concluding that “stacking” of these sentencing enhancements was permitted
How later courts described this case
- concluding that “stacking” of these sentencing enhancements was permitted
Written by the judges who cited it.
The 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.
3