IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CP-01586-COA
MONICA CARSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/05/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MONICA CARSON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POST- CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/18/2014 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ.
LEE, C.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1. On June 6, 2011, Monica Carson pleaded guilty in the Madison County Circuit Court
to robbery. Carson was sentenced to fifteen years to serve in the custody of the Mississippi
Department of Corrections (MDOC). She also pleaded guilty to robbery in two other related
cause numbers, and received suspended sentences of fifteen years each, to run concurrently
with each other but consecutively to the first sentence. Carson was sentenced to five years
of supervised probation. On June 26, 2013, Carson filed a motion for post-conviction relief (PCR). The trial court denied Carson’s motion. Carson now appeals, asserting (1)
ineffective assistance of counsel, (2) disparate sentencing, (3) error in the trial court’s
acceptance of her plea, (4) error in the trial court’s denial of an evidentiary hearing, (5) error
in the trial court’s denial of her motion for PCR, and (6) cumulative error.
STANDARD OF REVIEW
¶2. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only
disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s
legal conclusions under a de novo standard of review. Hughes v. State, 106 So. 3d 836, 838
(¶4) (Miss. Ct. App. 2012).
DISCUSSION
I. INEFFECTIVE ASSISTANCE OF COUNSEL
¶3. Carson argues her counsel was ineffective because he failed to advise her about the
law of robbery and accessory after the fact, inform her of the consequences of her plea, and
investigate the case and interview witnesses. In order to succeed on a claim of ineffective
assistance of counsel, the defendant must prove that counsel’s performance was deficient and
that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). “In the context of guilty pleas, this means the defendant must show that,
were it not for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Burrough v. State, 9 So. 3d 368, 375 (¶22) (Miss. 2009) (citing Coleman
v. State, 483 So. 2d 680, 683 (Miss. 1986)). Furthermore, “[a] petitioner must produce ‘more
than conclusory allegations on a claim of ineffective assistance of counsel.’” McCray v.
State, 107 So. 3d 1042, 1045 (¶12) (Miss. Ct. App. 2012) (quoting Carpenter v. State, 899
2 So. 2d 916, 921 (¶23) (Miss. Ct. App. 2005)). “In cases involving post-conviction collateral
relief, ‘where a party offers only his affidavit, then his ineffective assistance of counsel claim
is without merit.’” Watts v. State, 97 So. 3d 722, 726 (¶12) (Miss. Ct. App. 2012) (citation
omitted) (citing Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995)).
¶4. Carson’s motion for PCR rests entirely on her own bare assertions. She offers no
additional proof to support her claim that her trial counsel’s assistance was deficient and that
she would not have pleaded guilty had it been otherwise. We therefore affirm the trial
court’s decision to deny relief based on this issue.
¶5. While we affirm based on the above grounds, we also address Carson’s assertion that
the facts only support a conviction of accessory after the fact. Carson argues that had
counsel advised her of this, she would not have pleaded guilty to the greater offense of
robbery. It is well settled that “[a] guilty plea will be found valid if it is shown to have been
voluntarily and intelligently made by the criminal defendant before the trial court.”
Burrough, 9 So. 3d at 373 (¶11) (citation omitted). “To determine whether the plea is
voluntarily and intelligently given, the trial court must advise the defendant of his rights, the
nature of the charge against him, as well as the consequences of the plea.” Id. (citation
omitted).
¶6. During the plea hearing, Carson was given the opportunity to disagree with the factual
basis of her plea in this case. She did not. She read and signed a petition to enter a guilty
plea and stated that she understood what she read. She stated that she, after discussions with
her attorney regarding the facts and circumstances of the case, decided to plead guilty and
that her admission of guilt was freely and voluntarily made. She said counsel advised her
3 as to the elements of and the defenses to the crime. The trial court reviewed Carson’s rights
with her, which she waived, and the consequences of the plea, including the minimum and
maximum periods of incarceration that could be imposed for each cause number. Carson
said that she was pleading guilty because she was in fact guilty of committing these crimes
and that she was satisfied with her attorney’s representation. As this Court has stated
numerous times, “[s]tatements made in open court under oath ‘carry a strong presumption
of veracity.’” Cane v. State, 109 So. 3d 568, 571 (¶9) (Miss. Ct. App. 2012) (quoting
Nichols v. State, 955 So. 2d 962, 965 (¶6) (Miss. Ct. App. 2007)). To rebut this presumption,
she must offer more than her own bare assertions that her trial counsel was ineffective. She
failed to do so; thus, this issue is without merit.
II. DISPARATE SENTENCING
¶7. Carson argues that her codefendant received a lesser sentence; thus, her due-process
rights were violated. “Sentencing is within the complete discretion of the trial court and not
subject to appellate review if it is within the limits prescribed by statute.” Wall v. State, 718
So. 2d 1107, 1114 (¶29) (Miss. 1998) (quotations omitted). “As a general rule, a sentence
that does not exceed the maximum period allowed by statute will not be disturbed on
appeal.” White v. State, 742 So. 2d 1126, 1135 (¶35) (Miss. 1999) (citing Wallace v. State,
607 So. 2d 1184, 1188 (Miss. 1992)). Carson’s sentence was within the statutory limits. See
Miss. Code Ann. § 97-3-75 (Rev. 2014).
¶8. Furthermore, a trial court is not required to impose the same sentence on
coconspirators. Buckley v. State, 119 So. 3d 1171, 1174 (¶11) (Miss. Ct. App. 2013) (citing
Collins v.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2013-CP-01586-COA
MONICA CARSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 09/05/2013 TRIAL JUDGE: HON. JOHN HUEY EMFINGER COURT FROM WHICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: MONICA CARSON (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POST- CONVICTION RELIEF DISPOSITION: AFFIRMED - 11/18/2014 MOTION FOR REHEARING FILED: MANDATE ISSUED:
BEFORE LEE, C.J., ROBERTS AND CARLTON, JJ.
LEE, C.J., FOR THE COURT:
FACTS AND PROCEDURAL HISTORY
¶1. On June 6, 2011, Monica Carson pleaded guilty in the Madison County Circuit Court
to robbery. Carson was sentenced to fifteen years to serve in the custody of the Mississippi
Department of Corrections (MDOC). She also pleaded guilty to robbery in two other related
cause numbers, and received suspended sentences of fifteen years each, to run concurrently
with each other but consecutively to the first sentence. Carson was sentenced to five years
of supervised probation. On June 26, 2013, Carson filed a motion for post-conviction relief (PCR). The trial court denied Carson’s motion. Carson now appeals, asserting (1)
ineffective assistance of counsel, (2) disparate sentencing, (3) error in the trial court’s
acceptance of her plea, (4) error in the trial court’s denial of an evidentiary hearing, (5) error
in the trial court’s denial of her motion for PCR, and (6) cumulative error.
STANDARD OF REVIEW
¶2. When reviewing a trial court’s denial or dismissal of a PCR motion, we will only
disturb the trial court’s decision if it is clearly erroneous; however, we review the trial court’s
legal conclusions under a de novo standard of review. Hughes v. State, 106 So. 3d 836, 838
(¶4) (Miss. Ct. App. 2012).
DISCUSSION
I. INEFFECTIVE ASSISTANCE OF COUNSEL
¶3. Carson argues her counsel was ineffective because he failed to advise her about the
law of robbery and accessory after the fact, inform her of the consequences of her plea, and
investigate the case and interview witnesses. In order to succeed on a claim of ineffective
assistance of counsel, the defendant must prove that counsel’s performance was deficient and
that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S.
668, 687 (1984). “In the context of guilty pleas, this means the defendant must show that,
were it not for counsel’s errors, he would not have pleaded guilty and would have insisted
on going to trial.” Burrough v. State, 9 So. 3d 368, 375 (¶22) (Miss. 2009) (citing Coleman
v. State, 483 So. 2d 680, 683 (Miss. 1986)). Furthermore, “[a] petitioner must produce ‘more
than conclusory allegations on a claim of ineffective assistance of counsel.’” McCray v.
State, 107 So. 3d 1042, 1045 (¶12) (Miss. Ct. App. 2012) (quoting Carpenter v. State, 899
2 So. 2d 916, 921 (¶23) (Miss. Ct. App. 2005)). “In cases involving post-conviction collateral
relief, ‘where a party offers only his affidavit, then his ineffective assistance of counsel claim
is without merit.’” Watts v. State, 97 So. 3d 722, 726 (¶12) (Miss. Ct. App. 2012) (citation
omitted) (citing Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995)).
¶4. Carson’s motion for PCR rests entirely on her own bare assertions. She offers no
additional proof to support her claim that her trial counsel’s assistance was deficient and that
she would not have pleaded guilty had it been otherwise. We therefore affirm the trial
court’s decision to deny relief based on this issue.
¶5. While we affirm based on the above grounds, we also address Carson’s assertion that
the facts only support a conviction of accessory after the fact. Carson argues that had
counsel advised her of this, she would not have pleaded guilty to the greater offense of
robbery. It is well settled that “[a] guilty plea will be found valid if it is shown to have been
voluntarily and intelligently made by the criminal defendant before the trial court.”
Burrough, 9 So. 3d at 373 (¶11) (citation omitted). “To determine whether the plea is
voluntarily and intelligently given, the trial court must advise the defendant of his rights, the
nature of the charge against him, as well as the consequences of the plea.” Id. (citation
omitted).
¶6. During the plea hearing, Carson was given the opportunity to disagree with the factual
basis of her plea in this case. She did not. She read and signed a petition to enter a guilty
plea and stated that she understood what she read. She stated that she, after discussions with
her attorney regarding the facts and circumstances of the case, decided to plead guilty and
that her admission of guilt was freely and voluntarily made. She said counsel advised her
3 as to the elements of and the defenses to the crime. The trial court reviewed Carson’s rights
with her, which she waived, and the consequences of the plea, including the minimum and
maximum periods of incarceration that could be imposed for each cause number. Carson
said that she was pleading guilty because she was in fact guilty of committing these crimes
and that she was satisfied with her attorney’s representation. As this Court has stated
numerous times, “[s]tatements made in open court under oath ‘carry a strong presumption
of veracity.’” Cane v. State, 109 So. 3d 568, 571 (¶9) (Miss. Ct. App. 2012) (quoting
Nichols v. State, 955 So. 2d 962, 965 (¶6) (Miss. Ct. App. 2007)). To rebut this presumption,
she must offer more than her own bare assertions that her trial counsel was ineffective. She
failed to do so; thus, this issue is without merit.
II. DISPARATE SENTENCING
¶7. Carson argues that her codefendant received a lesser sentence; thus, her due-process
rights were violated. “Sentencing is within the complete discretion of the trial court and not
subject to appellate review if it is within the limits prescribed by statute.” Wall v. State, 718
So. 2d 1107, 1114 (¶29) (Miss. 1998) (quotations omitted). “As a general rule, a sentence
that does not exceed the maximum period allowed by statute will not be disturbed on
appeal.” White v. State, 742 So. 2d 1126, 1135 (¶35) (Miss. 1999) (citing Wallace v. State,
607 So. 2d 1184, 1188 (Miss. 1992)). Carson’s sentence was within the statutory limits. See
Miss. Code Ann. § 97-3-75 (Rev. 2014).
¶8. Furthermore, a trial court is not required to impose the same sentence on
coconspirators. Buckley v. State, 119 So. 3d 1171, 1174 (¶11) (Miss. Ct. App. 2013) (citing
Collins v. State, 822 So. 2d 364, 366 (¶6) (Miss. Ct. App. 2002)). Carson alleges that she and
4 Ashley Brown, one of three codefendants, committed the same crime and pleaded guilty to
the same crime, but that Brown was sentenced to probation while Carson received a fifteen-
year sentence. She offers no proof to support these allegations. Regardless, the trial court
acted within its discretion when imposing a sentence on Carson that was within the statutory
guidelines. This issue is without merit.
III. FACTUAL BASIS FOR GUILTY PLEA
¶9. Carson argues that the factual basis for her guilty plea does not support robbery and
constitutes a denial of due process of law. According to Mississippi Code Annotated section
97-3-79 (Rev. 2014):
Every person who shall feloniously take or attempt to take from the person or from the presence the personal property of another and against his will by violence to his person or by putting such person in fear of immediate injury to his person by the exhibition of a deadly weapon shall be guilty of robbery . . ..
¶10. Carson confessed to jumping out of a vehicle with two other people, one of them held
the gun, and one of them demanded money from Ramedio Venture.1 Venture handed them
his wallet. Carson and the other defendants also confessed to two other robberies that had
occurred in the area. In one, they jumped out of a vehicle and snatched Abraham Cruz’s
apron, which contained his wallet and cell phone. In another, they robbed Gaspar Gomez
Francisco of his wallet by kicking and punching him. During her plea colloquy, Carson
admitted that in each of these offenses she took property from these people against their will
by placing them in fear of immediate injury to their person. As stated above, “[s]tatements
made in open court under oath ‘carry a strong presumption of veracity.’” Cane, 109 So. 3d
1 Different variations of the spelling of this name are seen throughout the record.
5 at 571 (¶9). Carson offers no evidence other than her own assertion that what she pleaded
guilty to amounts to accessory after the fact. The factual basis for Carson’s plea meets the
elements of armed robbery. This issue is without merit.
IV. EVIDENTIARY HEARING
¶11. Carson argues that the trial court erred in failing to conduct an evidentiary hearing
before summarily denying her PCR motion. The Mississippi Supreme Court has stated:
Under section 99-39-11(2) of the Mississippi Code, a trial court may summarily dismiss a petition for PCR, without having held an evidentiary hearing, when it is clear that the petitioner is not entitled to relief under the [Mississippi Uniform Post-Conviction Collateral Relief Act]. This Court has established that dismissal of a PCR motion is proper where “it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Turner v. State, 590 So. 2d 871, 874 (Miss. 1991).
State v. Santiago, 773 So. 2d 921, 923-24 (¶11) (Miss. 2000).
¶12. Carson relies entirely on her own assertions as evidence that she is entitled to post-
conviction relief. These bare assertions are in direct conflict with her open-court statements.
As stated above, “[s]tatements made in open court under oath ‘carry a strong presumption
of veracity.’” Cane, 109 So. 3d at 571 (¶9). The trial court was entitled to rely on Carson’s
sworn statements. Furthermore, Carson can prove no set of facts that would entitle her to
relief. The trial court found that Carson knowingly and voluntarily pleaded guilty to the
crime of robbery and that she was satisfied with her representation. The record reflects, by
Carson’s own admission, that her trial counsel advised her on the elements of, defenses to,
and consequences of pleading guilty to robbery. The trial court acted within its discretion
when sentencing Carson to a term within the statutory range. Carson offered no new or
6 additional proof other than her own affidavit. Upon review of the record, we find the trial
court properly denied Carson’s PCR motion. This issue is without merit.
V. DENIAL OF THE MOTION FOR PCR
¶13. Carson alleges that the trial court erred by denying the PCR motion without evaluating
the claims of the motion or making any specific findings on the individual claims. As stated
above, Carson relies solely on her own bare assertions without offering any new or additional
proof to support her claims. The trial court reviewed the record and found Carson’s motion
to be without merit. We affirm.
VI. CUMULATIVE ERROR
¶14. Finally, Carson contends that all of the errors in her case, taken together, warrant
relief. Under the cumulative-error doctrine, individual errors “may combine with other errors
to make up reversible error, where the cumulative effect of all errors deprives the defendant
of a fundamentally fair trial.” Ross v. State, 954 So. 2d 968, 1018 (¶138) (Miss. 2007) (citing
Byrom v. State, 863 So. 2d 836, 847 (¶12) (Miss. 2003)). “However, where there is no error
in part, there can be no reversible error to the whole.” Harris v. State, 970 So. 2d 151, 157
(¶24) (Miss. 2007) (citing Gibson v. State, 731 So. 2d 1087, 1098 (¶31) (Miss. 1998)).
Finding no error, there can be no cumulative error. This issue is without merit.
¶15. THE JUDGMENT OF THE MADISON COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MADISON COUNTY.
IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, MAXWELL, FAIR AND JAMES, JJ., CONCUR.