Mitchener v. State

964 So. 2d 1188, 2007 WL 2473145
CourtCourt of Appeals of Mississippi
DecidedSeptember 4, 2007
Docket2006-CA-01630-COA
StatusPublished
Cited by20 cases

This text of 964 So. 2d 1188 (Mitchener 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
Mitchener v. State, 964 So. 2d 1188, 2007 WL 2473145 (Mich. Ct. App. 2007).

Opinion

964 So.2d 1188 (2007)

Ronnie MITCHENER, Appellant
v.
STATE of Mississippi, Appellee.

No. 2006-CA-01630-COA.

Court of Appeals of Mississippi.

September 4, 2007.

*1189 Stephen L. Beach III, Jackson, attorney for appellant.

Office of the Attorney General by Deshun Terrell Martin, attorney for Appellee.

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

CHANDLER, J., for the Court.

¶ 1. Ronnie Mitchener pled guilty in the Circuit Court of Lowndes County to one count of kidnaping. The court accepted the plea and, at a separate hearing, sentenced Mitchener to twenty years in the custody of the Mississippi Department of *1190 Corrections. Mitchener timely filed a motion for post-conviction relief (PCR). He alleged that he received ineffective assistance of counsel (1) because his attorney repeatedly assured him that if he entered an open plea of guilt he would receive a sentence of time served and probation, and (2) because his attorney told him that the kidnaping victim would not testify against him at the plea hearing, but the victim testified at the sentencing hearing. Mitchener attached the affidavits of witnesses that supported his factual allegations.

¶ 2. The circuit court summarily dismissed the PCR after finding that Mitchener's claims were rendered a sham by his sworn statements in the plea petition and at the plea hearing. Mitchener appeals. We reverse and remand for an evidentiary hearing on the issues of ineffective assistance of counsel and involuntary plea, but find Mitchener's other issues to be without merit.

FACTS

¶ 3. Mitchener was indicted for kidnaping on May 7, 2004, and entered an open plea of guilt at a hearing on November 12, 2004. The prosecutor indicated the State was prepared to show that, on January 3, 2004, Mitchener had held a visitor to his property at gunpoint for several hours. Mitchener did this because he was worried that the victim and other persons were involved in a conspiracy against him. The court informed Mitchener of the constitutional rights he waived by pleading guilty and of the maximum and minimum sentences for the crime. Upon questioning by the court, Mitchener stated that his lawyer had explained the kidnaping charge, his constitutional rights, and any defenses he might have and that he was satisfied with his lawyer's assistance. Mitchener also stated that he was not under the influence of drugs or alcohol and that he was not pleading guilty in response to any threats or promises. Mitchener admitted that he had held the victim at gunpoint. The court accepted Mitchener's plea after finding there was a factual basis for the plea and it was freely, voluntarily, knowingly, and intelligently entered.

¶ 4. At a separate sentencing hearing, the court heard testimony in aggravation from the victim and in mitigation from Mitchener and his examining physician. The aggravating and mitigating testimony was not transcribed and made a part of the record. After hearing the testimony, the court imposed a sentence of twenty years. The court provided a lengthy explanation for the sentence on the record and expressed concerns for Mitchener's mental health and the safety of people in the community. The court related Mitchener's testimony that he still thought the victim and others were involved in a conspiracy against him. The court stated that it based the twenty-year sentence primarily upon Mitchener's demeanor and testimony at the sentencing hearing which revealed that he might remain a danger to the victim and others.

¶ 5. On August 31, 2006, Mitchener filed his PCR alleging his counsel was ineffective for guaranteeing that if Mitchener pled guilty, he would receive time served and probation and the victim would not be able to testify against him. Mitchener also asserted that his guilty plea was involuntary due to these misconceptions created by counsel's erroneous advice. Mitchener attached his own affidavit to his PCR as well as the affidavits of several witnesses. In his affidavit, Mitchener made the following allegations:

1. In early to mid-September 2004, between the hours of 8:00 a.m. and 9:00 a.m., my attorney . . . came to see me at the Lowndes County Jail. He told me he *1191 was going to get me out of jail and get me probation.
2. In or around early October 2004, between 8:00 a.m. and 9:00 a.m., my attorney . . . came to see me at the Lowndes County Jail. He assured me he was going to get me a sentence of time served and probation.
3. In mid to late October 2004, I spoke with my attorney . . . by way of a three way telephone conversation. The telephone call was made by Carolyn Bently to [my attorney], from Janice Burris' telephone, my former bookkeeper and accountant for many years. [My attorney] told me if I pleaded he would have me out of there on time served and some probation. He also told me "Ronnie you did not kidnap this guy." I said, "I know I did not, but if I plead to get myself out of jail will he be able to testify?" [My attorney] told me he will not be able to testify if you plead.
4. Sometime in the fall of 2004, I spoke with my attorney . . . by way of a three way telephone conversation. The telephone call was made by Elizabeth Stephens to [my attorney], for me, my attorney told me several times that he was going to get me probation with time served.
5. On November 12, 2004 at approximately 9:00 a.m. at the Lowndes County Courthouse, my attorney . . . told me that he wanted me to plead. He said, "I've got you covered, I am going to get you time served and a couple years probation." I asked [my attorney] if the alleged victim . . . was going to be able to testify if I plead guilty because if [the victim] testifies, I want to go to trial and tell the truth about what happened.
[My attorney] reassured me again by telling me "He wont [sic] even be able to testify if you plead guilty, plus the Judge doesn't care what this guy thinks, he is just a cabinet maker. I have known this Judge and worked with him a long time, I have you covered." I will have you out of here sometime next week and you will be able to get back to taking care of business.
6. On March 3, 2005, immediately before my sentencing hearing, I learned that [the victim] was in the courthouse preparing to testify against me. I said to my attorney: "You told me that [the victim] would not be able to testify." [My attorney's] reply was: "Well, I did not think he would be able to." If it had not been for [my attorney's] assurances that [the victim] could not testify, I would have never pleaded guilty, as I had told [my attorney] on prior occasions.
7. Every time my attorney . . . told me that I would be sentenced to time served and probation, it was in the form of an absolute guaranty and a certainty that probation would be my sentence. My attorney never told me that he believed or thought probation would be my sentence. All of his assurances to me were in the form of absolute statements that probation would be my sentence.
8. If it had not been for the repeated unqualified assurances of [my attorney] that I would be sentenced to probation, I would not have pleaded guilty and would have insisted on a trial to prove my innocence.

¶ 6. Mitchener's ex-wife, Christine Mitchener, stated in her affidavit that she helped Mitchener stay in contact with his attorney because he had been denied bond.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Reginald Alexander v. State of Mississippi
Court of Appeals of Mississippi, 2023
Parvis King v. State of Mississippi
Court of Appeals of Mississippi, 2022
Don Roberts, Jr. v. State of Mississippi
Court of Appeals of Mississippi, 2022
Devonta Pipkin v. State of Mississippi
Court of Appeals of Mississippi, 2019
John Bevalaque v. State of Mississippi
196 So. 3d 1149 (Court of Appeals of Mississippi, 2016)
Demarcus Ventrell Timmons v. State of Mississippi
176 So. 3d 168 (Court of Appeals of Mississippi, 2015)
Castro v. State
159 So. 3d 1217 (Court of Appeals of Mississippi, 2015)
Rigdon v. State
126 So. 3d 931 (Court of Appeals of Mississippi, 2013)
Adams v. State
117 So. 3d 674 (Court of Appeals of Mississippi, 2013)
Sylvester v. State
113 So. 3d 618 (Court of Appeals of Mississippi, 2013)
McCoy v. State
111 So. 3d 673 (Court of Appeals of Mississippi, 2012)
Breeden v. State
168 So. 3d 975 (Court of Appeals of Mississippi, 2012)
Shields v. State
75 So. 3d 86 (Court of Appeals of Mississippi, 2011)
Felix v. State
73 So. 3d 1194 (Court of Appeals of Mississippi, 2011)
Lewis v. State
68 So. 3d 84 (Court of Appeals of Mississippi, 2011)
Nick v. State
62 So. 3d 409 (Court of Appeals of Mississippi, 2010)
Hamilton v. State
44 So. 3d 1060 (Court of Appeals of Mississippi, 2010)
Johnson v. State
39 So. 3d 14 (Court of Appeals of Mississippi, 2010)
MITCHENER v. State
32 So. 3d 1218 (Court of Appeals of Mississippi, 2009)

Cite This Page — Counsel Stack

Bluebook (online)
964 So. 2d 1188, 2007 WL 2473145, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mitchener-v-state-missctapp-2007.