McComb v. State

986 So. 2d 1087, 2008 WL 2806636
CourtCourt of Appeals of Mississippi
DecidedJuly 22, 2008
Docket2007-CP-01376-COA
StatusPublished
Cited by1 cases

This text of 986 So. 2d 1087 (McComb v. State) 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
McComb v. State, 986 So. 2d 1087, 2008 WL 2806636 (Mich. Ct. App. 2008).

Opinion

986 So.2d 1087 (2008)

Walter Eddie McCOMB a/k/a Johnny, Appellant
v.
STATE of Mississippi, Appellee.

No. 2007-CP-01376-COA.

Court of Appeals of Mississippi.

July 22, 2008.

*1088 Walter Eddie McComb, Appellant, pro se.

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

Before MYERS, P.J., CHANDLER and BARNES, JJ.

MYERS, P.J., for the Court.

¶ 1. Walter Eddie McComb pleaded guilty to Count I, felony domestic violence—aggravated assault and Count II, aggravated assault by use of a deadly weapon. McComb was sentenced as a habitual offender and was thus sentenced pursuant to Mississippi Code Annotated section 99-19-81 (Rev.2007) to serve fifteen years on Count I and fifteen years on Count II, with the sentence in each count to run concurrent to one another for a total of fifteen years, to be served day for day. McComb now seeks post-conviction relief, raising the following assignments of error: (1) whether he received ineffective assistance of counsel, (2) whether the indictment was defective, and (3) whether the circuit court erred in finding that his guilty plea was voluntary.

FACTS AND PROCEDURAL HISTORY

¶ 2. McComb was indicted and subsequently pleaded guilty to both Count I, felony domestic violence—aggravated assault, and Count II, aggravated assault by use of a deadly weapon. McComb was sentenced on each count to serve fifteen years, day for day, as a habitual offender pursuant to Mississippi Code Annotated section 99-19-81. The sentence in Count I was ordered to run concurrently with the sentence in Count II. McComb later sought to have his guilty plea vacated, but the circuit court denied McComb's post-conviction motion, finding it was without merit. It is from this judgment that McComb now appeals.

STANDARD OF REVIEW

¶ 3. "A trial court's denial of post-conviction relief will not be reversed absent a finding that the trial court's decision was clearly erroneous; however, questions of law are reviewed de novo." Caston v. State, 949 So.2d 852, 854(¶ 4) (Miss.Ct.App. 2007) (citing Buck v. State, 838 So.2d 256, 258(¶ 6) (Miss.2003)).

DISCUSSION

I. WHETHER MCCOMB RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 4. "Claims of ineffective assistance of counsel are reviewed by using the *1089 two-pronged test of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Moreno v. State, 967 So.2d 701, 703(¶ 4) (Miss.Ct.App.2007). To demonstrate a valid claim for ineffective assistance of counsel, the proponent of the motion for post-conviction relief must "show by a preponderance of the evidence that (1) counsel's performance was deficient, and (2) that the deficiency did, in fact, prejudice the defendant." Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). In determining whether trial counsel's performance was deficient, this Court shall "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance...." Id. (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). In addition, it must be shown that "there was a reasonable probability, that but for counsel's errors, the trial court's result would have been different." Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 5. McComb argues that he received ineffective assistance of counsel. McComb argues that his attorney should have presented a theory of self-defense in response to the charges against him. McComb argues that his attorney could have shown that he had no intent to harm anyone and that the firing of the gun was done only in self-defense. McComb also argues that his counsel should have objected to the defective indictment. McComb contends that he received ineffective assistance of counsel in light of counsel's advice to plead guilty to avoid trial and a significantly longer sentence.

¶ 6. The State argues that McComb's attorney did not err by failing to object to the indictment because it was not defective. The State also argues that McComb's guilty plea waived any defenses he might have had to the charge and also waived his right to a trial. The State also contends that the advice given to McComb by his counsel was sound. The State further argues that McComb's claims are manifestly without merit. The State concludes that McComb has shown no actual prejudice, and his trial counsel's performance was not deficient.

¶ 7. In order for McComb to prevail, he must show that "(1) [his] counsel's performance was deficient, and (2) that the deficiency did, in fact, prejudice [his defense]." Moreno, 967 So.2d at 703(¶ 4) (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). From this Court's review of the record, McComb has failed to demonstrate that his trial counsel's performance was deficient, and therefore, he has not shown any actual prejudice to his defense as a result of any deficiency. McComb chose to plead guilty to the charge on advice from counsel that he faced a much longer sentence if he were to proceed to trial and was found guilty. This assignment of error is without merit.

II. WHETHER THE INDICTMENT WAS DEFECTIVE.

¶ 8. To determine whether an indictment is sufficient on post-conviction review, "the indictment [must] include the seven enumerated items of Rule 7.06 and provide the defendant with actual notice of the crime charged...." Caston, 949 So.2d at 856(¶ 9). Uniform Rule of Circuit and County Court 7.06 provides:

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:
*1090 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."

¶ 9. The indictment McComb finds errors with on appeal reads as follows:

The State of Mississippi, Circuit Court March Term, A.D., 2003
First Judicial District, Harrison County No. B2401-2003-478
Count I

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Related

McComb v. State
135 So. 3d 928 (Court of Appeals of Mississippi, 2014)

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Bluebook (online)
986 So. 2d 1087, 2008 WL 2806636, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccomb-v-state-missctapp-2008.