Willcutt v. State

910 So. 2d 1189, 2005 WL 2140796
CourtCourt of Appeals of Mississippi
DecidedSeptember 6, 2005
Docket2004-CP-00666-COA
StatusPublished
Cited by3 cases

This text of 910 So. 2d 1189 (Willcutt 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
Willcutt v. State, 910 So. 2d 1189, 2005 WL 2140796 (Mich. Ct. App. 2005).

Opinion

910 So.2d 1189 (2005)

James WILLCUTT, Appellant
v.
STATE of Mississippi, Appellee.

No. 2004-CP-00666-COA.

Court of Appeals of Mississippi.

September 6, 2005.

*1190 James Willcutt, pro se.

Office of the Attorney General by Jean Smith Vaughan.

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

IRVING, J., for the Court.

¶ 1. On August 5, 2002, James Willcutt pleaded guilty to possession of precursor chemicals and was sentenced to fifteen years with eight years suspended and seven years to serve in the custody of the Mississippi Department of Corrections. On April 28, 2003, Willcutt filed a motion to vacate judgment and sentence, alleging (1) ineffective assistance of counsel, (2) involuntary guilty plea, and (3) lack of authority by the trial court to suspend a portion of his sentence.

¶ 2. On March 8, 2004, the trial judge held a hearing on Willcutt's motion to vacate judgment. The record reflects the following proceedings occurred in the presence of Willcutt, his trial counsel, and a representative from the Coahoma County District Attorney's office:

BY THE COURT: I see we have Defendant's Motion to Vacate Judgment and Sentence, filed in the above and numbered cause.
The DA's office is also represented. As I understand it, we need to vacate this judgment and issue another order? Is that right, Larry?
BY MR. BAKER: That's the State's understanding, yes, sir.
BY THE COURT: All right, we've got—the Court having previously accepted the defendant's guilty plea, will *1191 amend the sentencing order charging defendant, at the time, with possession of precursor chemicals. So the defendant— in essence, as we understand it, there was a—we gave the defendant fifteen years and we suspended eight, for him to serve seven, with five on post—release supervision, when what we should have done—
The defendant shall serve seven years in an institution under the direction and control of the Department of Corrections.
You will have eight years to do on post-release supervision.
All of the conditions of the previous order of this Court are in full force and effect.
Is there anything further?
(Defendant conferring with Mr. Tisdell)
BY THE COURT: From the State?
BY MR. BAKER: No, Your Honor.
BY THE DEFENDANT: Your Honor, I'm here on the inefficiency assistance of counsel [sic].
BY THE COURT: No. You're here on a Motion to Vacate Judgment.
BY THE DEFENDANT: As you will see in my motion, that I clearly stated that I had improper counsel.
(Court confers with Mr. Behrens.)
BY THE COURT: Okay. The Court has already ruled that your argument with regard to ineffective assistance of counsel is not meritorious. So, I've already ruled on that.
BY THE DEFENDANT: Well, I didn't know, Your Honor. I didn't—I didn't have a copy saying that you didn't [sic] rule on it.
BY THE COURT: No. That will be the order of the Court.
So, we'll get—we'll have another—
BY THE DEFENDANT: I really don't understand what's going on. I really don't.
BY THE COURT: Well, what had— what happened here is that I had given you fifteen years, and suspended eight. Okay, but you were to [sic] subject to serve seven. That was the intent. But since you had a previous felony on your record, I cannot do that. I can't suspend— you know, I would have to say what you've got to serve and then what you—the other time, instead of probation, it would be post-release supervision. So, you'll—we're doing—so, I'm just re-wording it for it to be legally correct.
BY THE DEFENDANT: Yeah, that was one of the facts that I brought up in my motion.
BY THE COURT: And that was—
BY THE DEFENDANT: That was one of the facts.
BY THE COURT: That was a valid fact, and that was one that the Court felt was meritorious.
BY THE DEFENDANT: But my main issue was I was cohorced [sic] to take this plea.
BY THE COURT: That issue was already ruled on by the Court. That's not before me right now.
Thank you. We're in recess with regard to your plea [sic].

¶ 3. The amended order, which was entered on the same day of the hearing, did not mirror the sentence announced by the circuit judge during the hearing. The pertinent part of the order reads:

The Court having this matter set today for a re-hearing of the sentence will amend the previous sentence of this Court as follows:
*1192 Therefore, for said offense and on said plea of guilty, it is by the Court ORDERED AND ADJUDGED that said JAMES WILLCUTT is guilty of the crime of POSSESSION OF PRECURSOR CHEMICAL[S]. And being duly advised of all his/her legal and constitution rights that he/she be and he/she is hereby sentenced to serve a term of FIFTEEN (15) YEARS in an institution under the supervision and control of the Mississippi Department of Corrections, and he/she shall continue to remain in the custody of the Mississippi Department of Corrections.
The Defendant shall serve EIGHT (8) YEARS years [sic] on post-release supervision under the supervision and control of the Mississippi Department of Corrections. Said EIGHT-YEAR sentence shall commence after Defendant has served SEVEN (7) in an institution under the supervision and control of the Mississippi Department of Corrections.

¶ 4. As can be observed from the transcript of the proceedings, the circuit judge did not rule on Willcutt's ineffective assistance of counsel claim, finding instead that he had previously ruled on this claim.[1]

¶ 5. Aggrieved, Willcutt appeals to this court, asserting the following issues which we recite verbatim: (1) Appellant did suffer ineffective assistance of counsel when counsel used threats and coercion to make the Appellant enter a plea of guilty to something that the Appellant was not guilty of; (2) Appellant's plea of guilty was not voluntary and knowingly given in that the trial court failed to fulfill the requirements of Rule 8.04 before accepting the plea; (3) the trial court sentenced the petitioner illegally pursuant to Miss.Code Ann. § 47-7-33 and because of this the Appellant's guilty plea should be vacated and his plea of not guilty should be reinstated; and (4) the trial judge failed to allow the Appellant the right to present evidence in support of the issues that the appellant alleged in his post-conviction relief motion pursuant to Mississippi Code Annotated § 99-39-23(4)(7).

STANDARD OF REVIEW

¶ 6. Our standard of review of a trial court's denial of post-conviction relief is well-settled. "When reviewing a lower court's decision to deny a petition for 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 Mississippi v. Southern Mem'l Park, Inc. 677 So.2d 186, 191 (Miss.1996)).

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Bluebook (online)
910 So. 2d 1189, 2005 WL 2140796, Counsel Stack Legal Research, https://law.counselstack.com/opinion/willcutt-v-state-missctapp-2005.