Brisceson Augusta Haskins v. State of Mississippi

159 So. 3d 1222, 2015 Miss. App. LEXIS 154, 2015 WL 1296096
CourtCourt of Appeals of Mississippi
DecidedMarch 24, 2015
Docket2013-KA-01771-COA
StatusPublished
Cited by3 cases

This text of 159 So. 3d 1222 (Brisceson Augusta Haskins v. State of Mississippi) 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
Brisceson Augusta Haskins v. State of Mississippi, 159 So. 3d 1222, 2015 Miss. App. LEXIS 154, 2015 WL 1296096 (Mich. Ct. App. 2015).

Opinion

CARLTON, J.,

for the Court:

¶ 1. A Harrison County jury found Brisceson Haskins guilty of burglary of a business. Haskins now appeals his conviction and raises the following issues: (1) whether he was entitled to a new court-appointed attorney; (2) whether he was entitled to a different trial judge; and (3) whether the State’s attorney “intimidated” him and made him “scared to testify.” Finding no error, we affirm.

FACTS

¶ 2. A grand jury indicted Haskins for burglary of a business. After hearing the testimony presented at Haskins’s trial, a jury found him guilty. The circuit court judge sentenced Haskins to seven years, as a habitual offender, in the custody of the Mississippi Department of Corrections, without the possibility of parole or probation. The circuit court judge further ordered that Haskins’s sentence for burglary run consecutively to another sentence currently being served by Haskins.

¶ 3. Following his burglary conviction, Haskins filed a motion for a new trial or, *1224 in the alternative, a judgment notwithstanding the verdict. In addition, Haskins filed a motion for reconsideration of his sentence. The circuit court judge denied both motions. Aggrieved, Haskins appeals to this Court.

¶4. After reviewing the matter, Has-kins’s appellate attorney filed a brief pursuant to Lindsey v. State, 939 So.2d 743, 748 (¶ 18) (Miss.2005), stating that he could find no arguable issues to support an appeal. Haskins was given additional time to file a pro se brief, and he now raises the following issues for this Court’s consideration: (1) whether he was entitled to a new court-appointed attorney; (2) whether he was entitled to a different trial judge; and (3) whether the State’s attorney “intimidated” him and made him “scared to testify.”

DISCUSSION

¶5. When an appellate attorney believes no meritorious issues exist upon which to base an appeal, he must follow the procedure outlined in Lindsey. Havard v. State, 94 So.3d 229, 234 (¶ 10) (Miss.2012). The appellate attorney “must ‘file and serve a brief in compliance with Mississippi Rule of Appellate Procedure 28’ and certify to the court a diligent review of the procedural and factual history of the criminal action has taken place and that ‘there are no arguable issues supporting the client’s appeal.’” Id. at 234-35 (¶ 10) (quoting Lindsey, 939 So.2d at 748 (¶ 18)). The appellate attorney must specifically examine:

(a) the reason for the arrest and circumstances surrounding the arrest; (b) any possible violations of the client’s right to counsel; (c) the entire trial transcript; (d) all rulings of the trial court; (e) possible prosecutorial misconduct; (f) all jury instructions; (g) all exhibits, whether admitted into evidence or not; and (h) possible misapplication of the law in sentencing.

Id. at 235 (¶ 10). The appellate attorney “must then transmit a copy of the appellant’s brief to the client, inform him ... of the findings, and explain his ... right to file an appellate brief pro se.” Id. Once all the briefs have been filed, this Court evaluates the case on its merits and renders an opinion. Id.

¶6. In the present cáse, Haskins’s appellate attorney from the Office of the State Public Defender has certified to this Court that he followed the procedure set forth in Lindsey. While we find no need for additional briefing from Haskins’s appellate attorney, we acknowledge that Haskins has filed his own pro se brief for our consideration. We therefore turn to a review of the issues raised by Haskins.

I. Whether Haskins was entitled to a new court-appointed attorney.

¶ 7. In his first assignment of error, Haskins states that he informed the circuit court judge he wanted a different attorney because his court-appointed attorney had represented him on previous charges. On appeal, however, Haskins fails to argue that his court-appointed attorney offered ineffective assistance of counsel or was in any way deficient in his representation of Haskins.

¶ 8. As our precedent recognizes, “defense counsel is presumed competent.” ' Bennett v. State, 990 So.2d 155, 158 (¶ 9) (Miss.2008) (citing Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Furthermore, we find this issue is procedurally barred because Haskins fails to cite any legal authority or to offer any record evidence to show that he was entitled to a new court-appointed attorney. “Because the appellant bears the burden of persuasion on appeal, this Court will not consider issues *1225 on appeal for which the appellant cites no supporting authority.” Faul v. Perlman, 104 So.3d 148, 156 (¶ 27) (Miss.Ct.App. 2012) (quoting Sumrall v. Miss. Power Co., 693 So.2d 359, 363 (Miss.1997)).

II. Whether Haskins was entitled to a different trial judge.

¶ 9. Haskins next asserts that he asked the State’s attorney if he could “change judges” because the circuit court judge presiding over his trial had been involved in every case in which he had been convicted. After reviewing the record and applicable caselaw, we find this issue is also procedurally barred. “Rule 1.15 of the Uniform Rules of Circuit and County Court Practice allows any party to move for the recusal of a judge ‘if it appears that the judge’s impartiality might be questioned by a reasonable person knowing all the circumstances.’ ” Rice v. State, 134 So.3d 292, 299 (¶ 17) (Miss.2014) (quoting URCCC 1.15). “However, [Rule] 1.15 requires a motion for recusal to be filed “within 30 days following notification to the parties of the name of the judge assigned to the case.’ ” Rice, 134 So.3d at 299 (¶ 17).

¶ 10. In the present case, the record reflects that Haskins was convicted by a jury rather than by a circuit court judge presiding over a bench trial. The record also reflects that Haskins failed to object to the circuit court judge or to file a motion asking the circuit court judge to re-cuse himself. As our caselaw recognizes, “[t]he failure to seek recusal generally is considered implied consent to have the judge go forward in presiding over the case.” Id. (citing Tubwell v. Grant, 760 So.2d 687, 689 (¶ 8) (Miss.2000)). Because Haskins failed to raise the issue of recusal prior to his appeal, his untimely objection on appeal to this Court is barred.

¶ 11. Notwithstanding the procedural bar, Haskins’s argument also fails on the merits. In previously addressing the issue of recusal, the Mississippi Supreme Court stated:

This Court applies an objective test to determine whether a trial judge should have recused himself in a particular matter. A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. The judge is presumed to be qualified and unbiased, and the challenger bears the burden of overcoming this presumption.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Jonathan Blankenship v. State of Mississippi
Court of Appeals of Mississippi, 2020
Shamor Billups v. State of Mississippi
270 So. 3d 917 (Court of Appeals of Mississippi, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
159 So. 3d 1222, 2015 Miss. App. LEXIS 154, 2015 WL 1296096, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brisceson-augusta-haskins-v-state-of-mississippi-missctapp-2015.