Washington v. State

192 So. 3d 368, 2016 WL 2638107, 2016 Miss. App. LEXIS 283
CourtCourt of Appeals of Mississippi
DecidedMay 10, 2016
DocketNo. 2013-CP-01442-COA
StatusPublished
Cited by1 cases

This text of 192 So. 3d 368 (Washington 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
Washington v. State, 192 So. 3d 368, 2016 WL 2638107, 2016 Miss. App. LEXIS 283 (Mich. Ct. App. 2016).

Opinion

GRIFFIS, P.J.,

for the Court:

¶ 1. Anthony Washington pleaded guilty to possession of cocaine with intent to sell. Washington filed a petition for post-conviction collateral relief (PCCR), which the trial court dismissed. Washington appeals. This Court finds no error and affirms.

FACTS AND PROCEDURAL HISTORY

¶2. On March 26, 2011, Officer Mark Morgan observed a pickup truck driving recklessly on Highway 18 in Jackson, Mississippi. Officer Morgan pulled the truck over and the driver, Washington, immediately got out and walked toward Officer Morgan’s vehicle. Officer Morgan smelled alcohol on Washington’s breath and conducted a pat-down, which revealed a bag of marijuana in Washington’s pocket. After arresting Washington, Officer Morgan conducted a search of the truck and discovered a crack pipe and a large quantity of white powder, later confirmed to be 61.7 grams of cocaine.

¶ 3. A grand jury indicted Washington for possession of cocaine with intent to sell and as a subsequent and a habitual offend[370]*370er. On October 8, 2011, Washington entered his guilty plea before the trial judge and received a sentence of fifteen years, with eight years to serve, seven years suspended, and five years of post-release supervision. The plea also dropped all enhancements as a subsequent or habitual offender.

¶ 4. On May 24, 2013, Washington filed a PCCR petition that requested the trial court find he received ineffective assistance of counsel and set aside his guilty plea. Washington claimed his public defender misinformed him about his eligibility for trustee status, which induced him to involuntarily plead guilty. The trial court appointed counsel to inform Washington of the consequences of revoking his guilty plea. ' '

¶5. Thereafter, Washington^ with counsel’s assistance, filed an amended PCCR petition that requested the trial court re-sentence Washington for possession of cocaine rather than possession with intent to sell, which would allow Washington to apply for trustee status. On March 19, 2014, the trial court dismissed Washington’s PCCR petition stating the court lacked jurisdiction to modify Washington’s sentence. Washington now appeals.

STANDARD OF REVIEW

¶6. “We will not reverse a trial court’s dismissal of a PCCR [petition] unless the trial court’s -decision was clearly erroneous.” Barker v. State, 126 So.3d 135, 136 (¶ 5) (Miss.Ct.App.2013) (citing Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011)). “When reviewing questions of law,--this Court’s standard of review is de novo.” Id, (citation omitted).

¶ 7. Further, “[t]his Court reviews the terms of a sentence under an abuse of discretion 'standard.” Johnson v. State, 80 So.3d 136, 138 (¶ 6) (Miss.Ct.App.2012) (citation omitted). “Therefore, ‘unless the sentence is grossly disproportionate or not within the statutory limits, we -will not disturb the sentence on appeal.’ ” Id. (quoting Owens v. State, 17 So.3d 628, 632 (¶ 8) (Miss.Ct.App.2009)).

ANALYSIS

¶ 8. Washington asserts On appeal that: (1) the trial court had jurisdiction to resen-tence him to remove the “intent to sell” portion of sentence, and (2) he received ineffective assistance of counsel.

I. The trial court did not err in refusing' to amend Washington’s sentence.

¶ 9. Washington initially requested the trial court vacate his guilty plea. The trial court appointed counsel, and Washington subsequently amended his PCCR petition to request a sentence modification to remove the “intent to sell” element, of his conviction. The trial court denied his request, citing a lack of authority to modify the sentence. This Court agrees.

¶ 10. Mississippi Code Annotated section 47-7-33(1) (Rev.2015) states, in part, that a trial court “shall have the power, after conviction or a plea of guilty, ... to suspend the imposition or execution of [a] sentence, .,. except that the court shall not suspend the execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.” Washington’s sentence commenced on October 3, 2011, when he entered his guilty plea and received his sentence. Washington then filed his PCCR petition on May 24, 2013, approximately one year and seven months after the start of his sentence. Therefore, the trial court lacked the jurisdiction to modify Washington’s sentence.

11. Additionally, “[a] .-sentence that does not exceed the maximum period allowed by statute will not be disturbed on [371]*371appeal.” Johnson, 80 So.3d at 139 (¶ 9) (quoting Brown v. State, 875 So.2d 214, 221 (¶ 35) (Miss.Ct.App.2003)). “The imposition of a sentence is within the discretion of the trial court, and appellate courts will not review the sentence, if it is within the limits prescribed by statute.” Id. at 139-40 (¶ 9). Washington was convicted under Mississippi Code Annotated section 41 — 29—139(b)(1) (Rev.2013), which provided a maximum sentence of thirty years. The trial court sentenced Washington to a total sentence of fifteen years, well within the statutory prescription.

¶ 12. Further, this Court cannot simply modify Washington’s sentence to remove the intent language. In Johnson, the petitioner asked the trial court to remove the habitual language from her1 sentence to allow her to apply for early release.' Johnson, 80 So.3d at 137 (¶'2). The trial court, and subsequently this Court, denied Johnson’s requested relief, finding no basis to grant a modification. Id. at 139 (¡¶ 8), As with Johnson, this Court finds no basis to amend the language. Therefore, this issue is without merit.

II. Washington did not receive ineffective assistance of counsel.

.¶ 13. As a second assignment of error, Washington contends he received ineffective assistance of counsel when he relied on counsel’s promises that he would qualify for trustee time, which would- reduce the amount of time he served. Washington claims that but for his counsel’s promise, he would have gone to trial and put on evidence that he merely possessed the cocaine rather than possessed with intent to sell.

¶ 14. To support .an ineffective-assistance-of-eounsel claim, Washington must show: (1) his. counsel’s performance was deficient and. (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, “there is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance.” Hooghe v. State, 138 So.3d 240, 247 (¶ 31) (Miss.Ct.App.2014) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052).

¶ Í5. The trial court did not directly address the ineffective-assistance-of-counsel issue presented in Washington’s PCCR petition. The trial court stated in -the order that it would have set aside Washington’s guilty plea as discussed in a hearing. However, the trial court did not provide a reason for considering setting aside the guilty plea, and the hearing alluded to in the order does npt appear in the record. But the order dismissed the amended petition in' its entirety. Therefore, this Court addresses Washington’s ineffective-assistance claim.

¶ 16.

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192 So. 3d 368, 2016 WL 2638107, 2016 Miss. App. LEXIS 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/washington-v-state-missctapp-2016.