Taylor v. State

766 So. 2d 830, 2000 WL 1281574
Court of Appeals of Mississippi·Decided September 12, 2000·No. 1999-CP-02070-COA·Published·Cited by 6 cases

Opinion

766 So.2d 830 (2000)

Kenneth TAYLOR a/k/a Kenneth C. Taylor Jr., Appellant,
v.
STATE of Mississippi, Appellee.

No. 1999-CP-02070-COA.

Court of Appeals of Mississippi.

September 12, 2000.

Kenneth Taylor, Appellant, pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., BRIDGES, AND THOMAS, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1. Kenneth Taylor appeals pro se from the Lamar County Circuit Court's denial of his petition for post-conviction relief. Taylor asserts that his guilty plea was not entered knowingly and voluntarily due to ineffective assistance of counsel and failure of the trial court to inform him of the minimum mandatory sentence for the *831 charges against him. We disagree and affirm.

FACTS

¶ 2. In 1996, seventeen year old Kenneth Taylor and an accomplice, Robert L. Young, entered Pearson's Pawn and Gift Shop in Purvis and asked Angel Pearson if they could look at a gun. Mrs. Pearson told them they were too young to do so. Taylor then displayed his own weapon and told Mrs. Pearson to give him a pistol and some other merchandise, including gold jewelry. While Taylor was attempting to rob Mrs. Pearson, Young went down the hallway and found Mrs. Pearson's husband, Eddie Pearson, who was with his father in a back room installing shelves. The younger Pearson told Young to return to the front of the store, and a struggle began. Pearson told police that he believed Young was about to pull out a weapon.

¶ 3. When Taylor heard the struggle in the back hallway, he fled with Young close behind him. Eddie Pearson obtained a pistol from his wife and followed the pair, firing some shots. One of those shots hit Taylor in the buttocks. Taylor came upon Christina Murray parking her car and forced her out of the car at gunpoint. He drove the car and picked up Young a short distance away. The two then drove to Lumberton, where they persuaded a friend, Denetha Clark, to give them a ride and abandoned the Murray vehicle.

¶ 4. Taylor was indicted on charges of armed robbery and attempted robbery. The State had evidence against Taylor including the bullet recovered from his buttock, blood in the seat of the Murray car, a bullet hole in his pants and the eyewitness testimony of the Pearsons and Murray. Taylor pled guilty to reduced charges of robbery and attempted robbery. Young was separately charged with attempted robbery and accessory after the fact to robbery. After interrogating Taylor as to his understanding of the meaning and consequences of a guilty plea, the court sentenced Taylor to two consecutive terms, of fifteen years each in the custody of the Mississippi Department of Corrections. By statute he must serve at least eighty-five percent of that sentence before being eligible for parole. Miss.Code Ann. § 47-5-138(4) (Supp.1996).

¶ 5. In his motion for post-conviction relief, Taylor said his attorney misled him as to the time he would actually serve if he pled guilty. Allegedly, his guilty plea was thus involuntary and his counsel ineffective. He appeals from the denial of that motion by the Lamar County Circuit Court.

DISCUSSION

¶ 6. Taylor asserts that his attorney advised him that if he went to trial he would likely be convicted and receive two life sentences, but that if he pled guilty he would serve only about seven years. Taylor states in his appellate brief that his counsel never explained the "eighty-five percent rule" to him, and that the judge inadequately explained it. Taylor says he never would have entered a guilty plea if he had understood he would have to serve more than twenty-five years before he would be eligible for release. In addition, he argues that his attorney was ineffective because he did not investigate the crime and because he failed to raise the issue of Taylor's state of mind as a defense to his actions in stealing Murray's car.

¶ 7. Mississippi's Post-Conviction Relief Act requires that these motions be verified and must contain a concise statement of the grounds upon which the motion is based, a separate statement of the facts within the personal knowledge of the prisoner as well as a specific statement of those facts which are not within the prisoner's personal knowledge. Miss.Code Ann. § 99-39-9 (Supp.1999). If it appears from the face of the motion, any exhibits to it and the prior proceedings that the movant is not entitled to relief, the judge may *832 order dismissal of the motion. Miss.Code Ann. § 99-39-11 (Supp.1999):

Respect for the integrity of the judicial process mandates that we require of such applicants a far more substantial and detailed threshold showing, far in excess of that we deem necessary in the case of a plaintiff in a civil action or, for that matter, in the case of the prosecution in a criminal indictment. In this context we understand Section 99-39-9 suggest(s) a regime of sworn, fact pleadings, based upon personal knowledge.

Neal v. State, 525 So.2d 1279, 1280 (Miss. 1987).

¶ 8. Here the trial court dismissed the motion, finding it insufficient to overcome the evidence in the record that Taylor understood the consequences of his plea and that his counsel was effective. On appeal, we will not reverse a trial court's denial of post conviction relief absent a finding that the trial court's decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567 (Miss.1999).

I. Voluntariness of Guilty Plea

¶ 9. In accepting a plea of guilty, the trial court has a duty to address the defendant and to make sure that: (a) the defendant is competent to understand the nature of the charges; (b) that he understands the nature and consequences of the plea as well as the maximum and minimum penalties provided by law; and (c) that he understands that by pleading guilty, he is waiving certain constitutional rights. URCCC 8.04(A)(4).

¶ 10. Perhaps in consideration of Taylor's age at the time (seventeen) and his level of education (eighth grade), the judge at the plea hearing questioned him repeatedly as to whether or not he understood what would happen if he pled guilty. Taylor said he understood and declined numerous opportunities to change his mind. The record shows that the trial judge explained the minimum and maximum sentences for the offenses involved as well as the "eighty-five percent rule."

Q. Now, Kenneth, we were discussing the first part of this hearing about plea bargaining. This District doesn't use plea bargaining, but what normally happens is I'd order a presentence investigation report, a victim impact statement, take your petition and hearing today and those items and sit down and arrive at what I believe to be a fair sentence, and that's the sentence you'd have to serve. That would be exactly what would happen if you went to trial with a jury tomorrow and they found you guilty of count one, count two or both counts. And then I'd arrive, like I told you, at a sentence that I thought was correct. And Mr. McDonald stated that the State's reducing these charges upon your agreement for me not to do that. In other words, you're going to accept the fifteen year sentence on count one and then a fifteen year sentence on count two and they are to run consecutive for a total of thirty years. Do you understand that?

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Taylor v. State, 766 So. 2d 830, 2000 WL 1281574 (Mich. Ct. App. 2000).

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