Gaston v. State

817 So. 2d 613, 2002 WL 982641
CourtCourt of Appeals of Mississippi
DecidedMay 14, 2002
Docket2001-CP-00369-COA
StatusPublished
Cited by24 cases

This text of 817 So. 2d 613 (Gaston 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
Gaston v. State, 817 So. 2d 613, 2002 WL 982641 (Mich. Ct. App. 2002).

Opinion

817 So.2d 613 (2002)

Elliot L. GASTON, Appellant
v.
STATE of Mississippi, Appellee.

No. 2001-CP-00369-COA.

Court of Appeals of Mississippi.

May 14, 2002.

*614 Elliot L. Gaston, appellant pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, for appellee.

Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.

*615 BRIDGES, J., for the Court.

¶ 1. Elliot Lance Gaston pled guilty to attempted strong-arm robbery in 1999, and the court sentenced him to fifteen years in prison with five years of post-release supervision, credit for time served, and the remainder of the sentence suspended. Gaston violated the terms of his post-release supervision, and the court sentenced him to fifteen years in prison, ten years suspended and three years of post-release supervision, with the remainder to be served. Gaston filed a motion for post-conviction relief on December 12, 2000, which the trial court dismissed on January 16, 2001, and he now appeals that dismissal, on the following four issues:

I. DID GASTON FILE HIS NOTICE OF APPEAL IN A TIMELY FASHION?

II. DID GASTON RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

III. WAS GASTON'S PLEA VOLUNTARY AND INTELLIGENT?

IV. DID THE COURT IMPROPERLY SENTENCE GASTON BY EXCEEDING THE MAXIMUM SENTENCE OR SUSPENDING HIS SENTENCE?

STANDARD OF REVIEW

¶ 2. "When reviewing a lower court's decision to deny a petition for post conviction relief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. DID GASTON FILE HIS NOTICE OF APPEAL IN A TIMELY FASHION?

¶ 3. The first issue before the Court is the threshold issue of subject matter jurisdiction. Notice of appeal must be filed with the trial court within thirty days of the order or judgment appealed. M.R.A.P. 4(a). All untimely filed appeals must be dismissed, unless in the interests of justice they should be granted. M.R.A.P. 2. On the face of the record, Gaston's appeal fails as untimely, as it was filed on February 26, 2001, after the expiration of the thirty day period which began on January 16. In his brief, Gaston fails to address the timeliness of his appeal. He does address it in his reply brief, asking the court to consider that his efforts to file are subject to the whims of the Parchman mail service.

¶ 4. Gaston also asks that in the interests of justice the Court treat his appeal as filed on the date of notarization at Parchman, February 13, which falls within the thirty day period for appeal. There is a question of whether the prison mailbox rule should apply to appeals. Accordingly,

[W]e hold that a pro se prisoner's motion for post-conviction relief is delivered for filing under the UPCCRA and the Mississippi Rules of Civil Procedure when the prisoner delivers the papers to prison authorities for mailing. Prison authorities may initiate such procedures as are necessary to document reliably the date of such delivery, by means of a prison mail log of legal mail or other expeditious means. Henceforth, an inmate's certificate of service will not suffice as proof.

Sykes v. State, 757 So.2d 997, 1000-1 (¶ 14) (Miss.2000).

¶ 5. However, the prison mailbox rule in Mississippi applies only to cases brought under the Uniform Post Conviction Collateral Relief Act (UPCCRA). Id. It is unclear whether in Mississippi the prison mailbox rule would apply to an appeal of a denial of a PCR motion. Gaston alleges that he sent his motion to proceed in forma pauperis into the prison mail system on *616 the day it was notarized. If so, and if the prison mailbox rule extends to appeals from PCR denials, then he properly brought his case before the jurisdiction of this Court.

¶ 6. A more serious question arises because the only evidence of the date of mailing comes from Gaston's non-evidentiary assertion in his reply brief that the date on which he had his appeal notarized corresponds with the date that he presented the appeal to prison officials for deposit in the mails. This evidence is by the rule of Sykes essentially useless to this Court, as it is of lesser veracity than the "inmate's certificate of service" that Sykes rejects. Id. No record of the date of mailing, such as the prison's official mail log, was provided to this Court, as Sykes envisions. The State is the movant in the request of dismissal for failure of timeliness; it bears the burden of proof. Since the State provides no evidence of the sort required by Sykes, their motion must fail.

¶ 7. Of the other states that have adopted a version of the federal prison mailbox rule found in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), Georgia favorably cites Sykes in declaring that all state civil post-conviction remedies are subject to the prison mailbox rule for pro se prisoners. Massaline v. Williams, 274 Ga. 552, 554 S.E.2d 720, 722 (2001). Massaline applies the rule to appeals from failed post-conviction relief petitions, including habeas corpus. Id. Massachusetts was, prior to 1993, the only state of eight that had considered the newly-minted prison mailbox rule to adopt it. Commonwealth v. Hartsgrove, 407 Mass. 441, 553 N.E.2d 1299, 1302 (1990). Massachusetts applied the rule in Houston to direct appeals, as well as civil post-conviction relief. Id. Mississippi considered adopting the rule in 1993, but ruled on a narrow point of law instead. Benbow v. State, 614 So.2d 398, 401-02 (Miss.1993).

¶ 8. We hold that in Mississippi the prison mailbox rule extends to all actions under the UPCCRA, and appeals in those actions. This merely clarifies the ruling in Sykes and brings Mississippi law into conformity with those jurisdictions that have adopted the prison mailbox rule after Houston.

II. DID GASTON RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 9. "To successfully claim ineffective assistance of counsel the Defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Moody v. State, 644 Sc.2d 451, 456 (Miss.1994). The Strickland test requires the defendant demonstrate first the deficiency of the counsel's performance, and second that the deficiency was sufficient to prejudice the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. He faces a strong yet rebuttable presumption that counsel performed adequately, and the defendant must show a reasonable probability that but for counsel's errors, defendant would have received a different result. Moody, 644 So.2d at 456. The court must look at the totality of the circumstances, with deference towards counsel's actions, to determine a factual basis for the claim. Id. If the defendant raises questions of fact regarding either deficiency of counsel or prejudice, he is entitled to an evidentiary hearing. Id. If the court finds counsel was ineffective, the appropriate remedy is remand for a new trial. Id.

¶ 10.

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Bluebook (online)
817 So. 2d 613, 2002 WL 982641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gaston-v-state-missctapp-2002.