Barnes v. State

803 So. 2d 1271, 2002 WL 18284
CourtCourt of Appeals of Mississippi
DecidedJanuary 8, 2002
Docket2001-CP-00370-COA
StatusPublished
Cited by4 cases

This text of 803 So. 2d 1271 (Barnes 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
Barnes v. State, 803 So. 2d 1271, 2002 WL 18284 (Mich. Ct. App. 2002).

Opinion

803 So.2d 1271 (2002)

Patrick BARNES, Appellant
v.
STATE of Mississippi, Appellee.

No. 2001-CP-00370-COA.

Court of Appeals of Mississippi.

January 8, 2002.

*1272 Patrick Barnes, Appellant, pro se.

Office of the Attorney General by John R. Henry Jr., Booneville, Attorney for Appellee.

Before SOUTHWICK, P.J., BRIDGES, and CHANDLER, JJ.

BRIDGES, J., for the Court.

¶ 1. Following indictments by the grand jury, Patrick Barnes pled guilty to charges of four counts of uttering forged instruments before the Circuit Court of Lee County, Mississippi, the Honorable Fred Wicker presiding. After hearing Barnes's guilty plea and discussing with Barnes the consequences of such guilty plea, Judge Wicker accepted Barnes's plea as having been made voluntarily, knowingly and intelligently. Barnes was thereafter sentenced to ten years on Count I with seven years suspended, ten years on Count II with eight years suspended, ten years on Count III with five years suspended, and ten years on Count IV with five years suspended, for a total of fifteen years to be served in the Mississippi Department of Corrections. Barnes was also required to make restitution to his victims.

¶ 2. On October 11, 2000, Barnes filed his motion for post-conviction relief. That motion was dismissed by the trial court on February 8, 2001, and Barnes appealed to the Mississippi Supreme Court seeking reversal of such dismissal. Barnes now comes before this Court raising the following issues:

1. WHETHER BARNES ENTERED HIS GUILTY PLEA VOLUNTARILY, KNOWINGLY AND INTELLIGENTLY AS REQUIRED BY MISSISSIPPI LAW; AND
2. WHETHER BARNES'S GUILTY PLEA SHOULD BE OVERTURNED DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 3. Having found no error in refusing to grant post-conviction relief, we affirm.

FACTS

¶ 4. Barnes was indicted by the grand jury on August 2, 1996, on four counts of uttering forged instruments in violation of Mississippi Code Annotated section 97-21-59 (Rev.2000). On November 4, 1997, Barnes appeared in open court before Circuit Judge Wicker to enter his plea of guilty to all four counts of the indictment.

*1273 ¶ 5. Before such plea was accepted, Barnes was thoroughly questioned under oath. Judge Wicker, in an effort to determine whether Barnes's guilty pleas were being entered voluntarily, knowingly and intelligently, questioned Barnes on his understanding of the rights he was waiving by pleading guilty. Further, Judge Wicker also interrogated Barnes as to his counsel, Michael G. Thorne. Barnes assured the judge that he understood all of his rights, the waiver of those rights by pleading guilty, the maximum sentences that he could receive for his crimes and all other consequences a guilty plea would necessarily bring him. Barnes further confirmed to the judge that he was content with Thorne as his attorney and that Thorne had provided him with competent advice and counsel.

¶ 6. Based upon Barnes's written petitions to plead guilty and his acknowledgments and confessions before the trial judge in open court at the plea acceptance hearing, the trial court found that Barnes's plea was voluntarily, knowingly and intelligently made. Following the recommendations of the State, the court sentenced Barnes to serve a total of fifteen years in the custody of the Mississippi Department of Corrections and to make restitution to his victims.

¶ 7. In Barnes's motion for post-conviction relief, he contended he was deprived of effective assistance of counsel, and that his guilty plea was not knowingly, willingly and voluntarily made, although this motion contained no specific examples supporting his contentions. This motion was dismissed, thus causing Barnes to appeal to this Court. Barnes did not filed any affidavits in support of his appellate brief for the benefit of this Court. The only "affidavit," although not specifically given this proper name, found in the court papers is a subsection of Barnes's motion for post-conviction relief. This subsection, entitled "Specific Statement of Facts that `Are' Within Petitioner's Personal Knowledge Pursuant to M.C.A. 99-39-9(1)(2)", does not say anything that benefits the claim of the petitioner to be heard. There were no further affidavits filed with either the lower court or this Court to support Barnes's claims.

STANDARD OF REVIEW AND LEGAL ANALYSIS

1. Whether Barnes entered his guilty plea voluntarily, knowingly and intelligently as required by Mississippi law

¶ 8. Barnes submits to this Court that, despite the monumental evidence in the record indicating that he fully understood all of the consequences of his guilty plea, he actually did not plead guilty voluntarily, knowingly and intelligently because he was intoxicated and was forced into his guilty plea by his own attorney. The United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), provides the standard for determining whether a guilty plea is knowingly, voluntarily and intelligently made by a defendant. See also Vittitoe v. State, 556 So.2d 1062 (Miss. 1990). The privileges and rights waived by a guilty plea include the right against compulsory self-incrimination, the right to a trial by jury and the right to cross-examine witnesses. Boykin, 395 U.S. at 243, 89 S.Ct. 1709. Where the record is silent as to evidence showing that these rights were known and understood by the defendant, there can be no presumption of a waiver of such rights by him. Id. at 242, 89 S.Ct. 1709.

¶ 9. The record must provide explicit evidence of such a waiver and the admissibility of the waiver must be "based on a reliable determination on the voluntariness" of the waiver. Id. This determination *1274 of voluntariness may be evaluated by looking to see whether the defendant was advised of the nature of the charges against him, the rights which he would be waiving by pleading guilty, the maximum sentences that he could receive for the crimes with which he was charged and whether he was satisfied with the advice and counsel of his attorney. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). See also Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991); Boykin, 395 U.S. at 243, 89 S.Ct. 1709.

¶ 10. The burden of proving that a guilty plea was not made voluntarily is on the defendant. Gardner v. State, 531 So.2d 805, 810 (Miss.1988); Baker v. State, 358 So.2d 401, 403 (Miss.1978). If this burden is not met, the defendant's plea must be upheld as one that was made voluntarily, knowingly and intelligently. Gardner, 531 So.2d at 810. It should be noted that "[s]olemn declarations in open court [by a defendant] carry a strong presumption of verity." Id.; Baker, 358 So.2d at 403. See also Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Further, the record must reflect that the trial court thoroughly discussed with the defendant all of the consequences of a guilty plea, including the waiver of rights, satisfaction with one's attorney and advisement on the maximum and minimum penalties one can acquire for the crime committed. Alexander, 605 So.2d at 1172; Gardner, 531 So.2d at 809-10.

¶ 11. A guilty plea may not be accepted where the defendant did not plead of his own volition. Boykin, 395 U.S. at 243, 89 S.Ct. 1709.

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Bluebook (online)
803 So. 2d 1271, 2002 WL 18284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/barnes-v-state-missctapp-2002.