Vandergriff v. State

920 So. 2d 486, 2006 WL 120049
CourtCourt of Appeals of Mississippi
DecidedJanuary 17, 2006
Docket2004-CA-01733-COA
StatusPublished
Cited by9 cases

This text of 920 So. 2d 486 (Vandergriff 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
Vandergriff v. State, 920 So. 2d 486, 2006 WL 120049 (Mich. Ct. App. 2006).

Opinion

920 So.2d 486 (2006)

David Ray VANDERGRIFF, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-CA-01733-COA.

Court of Appeals of Mississippi.

January 17, 2006.

*488 William C. Stennett, attorneys for appellant.

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

Before KING, C.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. David Vandergriff pled guilty to the charge of armed robbery in the Circuit Court of Lee County on August 27, 2002. He was sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with ten suspended, and five years of post-release supervision. Vandergriff then filed a motion for post-conviction relief, claiming various defects in his guilty plea. The trial court dismissed his motion. Finding no error, we affirm.

*489 FACTS

¶ 2. On August 28, 2001, Vandergriff assaulted Sue Grisham, a cashier at the Fish Lake Grocery. At Vandergriff's sentencing hearing, Grisham recounted the events which had occurred on that day. She testified that Vandergriff entered the Fish Lake Grocery at approximately 2:00 p.m., made his way to the beer cooler, and brought a case of beer to the front counter. As Grisham rang up the beer, Vandergriff reached into his pocket and produced a nine-millimeter pistol. He ordered Grisham to put all of the store's money into the bag with the case of beer. She complied. He then marched her to the end of the store counter and ordered her to turn around and get on her knees, whereupon he struck her on the top of the head with his pistol. Grisham testified that she heard a "pop" when Vandergriff struck her, and that she thought that she had been shot in the head. When she regained her composure, Vandergriff was nowhere to be seen. Grisham then called 911 and reported her belief that she had been shot, and that the store had been robbed. Following this incident, Grisham attempted to return to work at the Fish Lake Grocery, but she was unable to do so because of mental distress caused by the incident.

¶ 3. Vandergriff was indicted by a grand jury chosen from Lee County. The indictment alleged that Vandergriff had assaulted Grisham with a 9-millimeter pistol, and had stolen a quantity of beer, ice, and $600-$800 from the Fish Lake Grocery. Vandergriff entered a plea of guilty to the charge of armed robbery and was sentenced following a hearing. Aggrieved by the sentence that was imposed, Vandergriff filed a motion for post-conviction relief. In that motion, he stated three grounds on which he believed his plea should be overturned. First, he argued that he should be allowed to withdraw his plea because it was not entered into in a knowing and intelligent manner. Second, he argued that he was not afforded the effective assistance of counsel guaranteed by the sixth amendment to the United States Constitution. Third, he alleged that the prosecuting assistant district attorney should have recused himself from Vandergriff's case, because, prior to entry into the state's employ, he had been appointed to represent Vandergriff at his initial appearance. The trial court found that Vandergriff entered his plea in a knowing and intelligent manner, that he did not prove that he had been denied effective assistance of counsel, and that the prosecutor did not receive any confidential information from Vandergriff.

STANDARD OF REVIEW

¶ 4. Our standard of review on a denial of a motion for post-conviction relief is well-established. We will not reverse the trial court unless we find that the court's decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶ 3) (Miss.Ct.App.2002).

ANALYSIS

¶ 5. Vandergriff argues the same issues in this Court as he raised at the trial court level. We address each in turn.

I. Whether Vandergriff's plea was entered in a knowing and intelligent manner

¶ 6. Vandergriff contends that his guilty plea was not entered in a knowing and voluntary manner, and that he should therefore be allowed to withdraw his plea. He cites only case law which regards withdrawal of guilty pleas. The State responds that the record shows that Vandergriff entered his plea in a knowing and voluntary manner. The trial court found *490 that Vandergriff's answers at the plea hearing evidenced that he had entered his plea knowingly and voluntarily.

¶ 7. "The standard of review pertaining to voluntariness of guilty pleas is well settled: `this court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous.'" Roby v. State, 861 So.2d 368, 369(¶ 4) (Miss.Ct.App.2003) (quoting Weatherspoon v. State, 736 So.2d 419, 421(¶ 5) (Miss.Ct.App.1999)). The defendant must prove by a preponderance of the evidence that his guilty plea was made involuntarily. Id. "A plea is considered `voluntary and intelligent' if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea." Id. (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). We accord great weight to statements made by the defendant under oath and in open court. Id. (citing Gable v. State, 748 So.2d 703, 706(¶ 11) (Miss.1999)).

¶ 8. In the instant case, Vandergriff entered an open plea of guilty to the charge of armed robbery. Our review of the record shows that Vandergriff, at his plea hearing, was asked whether his plea was "free and voluntary;" whether anyone "made any threats or promises" to him; whether he was aware of the rights he was giving up by pleading guilty, including the right to a jury trial; whether he understood the charges brought against him; whether he understood the minimum and maximum sentence which could be imposed for the charge of armed robbery; whether he was "satisfied with the legal services and advice of his attorney"; whether he believed that his attorney had properly advised him before entering his plea; and whether he believed that his attorney properly represented his best interest. Vandergriff, in open court, responded that his plea was free and voluntary, that no one had made threats or promises to him regarding his plea, that he was aware of the rights he was waiving, that he understood the charges against him, that he understood the minimum and maximum sentence of the charge to which he pled, and that he was satisfied with the legal advice and services of his attorney. Based on these responses, we find that Vandergriff entered his plea knowingly and voluntarily.

¶ 9. Vandergriff relies on United States v. Carr, 740 F.2d 339 (5th Cir.1984) for the proposition that he should be allowed to withdraw his voluntary guilty plea. His reliance is misplaced for two reasons. First, Carr deals with the former version of Federal Rule of Criminal Procedure 32(d), which granted courts the discretion to allow the withdrawal of a guilty plea by a defendant "upon a showing by the defendant of any fair and just reason." Fed. R.Crim.P. 32(d) (1944) (amended 1987). We have no comparable rule to the former Federal Rule of Criminal Procedure 32(d) in our state law, and thus the decision in Carr is completely inapplicable to the case before us. Second, in Carr,

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Bluebook (online)
920 So. 2d 486, 2006 WL 120049, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vandergriff-v-state-missctapp-2006.