Marcus D. Malone a/k/a Marcus Malone v. State of Mississippi

CourtCourt of Appeals of Mississippi
DecidedNovember 28, 2023
Docket2022-CP-00958-COA
StatusPublished

This text of Marcus D. Malone a/k/a Marcus Malone v. State of Mississippi (Marcus D. Malone a/k/a Marcus Malone v. State of Mississippi) is published on Counsel Stack Legal Research, covering Court of Appeals of Mississippi primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Marcus D. Malone a/k/a Marcus Malone v. State of Mississippi, (Mich. Ct. App. 2023).

Opinion

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2022-CP-00958-COA

MARCUS D. MALONE A/K/A MARCUS APPELLANT MALONE

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 09/01/2022 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MARCUS D. MALONE (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/28/2023 MOTION FOR REHEARING FILED:

BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. On September 12, 2018, Marcus Malone pled guilty to two counts of second-degree

murder and one count of aggravated assault. On August 31, 2021, Malone filed a motion for

post-conviction collateral relief (PCR) arguing that his guilty pleas were involuntary, that he

was denied a formal competency hearing, and that he received ineffective assistance of

counsel during the guilty-plea proceedings. The circuit court denied Malone’s PCR motion.

Malone appeals the circuit court’s denial. Finding no error, we affirm.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

¶2. On November 12, 2016, Malone shot and killed Zachary Flanagan and Labrandice

Harvey. He also shot and caused serious bodily injury to a bystander, named Stephanie Snow. On August 8, 2017, Malone was indicted by an Attala County grand jury for two

counts of first- degree murder and one count of aggravated assault.1

¶3. On August 27, 2018, Malone’s counsel filed a “Petition for Psychiatric Examination.”

On August 30, 2018, the circuit court ordered that Malone undergo a mental evaluation.

On September 1, 2018, Malone was examined by Dr. Criss Lott, a clinical and forensic

psychologist.

¶4. On September 10, 2018, Dr. Lott provided a written report to the court, concluding

that Malone had “sufficient present ability to confer with his attorney with a reasonable

degree of rational understanding and he has a factual and rational understanding of the nature

and object of the legal proceedings against him.” Dr. Lott further opined that Malone

understood the charges against him and appreciated “the possible penalty he could receive

if convicted” and that he understood “his right to a trial and to testify, and he appeared to

have an adequate understanding of the plea process.”

¶5. On September 12, 2018, Malone filed a petition to enter pleas of guilty to two counts

of second-degree murder and one count of aggravated assault. In the plea petition, Malone

asserted his lawyer had “advised [him] as to the probabilities of [his] conviction on the

charges with which [he was] charged and thoroughly discussed all aspects of [his] case with

[him].” Malone stated further that his attorney had “made no threats or promises of any type

or kind to induce [him] to enter this plea of guilty, and the decision to seek the entry of this

1 The first-degree murder charges were brought under Mississippi Code Annotated section 97-3-19(1)(a) (Supp. 2015), and the aggravated assault charge was brought under section 97-3-7(2)(a)(ii) (Supp. 2016).

2 plea was [his] own and [his] alone, based on [his] own reasons and free from any outside

coercive influences.” The petition further addressed Malone’s possible sentencing and

provided the following:

I know that if I plead Guilty to this charge, the possible sentence on Counts I and II with which I am charged is Life in prison and one (minimum) to twenty (maximum) years on Count III. The maximum sentence on Second Degree Murder is a minimum of twenty years and a maximum of forty years in custody and a $10,000.00 fine.

The petition further provided that Malone understood that “the sentence is up to the [c]ourt”

and “that the [c]ourt is not required to follow the recommendation of the District Attorney,

if any.” The petition further provided:

On or about November 12, 2016, in Attala County, MS, while acting in a manner eminently dangerous to others, but without premeditated design, and while acting with a depraved heart, I shot and killed Zachary Flanagan and Labrandice Harvey, and further while committing these acts, I also shot and caused serious bodily injury to a bystander, Stephanie Snow.

¶6. The petition then listed the Constitutional guarantees waived by the entry of a guilty

plea. Malone stated he “hereby waive[d] them and renew[ed] [his] desire to enter a plea of

Guilty.” The petition further indicated that Malone believed his lawyer had done “all that

anyone could do to counsel and assist [him,]” and he was “SATISFIED WITH THE

ADVICE AND HELP” he was given.2 The petition also included the following typed

statement:

I OFFER MY PLEA OF GUILTY FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WITH FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INDICTMENT AND IN THIS PETITION

2 The words “satisfied with the advice and help” of his attorney were capitalized in the plea petition.

3 AND IN THE CERTIFICATE OF MY LAWYER WHICH FOLLOWS.

¶7. The circuit court held a plea hearing on the same day the plea petition was signed. At

that hearing, the circuit court first conducted a competency hearing. Malone’s counsel

reminded the court that Dr. Lott had examined Malone and found him competent. Defense

counsel then introduced a copy of Dr. Lott’s report as an exhibit and asked to stipulate that

Malone was competent to proceed. Defense counsel stated that Dr. Lott’s presence at the

hearing was not required.3 The circuit judge found that “[b]ased upon the report of Dr. Lott,

. . . the [c]ourt does hereby find at this time, after evaluating the written report as submitted

to this [c]ourt and also having observed Mr. Malone as an individual here in my court, I find

that the competency of Mr. Malone to proceed is hereby granted and sustained.”

¶8. During the plea colloquy, when the circuit judge asked if Malone had any problems

comprehending information that was stated or given to him, he stated, “No, sir.” When asked

if he was then under the influence of drugs or alcohol, Malone stated he was taking

“psychological medication” prescribed to him but that he was not under the influence of any

other drugs or alcohol. The circuit judge then asked Malone about his guilty-plea petition,

and the following exchange occurred:

THE COURT: Okay. Mr. Malone, now, you’ve tendered the [c]ourt a petition to change your plea of one of not guilty to one of guilty. Have you read over that petition?

THE DEFENDANT: Yes, sir.

3 The transcript indicates a competency hearing had been scheduled for the following week, but because Dr. Lott found Malone to be competent, and because Malone decided to plead guilty, this formal hearing, with testimony, did not occur.

4 THE COURT: Did your attorney go over the petition with you?

THE COURT: Did you and he take time to discuss every aspect of it?

THE COURT: Now, do you have any questions of the [c]ourt or questions about the contents of that petition?

THE DEFENDANT: No, sir.

The judge then went over each of Malone’s constitutional rights, and when asked if he

understood that he would be waiving those rights, Malone stated, “Yes, sir.” When asked

if anyone offered Malone “any reward or hope of reward in order to get him to enter this

plea of guilty,” Malone stated, “No, sir.” Furthermore, when asked if “anyone threatened

[him] or coerced [him] in any way in order to get [him] to enter a plea of guilty,” Malone

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Marcus D. Malone a/k/a Marcus Malone v. State of Mississippi, Counsel Stack Legal Research, https://law.counselstack.com/opinion/marcus-d-malone-aka-marcus-malone-v-state-of-mississippi-missctapp-2023.