Smith v. State

1 So. 3d 937, 2009 Miss. App. LEXIS 23, 2009 WL 116993
CourtCourt of Appeals of Mississippi
DecidedJanuary 20, 2009
Docket2007-CP-01631-COA
StatusPublished
Cited by1 cases

This text of 1 So. 3d 937 (Smith 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
Smith v. State, 1 So. 3d 937, 2009 Miss. App. LEXIS 23, 2009 WL 116993 (Mich. Ct. App. 2009).

Opinion

KING, C. J.,

for the Court.

¶ 1. Allen Smith pled guilty to murder. The Yazoo County Circuit Court sentenced Smith to serve a term of life imprisonment in the custody of the Mississippi Department of Corrections (MDOC). Smith later filed a motion for post-conviction relief, which the trial court dismissed. Smith timely filed this appeal, raising the following three issues:

I. Whether he received ineffective assistance of counsel;
II. Whether he made an intelligent and voluntary guilty plea; and
III. Whether the trial court erred by denying his request for a copy of his guilty plea transcript.

We find no error and affirm the trial court’s dismissal.

FACTS AND PROCEDURAL HISTORY

¶ 2. On August 2, 2004, Smith pled guilty to murder for the multiple stabbing death of Mabel Fisher. The Yazoo County Circuit Court sentenced Smith to serve a term of life imprisonment. Beginning in 2006, Smith wrote several letters to his trial counsel, the circuit clerk, and the trial judge.

¶ 3. Smith wrote a letter to his trial counsel, asking counsel to file a motion for post-conviction relief on his behalf. Later, Smith filed a bar complaint against his trial counsel, alleging misrepresentation, misconduct, and dishonesty. Smith also wrote a letter to the circuit clerk, requesting a copy of his plea transcript. The circuit clerk informed Smith that he had to pay for a copy of his plea transcript before *939 it would be released to him. Smith responded and said that his sister would pay the cost and pick up the transcript for him. The circuit clerk responded and told Smith that he had to obtain permission from the trial judge to have his guilty plea proceeding transcribed, and the cost had to be paid before it would be transcribed. Thereafter, Smith wrote a letter to the trial judge and requested a free copy of his plea transcript.

¶ 4. On July 19, 2007, Smith filed a motion for post-conviction relief, arguing the following three issues: (1) the trial court erred by denying his request for his guilty plea transcript; (2) he received ineffective assistance of counsel; and (3) his guilty plea was not made intelligently and voluntarily. The details of these allegations will be discussed below. The trial court found that Smith was on a fishing expedition and stated no grounds to justify why he should receive a free copy of his guilty plea transcript. The trial court also found that Smith’s broad accusations of ineffective assistance of counsel and entering an invalid guilty plea were without merit. Thus, the trial court dismissed Smith’s motion. Aggrieved, Smith timely filed this appeal.

ANALYSIS

¶ 5. This Court will not disturb a trial court’s dismissal post-conviction relief unless it was clearly erroneous. Williams v. State, 872 So.2d 711, 712(2) (Miss.Ct.App. 2004). However, issues of law are reviewed de novo. Brown v. State, 781 So.2d 595, 598(6) (Miss.1999).

I. Whether Smith received ineffective assistance of counsel.

¶ 6. To succeed on a claim of ineffective assistance of counsel, a defendant must prove two things: (1) that his counsel’s performance was deficient, and (2) that counsel’s deficit representation prejudiced his defense. Cole v. State, 918 So.2d 890, 894(10) (Miss.Ct.App.2006) (citing Strickland v. Washington, 466 U.S. 668, 687,104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). If the defendant pled guilty on the advice of counsel, he must prove that counsel committed “unprofessional errors of substantial gravity.” Id. (citing Reynolds v. State, 521 So.2d 914, 918 (Miss.1988)). There is a strong but rebuttable presumption that trial counsel performed within the accepted range of competence required of attorneys in criminal cases. Baldwin v. State, 923 So.2d 218, 222(12) (Miss.Ct.App. 2005) (citations omitted). A defendant may rebut this presumption by showing that, but for counsel’s errors and deficient performance, he would not have pled guilty. Cole, 918 So.2d at 894(10) (citing Reynolds, 521 So.2d at 918).

¶ 7. Smith argues that his trial counsel was ineffective because she only spoke to him once before he entered his guilty plea. He also claims that counsel failed to investigate his case. If she had done so, Smith claims that counsel would have discovered that Fisher’s murder was the result of a fatal accident, and she would not have encouraged him to plead guilty. Smith believes that the outcome of his case would have been different if he had proceeded to trial on this defense. Smith also claims that his counsel was ineffective by improperly insisting that he plead guilty because he was a convicted felon and by telling him that he could face up to two life sentences or the death penalty. The State argues that the trial court did not err by dismissing Smith’s motion for post-conviction relief because Smith failed to meet the requirements of the Strickland test.

¶ 8. We find that Smith’s bald allegations of ineffective assistance of counsel are insufficient to pass the Strickland test. Mississippi Code Annotated section 99-39-9(l)(e) (Rev.2007) provides in part that *940 “[affidavits of the witnesses who will testify and copies of documents or records that will be offered shall be attached to the motion.” The statute further provides that a defendant may be excused from this requirement if he can show good cause why he cannot obtain the requested documents. Id. Smith did not attach any supporting affidavits to his motion for post-conviction relief, nor did he name any potential witnesses that counsel could have interviewed. Smith claims that he could not provide the affidavits because he did not have a copy of his plea transcript. We fail to discern this logic.

¶ 9. This Court has held that “[summary dismissal of a petition for post-conviction relief is proper ‘if it plainly appears’ from the record ‘that the movant is not entitled to any relief....’” Winston v. State, 893 So.2d 274, 276(6) (Miss.Ct.App. 2005) (citations omitted). Smith’s allegations of ineffective assistance of counsel consist solely of his bare assertions because he failed to provide evidence in support of his allegations. Also, Smith’s explanation — that he did not have a copy of his plea transcript — is insufficient to demonstrate good cause why he should be excused from this requirement. There exists a rebuttable presumption that Smith’s counsel performed with competence, and we find no reason to hold otherwise. Thus, we find that the trial court did not err by dismissing Smith’s claim of ineffective assistance of counsel.

II. Whether Smith made an intelligent and voluntary guilty plea.

¶ 10. To enter a valid guilty plea, the defendant must be informed of the charges against him, the consequences of entering the plea, the rights that he waives upon entering the plea, and the maximum and minimum sentence he can receive for the crime. Baldwin,

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Bluebook (online)
1 So. 3d 937, 2009 Miss. App. LEXIS 23, 2009 WL 116993, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-state-missctapp-2009.