Swindle v. State

881 So. 2d 281, 2003 WL 22708166
CourtCourt of Appeals of Mississippi
DecidedNovember 18, 2003
Docket2001-CP-01668-COA
StatusPublished
Cited by4 cases

This text of 881 So. 2d 281 (Swindle 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
Swindle v. State, 881 So. 2d 281, 2003 WL 22708166 (Mich. Ct. App. 2003).

Opinion

881 So.2d 281 (2003)

Darrell SWINDLE, Appellant,
v.
STATE of Mississippi, Appellee.

No. 2001-CP-01668-COA.

Court of Appeals of Mississippi.

November 18, 2003.

*282 Darrell Swindle, appellant, pro se.

Office of the Attorney General by Charles W. Maris, attorney for appellee.

EN BANC.

*283 ON MOTION FOR REHEARING

MCMILLIN, C.J., for the Court.

¶ 1. The motion for rehearing is denied. The original opinion is withdrawn, and this opinion is substituted. After pleading guilty to two counts of uttering a forgery in the Circuit Court of Pearl River County without an accompanying sentence recommendation from the State, Darrell Swindle was sentenced to two consecutive terms of fifteen years each, with five years suspended. Swindle subsequently filed a motion for post-conviction relief contending that the sentence was unreasonably harsh under the factual circumstances of the case and that he received ineffective assistance of counsel. We conclude that, as to the guilty pleas themselves, Swindle has shown no entitlement to relief but that, as to the sentences imposed, there were fundamental defects in the procedure that could and should have been raised by defense counsel and which may, therefore, entitle Swindle to relief. We, therefore, reverse the summary denial of post-conviction relief and remand this cause for further proceedings consistent with the terms of this opinion.

I.

Discussion of Relevant Facts

¶ 2. Swindle was indicted for issuing two checks on the account of one Shelia J. Odom when he knew, in fact, that the signatures affixed to the two checks were not those of Ms. Odom. One check was issued to Bill's Quick Stop in the amount of $49.82 and the other was issued to Wal-Mart in the amount of $588.41. According to the indictments, both of the checks were fraudulently issued by Swindle on the same day.

¶ 3. After Swindle agreed to plead guilty to both counts without a recommendation as to sentence from the prosecution, the trial court deferred sentencing for four days. At the sentencing hearing, the only presentation by the defense was Swindle's own assertion to the court that "I've had a drug problem for a while," and that, but for that problem, "I probably wouldn't be standing here right now."

¶ 4. The court offered the opportunity for any victims of the crimes to come forward and speak, but no one presented themselves. Instead, the prosecution indicated that one victim — Shelia Odom — had filed a written victim's impact statement.

¶ 5. It was at that point that the trial court sentenced Swindle to two terms of fifteen years each, with the sentences to run consecutively, then added that "[t]he last five years of that sentence will be served on post-release supervision...."

¶ 6. No appeal was taken from the judgment of sentence; however, approximately eight months after the sentence was pronounced, Swindle filed a pro se motion for post-conviction relief. Having reviewed the contents of Swindle's motion and supporting brief, this Court concludes that a fair interpretation of the issues raised in this proceeding are as follows:

(a) In determining an appropriate sentence, the trial court improperly relied on information in Odom's victim impact statement that was objectionable as being outside the intended scope of such a statement, and the improper information was highly inflammatory in nature. As a result, Swindle contends that his sentence was unconscionably harsh in light of the nature of the crimes themselves.

(b) The proper statutory procedure for introduction of a victim impact statement was not followed, thereby depriving Swindle of the opportunity to rebut damaging and false information contained therein.

*284 (c) The trial court relied on evidence of a prior criminal conviction to justify the length of sentence when, in fact, Swindle had been acquitted of the alleged prior crime.

(d) Swindle received ineffective assistance of counsel because of trial counsel's failure to object to the improper victim impact statement or to provide competent evidence to contradict the trial court's erroneous understanding of Swindle's prior criminal record.

¶ 7. For reasons we will proceed to explain, this Court concludes that issues (a) through (c), insofar as they constitute a direct attack on the length of the sentence imposed on Swindle, are not properly before the Court since all of them could have been raised in a direct appeal from the judgment of sentence. However, the Court further finds that, in the context of the effectiveness of Swindle's representation by counsel as to the sentencing phase only of these two pleas, there is, at the least, sufficient indication of Swindle's right to relief that an evidentiary hearing on the merits of his complaints should be conducted.

II.

Failure to Take a Direct Appeal from the Judgment of Sentence

¶ 8. The law is clear that, even when a defendant pleads guilty to the crime itself, if he is aggrieved as to the sentence imposed by the trial court for any reason cognizable under the law, the defendant is entitled to have the sentence reviewed by a direct appeal. Campbell v. State, 743 So.2d 1050, 1052(¶ 5) (Miss.Ct.App.1999). All of the complaints raised by Swindle directly relating to the manner in which he was sentenced existed immediately at the conclusion of the sentencing hearing and were, thus, appropriate matters for a direct appeal. The Mississippi Uniform Post-Conviction Collateral Relief Act specifically provides that

[d]irect appeal shall be the principal means of reviewing all criminal convictions and sentences, and the purpose of this chapter is to provide prisoners with a procedure, limited in nature, to review those objections, defenses, claims, questions, issues or errors which in practical reality could not be or should not have been raised at trial or on direct appeal.

Miss.Code Ann. § 99-39-3(2) (Supp.2003) (emphasis supplied).

¶ 9. This Court is satisfied that each of Swindle's direct complaints regarding the manner in which he was sentenced could and should have been the subject of a direct appeal, and for his failure to take such an appeal, we conclude that those issues are barred from consideration in this post-conviction relief proceeding. Miss.Code Ann. § 99-39-21(1) (Supp.2003)

III.

Ineffective Assistance of Counsel

¶ 10. Nevertheless, different considerations arise when those same complaints in regard to Swindle's sentencing are viewed in light of his additional complaint that he was denied effective representation of counsel, at least during the sentencing phase of the circuit court proceedings. Such claims are subjected to a well-established two-prong test in which it must be shown that the defendant's performance was deficient and that the deficiency substantially deprived the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

¶ 11. Looking at Swindle's dissatisfaction with the manner in which he was sentenced from the standpoint of whether he was effectively represented by counsel, *285

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Related

Martin v. State
20 So. 3d 734 (Court of Appeals of Mississippi, 2009)
Swindle v. State
881 So. 2d 174 (Mississippi Supreme Court, 2004)
Dennis v. State
873 So. 2d 1045 (Court of Appeals of Mississippi, 2004)
Darrell Swindle v. State of Mississippi
Mississippi Supreme Court, 2001

Cite This Page — Counsel Stack

Bluebook (online)
881 So. 2d 281, 2003 WL 22708166, Counsel Stack Legal Research, https://law.counselstack.com/opinion/swindle-v-state-missctapp-2003.