Smith v. State

636 So. 2d 1220, 1994 WL 279641
CourtMississippi Supreme Court
DecidedFebruary 3, 1994
Docket91-KP-1054
StatusPublished
Cited by76 cases

This text of 636 So. 2d 1220 (Smith v. State) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smith v. State, 636 So. 2d 1220, 1994 WL 279641 (Mich. 1994).

Opinion

636 So.2d 1220 (1994)

Ricky Lee SMITH, a/k/a Rickey Lee Smith
v.
STATE of Mississippi.

No. 91-KP-1054.

Supreme Court of Mississippi.

February 3, 1994.
Rehearing Denied May 19, 1994.

*1221 Ricky Lee Smith, pro se.

Michael C. Moore, Atty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

Ricky Lee Smith entered a guilty plea to the crime of armed robbery in the Circuit Court of DeSoto County, Mississippi, and was sentenced to serve a term of eight years in the custody of the Mississippi Department of Corrections. Smith filed a motion for post-conviction collateral relief claiming his plea was involuntary and that he should have been advised of the minimum mandatory sentence. The lower court, without conducting an evidentiary hearing, denied Smith's motion to set aside and vacate the plea and conviction. Aggrieved, Smith appeals to this Court, asking that we once again confront the question of voluntariness of a plea and the effect of the failure to advise a defendant of the minimum sentence when accepting a guilty plea. We conclude that the trial court was well within its right not to conduct an evidentiary hearing. The facts from the entirety of the record before this Court show beyond a reasonable doubt that the failure to advise this accused of the minimum mandatory sentence played no role in his decision to plead guilty. Smith was not prejudiced, but was sentenced according to his expectations.

THE FACTS

On February 6, 1989, Ricky Lee Smith was indicted in DeSoto County Circuit Court for the crime of armed robbery. Specifically, Smith was charged with taking "from the presence or person of C.D. Tharrington certain personal property, to-wit: One (1) wallet containing cash money in the amount of $165.00 and credit cards, the personal property of C.D. Tharrington, against the will of C.D. Tharrington, by putting C.D. Tharrington in fear of immediate injury to his person by the exhibition of a deadly weapon, to-wit: a concrete block... ."

After appointment of counsel and apparent plea negotiations, Smith, on May 24, 1989, filed his sworn petition for the court to accept his guilty plea to the armed robbery and three other charges not involved in this appeal. Paragraph 6 of Smith's petition stated that "I have been advised of the maximum sentence the court can impose on this charge and plea."

*1222 On June 5, 1989, Smith personally appeared with counsel before the circuit court judge for a plea hearing. An extensive and lengthy hearing was conducted. The State recited the following factual allegations it could prove, if the cause here in question were tried:

[T]he State could prove by admissible and credible evidence and beyond a reasonable doubt that Ricky Lee Smith, did on January 29, 1989, commit the crime of robbery through the exhibition and use of a deadly weapon. The victim was C.D. Tharrington. This occurred outside the post office in Hernando, Mississippi. The defendant saw the victim inside the post office. The defendant saw that the victim had money. The defendant waited until the victim came out of the post office. The defendant struck the victim with a concrete block, causing serious head injury. The defendant then took cash money from the person of the victim.

Smith told the court he understood and recalled the events related to the charge. He then petitioned the court to accept his plea of guilty.

Although the plea hearing record embraces ten legal size pages of questions and advisory statements by the circuit court judge directed to Smith, as well as Smith's elicited answers acknowledging an understanding of the effects of his offered plea,[1] the record does not show that Smith was advised by the court, his attorney or any responsible party concerning the mandatory minimum sentence for armed robbery.

After determining that the plea was voluntarily and intelligently made, the circuit court judge accepted Smith's guilty pleas and sentenced him to serve eight years with the Mississippi Department of Corrections on the armed robbery charges and a total of seventeen years suspended sentence on the other charges. As to the armed robbery charge the court's judgment also provides:

This sentence is imposed pursuant to the provision of § 47-7-3, Miss. Code Ann. 1972, as amended, and defendant shall not be eligible for parole, earned time, good time, or any other administrative reduction of time.

On February 11, 1991, Smith filed his motion for post-conviction collateral relief in the DeSoto County Circuit Court. He sought to set aside and vacate the pleas and convictions, asserting that he was denied effective assistance of counsel, that the entry of his guilty plea was involuntary, made without a full and complete understanding of the consequences thereof, and that he was coerced by intentional misinformation from his counsel. He alleged under oath that defense counsel failed to inform him of the minimum mandatory sentence for armed robbery and led him to believe that he would receive a sentence that could be served in the county jail. According to Smith, his lawyer told him falsely that Smith's mother had advised the guilty plea and that he, Smith, was to respond in the affirmative to all of the court's questions in order to get the court to accept the plea. The circuit court judge considered Smith's petition and entered an order summarily denying and dismissing it. Smith appeals presenting the following issues:

I. WHETHER APPELLANT WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHT UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF MISSISSIPPI.
II. WHETHER APPELLANT'S PLEA OF GUILTY WAS INVOLUNTARY *1223 AS A MATTER OF LAW WHERE THE APPELLANT WAS NOT INFORMED OF THE MANDATORY MINIMUM SENTENCE WHICH COULD BE IMPOSED, BY THE TRIAL JUDGE, PRIOR TO THE PLEA OF GUILTY BEING ACCEPTED AND IN ACCORD WITH RULE 3.03(3), MISS.UNIF.CRIM. RULES OF CIR. COURT PRACTICE.
III. WHETHER APPELLANT'S PLEA OF GUILTY IS NULL AND VOID WHERE IT WAS NOT VOLUNTARILY MADE IN ACCORD WITH RULE 3.03(2), WHERE THE PLEA WAS INDUCED BY DECEPTION BY COUNSEL ADVISING APPELLANT THAT HIS MOTHER HAD CALLED AND ADVISED APPELLANT, THROUGH COUNSEL, TO PLEAD GUILTY.

DISCUSSION OF LAW

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Smith alleges ineffective assistance of counsel. Examining the facts as contained within the record now before this Court and applying the two-pronged test as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it is obvious Smith failed to sustain his claim of ineffective assistance of counsel. This Court has adopted and adhered to this two-pronged test as set forth in Strickland. Schmitt v. State, 560 So.2d 148 (Miss. 1990); See also Gilliard v. State, 462 So.2d 710, 713-14 (Miss. 1985).

In Schmitt, this Court, applying the Strickland criteria stated: "Before counsel can be deemed to have been ineffective, it must be shown (1) that counsel's performance was deficient, and (2) that the defendant was prejudiced by counsel's mistakes." 560 So.2d at 154. Smith must overcome the presumption that "counsel's performance falls within the range of reasonable professional assistance." Id.

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Bluebook (online)
636 So. 2d 1220, 1994 WL 279641, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-miss-1994.