Jones v. State

818 So. 2d 1283, 2002 Miss. App. LEXIS 329, 2002 WL 1277938
Procedural entryThis page is a short order in Jones v. State. Read the opinion of the Court — 754 So. 2d 476
Court of Appeals of Mississippi·Decided June 11, 2002·No. No. 2001-CP-00115-COA·Published

Opinion

CHANDLER, J.,

for the court.

¶ 1. On January 27, 1997, David Jones pled guilty to a charge of armed robbery. He was sentenced by the Circuit Court of Chickasaw County to a term of ten years in the custody of the Mississippi Department of Corrections. Thereafter, on February 18, 1998, Jones filed a motion for post-conviction relief asserting that his plea was involuntary because he was misinformed as to the maximum sentence of life imprisonment. After an evidentiary hearing on the issues, the trial court denied the motion. Feeling aggrieved by this denial, Jones has perfected this appeal and alleges two assignments of error. First, Jones argues he received ineffective assistance of counsel because his attorney erroneously informed him that the trial judge could sentence him to life in prison if the case went to trial. Jones also argues that the trial judge erred in advising him during the plea .colloquy that the judge could sentence him to a maximum term of life in prison.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On or about December 7, 1995, David Jones and Gregory Houston attempted to rob Ross’ Liquor Store in Chickasaw County, Mississippi. Jones and Houston met at Houston’s home and walked to the liquor store before it opened. Once there they cut the telephone line to the store. When the store opened, Jones went into the store armed with a .22 caliber pistol. Jones demanded the money in the cash register. Shots were exchanged between Ross and Jones. Jones was found approximately one hundred yards from the store with a gunshot wound to the back. Jones later confessed to the crimes. Counsel for Jones presented him with a plea agreement of ten years from the State. Jones accepted the plea and was sentenced by the Circuit Court of Chickasaw County to ten years in the custody of the Mississippi Department of Corrections. Jones filed a motion to vacate sentence and plea. After an evidentiary hearing on the matter, the circuit court denied relief.

LAW AND ANALYSIS

I. WAS JONES DENIED EFFECTIVE ASSISTANCE OF COUNSEL BECAUSE HIS ATTORNEY ADVISED HIM THAT HE COULD BE SENTENCED TO LIFE IN PRISON IF HE PROCEEDED TO TRIAL?

¶ 4. Jones argues on appeal that his counsel rendered ineffective assistance because he “coerced” Jones into accepting the State’s plea agreement. Jones maintains that his counsel told him that if he went to trial, the judge could sentence him to life imprisonment if found guilty of attempted armed robbery. Jones asserts that because such a sentence is within the sole province of the jury, this advice amounted to coercion.

¶ 5. Jones was indicted pursuant to Miss. Code Ann. § 97-3-79 (Rev.2000). That statute reads as follows:

Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by vio[1285]*1285lence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery and, upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.

Miss.Code Ann. § 97-3-79 (Rev.2000).

¶ 6. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test set out in Strickland is whether counsel’s performance was deficient and, if so, whether the deficiency prejudiced the defendant to the point that “our confidence in the correctness of the outcome is undermined.” Richardson v. State, 769 So.2d 230 (¶ 10) (Miss.Ct.App.2000). A strong but rebuttable presumption exists that “counsel’s conduct falls within a broad range of reasonable professional assistance.” McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). To overcome this presumption, the defendant must show that “but for” the deficiency a different result would have occurred. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.

¶ 7. Jones was granted an eviden-tiary hearing on the issues he asserts as error on appeal. This Court will not disturb findings of a trial court after an evi-dentiary hearing in a post-conviction relief case “unless, although there is evidence to support [the trial court’s findings], we are on the entire evidence left with the definite and firm conviction that a mistake has been made.” Mohr v. State, 800 So.2d 1208 (¶ 5) (Miss.Ct.App.2001) (quoting Lambert v. State, 777 So.2d 45 (¶ 10) (Miss.2001)).

¶ 8. At the evidentiary hearing, Jones indicated that he knew at the plea hearing that if he went to trial, the judge could sentence him to more than ten years. Jones also indicated that he decided to accept the plea agreement because he did not want to risk a sentence longer than the ten years offered by the State. Jones’s testimony in pertinent part is as follows:

Q: Now, in your petition, you correctly state that only a jury could give you a life sentence, is that right?
A: That’s right.
Q: Okay, but you also knew that day that the judge could give you more than ten years. If you had had a trial, the judge could have given you more than ten years. You knew that on the 27th of January 1997, didn’t you?
A: Yeah, I knew that.
Q: Okay. You opted that day to book the ten rather than risk His Honor or another judge, whoever was sitting that day at trial, of giving you more than ten years at the end of the trial; isn’t that right—
A: That’s right.
Q: Ya’ll were guilty. You didn’t deny it. You figured if you had a trial if the jury didn’t give you life, the judge would give you more than ten; so you took the ten.
A: That’s right.

Transcript of Evidentiary hearing (emphasis added).

¶ 9. Counsel for Jones testified at the evidentiary hearing as well. His testimony in pertinent part is as follows:

Q: Usually in a criminal case a defense attorney, the first thing he does is file all his constitutionally permissible motions for discovery; is that right?
A: Yes, sir.
[1286]*1286Q: And in this case did you do that?
A: I did file discovery.
Q: Did you go over the discovery when you received it?
A: After I received the discovery, I called Mrs. Jones and her son in and we went over the discovery ... I explained to him that after going over everything pro and con that the ultimate decision to plead guilty, that' decision is theirs. I’m just here to point and assist them.

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Jones v. State, 818 So. 2d 1283, 2002 Miss. App. LEXIS 329, 2002 WL 1277938 (Mich. Ct. App. 2002).

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Related

Strickland v. Washington
466 U.S. 668 (Supreme Court, 1984)
Lambert v. State
777 So. 2d 45 (Mississippi Supreme Court, 2001)
Brasington v. State
760 So. 2d 18 (Court of Appeals of Mississippi, 1999)
Gaskin v. State
618 So. 2d 103 (Mississippi Supreme Court, 1993)
McQuarter v. State
574 So. 2d 685 (Mississippi Supreme Court, 1990)
Richardson v. State
769 So. 2d 230 (Court of Appeals of Mississippi, 2000)
Mohr v. State
800 So. 2d 1208 (Court of Appeals of Mississippi, 2001)