IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2020-CA-00550-COA
JERRY GLENN WILLIS APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 04/28/2020 TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO COURT FROM WHICH APPEALED: PEARL RIVER COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JOHN SAMUEL GRANT IV ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BRITTNEY SHARAE EAKINS NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 06/22/2021 MOTION FOR REHEARING FILED: MANDATE ISSUED:
EN BANC.
GREENLEE, J., FOR THE COURT:
¶1. Jerry Willis appeals from the Pearl River County Circuit Court’s denial and dismissal
of his motion for post-conviction collateral relief (PCR). Finding no reversible error, we
affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In May 2018, Willis filed a petition to plead guilty to Count I, attempted murder;
Count II, kidnapping; and Count III, taking possession of or taking away a motor vehicle, for
his actions of pouring gasoline on his girlfriend, setting her on fire, and driving away in her
vehicle. Willis also pled guilty to being a violent habitual offender pursuant to Mississippi
Code Annotated section 99-19-83 (Rev. 2020). After a hearing, the court accepted Willis’ plea. For his convictions on Counts I and II, the court sentenced Willis, as a violent habitual
offender, to serve life without eligibility for parole in the custody of the Mississippi
Department of Corrections (MDOC). For his conviction on Count III, the court sentenced
Willis to serve five years in the custody of the MDOC without eligibility for parole,
probation, or early release. The court ordered Willis’ sentences to run concurrently.
¶3. In February 2020, Willis filed a PCR motion claiming that (1) his plea was
involuntary, (2) he received an illegal sentence, (3) the prosecutor engaged in prosecutorial
misconduct, and (4) he received ineffective assistance of counsel. The court entered an order
dismissing Willis’ ineffective-assistance-of-counsel claim and required the State to file a
written answer to the remaining issues in Willis’ PCR motion. After the State filed its
answer, the court denied post-conviction relief.1 Now Willis appeals.
STANDARD OF REVIEW
¶4. “When reviewing a [circuit] court’s denial or dismissal of a PCR motion, we will only
disturb the [circuit] court’s decision if it is clearly erroneous; however, we review the
[circuit] court’s legal conclusions under a de novo standard of review.” Williams v. State,
228 So. 3d 844, 846 (¶5) (Miss. Ct. App. 2017) (quoting Thinnes v. State, 196 So. 3d 204,
207-08 (¶10) (Miss. Ct. App. 2016)).
¶5. “A circuit court may summarily dismiss a PCR motion without an evidentiary hearing
‘if it plainly appears from the face of the motion, any annexed exhibits, and the prior
proceedings in the case that the movant is not entitled to any relief.’” Porter v. State, 271 So.
1 The court addressed Willis’ ineffective-assistance claim in more detail in this order.
2 3d 731, 732 (¶3) (Miss. Ct. App. 2018) (quoting Miss. Code Ann. § 99-39-11(2) (Rev.
2015)). “[D]ismissal of a PCR motion is proper where it appears beyond a doubt that the
movant can prove no set of facts in support of his claim which would entitle him to relief.”
Manuel v. State, 304 So. 3d 713, 716 (¶8) (Miss. Ct. App. 2020) (quoting State v. Santiago,
773 So. 2d 921, 924 (¶11) (Miss. 2000)).
DISCUSSION
I. Involuntary Plea
¶6. Willis claims that his plea was involuntary because he had not been advised that by
pleading guilty as a violent habitual offender he would receive a sentence of life without
eligibility for parole (LWOP). He asserts that his sentence should be vacated because he was
misinformed or led to believe that the court had the discretion to sentence him to something
other than LWOP. Alternatively, Willis asserts that he is entitled to an evidentiary hearing
on this issue.
¶7. “A guilty plea is binding if entered voluntarily, knowingly, and intelligently.” Hayes
v. State, 301 So. 3d 45, 49 (¶16) (Miss. Ct. App. 2019) (quoting Woods v. State, 71 So. 3d
1241, 1244 (¶8) (Miss. Ct. App. 2011)). “For a guilty plea to be voluntary, knowing, and
intelligent, the defendant must understand [his] rights, ‘the nature of the charge against [him],
and the consequences of [his] plea, including applicable minimum and maximum
sentences.’” Schmidt v. State, 287 So. 3d 1035, 1037-38 (¶9) (Miss. Ct. App. 2019) (quoting
Worth v. State, 223 So. 3d 844, 850 (¶19) (Miss. Ct. App. 2017)); see also MRCrP 15.3(d)(2)
(When a defendant wishes to plead guilty to a felony, “it is the duty of the trial court to
3 address the defendant personally in open court to inquire and determine . . . [t]hat the accused
understands the nature and consequences of the plea, and the maximum and minimum
penalties provided by law[.]”). “When the circuit court fails to advise the defendant of the
applicable maximum and minimum sentences, the defendant’s guilty plea must be vacated
unless the defendant received that information from some other source, such as his attorney.”
Wrenn v. State, 207 So. 3d 1252, 1257 (¶15) (Miss. Ct. App. 2017) (citations omitted). “The
petitioner carries the burden of proving that his plea was not voluntar[ily], intelligently, and
knowingly given.” Morris v. State, 29 So. 3d 98, 102-03 (¶13) (Miss. Ct. App. 2010)
(quoting Owens v. State, 996 So. 2d 85, 94 (¶31) (Miss. Ct. App. 2008)).
¶8. Willis argues that prior to pleading guilty as a violent habitual offender he should have
been advised that the only possible sentence he could receive was LWOP. Indeed, this Court
has held that where a defendant is found to be a violent habitual offender, the circuit judge
has no discretion in sentencing, and the violent-habitual-offender statute mandates that the
judge sentence the defendant to life imprisonment for each conviction. Esco v. State, 9 So.
3d 1156, 1170 (¶56) (Miss. Ct. App. 2008).
¶9. However, a review of the record shows that Willis’ plea was voluntarily given, as he
was fully advised of the nature and consequences of the plea and the applicable sentence.
Although the judge did not inform Willis that he would receive an LWOP sentence until after
he entered his plea, the record demonstrates that Willis was aware of the applicable sentence
before he pled guilty. Willis received this information from his plea petition and his attorney.
¶10. In his plea petition, Willis acknowledged that if he pled guilty, “the only possible
4 sentence is LIFE WITHOUT THE POSSIBILITY OF PAROLE.” Willis informed the
court that he read the plea petition, discussed it with his attorney, and swore under oath to the
truth of its contents. Additionally, Willis’ attorney filed a Certificate of Counsel, which
stated that he had “explained the maximum and minimum penalties for each count to the
defendant.” Therefore, the judge’s failure to remind Willis of the applicable sentence prior
to accepting his plea was harmless because he was informed by another source. See Wrenn,
207 So. 3d at 1257 (¶15). Finally, Willis acknowledged that he would spend the rest of his
life in prison as a result of his offense. Willis submitted a written letter to the court that was
addressed to the victim and others. The letter asked for forgiveness and concluded by stating,
“These tears are not because I’m going to spend the rest of my life in prison, but because I’m
truly sorry for the barbaric actions I committed. Justice will be served. Sincerely, Jerry
Willis.” (Emphasis added). Any potential confusion stemming from the judge’s statements
during the hearing would have been corrected by Willis’ plea petition, in which Willis
acknowledged that the only possible sentence would be LWOP pursuant to section 99-19-83.
¶11. Willis has not met his burden in proving that his guilty plea was involuntary, and the
court did not err by dismissing Willis’ PCR motion without conducting an evidentiary
hearing on this claim. Porter, 271 So. 3d at 732 (¶3). For these reasons, this issue is without
merit.
II. Habitual-Offender Status
¶12. Although Willis claims that his sentence was illegal, he essentially argues that there
was insufficient proof to support his status as a violent habitual offender. Willis asks this
5 Court to vacate his sentence or, in the alternative, remand for an evidentiary hearing.
¶13. The violent-habitual-offender statute, Mississippi Code Annotated section 99-19-83,
provides:
Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to and served separate terms of one (1) year or more, whether served concurrently or not, in any state and/or federal penal institution, whether in this state or elsewhere, and where any one (1) of such felonies shall have been a crime of violence, as defined by Section 97-3-2, shall be sentenced to life imprisonment, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole, probation or any other form of early release from actual physical custody within the Department of Corrections.
Miss. Code Ann. § 99-19-83. “To be sentenced as a habitual offender, ‘all that is required
is that the accused be properly indicted as a habitual offender, that the prosecution prove the
prior offenses by competent evidence, and that the defendant be given a reasonable
opportunity to challenge the prosecution’s proof.’” Atkinson v. State, 215 So. 3d 1002, 1005
(¶8) (Miss. Ct. App. 2017) (quoting Madden v. State, 991 So. 2d 1231, 1236 (¶20) (Miss. Ct.
App. 2008)). “The requirement that the State prove the existence of the prior convictions
beyond a reasonable doubt is negated by the defendant’s decision to enter a guilty plea.” Id.
(quoting Easley v. State, 60 So. 3d 812, 816 (¶15) (Miss. Ct. App. 2011)).
¶14. Willis asserts that the State did not prove that he actually served separate terms of one
year or more or that one of his felonies was a crime of violence. In his signed plea petition,
Willis stated that he wished to plead guilty to the charge of:
(D) HABITUAL OFFENDER STATUS. More specifically, Jerry Glenn Willis is a habitual offender under the provision of Section 99-19-83 of
6 the Mississippi Code of 1972, as amended, in that he was convicted of Theft in the 24th Judicial District Court, Jefferson Parish, Louisiana, on July 18, 1997, and sentenced to serve a term of 15 years in the custody of the Louisiana Department of Corrections. That for a second offense he was convicted of Grand Theft Auto; Battery on a Law Enforcement Officer; Aggravated Fleeing/Attempt to Elude; Failure to Appear; Aggravated Assault with Intent to Commit a Felony in Cause No. 96- 4573-CFA4P-01, in the 1st Judicial District Circuit Court, Escambia County, Florida, on November 23, 1998, and sentenced to serve a term of 14.4 months in the Florida Department of Corrections[.] [A]nd that for a third offense he was convicted of Possession of Controlled Substance and Introduction of Contraband into a County Facility in Cause No. 08002907CFMA in the 14th Judicial Circuit Court, Bay County, Florida, on October 22, 2008, and sentenced to serve a term of 27.45 months in the Florida Department of Corrections; and that these convictions were for separate offenses brought at different times, that the defendant was sentenced to and served separate terms of one (1) year or more on each conviction, and that the convictions each constitute convictions of a violent crime; against the peace and dignity of the State of Mississippi.
Willis also stated in his petition that he had been convicted of one or more felonies in the past
as follows:
(a) Theft in the 24th Judicial District Court, Jefferson Parish, Louisiana, on July 18, 1997,
(b) Grand Theft Auto; Battery on a Law Enforcement Officer; Aggravated Fleeing/Attempt to Elude; Failure to Appear; Aggravated Assault With Intent to Commit a Felony in Cause No. 96-4573-CFA4P-01, in the 1st Judicial District Circuit Court, Escambia County, Florida, on November 23, 1998,
(c) Possession of Controlled Substance and Introduction of Contraband into a County Facility in Cause No. 08002907CFMA in the 14th Judicial Circuit Court, Bay County, Florida, on October 22, 2008.
¶15. Additionally, after the State presented its evidence of Willis’ prior felony convictions,
the court asked, “Mr. Willis, first let me ask you. You’ve heard the prior convictions. Do
you acknowledge that those are legitimate prior convictions and the information given is
7 correct?” In response, Willis admitted that “[i]t’s all true.”
¶16. This Court has held that “[w]hen a defendant admits to prior criminal convictions as
part of a guilty plea, those admissions are ‘sufficient to permit a finding of habitual status.’”
Ramsey v. State, 290 So. 3d 1281, 1285 (¶11) (Miss. Ct. App. 2020) (citing Atkinson v. State,
215 So. 3d 1002, 1005 (¶11) (Miss. Ct. App. 2017)). Furthermore, “solemn declarations in
open court carry a strong presumption of verity.” Atkinson, 215 So. 3d at 1005 (¶11)
(quoting Pierce v. State, 115 So. 3d 869, 873 (¶12) (Miss. Ct. App. 2013)).
¶17. Because Willis admitted to his prior criminal convictions, we find that he was properly
classified as a violent habitual offender, and he is not entitled to an evidentiary hearing on
this issue. Porter, 271 So. 3d at 732 (¶3). This issue is without merit.
III. Prosecutorial Misconduct
¶18. Willis claims that the prosecutor engaged in prosecutorial misconduct when he made
misrepresentations regarding his prior convictions and that this resulted in his being
sentenced as a violent habitual offender to LWOP. He also claims that the prosecutor
engaged in prosecutorial misconduct when he misinformed the court about the potential
sentence for kidnapping. Willis asserts that he is entitled to an evidentiary hearing on this
issue.
¶19. In response, the State admits that some of the prosecutor’s comments were incorrect
but asserts that this issue is procedurally barred. Our supreme court has held that the failure
to make a contemporaneous objection to a prosecutor’s remarks at trial bars consideration
of prosecutorial misconduct allegations on appeal. Simmons v. State, 805 So. 2d 452, 489
8 (¶98) (Miss. 2001) (citing Davis v. State, 660 So. 2d 1228, 1255 (Miss. 1995)).
Notwithstanding any procedural bar, as discussed in issue II, Willis admitted to his prior
criminal convictions and therefore was properly classified as a violent habitual offender.
Furthermore, Willis was not prejudiced by the prosecutor’s misstatements about the potential
sentence for kidnapping because he qualified for sentencing as a violent habitual offender
and understood that he would be sentenced as a violent habitual offender to LWOP.
¶20. Because Willis failed to demonstrate that he was prejudiced by the prosecutor’s
conduct, his claim of prosecutorial misconduct fails, and he is not entitled to an evidentiary
hearing on this issue. Porter, 271 So. 3d at 732 (¶3). This issue is without merit.
IV. Ineffective Assistance of Counsel
¶21. Finally, Willis claims that he received ineffective assistance of counsel because his
attorney (1) did not properly advise him of the consequences of pleading guilty, and (2) did
not correct misinformation regarding his sentence.
¶22. To prove ineffective assistance of counsel, Willis must show that (1) “his defense
counsel’s performance was deficient,” and (2) “the deficient performance prejudiced his
defense.” Hutto v. State, 286 So. 3d 653, 666 (¶55) (Miss. 2019) (citing Strickland v.
Washington, 466 U.S. 668, 687 (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.” Hill v. State, 60 So. 3d 824, 827 (¶5) (Miss. Ct.
App. 2011) (quoting Burrough v. State, 9 So. 3d 368, 375 (¶22) (Miss. 2009)). Willis bears
the burden of proof. Webster v. State, 152 So. 3d 1200, 1203 (¶7) (Miss. Ct. App. 2014).
9 He was required to plead claims of ineffective assistance with specificity, and the claims
must be supported by affidavits other than his own. Id. at (¶8).
¶23. First, Willis argues that his attorney did not properly advise him of the consequences
of pleading guilty. Specifically, he argues that his attorney was deficient because he did not
inform him that the only possible outcome of his plea would be LWOP. However, defense
counsel certified that Willis was advised of the minimum and maximum penalties and the
effect of his plea. Second, Willis argues that his counsel was ineffective because he did not
correct misstatements by the prosecutor regarding his sentences for his prior convictions. As
discussed, any misstatement regarding the length of his sentence for his prior conviction by
the prosecutor was harmless. Accordingly, Willis suffered no prejudice as a result of the
misstatement or his attorney’s failure to correct it.
¶24. Willis merely asserts that he received ineffective assistance of counsel. He did not
produce any proof, by affidavit or otherwise, to support his claim. For these reasons, the
court did not err in dismissing his motion without an evidentiary hearing. Porter, 271 So.
3d at 732 (¶3). Therefore, this issue is without merit.
CONCLUSION
¶25. Because the court’s denial and dismissal of Willis’ PCR motion was proper, we affirm
the circuit court’s judgment.
¶26. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., LAWRENCE AND EMFINGER, JJ., CONCUR. WESTBROOKS, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY McDONALD AND McCARTY, JJ. SMITH, J., NOT PARTICIPATING.
10 WESTBROOKS, J., DISSENTING:
¶27. Willis pled guilty and was sentenced to life in prison without eligibility for parole for
attempted murder under the habitual offender statute, Mississippi Code Annotated section
99-19-83; life without eligibility for parole for kidnapping under the habitual offender
statute; and five years for taking away a motor vehicle, with all sentences ordered to run
concurrently. In this instance, there was no maximum or minimum sentencing range.
Instead, there was a statutory mandate of life in prison with no eligibility for parole for
conviction of either attempted murder or kidnapping, and the judge had no discretion to stray
from this mandate. Based on the record before the Court, I do not believe Willis’s guilty plea
was knowing and voluntary.
¶28. The plea petition is contradictory where it states:
7. I know that if I plead “GUILTY” to these charges, the only possible sentence is LIFE WITHOUT THE POSSIBILITY OF PAROLE.
(A) X I also know that the sentence is up to the Court; that the Court is not required to carry out any understanding made by me and my attorney with the District Attorney, and further, that the Court is not required to follow the recommendation of the District Attorney, if any. . . . I have agreed to accept [the sentence], as follows:
Life without the possibility of parole as to each offense under the habitual offender statute Section 99-19-83 of the Mississippi Code of 1972, as amended as to each of the three counts of the indictment, sentences to run concurrently.
Based on the plea petition, is the only possible sentence “life without the possibility of
parole,” or is “the sentence up to the Court”? It is of utmost importance to ensure that a
11 defendant is afforded all applicable constitutional rights when pleading guilty (i.e., his plea
is made knowingly, intelligently, and voluntarily). The United States Supreme Court has
admonished that Federal Rule of Criminal Procedure 11’s “procedural safeguards serve[]
important constitutional interests in guarding against inadvertent and ignorant waivers of
constitutional rights.” United States v. Vonn, 535 U.S. 55, 67 (2002). The preamble to the
Mississippi Rules of Professional Conduct states that a lawyer is responsible for “provid[ing]
a client with an informed understanding of the client’s legal rights and obligations and
explain[ing] their practical implications.” Mississippi Rule of Criminal Procedure 15.3(d)(2)
also places a duty on “the trial court to address the defendant personally in open court to
inquire and determine . . . [t]hat the accused understands the nature and consequences of the
plea, and the maximum and minimum penalties provided by law.” Instead of utilizing the
plea hearing as a means to clarify the contradiction contained in Willis’s plea petition, the
trial court compounded the problem. See United States v. Brown, 892 F.3d 385, 395 (D.C.
Cir. 2018) (Plea colloquies “aim to dispel any misconceptions that the defendant may have
about his likely sentence and to correct or clarify any erroneous information given by the
defendant’s attorney.” (citation and internal quotation marks omitted)).
¶29. Willis submitted his plea petition containing the contradictory statements mentioned
above before he appeared in front of the judge, who stated, “Do you acknowledge that the
Judge makes the decision regarding your sentence?” The judge also allowed Willis to give
“a statement to the Court that would help [it] make a decision ultimately of [Willis’s]
sentence.” These statements by the judge at the hearing clearly insinuated that he had
12 discretion as to sentencing and could potentially give Willis a lesser sentence. Willis was
never told that his guilty plea would result in an automatic day-for-day life sentence based
on his pleading guilty as a habitual offender. Willis was asked if he understood that he was
being charged as a habitual offender, but no explanation was given as to the meaning of
being charged as a habitual offender.
¶30. The judge and the State also erroneously stated at the plea hearing that “[a] life
sentence would be imposed on kidnapping,” when only a jury can impose a life sentence for
kidnapping. Miss. Code Ann. § 97-3-53 (Rev. 2011). The following dialogue between the
judge and the prosecutor regarding sentencing occurred at the plea hearing:
THE COURT: What about kidnapping?
MR. CRANFORD: A life sentence would be imposed on kidnapping, Your Honor, and -
THE COURT: Even without the enhancement?
MR. CRANFORD: I believe so, yes.
Under the kidnapping statute, the judge could impose a sentence from one to thirty years—
not life. Id. Willis could not make an informed, voluntary decision about pleading guilty to
kidnapping when he was clearly misinformed regarding the potential sentence for kidnapping
as he was not advised of the minimum or maximum sentence.
¶31. “A plea is voluntary if the defendant knows what the elements are of the charge
against him including an understanding of the charge and its relation to him, what effect the
plea will have, and what the possible sentence might be because of the plea.” Wilson v. State,
577 So. 2d 394, 396-97 (Miss. 1991). Based on the language of the plea petition and the
13 transcript of the plea hearing, I do not believe Willis understood what the maximum possible
sentence (i.e., the only possible sentence) could be, nor did he understand the effect of
pleading as a habitual offender. Willis is not highly educated, having only completed the
eighth grade before obtaining his GED, but had he been told that his habitual status legally
mandated the worst possible sentence and that no worse outcome could have resulted at trial,
it is highly unlikely that he would have submitted a plea petition in the first place, much less
requested that the judge grant it after hearing the misleading statements made at the hearing.
Instead, Willis took the deal only because the consequences were not explained to him.
Willis did not enter his plea voluntarily or intelligently.
¶32. For the foregoing reasons, I respectfully dissent from the majority and believe this
case should be remanded for an evidentiary hearing.
McDONALD AND McCARTY, JJ., JOIN THIS OPINION.