Robinson v. State

806 So. 2d 1170, 2002 WL 172691
CourtCourt of Appeals of Mississippi
DecidedFebruary 5, 2002
Docket2001-CP-00242-COA
StatusPublished
Cited by2 cases

This text of 806 So. 2d 1170 (Robinson 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
Robinson v. State, 806 So. 2d 1170, 2002 WL 172691 (Mich. Ct. App. 2002).

Opinion

806 So.2d 1170 (2002)

Daven ROBINSON, Appellant
v.
STATE of Mississippi, Appellee.

No. 2001-CP-00242-COA.

Court of Appeals of Mississippi.

February 5, 2002.

*1171 Daven Robinson, Appellant, pro se.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

Before KING, P.J., IRVING, and BRANTLEY, JJ.

IRVING, J., for the Court:

¶ 1. This appeal arises from a dismissal of Daven Robinson's motion for post-conviction collateral relief filed in the Circuit Court of Pearl River County. Aggrieved, Robinson comes before this Court pro se asserting that his guilty plea was involuntary and that he received ineffective assistance of counsel. Because we find no reversible error, we affirm.

FACTS

¶ 2. Robinson was indicted on June 29, 1999, by a Pearl River County grand jury on a charge of burglary of a dwelling, later reduced to receiving stolen property. In 1997, Robinson was convicted of burglary of an automobile. He was sentenced to seven years in the Mississippi Department of Corrections with four years suspended and four years of supervised probation. Brenda Varnarda, a probation officer, filed a violation of probation against Robinson on March 24, 2000, on the burglary of automobile conviction. His probation was revoked April 4, 2000. On the same day, *1172 Robinson signed a "Petition to Enter Plea of Guilty."

¶ 3. The petition contains the following pertinent recitals, and by the affixation of his signature to the petition, Robinson represented and acknowledged each of them:

3. I wish to plead GUILTY to the Charge of receiving stolen property.
4. My lawyer has counseled and advised me on the nature of each charge; on any and all lesser included charges; and on all possible defenses that I might have in this case.
5. I understand that I may Plead "NOT GUILTY" to any offense charged against me and the Constitution guarantees me:
(b) The right to plead not guilty and have a jury of my peers decide the question of guilt or not guilty to the charge.
7. I know that if I plead "GUILTY" to this charge, the possible sentence is 0 year minimum to 5 years maximum, imprisonment, and/or a fine of $0 (Minimum) to $1,000.00 (Maximum) and assessments.
14. I OFFER MY PLEA OF "GUILTY FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WITH FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INDICTMENT AND IN THIS PETITION AND IN THE CERTIFICATE OF MY LAWYER WHICH FOLLOWS.

Following the various recitals in the petition is an affidavit executed by Robinson. In the affidavit, Robinson swore that he fully understood everything contained in the petition and that his plea of guilty was made of his own free will.

¶ 4. At the plea hearing Robinson was fully advised of his rights and the consequences of pleading guilty. Thereafter, the trial court determined that Robinson's plea was freely and voluntarily made; thereafter, the judge accepted the plea. The trial judge sentenced Robinson to a term of five years, with two years to be served in the custody of the Mississippi Department of Corrections and three years suspended. This sentence was to run consecutively with the sentence Robinson was then serving on the parole revocation. Additionally, Robinson was also ordered to pay a $25 fine to Hancock County Justice Court, to pay David Synder $600 in restitution, and to pay all court costs of the plea hearing.

¶ 5. On January 5, 2001, Robinson filed a motion for post-conviction collateral relief which set forth three allegations: (1) that his plea was involuntary, (2) that there was a conflict of interest between him and Howell, his court-appointed attorney, regarding Howell's representation, and (3) that if the conviction and sentence were set aside, Howell would be guilty of providing ineffective assistance of counsel. The voluntariness of the plea was attacked on two grounds: (a) Howell filed a motion to suppress Robinson's confession but never called the motion up for hearing, thereby leaving Robinson without a defense, and (b) Robinson repeatedly told Howell that he was not guilty of the crime of burglary of a dwelling and wanted to proceed to trial but that Howell used tactics to force him to plead guilty to a crime he did not commit. The conflict of interest was alleged to arise out of the fact that Howell had served as the judge in the preliminary hearing of an armed robbery charge against Robinson in 1996.

¶ 6. Robinson's PCR motion was summarily dismissed by the trial judge. From the dismissal of this motion, Robinson is now before us on appeal. Additional facts will be added as appropriate during the discussion of the issues.

*1173 ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 7. The standard for reviewing a denial of a motion for post-conviction relief is well established. This Court is only authorized to set aside a finding of the lower court when that decision is clearly erroneous. Meeks v. State, 781 So.2d 109(¶ 5) (Miss. 2001). In the event that questions of law are raised, the standard of review is de novo. Id.; Brown v. State, 731 So.2d 595(¶ 6) (Miss.1999).

1. Involuntariness of the Plea

¶ 8. Robinson argues that the trial court erred in accepting his guilty plea because Howell, his court-appointed attorney, used tactics to coerce him to plead guilty to a crime that he did not commit. Robinson alleges in his brief that Howell told him that even if he beat the burglary charge at trial, the judge could still order a lesser charge of receiving stolen property and that he should plead in his best interest to avoid the maximum penalty. "[W]here a plea of guilty is involuntary, any judgment of conviction entered thereon is subject to collateral attack." Sanders v. State, 440 So.2d 278, 283 (Miss.1983). A defendant may withdraw his guilty plea, if he proves by a preponderance of the evidence that his plea was made involuntarily. Schmitt v. State, 560 So.2d 148, 151 (Miss.1990) (citing Leatherwood v. State, 539 So.2d 1378, 1381 n. 4 (Miss.1989)). "A plea is deemed `voluntary and intelligent' only where the defendant is advised concerning the nature of the charge against him and the consequences of the plea." Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992) (citing Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991)).

¶ 9. A review of the transcript of the plea hearing reveals that Robinson, on three occasions, voluntarily offered a plea of guilty to receiving stolen property. First, Assistant District Attorney Manya Creel read the indictment to Robinson, and Robinson entered a guilty plea. Later in the plea hearing, during the court's interrogation, Robinson again offered his plea of guilty, as revealed in the following colloquy:

BY THE COURT:
Q. Correct. So, Daven, where we are is that the State would bring the proof you've just heard. The neighbor or person who allegedly saw you under whatever circumstances they saw you, Deputy Campbell who will testify as Mr. Creel said he would, that you did give him consent. And then like I explained to you, the right not to testify, but also the right to testify. So you'd have every opportunity to tell the jury your story and it would be up to the jury to believe whatever they chose to or found the facts of the case to be. So that would be where we'd be if it went to trial.

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Bluebook (online)
806 So. 2d 1170, 2002 WL 172691, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robinson-v-state-missctapp-2002.