Patrick v. State

815 So. 2d 1216, 2001 Miss. App. LEXIS 415, 2001 WL 1225093
CourtCourt of Appeals of Mississippi
DecidedOctober 16, 2001
DocketNo. 2000-CP-01809-COA
StatusPublished
Cited by2 cases

This text of 815 So. 2d 1216 (Patrick 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
Patrick v. State, 815 So. 2d 1216, 2001 Miss. App. LEXIS 415, 2001 WL 1225093 (Mich. Ct. App. 2001).

Opinion

CHANDLER, J., for the court:

¶ 1. Appellant Howard Arthur Patrick pled guilty to two counts of exploitation of children in both state and federal court. The federal plea was entered on April 2, 1998, and the state plea was entered on February 2, 1999'. Patrick was sentenced to seventy-eight months by the federal court and eight years by the state court with the sentences to run concurrently. Patrick filed a motion for post-conviction collateral relief claiming that he received ineffective assistance of counsel and that the state conviction was barred by the doctrine of Double Jeopardy. The Circuit Court of DeSoto County found the motion to be without merit and dismissed it without an evidentiary hearing. On appeal from the dismissal of his motion, Patrick brings only the ineffective assistance of counsel claim. He alleges that he received ineffective assistance' of counsel when his attorney: 1) failed to discuss the case with him and failed to investigate the facts or discuss possible defenses, 2) failed to present mitigating evidence to the court, 3) permitted him to be sentenced in Mississippi before he was sentenced in federal court, 4) gave him erroneous information about the actual amount of time he would serve under the plea agreement, and 5) maintained an alleged business relationship with the prosecuting attorney.

¶ 2. Finding no error, we affirm.

' FACTS

¶ 3. Howard Patrick was indicted on federal and state charges for the sexual exploitation of children as a result of photographs Patrick took of two underage girls. On April 2, 1998, Patrick pled guilty to the crime charged in the United States District Court for the Western District of Tennessee. He was sentenced to seventy-eight months. Ten months later, on February 2, 1999, Patrick pled guilty to two counts of the same crime in the circuit court of DeSoto County, Mississippi. Patrick received fifteen years for each count. The court suspended the last seven years of count one pending Patrick’s future good behavior. The second count was suspended entirely. The state time was set to run concurrently with the federal time.

LAW AND ANALYSIS

¶ 4. Patrick argues on appeal that he was denied effective assistance of counsel during the state court proceedings. He alleges that his court appointed attorney never discussed the case with him, never conducted an investigation, never interviewed potential witnesses, and did not present mitigating evidence at the sentenc[1219]*1219ing hearing. He also asserts that his attorney was deficient in his representation because he allowed him to be sentenced in state court before federal court and because he gave him erroneous information about the actual amount of time he would serve under the plea agreement. Patrick further contends that there was a business relationship between his attorney and the prosecutor.

¶ 5. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test set out in Strickland is whether counsel’s performance was deficient and, if so, whether the deficiency prejudiced the defendant to the point that “our confidence in the correctness of the outcome is undermined.” Richardson v. State, 769 So.2d 230(¶ 10) (Miss.Ct.App.2000). This standard is also applicable to a guilty plea. Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990). A strong but rebuttable presumption exists that “counsel’s conduct falls within a broad range of reasonable professional assistance.” McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). To overcome this presumption, the defendant must show that “but for” the deficiency a different result would have occurred. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To meet this burden of proof, Patrick was required to: “Specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court would have been different.” Ford v. State, 708 So.2d 73(¶ 8) (Miss.1998) (citing Smith v. State, 434 So.2d 212, 219 (Miss.1983)). Patrick has failed to meet the above standard in reference to every allegation made.

¶ 6. Patrick’s claims that his attorney failed to investigate his case and to discuss his options with him are not supported by any competent evidence in the record. His bald assertion that counsel failed to investigate his case lacks the specificity required by Ford and makes it impossible for this Court to evaluate his claim of deficient performance. Also, the trial transcript reflects that the trial court questioned Patrick closely about his understanding of the proceedings. The court asked if he had fully discussed the case with his attorney and if he was satisfied with the advice rendered by his attorney; Patrick answered both questions in the affirmative.

¶ 7. The fact that counsel did not present mitigating evidence at the sentencing hearing does not indicate ineffective representation either. Patrick’s sentence was the result of a plea arrangement agreed upon prior to the sentencing hearing. Under the terms of the agreement Patrick was sentenced to spend only eight years in prison for crimes that carried a maximum penalty of forty years.

¶ 8. Patrick’s third claim for ineffective representation concerns the timing of the two sentencing hearings. Patrick claims that he received a heavier sentence in federal court because he was first sentenced in state court. He asserts that the state sentence was regarded as a prior conviction at the federal sentencing and earned him more time. This claim is without merit. Patrick’s sentence in federal court was the result of an agreed upon plea arrangement, just as in state court. Assuming the court was willing to accept the plea agreement, Patrick knew the amount of time he would be serving prior to the sentencing hearing. There is no indication in the record that this plea agreement was affected by the state sentence.

[1220]*1220¶ 9. Next, Patrick claims that his attorney was incompetent because he failed to explain the actual amount of time he would be serving under the plea agreement. The crux of this argument is Patrick’s contention that he was told by Ms attorney that the two sentences would “end very close together.” He asserts that he believed the difference in the terms would be made up by the difference in the sentencing dates and “good time.” At no time does Patrick allege that he was told by his attorney that he would receive “good time.”

¶ 10. Patrick’s claim that he was led to believe that he would receive “good time” is clearly controverted by the trial transcript. At the sentencing hearing, the court explained that Patrick would not receive parole and that he would not be guaranteed any “good time.” The judge went on to inform Patrick that he was not bound by the plea agreement and that he could sentence Patrick to a total of forty years and a $200,000 fíne. Patrick indicated that he understood this and still wanted to plead guilty. Although the trial judge should have informed Patrick that as a sex offender, he could not receive good time under Miss.Code Ann. § 47 — 5—139(l)(d) (Rev.2000), failure to do so was harmless error. In Smith v. State,

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Bluebook (online)
815 So. 2d 1216, 2001 Miss. App. LEXIS 415, 2001 WL 1225093, Counsel Stack Legal Research, https://law.counselstack.com/opinion/patrick-v-state-missctapp-2001.