Attaberry v. State

11 So. 3d 166, 2009 Miss. App. LEXIS 297, 2009 WL 1520111
CourtCourt of Appeals of Mississippi
DecidedJune 2, 2009
Docket2008-CP-00878-COA
StatusPublished
Cited by1 cases

This text of 11 So. 3d 166 (Attaberry v. State) 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
Attaberry v. State, 11 So. 3d 166, 2009 Miss. App. LEXIS 297, 2009 WL 1520111 (Mich. Ct. App. 2009).

Opinion

KING, C.J.,

for the Court.

¶ 1. Sarah Attaberry filed her motion for post-conviction relief on February 14, 2008. The Circuit Court of Jones County denied the motion. Aggrieved, Attaberry appeals, raising the following four issues:

I. Whether she received ineffective assistance of counsel;
II. Whether she was properly indicted for burglary;
III. Whether the trial judge erred by not recusing himself from her case; and
*169 IV. Whether she entered an intelligent and voluntary guilty plea.

Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. Attaberry was indicted for burglary under cause number 2006-78-kr2, alleging that she broke and entered the residence of Diane Haggins in Laurel, Mississippi with the intent to steal. She was also indicted for burglary and grand larceny under cause number 2006-268-kr2, alleging that she broke and entered the home of Elizabeth Mulloy in Laurel, Mississippi with the intent to steal and that she felo-niously took jewelry belonging to Zane Lambert with the intent to permanently deprive her thereof.

¶ 3. The cases were consolidated, and on March 30, 2007, Attaberry entered a guilty plea to all charges. After a thorough inquiry, the trial court accepted Attaberry’s plea as knowing and voluntary. On the first count of burglary, the trial court sentenced her to serve fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with five years suspended and five years of post-release supervision. On the second count of burglary, the trial court sentenced her to serve fifteen years in the custody of the MDOC, with five years suspended and five years of post-release supervision. On the charge of grand larceny, the trial court sentenced her to serve ten years in the custody of the MDOC. All sentences were ordered to run concurrently. The trial court also ordered Attaberry to participate in the trial court’s community service program; to pay a $2,000 fine; and to pay restitution to the victims.

¶ 4. On February 14, 2008, Attaberry filed her motion for post-conviction relief, arguing that she received ineffective assistance of counsel and that her plea was involuntary. The trial court dismissed the motion, finding that Attaberry failed to voice any objection to her trial counsel’s representation during the guilty plea proceeding, and she entered an intelligent and voluntary guilty plea. Aggrieved, Attaber-ry timely filed this appeal.

ANALYSIS

¶ 5. Mississippi Code Annotated section 99-39-11(2) (Rev.2007) provides that a trial court may dismiss a motion for post-conviction relief “[i]f 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....” When reviewing the trial court’s dismissal of a motion for post-conviction relief, this Court will not disturb the trial court’s findings of fact unless they are clearly erroneous. Williams v. State, 872 So.2d 711, 712(2) (Miss.Ct.App.2004). However, issues of law are reviewed de novo. Id.

I. Ineffective Assistance of Counsel

¶ 6. To succeed on a claim of ineffective assistance of counsel, the defendant must prove that: (1) her trial counsel’s performance was deficient, and (2) that trial counsel’s deficiency prejudiced her defense. Cole v. State, 918 So.2d 890, 894(10) (Miss.Ct.App.2006) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). There is a “strong but rebuttable presumption that [trial counsel’s] performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.” Covington v. State, 909 So.2d 160, 162(4) (Miss.Ct.App.2005) (citing Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). The defendant may rebut this presumption upon a showing that her trial counsel committed “unprofessional errors of substantial gravi *170 ty,” and but for trial counsel’s errors, she would not have entered a guilty plea. Cole, 918 So.2d at 894(10) (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)).

¶ 7. Attaberry claims that her trial counsel failed to adequately represent her and failed to prepare a reasonable defense. She also claims that her trial counsel failed to inform her that her prior criminal history would not be a factor during her guilty plea proceeding. To prove that trial counsel’s pretrial preparation was insufficient, the defendant “must provide specific acts or omissions by [her] attorney which would create substantial questions of fact concerning [her] attorney’s assistance.” Rankins v. State, 839 So.2d 581, 583(8) (Miss.Ct.App.2003). Besides her bare assertions, Attaberry has failed to provide this Court with any specific acts or omissions which would cause us to question her trial counsel’s assistance. Thus, this argument is without merit.

¶ 8. Next, Attaberry claims that her trial counsel erred by not requesting that the trial judge recuse himself from her case based upon him previously being victimized and his personal relationship ■with two of the victims in her case. Based upon the circumstances surrounding a case, a judge must recuse himself if a reasonable person knowing all of the circumstances would doubt whether the judge could remain impartial. Brooks v. State, 953 So.2d 291, 295(15) (Miss.Ct.App.2007). “There is a presumption that a judge is impartial and unbiased in every case before him.” Id. Thus, the defendant must prove allegations of bias beyond a reasonable doubt. Id. at 296. Besides her bare allegations, Attaberry provides no evidence or affidavits in support of her allegations that would cause us to question the trial judge’s impartiality.

¶ 9. This Court has held that “[i]f a prisoner’s motion for post-conviction relief does not contain any affidavits, other than the prisoner’s own to support the prisoner’s allegations, then the motion may be dismissed.” Brown v. State, 963 So.2d 577, 579(9) (Miss.Ct.App.2007) (quoting Edwards v. State, 796 So.2d 1040, 1042(5) (Miss.Ct.App.2001)). Attaberry’s bald allegations of ineffective assistance of counsel are insufficient to pass the Strickland test. Thus, we find that the trial court did not err by dismissing Attaberry’s claim of ineffective assistance of counsel.

II. Indictment for Burglary

¶ 10. On appeal, Attaberry argues that she was not properly indicted for burglary. Once again, Attaberry claims that her trial counsel failed to investigate the circumstances surrounding her case, suggesting that there was no evidentiary basis for the crimes charged. Specifically, she argues that nothing was taken from the victims’ homes; one of the victims threatened to murder her; and another victim made inappropriate sexual advances toward her.

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Bluebook (online)
11 So. 3d 166, 2009 Miss. App. LEXIS 297, 2009 WL 1520111, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attaberry-v-state-missctapp-2009.