IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-01130-COA
MERRICK CLEVELAND APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/23/2021 TRIAL JUDGE: HON. CAROL L. WHITE-RICHARD COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PETER ANTHONY CARL STEWART ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 04/18/2023 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Merrick Cleveland filed a motion for post-conviction collateral relief (PCR) in the
Washington County Circuit Court. The circuit court summarily denied it. On appeal, he
claims that the circuit court should have found that he was not adequately informed regarding
trafficking narcotics or second-degree murder before he pled guilty to those two offenses.
He also claims for the first time on appeal that his appointed defense attorney was ineffective
because he did not properly inform him regarding the nature or elements of trafficking
narcotics or second-degree murder. We affirm the circuit court’s judgment summarily
denying his PCR motion because Cleveland’s first claim is meritless, and his second claim
is procedurally barred. FACTS AND PROCEDURAL HISTORY
¶2. In February 2017, Cleveland was indicted and charged with conspiracy, trafficking
narcotics, capital murder, and possession of a firearm by a felon. He later agreed to enter
Alford best-interest pleas1 to trafficking narcotics and second-degree murder. Per a
negotiated plea agreement, the prosecution dropped the charges for conspiracy and
possession of a firearm by a felon. Consistent with the prosecution’s recommendation, on
January 14, 2019, the circuit court sentenced Cleveland to serve two concurrent twenty-five-
year terms in the custody of the Mississippi Department of Corrections.
¶3. On May 3, 2021, Cleveland filed a pro se PCR motion. He claimed that (1) his
appointed attorney coerced his guilty pleas; (2) he was uninformed of the nature of
trafficking narcotics and second-degree murder; (3) he was uninformed of the nature or
elements of any lesser-included offenses of the charges in the indictment; and (4) there was
not a factual basis for his guilty pleas. On August 23, 2021, the circuit court summarily
denied Cleveland’s PCR motion. He now appeals.
STANDARD OF REVIEW
¶4. “When reviewing a [circuit] court’s decision to deny a petition for post conviction
relief this Court will not disturb the [circuit] court’s factual findings unless they are found
to be clearly erroneous.” Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999). “Where
questions of law are raised the applicable standard of review is de novo.” Id.
ANALYSIS
1 North Carolina v. Alford, 400 U.S. 25, 37 (1970).
2 I. The circuit court correctly found that Cleveland was adequately informed regarding the nature and elements of trafficking narcotics and second-degree murder.
¶5. Cleveland argues that he did not knowingly plead guilty to trafficking narcotics or
second-degree murder “because he did not understand the elements of [those] charges[.]”
Without question, “[i]n order to meet constitutional standards, a guilty plea must be freely
and voluntarily entered.” Gilliard v. State, 462 So. 2d 710, 712 (Miss. 1985). “It is essential
that an accused have knowledge of the critical elements of the charge against him . . . .” Id.
(citing Henderson v. Morgan, 426 U.S. 637 (1976)). “If the appellant’s guilty plea clearly
indicates that [he] understands the charges to which he is pleading guilty, that is sufficient.”
Ferguson v. State, 131 So. 3d 1235, 1237 (¶8) (Miss. Ct. App. 2013) (citing Gaskin v. State,
618 So. 2d 103, 106 (Miss. 1993)).
¶6. “[T]he failure of the trial court to advise the defendant of the elements of the charge
may be harmless error if it can be shown that prior to the plea the defendant had been advised
through other sources of the critical elements of the crime with which he is charged.” Carter
v. State, 775 So. 2d 91, 97 (¶25) (Miss. 1999). “A trial court need not explain the elements
of the offense to the defendant.” Hill v. State, 60 So. 3d 824, 830 (¶19) (Miss. Ct. App.
2011) (citing Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)). “Rather, the constitutional
prerequisites of a valid plea may be satisfied where the record accurately reflects that the
nature of the charge and the elements of the crime were explained to the defendant by his
own, competent counsel.” Id. (quoting Bradshaw, 545 U.S. at 183). Additionally, “a
prosecutor’s on-the-record statement of the elements of the crime charged sufficiently
3 informs a defendant of the elements of the crime.” Argol v. State, 155 So. 3d 848, 852-53
(¶13) (Miss. Ct. App. 2013).
¶7. During the plea hearing, the circuit judge asked Cleveland, “Has your attorney
explained to you and do you fully understand the nature of the charges against you?” Under
oath, Cleveland answered, “Yes, ma’am.” The circuit judge also asked the prosecution to
explain what it would prove if Cleveland opted to go to trial. The prosecution answered:
[T]he [prosecution] would show in Count 2 [(the trafficking-narcotics charge)] that Archie Buford, Merrick Cleveland, Jonathan Harris, Johnathan Robinson, and Howard Williams, each acting in concert one with the other, on or about the 10th day of September, 2015, here in Washington County, did knowingly, willfully, intentionally, unlawfully, and feloniously have and possess more than 1 kilogram of marijuana, a Schedule l controlled substance, with the intent to sell, barter, transfer, distribute, or dispense the said marijuana in violation of Section 41-29-139 of the Mississippi Code of 1972 as annotated and amended and against the peace and dignity of the State of Mississippi.
Regarding the second-degree-murder charge, the prosecution stated:
[T]he [prosecution] would show that Merrick Cleveland, acting in concert with others, on or about the 10th day of September, 2015, here in Washington County, did unlawfully, willfully, feloniously, without authority of law, and during the commission of an act imminently dangerous to others, discharge a firearm, evincing a depraved heart, without premeditated design, effect the death of Jonathan Daniels, a human being, against the peace and dignity of the State of Mississippi.
¶8. Although Cleveland alleges that he was uninformed regarding the elements of
trafficking narcotics and second-degree murder, he does not elaborate on which elements he
remained ignorant. More significantly, it is not this Court’s place to ferret out an argument
for him. See M.R.A.P. 28(a)(7); Jefferson v.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2021-CA-01130-COA
MERRICK CLEVELAND APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/23/2021 TRIAL JUDGE: HON. CAROL L. WHITE-RICHARD COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PETER ANTHONY CARL STEWART ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED - 04/18/2023 MOTION FOR REHEARING FILED:
BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.
LAWRENCE, J., FOR THE COURT:
¶1. Merrick Cleveland filed a motion for post-conviction collateral relief (PCR) in the
Washington County Circuit Court. The circuit court summarily denied it. On appeal, he
claims that the circuit court should have found that he was not adequately informed regarding
trafficking narcotics or second-degree murder before he pled guilty to those two offenses.
He also claims for the first time on appeal that his appointed defense attorney was ineffective
because he did not properly inform him regarding the nature or elements of trafficking
narcotics or second-degree murder. We affirm the circuit court’s judgment summarily
denying his PCR motion because Cleveland’s first claim is meritless, and his second claim
is procedurally barred. FACTS AND PROCEDURAL HISTORY
¶2. In February 2017, Cleveland was indicted and charged with conspiracy, trafficking
narcotics, capital murder, and possession of a firearm by a felon. He later agreed to enter
Alford best-interest pleas1 to trafficking narcotics and second-degree murder. Per a
negotiated plea agreement, the prosecution dropped the charges for conspiracy and
possession of a firearm by a felon. Consistent with the prosecution’s recommendation, on
January 14, 2019, the circuit court sentenced Cleveland to serve two concurrent twenty-five-
year terms in the custody of the Mississippi Department of Corrections.
¶3. On May 3, 2021, Cleveland filed a pro se PCR motion. He claimed that (1) his
appointed attorney coerced his guilty pleas; (2) he was uninformed of the nature of
trafficking narcotics and second-degree murder; (3) he was uninformed of the nature or
elements of any lesser-included offenses of the charges in the indictment; and (4) there was
not a factual basis for his guilty pleas. On August 23, 2021, the circuit court summarily
denied Cleveland’s PCR motion. He now appeals.
STANDARD OF REVIEW
¶4. “When reviewing a [circuit] court’s decision to deny a petition for post conviction
relief this Court will not disturb the [circuit] court’s factual findings unless they are found
to be clearly erroneous.” Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999). “Where
questions of law are raised the applicable standard of review is de novo.” Id.
ANALYSIS
1 North Carolina v. Alford, 400 U.S. 25, 37 (1970).
2 I. The circuit court correctly found that Cleveland was adequately informed regarding the nature and elements of trafficking narcotics and second-degree murder.
¶5. Cleveland argues that he did not knowingly plead guilty to trafficking narcotics or
second-degree murder “because he did not understand the elements of [those] charges[.]”
Without question, “[i]n order to meet constitutional standards, a guilty plea must be freely
and voluntarily entered.” Gilliard v. State, 462 So. 2d 710, 712 (Miss. 1985). “It is essential
that an accused have knowledge of the critical elements of the charge against him . . . .” Id.
(citing Henderson v. Morgan, 426 U.S. 637 (1976)). “If the appellant’s guilty plea clearly
indicates that [he] understands the charges to which he is pleading guilty, that is sufficient.”
Ferguson v. State, 131 So. 3d 1235, 1237 (¶8) (Miss. Ct. App. 2013) (citing Gaskin v. State,
618 So. 2d 103, 106 (Miss. 1993)).
¶6. “[T]he failure of the trial court to advise the defendant of the elements of the charge
may be harmless error if it can be shown that prior to the plea the defendant had been advised
through other sources of the critical elements of the crime with which he is charged.” Carter
v. State, 775 So. 2d 91, 97 (¶25) (Miss. 1999). “A trial court need not explain the elements
of the offense to the defendant.” Hill v. State, 60 So. 3d 824, 830 (¶19) (Miss. Ct. App.
2011) (citing Bradshaw v. Stumpf, 545 U.S. 175, 183 (2005)). “Rather, the constitutional
prerequisites of a valid plea may be satisfied where the record accurately reflects that the
nature of the charge and the elements of the crime were explained to the defendant by his
own, competent counsel.” Id. (quoting Bradshaw, 545 U.S. at 183). Additionally, “a
prosecutor’s on-the-record statement of the elements of the crime charged sufficiently
3 informs a defendant of the elements of the crime.” Argol v. State, 155 So. 3d 848, 852-53
(¶13) (Miss. Ct. App. 2013).
¶7. During the plea hearing, the circuit judge asked Cleveland, “Has your attorney
explained to you and do you fully understand the nature of the charges against you?” Under
oath, Cleveland answered, “Yes, ma’am.” The circuit judge also asked the prosecution to
explain what it would prove if Cleveland opted to go to trial. The prosecution answered:
[T]he [prosecution] would show in Count 2 [(the trafficking-narcotics charge)] that Archie Buford, Merrick Cleveland, Jonathan Harris, Johnathan Robinson, and Howard Williams, each acting in concert one with the other, on or about the 10th day of September, 2015, here in Washington County, did knowingly, willfully, intentionally, unlawfully, and feloniously have and possess more than 1 kilogram of marijuana, a Schedule l controlled substance, with the intent to sell, barter, transfer, distribute, or dispense the said marijuana in violation of Section 41-29-139 of the Mississippi Code of 1972 as annotated and amended and against the peace and dignity of the State of Mississippi.
Regarding the second-degree-murder charge, the prosecution stated:
[T]he [prosecution] would show that Merrick Cleveland, acting in concert with others, on or about the 10th day of September, 2015, here in Washington County, did unlawfully, willfully, feloniously, without authority of law, and during the commission of an act imminently dangerous to others, discharge a firearm, evincing a depraved heart, without premeditated design, effect the death of Jonathan Daniels, a human being, against the peace and dignity of the State of Mississippi.
¶8. Although Cleveland alleges that he was uninformed regarding the elements of
trafficking narcotics and second-degree murder, he does not elaborate on which elements he
remained ignorant. More significantly, it is not this Court’s place to ferret out an argument
for him. See M.R.A.P. 28(a)(7); Jefferson v. State, 138 So. 3d 263, 265 (¶9) (Miss. Ct. App.
2014). Cleveland has not overcome the fact that he previously swore under oath that his
4 attorney informed him of the nature and elements of trafficking narcotics and second-degree
murder. Likewise, he does not attempt to explain how he remained ignorant of any particular
elements of trafficking narcotics or second-degree murder after the prosecution discussed the
proof it would present if Cleveland opted for trial. Suffice it to say, it was within the circuit
court’s discretion to find that Cleveland failed to meet his burden to prove that he did not
knowingly enter Alford pleas to both charges. We thus find no merit to his claims under this
heading.
II. Cleveland’s claim that he received ineffective assistance of counsel is procedurally barred.
¶9. In this issue, Cleveland’s appellate counsel asserts that “[b]ecause of his counsel’s
ineffective assistance, [Cleveland] failed to argue ineffective assistance of counsel in [his]
original” PCR motion. But Cleveland was not represented by counsel when he filed the PCR
motion that led to this appeal. Nevertheless, Cleveland’s appellate counsel is correct that
Cleveland’s PCR motion did not include a claim that he received ineffective assistance of
counsel at any stage of the underlying criminal proceedings. As such, Cleveland is
procedurally barred from asserting the issue for the first time on appeal. Hoskins v. State,
812 So. 2d 1043, 1045 (¶9) (Miss. Ct. App. 2001) (citing Patterson v. State, 594 So. 2d 606,
609 (Miss. 1992)).
CONCLUSION
¶10. The circuit court correctly held that Cleveland was adequately informed about the
nature and elements of the offenses to which he pled guilty. Cleveland is procedurally barred
from raising his ineffective-assistance-of-counsel claim for the first time on appeal. We
5 therefore affirm the circuit court’s judgment.
¶11. AFFIRMED.
BARNES, C.J., CARLTON AND WILSON, P.JJ., GREENLEE, WESTBROOKS, McDONALD, McCARTY, SMITH AND EMFINGER, JJ., CONCUR.