Jones v. State

770 So. 2d 578, 2000 Miss. App. LEXIS 528, 2000 WL 1670878
Court of Appeals of Mississippi·Decided November 7, 2000·No. No. 1999-CP-01207-COA·Published·Cited by 1 cases

Opinions

PAYNE, J.,

for the Court:

PROCEDURAL HISTORY AND FACTS

¶ 1. On September 29, 1995, Henry Jones pled guilty in the Sunflower County Circuit Court to escape and was sentenced to serve five years as an habitual offender in addition to the sentences he was already serving for other crimes. Jones filed a petition for post-conviction relief claiming his counsel was ineffective and that his [579]*579indictment was faulty; such petition was denied August 13, 1999. The court, recognizing that the Mississippi Supreme Court overturned one of Jones’s prior convictions, eliminated Jones’s status as an habitual offender but denied relief concerning Jones’s claim of ineffective assistance and those concerning the faulty indictment. Feeling aggrieved, Jones appeals to this Court.

ANALYSIS OF THE ISSUES PRESENTED

STANDARD OF REVIEW

¶ 2. With this appeal, Henry Jones raises the following issue for our review:

I.HENRY JONES’S COUNSEL WAS INEFFECTIVE.
A. COUNSEL ADVISED JONES TO PLEAD GUILTY TO AN INDICTMENT THAT FAILED TO CHARGE A CRIME.
B. COUNSEL FAILED TO INVESTIGATE AND OR CHALLENGE THE VALIDITY OF THE INDICTMENT.
C. COUNSEL FAILED TO CHALLENGE THE HABITUAL PORTION OF JONES’S SENTENCE ONCE ONE OF JONES’S PRIOR CONVICTIONS WAS OVERTURNED BY THE MISSISSIPPI SUPREME COURT.

¶ 3. With this appeal, Jones argues that he should be allowed to withdraw his guilty plea because his attorney was ineffective. “The standard of review for ineffective assistance of counsel is set out in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test to be applied is (1) whether counsel’s overall performance was deficient and (2) whether or not the deficient performance, if any, prejudiced the defense. The defendant has the burden of proving both prongs.” Ratliff v. State, 752 So.2d 416 (¶ 6) (Miss.Ct.App.1999). For the reasons cited herein, we find Jones’s counsel was effective, and we affirm the trial court.

DISCUSSION OF THE ISSUES

¶ 4. Henry Jones argues that his counsel was ineffective in that he allowed Jones to plead to a faulty indictment, he failed to object to the faulty indictment, and he failed to challenge the habitual portion of Jones’s sentence. First, Jones argues that the indictment did not specifically state that Jones was being charged with “escape.” The required content of the indictment is described in Rule 7.06 of the Uniform Rules of Circuit and County Court Practice which states:

The indictment upon which the defendant is to be tried shall be a plain, concise and definite written statement of the essential facts constituting the offense charged and shall fully notify the defendant of the nature and cause of the accusation. Formal and technical words are not necessary in an indictment, if the offense can be substantially described without them. An indictment shall also include the following:
1. The name of the accused;
2. The date on which the indictment was filed in court;
3. A statement that the prosecution is brought in the name and by the authority of the State of Mississippi;
4. The county and judicial district in which the indictment is brought;
5. The date and, if applicable, the time at which the offense was alleged to have been committed. Failure to state the correct date shall not render the indictment insufficient;
6. The signature of the foreman of the grand jury issuing it; and
7. The words “against the peace and dignity of the state.”

¶ 5. The heading of the indictment was entitled “Escape 97-9-45”.1 In [580]*580the body of the indictment Jones’s name appears, the date of filing is included, the phrase “in the name and by the authority of the State of Mississippi” appears, the county and judicial district are named, the date of Jones’s escape is listed, the foreperson’s signature appears, and the words “against the peace and dignity of the State of Mississippi” appear. Most of the information contained in Rule 7.06 stated above can be found in this indictment. However, this rule also requires that the indictment should “fully notify the defendant of the nature and cause of the accusation.” From our review of the indictment, it appears that the word “escape” was omitted from the sentence “Jones ... having been previously confined in the Mississippi State Penitentiary at Parchman, Mississippi, on or before March 20, 1995 did unlawfully, wilfully and feloniously from said penitentiary.... ” While we find that this omission may be viewed as a defect, we also know that a guilty plea waives this type of defect in the indictment, with only two exceptions, neither of which apply here.

Outside the constitutional realm, the law is well-settled that with only two exceptions, the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment. A plea of guilty does not waive (1) the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, and a plea of guilty does not waive (2) subject matter jurisdiction.

Drennan v. State, 695 So.2d 581, 584 (Miss.1997) (citations omitted) (emphasis added).

¶ 6. Jones also argues that his counsel was ineffective because his counsel failed to object to the form of the indictment. However, Uniform Rule of Circuit and County Court Practice 7.09 states that “[a]ll indictments may be amended as to form but not as to the substance of the offense charged.” Had the attorney voiced an objection concerning the indictment, the judge would have made the correction then and there, since it was to form. His counsel was not ineffective for failing to object.

¶ 7. Jones additionally argues that his counsel should have investigated or challenged the validity of the indictment. However, as we stated, the indictment was only defective as to form; thus, the outcome would not have been different had Jones’s attorney objected, since the “defect” concerned only the omission of a word and did not affect the substance of the indictment. As well, in accordance with the Strickland test, even if the counsel’s failure to object was counted as a deficiency in the counsel’s performance, Jones would be required to show that he was prejudiced in some way. We cannot conceive how Jones was prejudiced by this, since all pertinent information was contained on the face of the document, and there was no doubt but that Jones knew of the crime with which he was being charged, and since he pled guilty to escape.

¶ 8. In the case of Jones v. State, 383 So.2d 498 (Miss.1980), the defendant claimed his indictment was fatally defective because it omitted a key word. In Jones, the defendant was indicted for “unlawfully, willfully, and feloniously carrying] a certain deadly weapon, to-wit: a 22 caliber pistol.” The Mississippi Code section under which Jones was charged was § 97-37-1, which made it illegal to carry, concealed in whole or in part, weapons, including pistols.

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Jones v. State, 770 So. 2d 578, 2000 Miss. App. LEXIS 528, 2000 WL 1670878 (Mich. Ct. App. 2000).

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