Watts v. State

981 So. 2d 1034, 2008 WL 1869351
Court of Appeals of Mississippi·Decided April 29, 2008·No. 2007-CP-00291-COA·Published·Cited by 15 cases

Opinion

981 So.2d 1034 (2008)

Jamar WATTS, Appellant
v.
STATE of Mississippi, Appellee.

No. 2007-CP-00291-COA.

Court of Appeals of Mississippi.

April 29, 2008.

*1036 Jamar Watts, Appellant, pro se.

Office of the Attorney General by W. Glenn Watts, attorney for appellee.

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

CHANDLER, J., for the Court.

¶ 1. Jamar Watts pleaded guilty to murder in the Circuit Court of Copiah County. Subsequently, Watts filed a pro se motion for post-conviction relief (PCR). The circuit court denied the PCR without an evidentiary hearing. Watts appeals, arguing: (1) that he was entitled to appointed counsel for this appeal, (2) that his guilty plea was involuntary, (3) that he received ineffective assistance of counsel, and (4) that his indictment was fatally defective. He also avers that he is entitled to an evidentiary hearing, so he may further develop his claims.

¶ 2. Finding no error, this Court affirms.

FACTS

¶ 3. Watts and other individuals were indicted by a Copiah County grand jury pursuant to Mississippi Code Annotated section 97-3-19(2)(d) for killing Cordell Johnson after being offered or receiving valuable consideration for committing the murder. At a January 9, 2006, hearing, Watts pleaded guilty to the lesser crime of murder. Before the circuit court, Watts admitted that he had conspired with Serihel Belton, Kenny Davis, Tina Harris, and Fred Shannon to murder Johnson. Johnson was believed to be a confidential informant against Davis. Watts admitted that he had shot and killed Johnson at the direction of Davis, so Johnson would not be available to testify against Davis. Davis paid Watts $1,400 to carry out the murder. After ascertaining that Watts's guilty plea was voluntary, the circuit court accepted the plea.

¶ 4. Watts timely filed a PCR seeking to withdraw the plea. Watts's primary argument was that the assistant district attorney and his defense counsel had promised him a sentence of twenty years in exchange for his guilty plea. The circuit court found that Watts's PCR did not demonstrate an involuntary plea or ineffective assistance of counsel. The circuit court denied the PCR.

STANDARD OF REVIEW

¶ 5. "When reviewing a lower court's decision to deny a petition for *1037 post[-]conviction relief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous. However, where questions of law are raised the applicable standard of review is de novo." Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999) (citing Bank of Miss. v. S. Mem'l Park, Inc., 677 So.2d 186, 191 (Miss.1996)).

LAW AND ANALYSIS

I. WHETHER WATTS WAS ENTITLED TO COUNSEL FOR THIS APPEAL FROM THE DENIAL OF HIS PCR.

¶ 6. After the circuit court denied his PCR, Watts filed a notice of appeal and motions to proceed as an indigent and for appointment of appellate counsel. The circuit court allowed Watts to proceed as an indigent, but the court denied the motion for appointed appellate counsel because "a criminal defendant has neither a state nor a federal constitutional right to appointed counsel in post-conviction proceedings." Watts argues that he is entitled to appointed counsel because an appeal from the denial of a PCR is not a post-conviction proceeding. Contrary to Watts's argument, an appeal from a final judgment denying post-conviction relief is provided for by the Mississippi Uniform Post-Conviction Collateral Relief Act, and there is no right to appointed counsel. Miss.Code Ann. § 99-39-25(1) (Rev.2007); Moore v. State, 587 So.2d 1193, 1195 (Miss.1991). This issue is without merit.

II. WHETHER WATTS'S GUILTY PLEA WAS INVOLUNTARY.

¶ 7. According to constitutional standards, a plea is considered voluntarily and intelligently given if the defendant is "advised about the nature of the charge and the consequences of the entry of the plea." Brown v. State, 935 So.2d 1122, 1125(¶ 7) (Miss.Ct.App.2006) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss. 1992)). Also, the defendant must be informed that a guilty plea waives the right to a trial by a jury, the right to confront adverse witnesses, and the right to protection against self-incrimination. Alexander, 605 So.2d at 1172. Moreover, a plea is considered involuntary if it was "induced by fear, violence, deception, or other improper inducements." Fielder v. State, 749 So.2d 1248, 1250(11) (Miss.Ct.App. 1999) (quoting Smith v. State, 636 So.2d 1220, 1225 (Miss.1994)). The defendant has the burden of proving by a preponderance of the evidence that a guilty plea was involuntary. Miss.Code Ann. § 99-39-23(7) (Rev.2007); Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001).

¶ 8. A claim that the defendant pleaded guilty after being misadvised implicates the voluntariness of the plea because it indicates the defendant may not have fully understood the consequences of the plea. Readus v. State, 837 So.2d 209, 212(9) (Miss.Ct.App.2003). Watts contends that he pleaded guilty because of a promise from the assistant district attorney that if he cooperated with the prosecution, he would get twenty years.[1] He avers that his attorney instructed him to lie at the plea hearing when questioned by the judge. Watts attached the affidavit of his co-defendent, Belton, which stated: "I, Seriehl Belton an[d] Jamar Watts was offered an[d] promised 20 years by [the assistant district attorney] for our cooperation for the capital murder case that we were arrested for." Watts contends that, if he had known the circuit court would sentence him to life imprisonment rather *1038 than to twenty years, he would not have pleaded guilty, but would have gone to trial.

¶ 9. "[W]here an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required." Wright v. State, 577 So.2d 387, 390 (Miss. 1991). Watts's contention that he pleaded guilty in reliance on a promise of a twenty-year sentence is belied by the transcript of the plea hearing and by his petition to enter a plea of guilty to murder. On the day of the plea hearing, Watts filed a sworn petition to enter a plea of guilty in which he stated that he was pleading guilty to murder and acknowledged that the punishment for murder was life imprisonment and a $10,000 fine. At the plea hearing, the circuit court properly informed Watts of the constitutional rights he waived by pleading guilty. Then, the circuit court inquired into the voluntariness of the plea by asking Watts if anyone had threatened him, promised him anything, or intimidated him to compel his guilty plea. Watts responded, "no, sir." Watts stated that it was his decision to plead guilty. Later, the following occurred:

The Court: Do you understand that this offense carries life in the penitentiary? That's the only option for the judge. Do you understand that?
[Watts]: Yes, sir.
The Court: And there's no — no one can assure you

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