Dennis v. State

873 So. 2d 1045, 2004 WL 1099987
CourtCourt of Appeals of Mississippi
DecidedMay 18, 2004
Docket2002-CP-02113-COA
StatusPublished
Cited by8 cases

This text of 873 So. 2d 1045 (Dennis 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
Dennis v. State, 873 So. 2d 1045, 2004 WL 1099987 (Mich. Ct. App. 2004).

Opinion

873 So.2d 1045 (2004)

Christopher Joe DENNIS, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-CP-02113-COA.

Court of Appeals of Mississippi.

May 18, 2004.

*1046 Christopher Joe Dennis, pro se.

Office of the Attorney General by Charles W. Maris, attorney for appellee.

EN BANC.

*1047 GRIFFIS, J., for the Court.

¶ 1. Christopher Joe Dennis pled guilty to one count of aggravated assault, three counts of burglary, and two counts of second degree arson. He was sentenced to serve a total of fifty years in the custody of the Mississippi Department of Corrections, with thirty-five years suspended, and five years' probation. Dennis petitioned the trial court for post-conviction relief, which was denied. We find no error and affirm.

¶ 2. Although Dennis assigns fourteen errors, we are of the opinion that the allegations of error may be reduced to six issues.

ANALYSIS

I. Involuntary Plea,

¶ 3. Dennis claims that his plea was involuntary. A plea is considered "voluntary and intelligent" if the defendant is advised about the nature of the charge and the consequences of the entry of the plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). The defendant must be instructed that a guilty plea waives his or her rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id.

¶ 4. Dennis bears the burden of proving, by a preponderance of the evidence, that he is entitled to post-conviction relief. McClendon v. State, 539 So.2d 1375, 1377 (Miss.1989). "Once the trial judge has determined at a preliminary hearing that a confession is admissible, the defendant/appellant has a heavy burden in attempting to reverse that decision on appeal." Sills v. State, 634 So.2d 124, 126 (Miss.1994) (quoting Frost v. State, 483 So.2d 1345, 1350 (Miss.1986)). "Such findings are treated as findings of fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is contrary to the overwhelming weight of the evidence." Foster v. State, 639 So.2d 1263, 1281 (Miss.1994).

¶ 5. First, Dennis claims that his plea was involuntary because he was never advised of his right against self-incrimination. Dennis' plea petition contradicts this claim. The petition, signed by Dennis, clearly enumerated the rights that he would be guaranteed if he pled not guilty; the right against self-incrimination was included. In his plea transcript, the trial judge conducted a "face-to-face exchange in open court" with Dennis, to determine whether Dennis understood his rights. See Nelson v. State, 626 So.2d 121, 126 (Miss.1993) (holding the judge must conduct a face-to-face exchange in order to determine whether the accused knows and understands the rights to which he is entitled). The trial judge specifically explained that Dennis had the right to a jury trial, the right to call witnesses, and the right to testify or not testify on his behalf. The trial judge further explained that, if he chose not to testify, the jury would be informed that Dennis had the right to remain silent. Dennis acknowledged that he understood each of these rights. Accordingly, the plea petition and the transcript from the court's acceptance of his plea contradict Dennis' claim that he was not advised of his right against self-incrimination.

¶ 6. Second, Dennis asserts that he was not informed of the maximum and minimum penalties that he could face. Although the trial judge did not verbally state the maximum and minimum penalties during Dennis' plea hearing, Dennis' guilty plea petition recited the maximum and minimum sentences for burglary and arson, and the maximum sentence for aggravated assault. In Thompson v. State, 724 *1048 So.2d 1070, 1073-74 (¶14) (Miss.Ct.App. 1998), we held that:

failure by a trial court specifically to inform a defendant of the maximum and minimum sentences may be harmless if the defendant was correctly informed by another source of or "if appears beyond a reasonable doubt that the plea would have been entered anyway...." State v. Pittman, 671 So.2d 62, 64 (Miss.1996). If a trial court fails to advise a defendant of a minimum sentence, the defendant must establish that he was misinformed and "that the case was misrepresented or the defendant expected to receive a lesser sentence." Courtney v. State, 704 So.2d 1352, 1358 (Miss.Ct.App.1997).

¶ 7. Since Dennis was informed in his plea petition of the maximum and minimum sentences for burglary and arson, the trial judge's failure to verbally state the possible sentencing range during the plea hearing was harmless. Thompson, 724 So.2d at 1073 (¶14). As to his claim that he was not advised of the minimum sentence for aggravated assault, Dennis has failed to establish that he was misinformed or that he expected to receive a lesser sentence due to the trial judge's failure to inform him of the minimum sentence range.

¶ 8. Moreover, the supreme court has held that "[w]here the statute specifies no minimum number of years of imprisonment, the judge is not obliged to inform the defendant that no minimum sentence is provided, or that the minimum penalty he faces is `zero.'" Bevill v. State, 669 So.2d 14, 18-19 (Miss.1996). A person convicted of aggravated assault is subject to serve "imprisonment in the county jail for not more than one (1) year or in the penitentiary for not more than twenty (20) years." Miss.Code Ann. § 97-3-7(2) (Rev.2000). Since this statute sets no minimum penalty, the trial judge was not obligated to inform Dennis of the minimum sentence for aggravated assault.

¶ 9. Third, Dennis claims that the trial judge erred by accepting a plea from him without arraignment on the charges for aggravated assault and burglary of a non-residence. Mississippi courts have consistently held that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial. Anderson v. State, 577 So.2d 390, 391 (Miss.1991); Ellzey v. State, 196 So.2d 889, 892 (Miss.1967). By pleading guilty, Dennis waived his right to raise this challenge. Notwithstanding this waiver, Dennis filed a written waiver of indictment and consented that the proceeding may be by information.

¶ 10. Finally, Dennis claims that he never pled guilty to the charge of aggravated assault. The record does not support this claim. During the plea hearing, Dennis' counsel confirmed that the criminal information on the aggravated assault charge was one of the charges to which Dennis was pleading guilty. The prosecution articulated the facts of each charge for the record, including the facts of the aggravated assault charge. The trial judge asked Dennis if he was pleading to "all of the matters" and later read a sentence for each of the charges, including aggravated assault.

¶ 11. Based on our review of the record, Brown entered a guilty plea to all of the charges in a manner that was knowing, voluntary, and intelligent. Therefore, Dennis' claim that his plea was involuntary is without merit.

II. Sentencing

¶ 12. Dennis contends that the trial judge sentenced him to a longer sentence than allowed by law for each of his three convictions. Dennis also asserts that the *1049

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Bluebook (online)
873 So. 2d 1045, 2004 WL 1099987, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dennis-v-state-missctapp-2004.