Wallace v. State

982 So. 2d 1027, 2008 WL 2169685
CourtCourt of Appeals of Mississippi
DecidedMay 27, 2008
Docket2007-CP-00766-COA
StatusPublished
Cited by1 cases

This text of 982 So. 2d 1027 (Wallace 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
Wallace v. State, 982 So. 2d 1027, 2008 WL 2169685 (Mich. Ct. App. 2008).

Opinion

982 So.2d 1027 (2008)

John Paul WALLACE, Appellant
v.
STATE of Mississippi, Appellee.

No. 2007-CP-00766-COA.

Court of Appeals of Mississippi.

May 27, 2008.

*1028 John Paul Wallace, appellant, pro se.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before LEE, P.J., IRVING and ROBERTS, JJ.

ROBERTS, J., for the Court.

¶ 1. John Paul Wallace pled guilty to two counts of exploitation of a child. The Harrison County Circuit Court sentenced Wallace to two concurrent ten-year sentences with ten years suspended and five years probation. Wallace tested positive for marijuana, but the circuit court did not revoke Wallace's probation. After Wallace tested positive for marijuana again, the circuit court revoked Wallace's probation and reinstated Wallace's two previously-suspended concurrent ten-year sentences.

¶ 2. Wallace filed a petition for post-conviction collateral relief and claimed he had ineffective assistance of counsel at his probation revocation hearing. The circuit court ordered the State to respond to Wallace's petition, and the State argued that Wallace's petition had no merit. The circuit court agreed and denied Wallace's petition. Aggrieved, Wallace appeals and argues that he had ineffective assistance of counsel at his probation revocation hearing. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3. In October 1998, the Harrison County grand jury returned an indictment against Wallace and charged him with four counts of child exploitation involving receipt of "visual depictions of children under the age of eighteen years engaging in sexually explicit conduct" pursuant to Mississippi Code Annotated section 97-5-33(3) *1029 (Rev.1995). On February 25, 2002, Wallace pled guilty to two counts of child exploitation. The circuit court sentenced Wallace to two concurrent ten-year sentences with ten years suspended and five years probation.

¶ 4. On March 6, 2002, Wallace reported to his probation officer, Jimmy Shows. Shows gave Wallace a drug test. Wallace's urine tested positive for marijuana, and Shows filed a petition to revoke Wallace's probation. On April 8, 2002, the circuit court conducted Wallace's first probation revocation hearing. Wallace claimed his urine tested positive for marijuana because he had smoked marijuana just before he was sentenced on February 25, 2002. He admitted that he lied when he told the circuit court he was not under the influence of drugs during his guilty plea and sentencing hearing. The circuit court decided not to revoke Wallace's probation. The circuit court fined Wallace $500 and warned him not to let it happen again.

¶ 5. On May 1, 2002, less than one month after the first probation revocation hearing, Wallace tested positive for marijuana for the second time. Shows again filed a petition to revoke Wallace's probation. Wallace retained attorney Kelly McKoin.

¶ 6. On June 10, 2002, McKoin filed a motion to have Wallace's second urine sample analyzed by an independent laboratory of Wallace's choice. McKoin also requested that Wallace undergo a third drug test. The circuit court granted Wallace's motions and held all matters in abeyance until the test results were available.

¶ 7. Ten days later, Wallace produced the third urine sample. Wallace's second and third urine samples were sent to Dynacare Laboratories in Montgomery, Alabama. According to Dynacare, Wallace's second urine sample was positive for marijuana, though his third urine sample was negative for marijuana.

¶ 8. On June 28, 2002, the circuit court conducted a second probation revocation hearing. Wallace's petition for post-conviction relief and this appeal stem from McKoin's representation during the second probation revocation hearing.

¶ 9. To summarize Wallace's position during that hearing, Wallace submitted that he had marijuana in his system simply because it had yet to work its way out of his system. Wallace claimed he last smoked marijuana before he was sentenced on February 25, 2002. Wallace further claimed that, prior to that time, he smoked a relatively large amount of marijuana on a daily basis. According to Wallace, his second positive drug test was the result of the manner in which the second urine sample was tested.

¶ 10. Testimony during the probation revocation hearing set forth that Wallace's first and second urine tests were conducted by way of the "Enzyme-Multiplied Immunoassay Technique (EMIT)." The EMIT method does not return a result that indicates a specific level of the active chemical in marijuana-tetrahydrocannabinol (THC). Instead, the EMIT test returns a positive or negative result based on specific "flag" levels of THC. That is, if one has a certain level of THC in one's system that is above the flag level, the result of the EMIT returns a positive result. The EMIT test does not, however, detail exactly how much THC one has in his or her system.

¶ 11. Dynacare, however, tested Wallace's second and third urine samples by gas chromatography mass spectrometer (GCMS). The GCMS test returned a specific result that indicated exactly how many nanograms of THC were in Wallace's system. According to Wallace, if he had been tested by GCMS, it would have *1030 been clear that his THC levels were decreasing and that the marijuana in his system-due to his previous heavy use — was still making its way out of his system.

¶ 12. Harold Stanley, a "drug assay technician" employed by the Mississippi Department of Corrections, testified as the State's expert on drug testing. Stanley's testimony cast doubt on Wallace's explanation for the continued presence of marijuana in his system. Stanley testified that THC remained in one's system on average for twenty-one days, "depending on metabolism, body weight, fat content, things like that." Stanley later repeated, "a heavy smoker, five joints a day, quits today, 21 days later it should be down at zero levels or below cutoff based on the individual's exercise, body fat, and metabolism." Stanley also testified that marijuana would be out of a heavy smoker's system between twenty-one and thirty days.

¶ 13. Wallace testified that he smoked an ounce of marijuana a day until the date he was sentenced. On cross-examination, the State elicited testimony that suggested Wallace avoided being drug tested after his first probation revocation hearing on April 8, 2002. Wallace admitted that after his first probation revocation hearing, he was released from custody and ordered to report directly to Shows. Wallace further admitted that he did not report to Shows until May 1, 2002.

¶ 14. Wallace had an explanation for his failure to report as ordered. According to Wallace, he tried to contact Shows on April 8, 2002. Wallace claimed Shows was not in his office. Wallace further explained that he consistently tried to contact Shows, but he could not successfully contact him. According to Wallace, "[Shows] was not in his office. I called once a day to his office and he was never in his office. I went by there once, and the little assistant said he was out."

¶ 15. The State also cross-examined Wallace regarding an appointment with Shows that took place on June 3, 2002. The State asked Wallace whether he refused to take a drug test on that date. Wallace denied that he refused to take a drug test. According to Wallace, "[he] told [Shows] [he] would take another urine test on June 3rd, but [Shows] would not give [him] one."

¶ 16. Shows disputed much of Wallace's testimony. Shows testified that Wallace did not tell him that he was a heavy smoker.

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Bluebook (online)
982 So. 2d 1027, 2008 WL 2169685, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-state-missctapp-2008.