Blanch v. State

760 So. 2d 820, 2000 WL 626859
CourtCourt of Appeals of Mississippi
DecidedMay 16, 2000
Docket1999-CP-00674-COA
StatusPublished
Cited by7 cases

This text of 760 So. 2d 820 (Blanch 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
Blanch v. State, 760 So. 2d 820, 2000 WL 626859 (Mich. Ct. App. 2000).

Opinion

760 So.2d 820 (2000)

James BLANCH, Appellant.
v.
STATE of Mississippi, Appellee.

No. 1999-CP-00674-COA.

Court of Appeals of Mississippi.

May 16, 2000.

*822 Appellant pro se.

Office of the Attorney General by Wayne Snuggs, Attorney for Appellee.

BEFORE KING, P.J., IRVING, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. James Blanch, pro se, appeals an order of the Circuit Court of Grenada County, Mississippi denying his motion to vacate judgment of conviction and sentence. Aggrieved, Blanch has raised several issues, albeit in a convoluted form, on appeal of said motion. Having carefully reviewed each of the arguments presented, the following issues represents a clear and concise statement of the issues raised in Blanch's appeal

I. WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

II. WHETHER THE TRIAL COURT ERRED IN ORDERING APPELLANT TO FORFEIT $6,000 WITHOUT A HEARING AND WHEN NO MONEY WAS SEIZED AT THE TIME OF ARREST?

III. WHETHER THE INDICTMENT WAS DEFECTIVE?

IV. WHETHER THE TRIAL COURT COERCED APPELLANT WITH AID OF HIS DEFENSE COUNSEL INTO ACCEPTING THE PLEA AGREEMENT AND ENTERING A PLEA OF GUILTY?

V. WHETHER THE TRIAL COURT ERRED IN DENYING APPELLANT AN EVIDENTIARY HEARING ON HIS MOTION FOR POST CONVICTION RELIEF?

Finding no error, we affirm.

FACTS

¶ 2. On April 9, 1996, James Blanch entered two pleas of guilty before the Honorable Joseph L. Loper, Jr. in the Grenada County Circuit Court following a two count indictment on January 25, 1996. Count I of the indictment charged Blanch with the sale of cocaine. Count II of the indictment charged Blanch with the sale of more than one ounce but less than one kilogram of marijuana. He was sentenced to serve twenty-six years, with six years suspended, on Count I and twenty years on Count II, both in the custody of the Mississippi Department of Corrections. He received a six year suspended sentence on Count I and was ordered to pay a six thousand dollar fine, with court costs, assessments and lab fees. The sentence of twenty *823 years on Count II was to be concurrent with that sentence imposed under Count I.

¶ 3. Blanch was represented by the Honorable R.T. Laster, Jr. at the plea hearing. Displeased with the outcome, Blanch filed a motion to vacate judgment of conviction and sentence on March 24, 1999. Said motion was denied on April 1, 1999. The trial court found an evidentiary hearing unnecessary having reviewed the motion, affidavits, and transcripts of the proceedings. From that ruling, Blanch now argues that the trial judge erred in denial of the post conviction relief in that: 1) his counsel was ineffective, 2) he was improperly denied an forfeiture hearing with respect to the forfeiture of the $6,000, 3) the indictment was defective, 4) the his guilty plea was involuntary, and 5) the trial court erred in having denied him an evidentiary hearing on his motion for post conviction relief.

ANALYSIS

I.

WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 4. Blanch argues numerous instances of actions or inactions on the part of his trial counsel which he asserts amounts to ineffective assistance of counsel. Of the many instances, Blanch alleges the following: 1) trial counsel failed to object to the forfeiture of the $6,000 when there was not a forfeiture hearing conducted, 2) trial counsel failed to object to defects within the indictment, 3) trial counsel failed to file a motion for severance on the eve of trial when it appeared that if he did not accept the plea agreement his co-defendants would testify against him, and 4) trial counsel provided him with bad advice with respect to his chances of getting an acquittal should he chose to go to trial and failed to adequately prepare for trial in the event that a trial did occur.

¶ 5. Blanch's claim of ineffective assistance of counsel is reviewed under the two-part test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) and followed by the Mississippi Supreme Court in Stringer v. State, 454 So.2d 468, 476 (Miss. 1984). For Blanch to succeed on his ineffective assistance of counsel claim, he must meet both prongs successfully. Under Strickland and Stringer, Blanch must show: 1) that his trial counsel's performance was deficient, and 2) that trial counsel's deficient performance prejudiced his defense. Stringer, 454 So.2d at 476. Blanch bears the burden of demonstrating that both prongs have been met. Leatherwood v. State, 473 So.2d 964, 968 (Miss. 1985). There is a strong but rebuttable presumption that an attorney's performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic. Vielee v. State, 653 So.2d 920, 922 (Miss.1995). Application of the Strickland test is applied with deference to counsel's performance, considering the totality of the circumstances to determine whether counsel's actions were both deficient and prejudicial. Conner v. State, 684 So.2d 608, 610 (Miss.1996). The test is to be applied to the overall performance of the attorney. Strickland, 466 U.S. at 695, 104 S.Ct. 2052. With respect to the overall performance of the attorney, "counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy." Scott v. State, 742 So.2d 1190 (¶ 14) (Miss.Ct.App.1999); Cole v. State, 666 So.2d 767, 777 (Miss. 1995); Murray v. Maggio, 736 F.2d 279, 283 (5th Cir.1984). With this in mind, we now turn to Blanch's allegations of ineffectiveness.

1. Failure to object to the forfeiture of the $6,000 without benefit of forfeiture hearing.

¶ 6. Blanch argues that his trial counsel failed to object to the $6,000 fine *824 imposed at sentencing. We note that Blanch has also raised this issue similarly in one of his other issues, wherein Blanch attacks the trial court's denial of his requested forfeiture hearing on the matter of the $6,000 fine. This issue can be readily addressed by returning to the judgment of the trial court entered on April 10, 1996. In that order, the trial court, in addition to the sentences received, ordered that Blanch pay all court costs, assessments and lab fees with, what the trial court termed, a "forfeit" of $3,000 within two (2) weeks and an additional $3,000 within six (6) months. Blanch's compliance with the aforementioned judgment was a specific condition of the suspension of sentence.

¶ 7. While the trial court's judgment may have stated "forfeit," we do not interpret the language used within said judgment to mean what Blanch asserts it to be. As a practical matter, Blanch is arguing semantics and is not entitled to relief under this instance as the trial court's order was clearly in compliance with the fine and penalty provisions of Miss.Code Ann. § 41-29-139 (Rev.1993). Therefore, Blanch's assertions that his trial counsel was deficient for failing to object or request a evidentiary hearing is without a legal basis on which to stand.

2. Failure to object to defects contained within the indictment.

¶ 8.

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Cite This Page — Counsel Stack

Bluebook (online)
760 So. 2d 820, 2000 WL 626859, Counsel Stack Legal Research, https://law.counselstack.com/opinion/blanch-v-state-missctapp-2000.