Cornelius Lorenzo Callahan v. State of Mississippi

192 So. 3d 380, 2016 WL 2860754, 2016 Miss. App. LEXIS 310

• Court: Court of Appeals of Mississippi
• Decided: May 17, 2016
• Docket: 2014-CP-00516-COA
• Status: Published

Opinion

FACTS AND PROCEDURAL HISTORY

JAMES, J.,

for the Court:

¶ 1. On September 22, 2012, Cornelius Callahan, along with his codefendant, robbed the Dollar General in Long Beach, Mississippi. On December 26, 2012, Callahan was indicted and charged with armed robbery pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2014). On September 9, 2013, Callahan entered an open plea to the armed-robbery charge and was sentenced to twenty-two years to serve day-for-day.

¶ 2. On March 3, 2014, Callahan, pro se, filed a motion for postconviction relief (PCR). Callahan contended that he received ineffective assistance of counsel, and he asked the trial court to vacate his guilty plea and/or reduce his sentence. The trial court found that the motion was without merit and denied it. Callahan now appeals claiming: (1) his plea was involuntary, and (2) he received ineffective assistance of counsel.

DISCUSSION

¶3. A trial court’s decision to deny a PCR motion will not be reversed absent a finding that the trial court’s decision was. clearly erroneous.» Kirksey v. State, 728 So.2d 565, 567 (¶ 8) (Miss.1999). We, however, review questions of law under a de novo standard of review. Wilson v. State, 76 So.3d 733, 735 (¶ 19) (Miss.Ct. App.2011).

¶ 4. Callahan for the first time argues that he did not know he was pleading as a habitual offender, Callahan specifically claims that: (1) the State amended his indictment.to improperly charge him as a habitual offender, (2) the trial court improperly sentenced him as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2015), and (3) he did not know he was pleading guilty as a habitual offender. 1 In Fluker v. State, 17 So.3d 181, 183 (¶ 5) (Miss.Ct.App.2009), this Court found that a defendant may not raise an issue on appeal that he failed to raise in his PCR motion before the trial court, Thus, this issue is procedurally barred because Callahan raised it for the first time on appeal,

¶5. Callahan also claims that he réceived ineffective assistance of counsel. He contends that his counsel failed to object to and inform the judge of the vindictive -remarks the assistant district attorney (ADA) made to him during plea negotiations. He also claims that-his attorney pressured him into taking the-plea by telling him he would receive a life sentence if he did not accept the ADA’s offer.

¶6. Ineffective-assistance claims are governed by Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In order to make an,. ineffective-assistance claim, Callahan first “must show that counsel’s representation fell below an objective standard of reasonableness.” Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006) (citing Strickland, 466 U.S. at 687-88, 694, 104 S.Ct. 2052). Callahan then must show that “there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Callahan must allege both prongs with specific detail. McCray v. State, 107 So.3d 1042, 1045 (¶ 9) (Miss.Ct.App.2012). Callahan, however, only offers his own affidavit to support his claim. Our law is clear that, “[w]here a. party offers only his affidavit, then .his ineffective assistance of counsel claim is without merit,” Bass v. State, 174 So.3d 883, 885 (¶ 6) (Miss.Ct.App.2015) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)). Callahan made assertions of ineffective assistance of counsel without supplying this Court with any supporting documents. Therefore, this issue is without merit.

¶ 7. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT, FIRST JUDICIAL DISTRICT, DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY.

LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, CARLTON, FAIR, WILSON AND GREENLEE, JJ., CONCUR. . ,

1 . We note that Callahan’s claim seems to arise out of the trial court’s order denying the PCR motion, The order states; ”[T]he State successfully moved to amend the indictment and charged Callahan as a habitual offender -pursuant to-section 99-19-81[,]” The trial court’s statement is incorrect. Callahan’s indictment and sentencing order make clear that Callahan was neither charged nor sentenced as a habitual offender, although the sentencing order provided that Callahan was ineligible for parole under Mississippi Code Annotated section 47 — 7^3(1)(d)(ii) (Rev.2011).