Borden v. State

122 So. 3d 818, 2013 WL 5433492, 2013 Miss. App. LEXIS 644
CourtCourt of Appeals of Mississippi
DecidedOctober 1, 2013
DocketNo. 2012-CP-01444-COA
StatusPublished
Cited by11 cases

This text of 122 So. 3d 818 (Borden 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
Borden v. State, 122 So. 3d 818, 2013 WL 5433492, 2013 Miss. App. LEXIS 644 (Mich. Ct. App. 2013).

Opinion

MAXWELL, J.,

for the Court:

¶ 1. Barron Borden seeks post-conviction relief (PCR) from his guilty plea to capital murder and Alford plea to third-degree arson. He argues his pleas were not voluntarily made and that he is “legally innocent.” After review, we find Borden has not shown any constitutional violations, so he is not “legally innocent” of either offense. We also find he was thoroughly advised of his constitutional rights, the nature of the charge against him, and the consequences of his pleas. Because each plea was knowingly and intelligently made and supported by a factual basis, we reject his claim that his pleas were involuntary.

¶ 2. We further find his previously admitted satisfaction with his lawyer and concession that he had “no defense” to the charges undercuts his recent ineffective-assistance-of-counsel claim. He also waived any potential speedy-trial argu[821]*821ment he may have had by entering the two pleas. For these reasons, we affirm the denial of his PCR claim.

FACTS AND PROCEDURAL HISTORY

¶ 3. On October 8, 2008, after a drug deal went bad, Borden and his codefen-dant, Eddie Pugh,1 kidnapped Kelsey McCoy and Rahman Mogilles. Borden and Pugh tied the two men up in New Orleans, Louisiana, then drove them to Jackson County, Mississippi, in Mogilles’s vehicle. Borden claimed that while en route to Mississippi, a fight broke out between he and Mogilles. The two supposedly wrestled over a gun, which went off, killing McCoy. After the shooting, Borden and Pugh set Mogilles’s vehicle on fire.

¶ 4. On May 15, 2009, Borden and Pugh were convicted of a variety of charges relating to these events after a jury trial in the United States District Court for the Southern District of Mississippi.2 Specifically, Borden and Pugh were found guilty of conspiracy to commit kidnapping; two substantive counts of kidnapping relating to McCoy and Mogilles; felon in possession of a firearm; and possession of a firearm in connection with a crime of violence.3 Both were sentenced to life imprisonment, plus five additional years.4

¶5. Pugh then proceeded to trial in Jackson County Circuit Court, where he was convicted of capital murder, aggravated assault, and third-degree arson. He received consecutive sentences of life for capital murder, twenty years for aggravated assault, and three years for third-degree arson.5

¶ 6. On January 6, 2011, Borden elected to waive trial on his state charges and enter a plea of guilty to capital murder and an Alford6 (best interest) plea to third-degree arson in the Jackson County Circuit Court. The judge accepted his pleas and sentenced him to life without parole for capital murder and three years on the arson charge. Borden later filed a PCR motion, which the circuit court denied. Borden now appeals.

DISCUSSION

¶ 7. In considering the denial of a PCR motion, “we review the trial court’s findings of fact for clear error and its determinations of law de novo.” Wilkerson v. State, 89 So.3d 610, 613 (¶ 7) (Miss.Ct.App.2011). The burden is on the PCR movant to show he or she is entitled to relief by a preponderance of the evidence. Id. We affirm dismissals or denials of PCR motions when the movant fails to demonstrate “a claim procedurally alive substantially showing the denial of a state or federal right.” Id. at 614 (¶ 7).

I. Ineffective Assistance of Counsel

¶ 8. Though Borden had already been convicted of federal charges, he argues his attorney was ineffective in advising him to plead guilty in state court because he was “legally innocent.” While he does not mention exactly why he was legally innocent, it is important to note that there is a difference between claims of “actual innocence” and “legal innocence.”

[822]*822¶9. In the context of post-conviction proceedings, the United States Supreme Court has explained that actual innocence means “factual innocence” — that the person did not commit the crime. Sawyer v. Whitley, 505 U.S. 338, 339, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992). But legal innocence is a distinct concept that arises in circumstances when a constitutional violation, by itself, requires reversal. Id. at 339-40, 112 S.Ct. 2514. Since Borden insists he is legally (not factually) innocent, he apparently is not arguing that he did not commit the crime. So we focus instead on his constitutional claims, his first of which attacks his state court counsel.

¶.10. To proye ineffective assistance of counsel, Borden must show: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Borden to show both prongs. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). Under Strickland, there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 689, 104 S.Ct. 2052. To overcome this presumption, “[t]he defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052.

¶ 11. Borden suggests his attorney was ineffective for failing to conduct a reasonable investigation before advising him to plead guilty and not raising the defense that he was “legally innocent.” But Borden neither specifies how he was legally innocent nor points to a valid constitutional violation that, if raised before trial, would have resulted in a different outcome. So there is no viable legal-innocence claim.

¶ 12. Perhaps Borden misunderstands the concept, of legal innocence— which typically arises in the post-conviction setting when it is alleged and discovered that a constitutional violation or error occurred that, standing alone, requires reversal. However, to the extent he claims a general deficiency in his representation, we point out that when counseling a client on a guilty plea, a lawyer’s advise need only be reasonably competent, not perfect. Hill v. State, 60 So.3d 824, 827 (¶ 5) (Miss.Ct.App.2011) (citation omitted). What is paramount to the representation is that the lawyer’s advice be sufficient to allow the defendant to make an informed and conscious choice about whether to plead guilty. Id. (citation omitted). And here, we must presume it was, since Borden offers nothing to show his attorney’s advice to plead guilty was unsound or falls outside “the wide range of reasonable professional assistance.” Id. Borden’s argument is also undermined by the record, which contradicts his newfound dissatisfaction with his attorney.

¶ 13. At Borden’s guilty-plea hearing, he swore under oath that he was satisfied with his attorney. When asked by the court if his lawyer advised him in a manner consistent with his best interests, Borden told the judge, “Yes, your Honor. They established that there is no — yeah, that there is no defense.” Borden was even asked whether he personally believed he had a defense to the charges, and answered — ‘You mean to the evidence? No.”

¶ 14. We have long held that “solemn declarations in open court carry a strong presumption of verity.”

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Cite This Page — Counsel Stack

Bluebook (online)
122 So. 3d 818, 2013 WL 5433492, 2013 Miss. App. LEXIS 644, Counsel Stack Legal Research, https://law.counselstack.com/opinion/borden-v-state-missctapp-2013.