Ivy v. State

103 So. 3d 766, 2012 Miss. App. LEXIS 800, 2012 WL 6120441
CourtCourt of Appeals of Mississippi
DecidedDecember 11, 2012
DocketNo. 2011-CP-01025-COA
StatusPublished
Cited by9 cases

This text of 103 So. 3d 766 (Ivy 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
Ivy v. State, 103 So. 3d 766, 2012 Miss. App. LEXIS 800, 2012 WL 6120441 (Mich. Ct. App. 2012).

Opinions

GRIFFIS, P.J.,

for the Court:

¶ 1. Carlos Ivy appeals the denial of his motion for post-conviction collateral relief. Ivy argues: (1) his sentence exceeded the maximum allowed by law; (2) his sentence was illegal; (3) his guilty plea was involuntary; (4) his counsel was ineffective; and (5) he was subjected to an illegal search and seizure. We find no error and affirm.

FACTS

¶ 2. On September 16, 2010, Ivy pleaded guilty in the Circuit Court of Union County to possession of cocaine and child endangerment. On the charge of possession of cocaine, Ivy was sentenced to serve sixteen years, with one year suspended. On the charge of child endangerment, Ivy was sentenced to serve ten years, with ten years suspended. The circuit judge ordered the sentences to run consecutively, for a total of fifteen years to serve in the Mississippi Department of Corrections, fol[768]*768lowed by five years of post-release supervision.

¶ 3. On December 10, 2010, Ivy filed a motion for post-conviction collateral relief. The circuit court denied the motion without a hearing. Ivy now appeals.

STANDARD OF REVIEW

¶ 4. The denial of a motion for post-conviction collateral relief will not be reversed absent a finding that the circuit court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when reviewing issues of law, the standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

ANALYSIS

1. Length of Sentence

¶ 5. Ivy argues his sentence is illegal because, when combined with the term of post-release supervision, it exceeds the maximum authorized by statute. Ivy cites to Mississippi Code Annotated section 47-7-34 (Rev.2011) in support of his position. Section 47-7-34 states: “[T]he total number of years of incarceration plus the total number of years of post-release supervision shall not exceed the maximum sentence authorized to be imposed by law for the felony committed.”

¶ 6. The maximum sentence for Ivy’s possession-of-cocaine charge was sixteen years. See Miss.Code Ann. § 41-29-139(c)(1)(C) (Rev.2009). The maximum sentence for Ivy’s child-endangerment charge was ten years. See Miss.Code Ann. § 97-5-39(2)(b)(i) (Rev.2006). Ivy was sentenced to the maximum term on each count, for a total of twenty-six years. However, eleven years of his sentence were suspended, leaving fifteen years to serve. When the five years of post-release supervision are added to the fifteen years of incarceration, the resulting twenty years is less than the permissible statutory maximum sentence. See Brown v. State, 923 So.2d 258, 260 (115) (Miss.Ct.App.2006). Accordingly, we find no merit to this issue.

2. Suspended Sentence

¶ 7. Next, Ivy argues his sentence must be reversed because, according to Mississippi Code Annotated section 47-7-33 (Rev.2011), he could not be given a suspended sentence, as he was a previously convicted felon.

¶8. Section 47-7-33(1) states, in part, that the circuit court “shall have the power, after conviction or a plea of guilty, except ... where the defendant has been convicted of a felony on a previous occasion ..., to suspend the imposition or execution of sentence, and place the defendant on probation as herein provided.... ”

¶ 9. The assertion that a previously convicted felon cannot receive a suspended sentence is not a new one. The Mississippi Supreme Court put this argument to rest in Johnson v. State, 925 So.2d 86, 105 (¶ 39) (Miss.2006). The Johnson court specifically held that circuit courts have the power to suspend sentences for previously convicted felons that would have been considered illegal under section 47-7-33(1). Johnson, 925 So.2d at 102 (¶ 31). The supreme court explained this holding as follows:

Through the legislature’s enactment of [s]eetion 47-7-34 and our holdings in Miller [v. State, 875 So.2d 194 (Miss.2004) ] and Sweat [v. State, 912 So.2d 458 (Miss.2005) ], the sentencing discretion formerly accorded to our trial courts has been returned. No longer can [previously] convicted felons take advantage of the statutory windfall which temporarily existed in [s]ection 47-7-33 that allowed for felons to characterize what in effect was a more le[769]*769nient sentence, as being somehow an “illegal” sentence. Moreover, our appellate courts should recognize the intentions of our trial judges when they suspend a sentence and either impose probation under [sjection 47-7-33, or post-release supervision under [s]ection 47-7-34. Thus, in reviewing the sentencing orders of our trial courts, we must be hereinafter cognizant of the fact that while the supervisory role of the MDOC is limited under both [s]ec-tions 47-7-33 and -34, the supervisory role of our trial courts is not so limited. For purposes of clarity, consistency and cohesion, we hold today that the circuit and county courts of this state have the power to suspend, in whole or in part, a convicted felon’s sentence under ... [sjection 47-7-33 inasmuch as this Court and the legislature have empowered them to do so under ... [sjection 47-7-34, and to the extent that the practice has been historically ingrained in our criminal courts’ sentencing practice. In this way, the appellate courts of this state should liberally read the Probation Act, as codified in 1956, along with the Post-Release Supervision Program, as codified in 1995, with an eye on the intentions of the trial courts, recognizing the trial courts’ ability to monitor or supervise [previously] convicted felons beyond the five-year maximum period statutorily assigned to the MDOC.

Johnson, 925 So.2d at 102-03 (¶¶ 31-32) (citation omitted). Accordingly, we find no merit to this issue.

3. Voluntariness of Guilty Plea and Ineffective Assistance of Counsel

¶ 10. Ivy next argues that his guilty plea was involuntary because his attorney gave him erroneous advice regarding his sentence. Ivy does not allege any misinformation was given to him by the trial court. This argument is in effect a claim for ineffective assistance of counsel.

¶ 11. For Ivy to prove he received ineffective assistance of counsel, he must show: (1) his counsel’s performance was deficient, and (2) this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “In the context of guilty pleas, this means the defendant must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Burrough v. State, 9 So.3d 368, 375 (¶ 22) (Miss.2009).

¶ 12. First, Ivy asserts his attorney told him that his sentence fell under the “25% law”; however, Ivy learned later he was not eligible for this reduced sentence because of his child-endangerment conviction. The 25% law is found in Mississippi Code Annotated section 47-7-3 (Rev.2011). It states that a prisoner who is sentenced to one year or more but less than thirty years may be released on parole after serving at least one-fourth of the sentence.

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Bluebook (online)
103 So. 3d 766, 2012 Miss. App. LEXIS 800, 2012 WL 6120441, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ivy-v-state-missctapp-2012.