Jones v. State

970 So. 2d 1316, 2007 WL 4303808
Court of Appeals of Mississippi·Decided December 11, 2007·No. 2007-CP-00598-COA·Published·Cited by 4 cases

Opinion

970 So.2d 1316 (2007)

Douglas JONES, Appellant
v.
STATE of Mississippi, Appellee.

No. 2007-CP-00598-COA.

Court of Appeals of Mississippi.

December 11, 2007.

*1317 Douglas Jones, pro se.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before LEE, P.J., IRVING and ROBERTS, JJ.

IRVING, J., for the Court.

¶ 1. Douglas Jones[1] pleaded guilty to one count of sexual battery of a child and was sentenced to twenty years in the custody of the Mississippi Department of Corrections, with fifteen years suspended and three years of post-release supervision, for a total of five years to serve. Almost a year after he entered his plea, Jones filed a petition for post-conviction relief with the Marshall County Circuit Court. The court denied the requested relief. Aggrieved, Jones appeals the denial and asserts that he was denied effective assistance of counsel, that the court erred in denying him sufficient time to prepare for trial, that the court erred in reinstating his guilty plea after setting it aside, and that his plea was invalid.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Jones was indicted on a single count of sexual battery on April 10, 2003. The charge related to Jones's alleged rape of his biological daughter. On May 19, 2004, Jones pleaded guilty, and the court accepted his guilty plea and sentenced him in *1318 accordance with the State's recommendation of twenty years, with fifteen years suspended, for a total of five years to serve. On May 13, 2005, Jones filed a petition for post-conviction relief that the court denied summarily, i.e., without a hearing. Jones appealed that decision, and on August 22, 2006, this Court remanded Jones's case to the circuit court for a hearing on whether there was merit to any of Jones's claims. Jones v. State, 936 So.2d 993 (Miss.Ct.App.2006). We specifically questioned whether Jones had been informed of the elements of the crime against him. Id. at 997-98 (¶¶ 14-20). On February 15, 2007, in a status hearing on remand that was not transcribed, the circuit court appointed Jones an attorney and set the case for trial on February 26, 2007.

¶ 4. However, on February 23, three days prior to the scheduled trial date, another hearing was held in which the court explained that it had assumed that the State would not contest the setting aside of Jones's guilty plea. When it became clear that the State wished to contest the setting aside of the plea, the court proceeded to hear the merits of Jones's claims. After hearing testimony from some of Jones's family members and from Kent Smith, the attorney who represented Jones when he initially pleaded guilty, the court found that there was no merit to any of Jones's post-conviction claims. Jones now appeals that decision.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. We will overturn the lower court's denial of post-conviction relief only if the court's findings are found to be clearly erroneous. Hannah v. State, 943 So.2d 20, 24(¶ 5) (Miss.2006). "[H]owever, questions of law are reviewed de novo." Id. (citing Boddie v. State, 875 So.2d 180, 183(¶ 6) (Miss.1999)).

1. Ineffective Assistance of Counsel

¶ 6. In his first claim of error, Jones contends that he was represented by ineffective counsel both during his initial plea of guilty and at the hearing on his post-conviction claims. To prove ineffective assistance of counsel, Jones must show "that counsel's performance was deficient and that the deficiency prejudiced the defense of the case." Branch v. State, 961 So.2d 659, 666(¶ 27) (Miss.2007) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Jones must show "a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different." Ross v. State, 954 So.2d 968, 1004-05(¶ 78) (Miss.2007) (citing Davis v. State, 897 So.2d 960, 967(¶ 16) (Miss.2004)). Jones must also overcome the "strong presumption that the attorney's conduct falls within the wide range of reasonable professional conduct and strategy." Lattimore v. State, 958 So.2d 192, 200(¶ 24) (Miss.2007) (citing Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985)). An additional presumption that Jones must overcome is "that all decisions made during the course of trial were strategic." Id. (citing Leatherwood, 473 So.2d at 969).

¶ 7. Jones claims that his counsel at the post-conviction hearing, Thomas Bittick,[2] allowed the court "to clearly violate the Appellant's due process rights by not proceeding to trial as ordered on the 15th day of February 2007, which is clearly erroneous and manifestly wrong by URCCC Rule 9.02[.]" Rule 9.02 of the *1319 Uniform Rules of Circuit and County Court states in its entirety: "A docket of cases ready for trial shall be maintained by the clerk or the court administrator. Cases set by the judge for hearing must be ready at the appointed time." Nothing in the rule gives counsel any right to proceed to trial when the court has ordered otherwise. Although the court had set a trial date in anticipation of the State confessing Jones's motion, that action did not prevent the court from holding a hearing on the merits of Jones's PCR motion to determine if a trial would be warranted. There was nothing Bittick could have done to force the court to proceed to trial in lieu of a hearing to determine if Jones would be allowed to withdraw his previously-entered guilty plea. In fact, the record reveals that Bittick protested the court's decision to have the hearing rather than to set aside the plea and proceed to trial. There is no merit to this contention.

¶ 8. Jones also questions Bittick's failure to "answer/ask important questions to the former appointed counsel and the Appellant's sisters that would have showed the lack of investigation of the facts by the former appointed counsel. . . ." However, Jones does not elucidate exactly what questions Bittick should have asked. Bittick thoroughly questioned Smith, eliciting admissions that there were several alleged alibi witnesses that Smith had not contacted, and that Smith heavily encouraged Jones to plead guilty rather than go to trial. We have seen nothing to overcome the presumption that Bittick's choice of what to ask and what not to ask was anything other than sound trial strategy.

¶ 9. In addition to his criticism of Bittick's performance, Jones complains that Smith, his counsel during his initial guilty plea, could not recall that the victim's mother and stepfather were not tested for trichomoniasis, a sexually transmitted infection with which Jones and his daughter were both infected. We note that, at the time of the hearing, it had been almost three years since Jones's plea of guilty and Smith's investigation of Jones's case. Without further evidence of some sort of deficiency resulting from Smith's recollection of events, we find no merit to this particular assertion. Jones further complains that Smith appeared to be uneducated regarding some aspects of trichomoniasis.

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Jones v. State, 970 So. 2d 1316, 2007 WL 4303808 (Mich. Ct. App. 2007).

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