Brown v. State

269 So. 3d 476
CourtCourt of Appeals of Mississippi
DecidedFebruary 13, 2018
DocketNO. 2016-CP-00600-COA
StatusPublished

This text of 269 So. 3d 476 (Brown 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
Brown v. State, 269 So. 3d 476 (Mich. Ct. App. 2018).

Opinion

WESTBROOKS, J., FOR THE COURT:

¶ 1. The motion for rehearing is denied in part and dismissed as moot in part. The previous opinion of this Court is withdrawn, and this opinion is substituted in its place.

¶ 2. Nicholas D. Brown, appearing pro se, appeals the Simpson County Circuit Court's denial of his motion for postconviction relief (PCR). Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In April 2013, Brown was indicted by a Simpson County grand jury on two counts of possession of a controlled substance. In Count I, he was charged with possession of approximately 12.1 milliliters of a codeine. In Count II, he was charged with possession of approximately 1.2 grams of cocaine. In March 2014, Brown pleaded guilty to only Count II, possession of 1.2 grams of a cocaine. At his plea hearing, Brown requested to enter a drug-court program. The trial court withheld acceptance of Brown's guilty plea and placed Brown on nonadjudicated probation. The court also accepted Brown's request to enter a drug-court program.

¶ 4. In 2015, Brown was found to have violated the terms and conditions of the drug-court program.1 The trial court found that Brown's nonadjudicated status should be revoked and accepted his guilty plea. Brown was sentenced to sixteen years on Count I2 and eight years on Count II, with the sentences to run consecutively in the custody of the Mississippi Department of Corrections.

¶ 5. In October 2015, Brown filed a PCR motion in the circuit court in cause number 2013-90-K-1. In August 2016, Brown filed *479another PCR motion in the circuit court in cause number 2015-291-1, alleging that his plea was involuntary, his counsel was ineffective, and his search warrant was invalid. In November 2016, Brown filed two more PCR motions in cause number 2015-291-1, again alleging ineffective assistance of counsel and that his plea was involuntary.3 The record reflects that at one time, Brown had a total of four PCR motions before the circuit court.

¶ 6. In November 2016, the Simpson County Circuit Court denied Brown's PCR motions in cause number 2015-291-1. Brown timely appealed. On February 13, 2018, this Court handed down its original decision affirming the denial of Brown's PCR motions. Brown timely filed for rehearing. While Brown's rehearing motion was pending before this Court, the Simpson County Circuit Court entered an order on May 14, 2018, in Brown's criminal cause, 2013-90-K-1, to correct a scrivener's error in Brown's March 14, 2014 order of conviction. The May 14 order was also filed in Brown's civil PCR cause, 2015-291-1. The order states that the portion of the order of conviction stating that Brown pleaded guilty to Count I, possession of codeine, was a mistake. The May 14 order corrects the order of conviction to reflect that Brown only pleaded guilty to Count II, possession of cocaine. The April 22, 2015 order revoking Brown's nonadjudicated status was also corrected to strike the sixteen-year sentence on Count I. The May 14 order states that all other portions of the order of conviction and revocation order remain in effect.4

¶ 7. On appeal, Brown did not specifically argue his conviction and sentence on Count I were incorrect; thus, it was not reviewed or addressed in this Court's original opinion. On rehearing, Brown does challenge his conviction on Count I. However, as the circuit court has now entered an order correcting the order of conviction and revocation order to reflect that Brown did not plead guilty to Count I and has struck Brown's sentence on Count I, Brown's rehearing arguments related to Count I are moot. As to Brown's remaining rehearing arguments on Count II, we find no merit to these issues and find they should be denied. Thus, we deny Brown's rehearing motion in part and dismiss it as moot in part. We issue this modified opinion consistent with the circuit court's May 14, 2018 order.

STANDARD OF REVIEW

¶ 8. "We review a circuit court's denial of a PCR motion under a clearly-erroneous standard of review." Vanwey v. State , 147 So.3d 367, 369 (¶ 8) (Miss. Ct. App. 2014). "[H]owever, we review the [circuit] court's legal conclusions under a de novo standard of review."

*480Jackson v. State , 178 So.3d 807, 809 (¶ 8) (Miss. Ct. App. 2014).

DISCUSSION

I. Voluntariness of Plea and Assistance of Counsel

¶ 9. Brown asserts that his guilty plea was involuntary because he received ineffective assistance of counsel. He maintains that his lawyer failed to properly assist with his defense. Brown asserts that he would not have pleaded guilty if he would have received effective assistance from his attorney. "The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence." Walton v. State , 16 So.3d 66, 70 (¶ 8) (Miss. Ct. App. 2009). "A guilty plea is deemed 'voluntary and intelligent' only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea." Id.

¶ 10. The record clearly indicates that Brown was informed of the nature of the charges against him and the consequences of his plea. The following is an excerpt from Brown's guilty-plea hearing:

THE COURT: Mr. Brown, before I can accept your guilty plea, it's necessary that I determine that your guilty plea is knowingly, understandingly, freely[,] and voluntarily made. In order for me to make this determination, I'm going to ask you a series of questions. And you can refuse to answer any of these questions if you want to. But if you do answer these questions, you're under oath, and any answer that you give can be used against you. Do you understand that?
DEFENDANT: Yes, sir.
....
THE COURT: Okay. Do you understand each and every element contained in the crime of which you were charged?
DEFENDANT: Yes, sir.
....
THE COURT: Do you fully understand what you're doing here today?
DEFENDANT: Yes, sir.
....
THE COURT: All right. Do you understand that the sentence that could be imposed upon you for the commission of this crime ranged from a minimum sentence of eight years confinement in the state penitentiary and or a zero dollar fine up to a $50,000 fine. Do you understand that?
DEFENDANT: Yes, sir.
....
THE COURT: Are you entering this guilty plea freely and voluntarily and after talking it over with your lawyer?

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Williams v. State
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Bluebook (online)
269 So. 3d 476, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-state-missctapp-2018.