Rush v. State

811 So. 2d 431, 2001 WL 216818
CourtCourt of Appeals of Mississippi
DecidedMarch 6, 2001
Docket2000-CP-00665-COA
StatusPublished
Cited by8 cases

This text of 811 So. 2d 431 (Rush 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
Rush v. State, 811 So. 2d 431, 2001 WL 216818 (Mich. Ct. App. 2001).

Opinion

811 So.2d 431 (2001)

Tyrone RUSH a/k/a Tyrone Ray Rush, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2000-CP-00665-COA.

Court of Appeals of Mississippi.

March 6, 2001.

*433 Tyrone Rush, Pro Se.

Office of the Attorney General, by Dewitt T. Allred, III, Attorney for Appellee.

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

CHANDLER, J., for the Court:

¶ 1. Tyrone Rush was indicted for two counts of armed robbery under Miss.Code Ann § 97-3-79 (Rev.2000) at the March 1997 term. On December 11, 1997, he pled guilty to the two charges and was sentenced to twenty years imprisonment for each count. He filed a petition for post-conviction collateral relief seeking vacation of his conviction and sentence which was denied without an evidentiary hearing. Aggrieved, Rush cites the following issues on appeal:

I. WHETHER RUSH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
II. WHETHER AN EVIDENTIARY HEARING SHOULD HAVE *434 BEEN GRANTED BASED ON RUSH'S CLAIM OF INEFFECTIVE ASSISTANCE OF COUNSEL.
III. WHETHER RUSH'S GUILTY PLEA WAS VOLUNTARY.
IV. WHETHER RUSH'S SENTENCE WAS EXCESSIVE.

LAW AND ANALYSIS

I. WHETHER RUSH RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 2. Rush claims that he received ineffective assistance of counsel because his attorney did not advise him of the elements that would have to be proved in order for the State to obtain a guilty verdict on the charge of armed robbery, his attorney did not advise him of the minimum and maximum sentences for this charge, his attorney failed to object to the vague and ambiguous indictment, his attorney did not advise him of the nature and consequences of a guilty plea, his attorney did not challenge the credibility of witness's statements or obtain discovery, and his attorney refused to take his case to trial. Rush also argues that the trial court should have conducted an evidentiary hearing based on his claim of ineffective assistance of counsel.

¶ 3. 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." Neal v. State, 525 So.2d 1279, 1281 (Miss.1987). This standard is also applicable to a guilty plea. Schmitt v. State, 560 So.2d 148, 154 (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.

¶ 4. In situations where the issue of ineffective assistance of counsel is addressed in a petition for post-conviction relief, the allegation must be alleged with specificity. Ford v. State, 708 So.2d 73, 74 (Miss.1998) (citing Smith v. State, 434 So.2d 212, 219 (Miss.1983)). In Ford, the appellant alleged that his attorney coerced him into pleading guilty, but Ford did not state the manner in which this coercion occurred. The court held that Ford failed to meet his burden of proof in that his allegations lack the specificity and detail required to establish a prima facie showing. Ford, 708 So.2d at 74 (citing Miss. Code Ann. § 99-39-9(1)(c) (Rev.2000)).

¶ 5. In Lindsay v. State, 720 So.2d 182, 184 (Miss.1998), the court held that a party's claim that is based only on the party's individual affidavit is without merit. Rush's claim is supported by his lone affidavit.

¶ 6. Rush's claim that his attorney did not discuss the requisite elements of armed robbery necessary to obtain a guilty verdict is also lacking in substance. Rush's own sworn testimony during the plea hearing is as follows:

The Court: Okay. Did Mr. Oden explain to you, Mr. Rush, what we call the essential elements that makes up your armed robbery charge? And by that I mean, did he tell you what the State of Mississippi would have to prove at a trial beyond a reasonable doubt in front of the jury before the jury could convict *435 you of the charge of armed robbery in each count?
Rush: Yes, sir.
The Court: All right. Do you understand those essential elements; that is, do you understand what the State would have to prove?
Rush: Not too much of it.
The Court: Not too much. Well, let me go over it with you.
Rush: Yes sir.
The Court: What the State would have to prove if you went to trial on Count I is that you, in Lauderdale County, Mississippi, on or about the 19th day of November, 1996, did willfully, unlawfully take or attempt to take the personal property of Elva Hemphill, consisting of some amount of money, the exact amount is unknown, from her, and against her will by violence to her by the exhibition of some scissors, that is, y'all pulled some scissors on her, —
Rush: Yes, sir.
The Court: — which is a deadly weapon, putting her in fear of immediate injury to her person. Do you understand that is what the State would have to prove on Count I?
Rush: Yes, sir.
The Court: On Count II, the State would have to prove that you, in Lauderdale County, Mississippi, on or about the 21st day of November, 1996,—did willfully, unlawfully take or attempt to take the personally property of Sadie T. Baker, that is the name of the victim, consisting of twenty dollars from her or from her presence against her will by the exhibition of a deadly weapon, that is, a knife. That is, either you had that knife or Poncy David had that knife, and y'all pulled that knife on her and took her money. It doesn't matter which one actually pulled the knife, so long as y'all were there together and one of y'all pulled the knife, putting her in fear of immediate injury. Now, that is what the State would have to prove beyond a reasonable doubt in Count II. Now, do you understand the essential elements as to Count I and Count II?
Rush: Yes, sir.

In light of Rush's sworn testimony, he cannot show that but for his attorney's deficiency he would have received a different outcome in his case.

¶ 7. Rush next contends that his attorney did not advise him of the minimum and maximum sentences for the charge of armed robbery. This contention is also without merit. The plea colloquy reflects that the court informed Rush of the minimum and maximum sentences he could receive followed by Rush's response that he understood. Once again, Rush cannot show that but for his attorney's deficiency, he would have received a different outcome.

¶ 8. Rush also claims that his attorney erred in not objecting to the indictment which Rush defines as vague and ambiguous. Rush does not inform the Court of how the indictment is vague or ambiguous. The indictment charging Rush with armed robbery fits the requirements found in U.R.C.C.C.

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Cite This Page — Counsel Stack

Bluebook (online)
811 So. 2d 431, 2001 WL 216818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/rush-v-state-missctapp-2001.