Danny McGleachie v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CP-00816-COA
DANNY MCGLEACHIE
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLEE
04/24/2001
HON. GRAY EVANS
SUNFLOWER COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
FRANK CARLTON
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF MOTION
DISMISSED
AFFIRMED-10/15/2002
BEFORE KING, P.J., LEE, AND IRVING, JJ.
IRVING, J., FOR THE COURT:
¶1.
In February 1986, Danny McGleachie pleaded guilty to the crime of conspiracy to possess
with the intent to sell, distribute or dispense more than one kilogram of marijuana. The imposition
of sentence was withheld, and he was placed on probation for five years. His probation was revoked
one year later.
¶2.
On April 4, 2001, McGleachie filed a motion for post-conviction collateral relief seeking to
vacate and set aside the February 1986 conviction. In his PCR motion, McGleachie alleged that he
had been entrapped in the 1986 transaction which led to his guilty plea and that because of this, "it
would be a miscarriage of justice to allow the conviction and sentence to stand."
¶3.
The trial court determined that McGleachie's motion was time-barred and dismissed the
motion without a hearing. It is from this adverse ruling that McGleachie prosecutes this appeal,
alleging that his conviction and sentence are a nullity and that the three-year statute of limitations
does not apply.
¶4.
We have reviewed McGleachie's claims and reject them both. Consequently, the judgment
of the trial court is affirmed.
ANALYSIS AND DISCUSSION OF THE ISSUES
¶5.
Our standard of review of the trial court's denial of a PCR motion is clear. We will not
reverse the factual findings of the trial court unless they are clearly erroneous. Brown v. State, 731
So. 2d 595, 598 (¶6) (Miss. 1999). Questions of law are reviewed de novo. Id.
¶6.
Mississippi law requires a prisoner, who desires to attack his guilty plea, to file his PCR
motion within three years after entry of the judgment of conviction. Miss. Code Ann. § 99-39-5 (2)
(Rev. 2000). As previously observed, McGleachie pleaded guilty in February 1986. He did not file
his PCR motion until April 4, 2001. Clearly, McGleachie's motion is time-barred unless his case falls
within one of the statutory exceptions to the three-year time-bar. The law permits post three-year
filings in the following circumstances:
[T]hose cases in which a prisoner can demonstrate either that there has been an
intervening decision of the Supreme Court of either the State of Mississippi or the
United States which would have actually adversely affected the outcome of his
conviction or sentence or that he has evidence, not reasonably discoverable at the time
of trial, which is of such nature that it would be practically conclusive that had such
been introduced at trial it would have caused a different result in the conviction or
sentence . . . . [T]hose cases in which the prisoner claims that his sentence has expired
or his probation, parole or conditional release has been unlawfully revoked.
2
Miss. Code Ann. § 99-39-5 (2) (Rev. 2000). In capital cases, filings must be made within one year
after conviction. Id.
¶7.
We will address the issues in a single discussion because the two are interrelated. As we have
already observed, McGleachie argues that the three-year statute of limitations imposed by Mississippi
Code Annotated § 99-39-5(2) (Rev. 2000) is inapplicable because, according to him, he was
entrapped, thereby rendering his conviction null and void. McGleachie reasons that if his conviction
was a nullity then the sentence that he received pursuant to the conviction was an illegal sentence.
He then cites us to case law which holds that a PCR motion based on an illegal sentence may be
exempted from the three-year ban. He also argues that the case of Barnes v. State, 493 So. 2d 313
(Miss. 1986), decided by the Mississippi Supreme Court four months after his guilty plea, entitles him
to an exemption from the three-year statute of limitations. His argument in this regard is that Barnes
is an intervening decision which would have actually adversely affected the outcome of his conviction
had it been decided prior to his plea.
¶8.
We note, as does the State, that McGleachie has not provided any information whatsoever
to support his claim that he was entrapped in the 1986 transaction. He makes the bald allegation,
unsupported by any affidavits, and then lays blame on his attorney, alleging that McGleachie pleaded
guilty based on the ill-advice of his attorney, even though he had not committed any crime.
¶9.
We were not provided with a copy of the transcript of the guilty plea hearing. It is the
responsibility of the appellant to make sure an adequate appellate record is presented.
In
McGleachie's defense, however, we should state that in his designation of record he did ask that the
trial transcript of the plea hearing be included in the appellate record. No explanation appears in the
record as to why the transcript of the plea hearing was not included as requested. Nevertheless,
McGleachie is charged with the responsibility to see that the appellate record includes all of the
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documents set forth in his designation of record. Cf. Burney v. State, 515 So. 2d 1154, 1160 (Miss.
1987) (holding that it is the duty of the appellant to insure that the record contains sufficient evidence
to support his assignments of error on appeal).
¶10.
In the absence of the plea transcript, we are left with McGleachie's blanket assertions that no
crime occurred and that he pleaded guilty to a charge that did not legally exist. It appears that
McGleachie has blurred the line between a legally-sufficient charge and a viable defense to the charge.
We can take judicial notice that an indictment which charges a "conspiracy to possess with the intent
to sell, distribute or dispense more than one kilogram of marijuana" charges a crime. Therefore,
McGleachie's plea was not a nullity as he contends. Whether he had a valid defense to the crime
charged is quite a different issue. Likewise, whether he was entrapped depends upon the facts and
circumstances of the incident, the specifics of which are not included in the appellate record.
¶11.
We have examined thoroughly the PCR motion filed in the trial court. In the motion,
McGleachie stated no facts which could arguably form the basis for granting the requested relief.
He made conclusory allegations that he was entrapped. However, he gave no specific details other
than a statement that "Danny McGleachie was not at the scene where the marijuana transaction was
attempting to be made but was being held by the State agents in a rural location to prevent any
contact with the persons which the State was attempting to entrap by selling them illegal drugs."
Since McGleachie was charged with the crime of conspiracy, his absence from the scene of the
transaction would not necessarily negate a finding that he had participated in the conspiracy.
¶12.
McGleachie's reliance on Barnes avails him naught. The availability of entrapment as a
defense predates Barnes and McGleachie's date of conviction. See, e.g, Sylar v. State, 340 So. 2d
10 (Miss. 1976). Whether McGleachie may have had a viable defense is a question that cannot be
answered given the state of the record before us. However, there is no need for us to speculate in
4
this regard. It is sufficient for purposes of this appeal to say that McGleachie has failed to
demonstrate that his case falls within one of the enumerated statutory exceptions to the three-year
statute of limitations or that a waiver should apply because of the implication of a fundamental
constitutional right.1
¶13.
We are cognizant of McGleachie's indirect claim that his counsel was ineffective and that the
right to competent counsel is a fundamental constitutional right. However, we decline to hold,
without substantial and specific supporting facts, that McGleachie's assertion that he was ill-advised
by counsel to plead guilty is enough to operate as a waiver of the three-year statute, for a strong
presumption exists in Mississippi jurisprudence that counsel's conduct falls within the wide range of
reasonable professional assistance. See, e.g., McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990).
¶14.
This Court concludes that the trial court correctly applied the law in this case and that
McGleachie was prevented by the three-year statute of limitations from bringing his post-conviction
relief motion. Therefore, we affirm the trial court's dismissal of McGleachie's motion as time-barred.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF SUNFLOWER COUNTY
DISMISSING THE MOTION FOR POST CONVICTION RELIEF WITH PREJUDICE IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO SUNFLOWER
COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
MYERS, CHANDLER AND BRANTLEY, JJ., CONCUR.
1
The Mississippi Supreme Court has held that the three-year statute of limitations may be
waived when a fundamental constitutional right is implicated. See, e.g., Sneed v. State, 722 So. 2d
1255, 1257 (¶11) (Miss. 1998); Luckett v. State, 582 So. 2d 428, 430 (Miss. 1991).
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