Jones v. State

885 So. 2d 83, 2004 WL 1153717
Court of Appeals of Mississippi·Decided May 25, 2004·No. 2002-CP-02003-COA·Published·Cited by 10 cases

Opinion

885 So.2d 83 (2004)

Donald JONES a/k/a Donald McArthur Jones, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2002-CP-02003-COA.

Court of Appeals of Mississippi.

May 25, 2004.
Rehearing Denied August 10, 2004.
Certiorari Denied October 28, 2004.

*85 Donald Jones, Appellant, pro se.

Office of the Attorney General by Charles W. Maris, attorney for appellee.

Before KING, C.J., THOMAS and MYERS, JJ.

MYERS, J., for the Court.

¶ 1. Donald Jones entered a guilty plea to manslaughter in the Hinds County Circuit Court on June 6, 2000. In October of 2002, Jones filed a motion for post-conviction relief which was dismissed by the circuit court. Jones timely perfected his appeal from the dismissal and raises the following four issues.

ISSUES PRESENTED

I. Was Jones improperly induced through a misrepresentation by defense counsel that the prosecuting attorney would make no sentence recommendation on an open plea?

II. Was Jones' guilty plea knowingly and voluntarily entered?

III. Was the sentence imposed on Jones disproportionate to other terms of confinement ordered in similar circumstances by the trial court?

IV. Was Jones denied effective assistance of counsel?

STATEMENT OF FACTS

¶ 2. On April 6, 1999, Jones was indicted by a Hinds County grand jury for killing Arthur Johnson on New Year's Day 1999, in violation of Mississippi Code Annotated Section 97-3-19(1) (Rev.2000). On June 6, 2000, Jones pled guilty to the lesser offense of manslaughter. The plea was accepted. The trial judge continued the case until June 23, 2000, to allow the preparation of a pre-sentence report. On June 29, 2000, the trial court reviewed the pre-sentence report which included a sentence recommendation by the State. In the report, the State recommended the "maximum penalty according to the law" which was twenty years. See Miss.Code Ann. § 97-3-25 (Rev.2000). The trial judge sentenced Jones to twenty years with two years suspended and eighteen years to serve in the custody of the Mississippi Department of Corrections.

¶ 3. On October 14, 2002, Jones filed a pro se motion for post-conviction relief pursuant to Mississippi Code Annotated Section 99-39-5 (Rev.2000). Jones argued four points of error: his guilty plea was improperly induced by misrepresentations of defense counsel; his guilty plea was not knowingly and voluntarily made; his sentence was disproportionate to other sentences by the same trial court; and he was denied effective assistance of counsel. The circuit court dismissed the motion for post-conviction relief. Jones now appeals to this Court arguing the same four issues.

STANDARD OF REVIEW

¶ 4. "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. *86 However, where questions of law are raised, the applicable standard of review is de novo." Brister v. State, 858 So.2d 181, 182 (¶ 4) (Miss.Ct.App.2003) (citing Graves v. State, 822 So.2d 1089, 1090 (¶ 4) (Miss. Ct.App.2002)).

LEGAL ANALYSIS

I. WAS JONES IMPROPERLY INDUCED THROUGH A MISREPRESENTATION BY DEFENSE COUNSEL THAT THE PROSECUTION WOULD MAKE NO SENTENCE RECOMMENDATION ON AN OPEN PLEA?

¶ 5. Jones asserts that his guilty plea was induced through an unfulfilled promise that the prosecutor would not make a sentencing recommendation on his open plea of guilty. Jones argues that he relied on his counsel's representation that no sentence recommendation would be made. Jones relies on a letter written by his trial counsel, Andre' de Gruy, as the basis of his argument. Apparently, after the plea and sentencing Jones wrote to Mr. de Gruy for advice on his case. That letter is not contained in the record for our review. However, the record does contain a letter from Mr. de Gruy to Jones. In that letter, de Gruy explained to Jones that he, as a public defender, could not represent Jones on the motion for post-conviction relief. Attorney de Gruy did give Jones some guidance on his legal claims.

¶ 6. Jones relies on a portion of that letter which states:

The issue as I see it is: You plead guilty only because the prosecutor reduced the charge to manslaughter and said she would make no recommendation. She had offered 15 years to serve but you said no to that. It was only after she agreed to make no recommendation did you agree to plea. That was the deal and she violated the agreement when she put in that Pre-Sentence Investigation Report that she wanted the maximum of 20 years and then argued to the court to give you 20 years. As your attorney I did not object to the PSI report or the argument. The reason I did not object, for your information, is that I was arguing for the 1 year alternative sentence and did not think it would be helpful for the judge to know the 15 year offer.

Jones provides this Court nothing but the unsworn letter from his former counsel to support his claim of misrepresentation. Jones failed to support his motion with affidavits from his counsel or other persons with knowledge of this matter. As such, Jones has failed to meet his burden for establishing his case for post-conviction relief on this issue. Bohreer v. State, 812 So.2d 256, 258-59 (¶ 9) (Miss.Ct.App.2002).

¶ 7. The only detail in the record regarding Jones' plea with the State is contained in the Pre-Sentence Investigation Report. In the report, Jones' plea is described by the State as an "open plea." This Court has held that an open plea does not "designate any specific recommendation that the State [will] offer." Brasington v. State, 760 So.2d 18, 27 (¶ 43) (Miss.Ct.App.1999). We held that in a situation where the defendant agrees to an open plea, the State is not bound by any agreement to offer a specific recommendation. Id. Similarly to Brasington, Jones provides this Court with no proof that a plea agreement existed, or that the State violated such an agreement other than his own assertions. According to Brasington, Jones could enter an open plea and the State could properly recommend a sentence to the trial court. This issue is without merit.

II. WAS JONES' GUILTY PLEA KNOWINGLY AND VOLUNTARILY ENTERED?

*87 ¶ 8. Jones argues that his guilty plea to manslaughter was not knowingly and voluntarily entered because the trial judge failed to advise him of the critical elements of manslaughter. Rule 8.04(A)(3) & (4) of the Uniform Circuit and County Court Rules addresses the issue of the voluntariness of guilty pleas and outlines the measures the trial judge must take upon the accused entering a plea of guilty. The rule states:

3. Voluntariness. Before the trial judge may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. A showing that the plea of guilty was voluntarily and intelligently made must appear in the record.
4. Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty to the offense cha

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Jones v. State, 885 So. 2d 83, 2004 WL 1153717 (Mich. Ct. App. 2004).

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