indicted for possession with the intent to transfer, which at the time was punishable by imprisonment for up to thirty years. Miss. Code Ann. § 41-21-139(b)(1) (Rev. 2001). The indictment also charged that Avery committed the crime while in possession of a firearm and that Avery had been convicted of a prior drug offense. Each of those circumstances, if proven, would have authorized the court to double Avery’s sentence, for a total sentence of up to one hundred twenty years. Miss. Code Ann. §§ 41-29-147 & -152 (Rev. 2018); Mosley v. State, 930 So. 2d 459, 462-65 (¶¶15-24) (Miss. Ct. App. 2006) (concluding that “stacking” of these sentencing enhancements was permitted).

2 (An order denying a PCR motion “shall be a bar to a second or successive [PCR] motion.”).

In addition, in a prior appeal this Court held that Avery’s plea was intelligent, knowing, and

voluntary, and we rejected Avery’s claim that his attorney provided ineffective assistance in

connection with the plea. Avery v. State, 102 So. 3d 1178, 1181-82 (¶¶10-12) (Miss. Ct.

App. 2012), cert. denied, 102 So. 3d 272 (Miss. 2012). Avery’s present PCR motion simply

repackages claims that we have already rejected. Thus, the circuit court correctly denied

Avery’s motion as time-barred, successive, and without merit.

¶5. AFFIRMED.

BARNES, C.J., CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL, McDONALD, LAWRENCE, McCARTY AND C. WILSON, JJ., CONCUR.