author: MYERS, J., IRVING, J.,

text:
    Hal Eugene PALMER, Appellant v. Sara Goodwin PALMER, Appellee.
    No. 2001-CA-01950-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      Rex F. Sanderson, Houston, for appellant.
    Gary L. Carnathan, Amory, for appellee.
    Before SOUTHWICK, P.J., BRIDGES and MYERS, JJ.
   MYERS, J.,

FOR THE COURT:

¶ 1. The chancellor granted Sara Palmer a divorce from her husband based on the ground of adultery. The chancellor awarded periodic alimony and divided the marital assets. The husband appeals asserting:

1. THE TRIAL COURT ERRED BY AWARDING ALIMONY TO THE WIFE OR IN THE ALTERNATIVE, IN AWARDING ALIMONY IN AN AMOUNT THAT WAS MORE THAN THE HUSBAND CAN PAY;

2. THE TRIAL COURT ERRED BY NOT CONSIDERING THE VALUE OF THE WIFE’S SEPARATE ESTATE NOR DID IT CONSIDER THE MARITAL DEBT WHEN DIVIDING THE MARITAL PROPERTY.

STATEMENT OF THE FACTS

¶ 2. Sara Goodwin Palmer and Hal Eugene Palmer were married on December 26, 1964. Their relationship resulted in two children, both of whom had reached the age of majority prior to the trial court proceeding.

¶3. The two lived together until Sara left their marital home on June 11, 2000. They have not cohabited since that date. Sara filed her complaint seeking an irreconcilable differences divorce on August 10. They filed a stipulation to the irreconcilable difference divorce on October 24. On January 17, 2001, Sara filed a motion that sought to withdraw the consent divorce and sought a divorce based on adultery. The motion was granted January 22.

¶ 4. A hearing was held and on September 6, 2001, the trial court issued its opinion. Gene submitted a motion seeking a new trial and on November 28, the trial court issued an amended judgment. The amended judgment was filed the next day. It granted Sara:

1. A divorce based on the ground of adultery;
2. The marital home valued between $62,000 and $86,270, including all furniture and appliances;
3. The 1994 Buick valued between $3,500 and $7,000;
4. Fifty percent of Gene’s 401(k), total which was valued at $78,210.22 resulting in Sara receiving $39,105.11;
5. Her entire 401(k), which was valued at $3,000;
6. A $5,000 certificate of deposit;
7. $80,000 life insurance policy on Gene naming her as beneficiary; and
8. Periodic alimony of $600 per month.

¶ 5. Gene was awarded:

1. A house and lot purchased after their separation with marital funds valued at about $30,000 and insured for $40,000.00;
2. A lawnmower worth $3,000;
3. The guns valued at $600;
4 $400 in a savings account;
5. Bonds, valued at less than $2,000 at the time of the hearing but listed as being worth $6,500 at the time of the completion of the 8.05 statement;
6. Fifty percent of his 401(k), total which was valued at $78,210.22 resulting in Gene receiving $39,105.11; and
7. His Goodyear pension plan valued at $50, 496.03 which Gene will draw at age 65.

¶ 6. Gene was fifty-nine years old at the time of the hearing. Gene is in deteriorating health. Gene has arthritis in his knees, back, and shoulders. He has had a hernia repaired, has been scheduled for gall bladder surgery, and has a growth on his kidney.

¶ 7. Gene never completed high school but had managed to provide a comfortable lifestyle through positions at a Western Auto store and his current employment as a tire salesman for Goodyear. He has worked for Goodyear for the last fifteen years. His approximate net income is $1,950 per month, which includes $409 withheld as part of his 401(k) and $466 withheld as payment on a loan used to purchase his new residence. Gene’s actual base salary without commission is $1,620.

¶ 8. Gene’s expenses are $1,182.90 per month not including the $466 per month withdrawal from his salary. His liabilities totaled $38,900.

¶ 9. Sara was fifty-five years old at the time of the hearing. She is in fairly good health, although she suffers from high blood pressure and a thyroid condition.

¶ 10. Sara is a high school graduate and works at the Chickasaw County Farm Bureau as a secretary and receptionist. Sara nets approximately $800 per month, which does not include her $111.66 monthly 401(k) contribution. Her monthly expenses totaled $1,241. This does not include what she will have to pay for medical insurance once she loses coverage through Goodyear. Sara has no liabilities. Sara also has an undivided one-half remainder interest in 116 acres of land. Her aunt has a life estate in the land.

LEGAL ANALYSIS

¶ 11. All of the issues raised by Gene involve the same standard of review. It must be reasonably certain to this Court that the chancellor abused his discretion, was manifestly wrong, was clearly erroneous or applied an erroneous legal standard to render a reversal. Barton v. Barton, 790 So.2d 169, 175(¶ 17) (Miss.2001); Duncan v. Duncan, 774 So.2d 418, 419(¶ 4) (Miss.2000).

1. DID THE TRIAL COURT ERR BY AWARDING ALIMONY TO THE WIFE OR IN THE ALTERNATIVE, IN AWARDING ALIMONY IN AN AMOUNT THAT WAS MORE THAN THE HUSBAND CAN PAY?

¶ 12. The guidelines to be used in determining if alimony is appropriate in a particular case were established in Armstrong v. Armstrong, 618 So.2d 1278 (Miss.1993). The factors are:

(1) The income and expenses of the parties;
(2) The health and earning capacities of the parties;
(3) The needs of each party;
(4) The obligations and assets of each party;
(5) The length of the marriage;
(6) The presence or absence of minor children in the home;
(7) The age of the parties;
(8) The standard of living of the parties, both during the marriage and at the time of the support determination;
(9) The tax consequences of the spousal support order;
(10) Fault or misconduct;
(11) Wasteful dissipation of assets by either party; or
(12) Any other factor deemed just and equitable.

Id. at 1280. Unlike property division, an on-the-record analysis of the Armstrong factors is not necessary. Thompson v. Thompson, 816 So.2d 417, 420(¶ 9) (Miss.Ct.App.2002).

¶ 13. Gene first argues that alimony should not be awarded because after the division of marital assets, Sara had no deficit. Equitable distribution is primarily used to attempt a severance of the relationship so that both can begin separate lives. Ferguson v. Ferguson, 639 So.2d 921, 929 (Miss.1994). Alimony should only be awarded if a spouse would be left with a deficit. Johnson v. Johnson, 650 So.2d 1281, 1287 (Miss.1994).

¶ 14. A review of the chancellor’s judgment and the record reveals that Sara’s expenses each month outpace her income by several hundred dollars. Additionally, Sara will have to obtain medical insurance now that she will not be covered by Gene’s company policy. The quote presented by her testimony from the company she worked for was almost three hundred dollars. Gene argues that Sara could sell the assets she was awarded, move into a more practical and economical living arrangement, and then invest the money to cover the difference between her income and expenses. This is curious since Gene also argues that the division of the property was erroneous. An alimony award was proper.

¶ 15. Gene’s next argument is that the alimony was unduly burdensome. It is trae that alimony should not be used to make one spouse destitute while the other fives in comfort. Hemsley v. Hemsley, 639 So.2d 909, 914 (Miss.1994). A review of the record reflects that Gene is not able to pay alimony because of his new girlfriend, the woman with whom he committed adultery. The woman testified that she pays for nothing, while Gene pays all the bills. We will not allow a person to persuade us that he or she can not afford alimony payments because he or she wishes to spend that money on other relationships.

¶ 16. Although the chancellor did not go through the Armstrong factors one by one, it is apparent that the chancellor considered all the factors by the in-depth recitation of facts provided in the judgment. We cannot say that the chancellor abused his discretion, was manifestly wrong, clearly erroneous, or applied an erroneous legal standard.

2. DID THE TRIAL COURT ERR BY NOT CONSIDERING THE VALUE OF THE WIFE’S SEPARATE ESTATE OR THE MARITAL DEBT WHEN DIVIDING THE MARITAL PROPERTY?

¶ 17. The Mississippi Supreme Court has stated eight factors a chancellor should consider when equitably dividing marital property:

(1) Substantial contribution to the accumulation of the property. Factors to be considered in determining contribution are as follows:
a. Direct or indirect economic contribution to the acquisition of the property;
b. Contribution to the stability and harmony of the marital and family relationships as measured by quality, quantity of time spent on family duties and duration of the marriage; and
c. Contribution to the education, training or other accomplishment bearing on the earning power of the spouse accumulating the assets.
(2) The degree to which each spouse has expended, withdrawn or otherwise disposed of marital assets and any prior distribution of such assets by agreement, decree or otherwise.
(3) The market value and the emotional value of the assets subject to distribution.
(4) The value of assets not ordinarily, absent equitable factors to the contrary, subject to such distribution, such as property brought to the marriage by the parties and property acquired by inheritance or inter vivos gift by or to an individual spouse;
(5) Tax and other economic consequences, and contractual or legal consequences to third parties, of the proposed distribution;
(6) The extent to which property division may, with equity to both parties, be utilized to eliminate periodic payments and other potential sources of future friction between the parties;
(7) The needs of the parties for financial security with due regard to the combination of assets, income and earning capacity; and,
(8) Any other factor which in equity should be considered.

Ferguson, 639 So.2d at 928. The chancellor need not consider all eight of the factors, but must consider all that are applicable to the property in question. Carrow v. Carrow, 741 So.2d 200, 202(¶ 10) (Miss.1999).

¶ 18. In order for this Court to make a meaningful review of the chancellor’s decision, the chancellor must “separately consider and make findings of fact as to each of the relevant Ferguson factors as a prelude to his actual determination.” Heigle v. Heigle, 771 So.2d 341, 346-47 (¶¶ 16, 17) (Miss.2000); Baker v. Baker, 807 So.2d 476, 479(¶ 12) (Miss.Ct.App.2001). The failure to make such findings is an abuse of discretion that requires reversal and remand. Heigle, 771 So.2d at 348(¶ 20); Baker, 807 So.2d at 479(¶ 12). The chancellor’s opinion and order in the instant case does include findings of fact as to the relevant Ferguson factors. The chancellor’s recitation of the facts prior to his discussion of the Ferguson factors was sufficient. Although it would have been helpful for chancellors to individually analyze each factor, providing a factual foundation is sufficient. We cannot say the chancellor abused his discretion, was manifestly wrong, was clearly erroneous, or applied an erroneous legal standard.

CONCLUSION

¶ 19. When a chancellor provides a recitation of facts in his judgment that covers most, if not all the Ferguson and Armstrong factors, no reversal is required. A chancellor is in the best position to hear the testimony and view the evidence. Gene has not proven that reversal is required.

¶ 20. THE JUDGMENT OF THE CHANCERY COURT OF CHICKASAW COUNTY IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, CHANDLER AND GRIFFIS, JJ., CONCUR. IRVING, J., DISSENTS WITH SEPARATE WRITTEN OPINION JOINED BY SOUTHWICK, P.J.

IRVING, J.,

DISSENTING:

¶ 21. The majority affirms the chancellor’s decision ordering Hal Eugene Palmer (Gene) to pay an amount of alimony which I believe, based on the record before us, is beyond his means to pay. Therefore, I respectfully dissent.

¶ 22. Gene argues in this appeal that the trial court erred in awarding alimony to his former wife, or in the alternative, erred in awarding an amount beyond his means to pay.

¶23. A perusal of the record reflects that Gene was given assets valued at $126,601,114 as his share of the marital estate while Sara was given assets valued at $142,605.11 as her share. Sara’s share included the marital domicile valued by an appraiser at $62,000, although the property was valued on the county’s tax rolls at $78,210. In arriving at the $142,605.11 figure, I included the lower value. Also, a 1994 Buick, valued between $3,500 and $7,000, was included in Sara’s share. As to this asset, I also used the lower value. In addition to her marital share of the estate, Sara has a separate estate consisting of a one half undivided interest in 116 acres of land in which another person owns a life estate.

¶ 24. Gene’s base salary is $1,620; with commissions, it is $1,950. His living expenses are $1,648.90. This figure includes the mortgage payment on the house where Gene lives but does not include monthly payments of (a) $100 on a VISA credit card, (2) $50 on a note owed to Goodyear, and (3) $20 on an indebtedness owed to Lowe’s. When these amounts are factored in, Gene’s monthly expenses total $1,818.90. When the $600 monthly alimony payment is added to Gene’s monthly expenses, his total monthly expenditures come to $2,418.90, a figure well above his $1,950 monthly income. Gene is paying $409 from his monthly income toward his 401(k) plan. When this figure is deducted from his monthly income, Gene has only $1,541.50 with which to pay obligations totaling $2,418.90.

¶ 25. Based on the facts presented in the preceding paragraphs, I cannot understand how the majority can justify affirming the trial judge’s award of $600 per month in alimony. Even if Gene stopped payments toward his 401 (k), plan he still would not have enough income to pay his monthly expenses and the $600 in alimony.

¶ 26. On the other hand, Sara has a monthly income of $911.66 and monthly expenses of $1,241. When the $600 alimony payment is added to Sara’s monthly income, she will have a total monthly income of $1,511.66, which figure is $270.66 more than her monthly expenses.

¶ 27. It appears that the majority’s only justification for affirming the trial judge stems from the fact that Gene has a live-in girlfriend who does not help Gene pay any of Gene’s expenses. The majority, without citing any authority, says: “We will not allow a person to persuade us that he or she cannot afford alimony payments because he or she wishes to spend that money on other relationships.”

¶ 28. I find no evidence in the record that Gene was spending any money on his live-in girlfriend. There is no evidence or suggestion that he was paying any of her bills. I know of no authority in this state which requires the girlfriend of a divorced man to help support the man in order to free up some of his income so that his former spouse might receive an award of alimony.

¶ 29. As previously observed, I know of no Mississippi authority which directly addresses the issue of whether the income of a live-in girlfriend may be considered in determining a divorcing spouse’s alimony obligation. However, I did find at least one case from another jurisdiction which, though not exactly on point, is nevertheless helpful.

¶ 30. In In re the Marriage of James J. Close and Mary E. Close, 478 N.W.2d 852 (Iowa Ct.App.1991), a former wife argued unsuccessfully in the trial court that the husband’s live-in girlfriend’s income should be considered in determining the husband’s child support obligation. Id. at 854. On appeal, the Iowa Court of Appeals held that “[t]he possible support available to the husband [was] not a consideration the district court must weigh in setting the child support award.” Id. at 855. The Iowa Court of Appeals further opined, “The trial court in this case was not persuaded that James girlfriend s income was a factor to be considered in fashioning the award and neither are we.” Id.

¶ 31. In our case, there is no evidence that Gene’s live-in girlfriend contributed to Gene’s household expenses. Had she done so voluntarily, I believe that the amount she contributed could have been considered by the trial judge in assessing the amount of alimony Gene should pay Sara, but that is not the case. Consequently, for the reasons presented, I dissent. I would reverse and remand to the trial court for further consideration of the alimony award in light of Gene’s ability to pay from Gene’s income.

SOUTHWICK, P.J., JOINS THIS SEPARATE OPINION.


source: Caselaw Access Project

author: LEE, J.,

license: Public Domain

text:
    Lorann COLEMAN, Appellant v. Christopher SMITH, Grand Casinos, Inc., BL Development Corporation, and Park Place Entertainment Corporation, Appellees.
    No. 2002-CA-00618-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      Lucius Edwards, Hernando, attorney for appellant.
    Sammye S. Tharp, John H. Dunbar, Oxford, Walter Alan Davis, Saltillo, attorneys for appellees.
    Before SOUTHWICK, P.J., LEE and MYERS, JJ.
   LEE, J.,

for the Court.

PROCEDURAL HISTORY AND FACTS

¶ 1. On March 16,1999, Lorann Coleman was arrested by security personnel at the Grand Casino in Tunica, Mississippi, her place of employment. Coleman was charged with embezzlement and, on June 21, 2000, she was exonerated in the Tunica County Justice Court. On June 20, 2001, Coleman filed a complaint in the Tunica County Circuit Court accusing Christopher Smith, Grand Casino, Inc., B.L. Development Corporation, and Park Place Entertainment Corporation (“Smith”) of false and malicious arrest. On September 9, 2001, process was served on Smith. Smith filed an answer to the complaint on October 19, 2001, and a motion for summary judgment was filed on October 24, 2001, alleging that Coleman’s claims were time barred by the one year statute of limitations for false arrest. On November 2, 2001, Coleman filed a motion to amend her original complaint to include as additional claims negligence in causing her arrest, negligent infliction of emotional distress, malicious prosecution, and abuse of process. After a hearing on both motions on December 13, 2001, the trial court issued a final order on February 22, 2002, granting Smith’s motion for summary judgment and denying Coleman’s motion to amend her complaint. Coleman appeals this ruling raising the following issues: (1) whether the trial court erred in granting Smith’s motion for summary judgment, and (2) whether the trial court erred in denying her motion to amend her complaint. Finding merit to both issues, we reverse and remand on the first issue and reverse and render on the second issue.

DISCUSSION OF ISSUES

I. DID THE TRIAL COURT ERR IN GRANTING SMITH’S MOTION FOR SUMMARY JUDGMENT?

¶ 2. With her first issue, Coleman contends that the trial court should have denied Smith’s motion for summary judgment. In reviewing a grant of summary judgment, this Court employs a de novo standard. If the pleadings, depositions, answers to interrogatories and admissions, together with any affidavits, show there is no genuine issue of material fact, the moving party is entitled to judgment as a matter of law and summary judgment should be entered for the movant. Boyles v. Schlumberger Technology Corp., 832 So.2d 503 (¶ 5) (Miss.2002).

¶ 3. Coleman contends that it was her intention to state a cause of action for malicious prosecution. Although the term “malicious prosecution” was not explicitly stated, the style of her complaint was taken directly from the section of the Mississippi Legal Forms book dealing with malicious prosecution, as follows:

1. On or about the_day of_, 20_, defendant, maliciously, and without probable cause therefor, cause the plaintiff to be arrested under a warrant issued by _, a justice court judge, on a charge of (as the case may be).
2. Before the commencement of this action, this charge was judicially investigated, the prosecution ended, and the plaintiff discharged.
Wherefore plaintiff demands judgment against defendant in the sum of ___ dollars and cents.

Mississippi Legal Forms, § 4-42. Although the form is somewhat confusing since it uses the word “malicious” to describe “arrest,” we cannot fault Coleman for relying on this form when we can logically infer that her intent was to allege malicious prosecution.

¶ 4. A claim for malicious prosecution falls under Miss.Code Ann. § 15-1-35 (Rev.1995), which sets out the one year statute of limitations for intentional torts. According to the Mississippi Supreme Court, a cause of action for malicious prosecution accrues on the day the criminal proceedings are terminated in the favor of the plaintiff. City of Mound Bayou v. Johnson, 562 So.2d 1212, 1217 (Miss.1990). Coleman was exonerated on June 21, 2000, and filed her complaint on June 20, 2001, just one day before her malicious prosecution claim would have expired. We find that the trial court was in error in granting Smith’s motion for summary judgment and, therefore, we reverse and remand.

II. DID THE TRIAL COURT ERR IN DENYING COLEMAN’S MOTION TO AMEND HER COMPLAINT?

¶ 5. With her second issue, Coleman contends that her original complaint should be amended to include the additional claims of negligence in causing her arrest, negligent infliction of emotional distress, malicious prosecution, and abuse of process. According to the Mississippi Supreme Court, motions to amend are within the discretion of the trial court, and absent an abuse of that discretion, will not be reversed. Estes v. Starnes, 732 So.2d 251 (¶ 4) (Miss.1999). “In practice, an amendment should be denied only if the amendment would cause actual prejudice to the opposite party.” M.R.C.P. 15 cmts; Beverly v. Powers, 666 So.2d 806, 809 (Miss.1995). Here, Coleman filed her motion to amend just fourteen days after Smith filed his answer and nine days after Smith filed his motion for summary judgment. This was well within the normal period for discovery and prior to the case being anywhere near ready for trial. On these facts we cannot find any actual prejudice to Smith; thus, finding that the trial court abused its discretion in denying Coleman’s motion to amend her pleadings, we reverse and render.

¶ 6. THE JUDGMENT OF THE TUNI-CA COUNTY CIRCUIT COURT IS REVERSED AND REMANDED IN PART AND REVERSED AND RENDERED IN PART. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPEL-LEES.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: BRIDGES, J.,

text:
    Randy GUNTER, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-00133-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      Randy Gunter (Pro se), attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before McMILLIN, C.J., BRIDGES and GRIFFIS, JJ.
   BRIDGES, J.,

for the Court.

¶ 1. Following an indictment by the grand jury, Randy Gunter pled guilty to cocaine possession in violation of Miss. Code Ann. § 41-29-139, in August 1999. After a pre-sentence investigation, in September 1999, Gunter was sentenced to eight years, suspended, with one year house arrest, followed by five years’ supervised probation, plus a fine and costs. Despite agreeing to the conditions of house arrest, and being warned that he would be tested for drug use, Gunter tested positive for cocaine, in March 2000. His probation was duly revoked and he was transferred to Parchman to serve his full sentence of eight years.

¶ 2. In November 2001, Gunter filed a motion to vacate conviction and/or correct sentence as a motion for post-conviction relief under Miss.Code Ann. § 99-39-1. In December of that same year, his motion was denied by the trial court. He now files his appeal.

STATEMENT OF ISSUES

I. WHETHER THE PETITIONER’S GUILTY PLEA WAS KNOWING AND VOLUNTARY.

II. WHETHER DURING A GUILTY PLEA THE STATE MUST PROVE THE ELEMENTS OF THE OFFENSE.

III. WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

IV. WHETHER THE PETITIONER’S SENTENCE WAS EXCESSIVE AND OUTSIDE THE STATUTORY LIMITS.

V. WHETHER THE PETITIONER CAN APPEAL HIS CONVICTION AFTER PLEADING GUILTY.

ANALYSIS

I. WHETHER THE PETITIONER’S GUILTY PLEA WAS KNOWINGLY, FREELY, INTELLIGENTLY AND VOLUNTARY MADE.

¶ 3. One of the primary arguments is that Gunter’s plea of guilty was involuntary as a matter of law since, he was frightened into pleading because of his age and first time offender status and the prosecution “played an active role in entering a plea of guilty.” Gunter cites Courtney v. State, 704 So.2d 1352 (Miss.App.1997), claiming that because of the State’s participation in the plea process, not only is the plea invalid but the sentence and conviction should be invalid as well.

¶4. The United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), provides the standard for determining whether a guilty plea is knowingly, voluntarily and intelligently made by the defendant. Where the record is silent as to evidence showing that these rights were known and understood by the defendant, there can be no presumption of a waiver of such rights by him. Id. at 242, 89 S.Ct. 1709. The record must provide explicit evidence of such a waiver and the admissibility of the waiver must be “based on a reliable determination on the voluntariness” of the waiver. Id. This determination of voluntariness may be evaluated by looking to see whether the defendant was advised of the nature of the charges against him, the rights which he would be waiving by pleading guilty, the maximum sentences that he could receive for the crimes with which he was charged and whether he was satisfied with the advice and counsel of his attorney. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). See also Boykin, 395 U.S. at 243, 89 S.Ct. 1709; Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991).

¶ 5. We must note that the transcript of the plea hearing speaks volumes on the issue of voluntariness. The judge specifically asked Gunter whether he was aware that by pleading guilty he was giving up certain constitutional rights, such as the right to a trial by jury. Gunter clearly answered that he understood.

¶ 6. According to the transcript, Gunter further made it crystal clear to all listening that he understood that his guilty plea would serve as a waiver to all of the constitutional rights that the circuit judge had mentioned. Finally, he lucidly stated that he was not being coerced and that he was not under the influence of any form of impairing drug. As stated in Knight v. State, 796 So.2d 262, 264 (Miss.Ct.App.2001),

[w]hen the trial court can determine that a factual assertion by the movant in a post conviction relief proceeding is belied by unimpeachable evidence in the transcript of the case that led to conviction, no hearing is required and the trial court may summarily dismiss the motion. Harris v. State, 578 So.2d 617, 620 (Miss.1991).

¶7. Gunter argues that because the prosecution became an active participant in the plea process, the plea was rendered involuntary. If Gunter actually believes that answering two questions constitutes an active participation, therefore rendering the plea involuntary, he should try reading the entire transcript and not just a paragraph. The record contains numerous questions clearly illustrating that Gunter knew exactly what he was doing — pleading guilty. In no less than three areas of the transcript the judge questioned Gunter regarding his guilty plea.

Q. At this time how do you wish to plead to the charge of possession of cocaine more than two grams, guilty or not guilty?”
A. Guilty.
Q. Mr. Gunter, before a jury could find you guilty of this charge now, the State would have to come to court and prove to the jury that you were guilty beyond a reasonable doubt. When you plead guilty, your — the State’s not required to prove anything. You understand that?
A. Yes, sir.
Q. You’re admitting that you’re guilty. You understand?
A. Yes, sir
Q. Now on the indictment says that on May — March the twentieth of this year in Lowndes County you possessed this cocaine in an amount of two point six four grams. Are you guilty of possession of this cocaine.
A. Yes, sir.

¶ 8. It should be noted that Gunter did cite two cases and a rule in support of his position that prosecutorial involvement renders a plea involuntary. Gunter cites Wilson v. State, 577 So.2d 394 (Miss.1991), and paraphrases (what this Court can only assume is the court’s holding) “because of the prosecutor’s participation in the plea process, and because the prosecution had an interest in obtaining the plea so as to relieve the prosecution from proof of the element of the amount of cocaine, which they could not prove, the plea is involuntary.” After reading this case it can safely be said that it has nothing to do with prosecutorial participation in the plea process, although it does mention what is considered a voluntary plea.

¶ 9. The same can be said for the other case cited, Courtney v. State, 704 So.2d 1352 (Miss.App.1997). However, at least in this case it mentions that “trial judges are expressly prohibited from participating directly in any plea discussion with a criminal defendant” but again, nothing about prosecutorial participation. And last, but not least, Gunter cites Rule 8.04 of the Mississippi Uniform Circuit and County Court Rules, which Gunter says “requires that the defendant personally plead guilty in open court before any such plea is entered.” This Court does not find that the rule states any of this. The rule does state:

When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine; (1) that the accused is competent to understand the nature of the charge; (2) that the accused understands the nature and consequences of the plea; and (3) that the accused understands that by pleading guilty he waives his constitutional rights.

URCCC 8.04(4).

¶ 10. Gunter has given this Court no plausible evidence on which we may rely to overturn the decision of the trial judge to accept Gunter’s plea. The credible evidence before us, including the transcript of the plea hearing, points to the inescapable fact that Gunter made his decision to plead guilty on his own, without coercion and without misrepresentation. The prosecution’s entering into the plea bargaining discussion, in what amounts to about five seconds, hardly constitutes a plea being rendered involuntary. We do not believe that Gunter has met his very heavy burden of proof to show that he did not understand what he was agreeing to or that he was pressured or intimidated into executing the guilty plea petitions.

II. WHETHER DURING A GUILTY PLEA THE STATE MUST PROVE THE ELEMENTS OF THE OFFENSE.

¶ 11. Gunter’s next argument is that the prosecution never introduced proof that the amount of cocaine was in excess of 2.64 grains. It is true that the State never introduced the 2.64 grams of cocaine which it asserted to have as evidence, however, the reason is very simple' — they did not have to. The court, in Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989), stated that the law is well settled that when properly entered and accepted, “a guilty plea operates to waive the defendant’s privilege against self-incrimination, the right to confront and cross-examine the prosecution’s witnesses, the right to a jury trial and the right that the prosecution prove each element of the offense beyond a reasonable doubt.” See also Johnson v. State, 753 So.2d 449 (Miss.App.1999). The record clearly indicates that the judge questioned Gunter on whether he knew that by pleading, he would be waiving this particular right along with others. Gunter responded in the affirmative, that he understood. Therefore, there is absolutely no merit to this claim.

III. WHETHER THE PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 12. Another argument made by Gun-ter is that he received ineffective assistance of counsel since defense counsel failed to perform an independent investigation of the evidence which the State alleged to have had against Gunter. Gunter also claims that defense counsel “stood idly by and permitted the prosecution to interfere with and plead him guilty under the court’s inquiry.”

¶ 13. In Burnett v. State, 831 So.2d 1216, 1220 (¶ 17) (Miss.Ct.App.2002), the Court states that the judge’s findings concluding the plea was validly made and that counsel was effective will not be set aside unless the findings are clearly erroneous. The Supreme Court of the United States in the case of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), clearly set the guidelines for judicial determination of cases involving effective or ineffective assistance of counsel.

¶ 14. There are two components that Gunter must prove in order for his claim of ineffective assistance of counsel to prevail and require reversal of his conviction. First, Gunter must show that his “counsel’s performance was deficient.” Strickland, 466 U.S. at 687, 104 S.Ct. 2052. Second, Gunter must show the “deficient performance prejudiced the defense.” Id. This requires a showing that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. In regards to this second prong, Gunter must show that there is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052; see Leatherwood v. State, 473 So.2d 964, 968 (Miss.1985); Stringer v. State, 454 So.2d 468, 477 (Miss.1984). Gunter must prove both of these elements in order to succeed on his claim. Id. Each case should be decided based on the totality of the circumstances, that is, by looking to the evidence in the entire record. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990); Stringer, 454 So.2d at 476. The standard of performance used is whether counsel provided “reasonably effective assistance.” Leatherwood, 473 So.2d at 968. “There is a strong presumption that counsel’s conduct is within the wide range of reasonable professional conduct.” Id. at 969. Should we find that Gunter’s counsel was ineffective, the appropriate remedy is remand for a new trial. Moody v. State, 644 So.2d 451, 456 (Miss.1994).

¶ 15. While the record shows that defense counsel was present at the time of the plea acceptance hearing and the circuit judge’s interrogation, there is no evidence which would tend to advance Gunter’s theory that defense counsel was deficient or that he forced Gunter to plead guilty. There is nothing in the record to indicate that Gunter’s attorney did anything more than be available to his client and advise him on the ramifications of pleading guilty versus pleading not guilty and taking his chances at trial. Lastly, there is nothing in the record that even hints that there is a reasonable probability that, but for counsel’s unprofessional errors, the result would have been different. Therefore, Gunter has failed to prove at least the second element of the Strickland test, a test in which he must prove both elements in order to prevail on his claim of ineffective assistance of counsel.

IV. WHETHER THE TRIAL COURT IMPOSED AN EXCESSIVE SENTENCE ON THE DEFENDANT.

¶ 16. Another argument presented by Gunter was that his sentence was excessive. However, in his opinion and order denying petitioner’s motion, Judge Howard specifically noted that “the petitioner received a sentence of eight years to serve with the MDOC, suspended, one year of the Intensive Supervision Program and five years of probation thereafter for a charge of possession of cocaine greater than two grams, well within the maximum sentence authorized by law.”

¶ 17. The court in Johnson addresses the issue of an excessive or disproportionate sentence in stating “that a trial court will not be held in error or held to have abused its judicial discretion if the sentence imposed is within the limits fixed by statute.” Johnson, 461 So.2d at 1292. During the plea colloquy, Judge Howard explained that he was required by law to sentence a defendant charged with possession of cocaine to not less than four years and no more than sixteen years in the Mississippi Department of Corrections and could impose a fine up to two hundred and fifty thousand dollars. Gunter received only a sentence of eight years with the MDOC, suspended, one year of the Intensive Supervision Program and five years of probation.

¶ 18. In conclusion, the sentence imposed on Gunter was nowhere near excessive. As anyone can see, this sentence is well within the statutory limits. Therefore, Gunter’s claim that his sentence was excessive is totally without merit.

V. WHETHER THE PETITIONER CAN APPEAL HIS CONVICTION AFTER PLEADING GUILTY.

¶ 19. On the argument that the trial court erred in advising Gunter that he had no right to appeal his sentence, again the record speaks for itself. During the plea colloquy, Gunter was specifically informed that his guilty plea waived his right to appeal his conviction. The judge explicitly announced that “if a jury tried this case and a jury found you guilty, you could appeal to the Mississippi Supreme Court, but you can’t appeal when you plead guilty.” It was explained in Miller v. State, 794 So.2d 1065 (¶ 6) (Miss.Ct.App.2001), that “because the legislature and precedent do not confer jurisdiction upon this Court to review a guilty plea on direct appeal, this Court finds that Miller’s claim that the trial court erred by not allowing him to withdraw his plea is better addressed in a motion for post conviction relief.” Also included in Judge Howard’s order, denying Gunter’s motion, the court correctly informed him that he could not appeal a plea of guilty to the supreme court and that petitioner’s options in having a guilty plea reviewed involve filing a motion for post-conviction relief.

¶ 20. Gunter cites the case of Trotter v. State, 554 So.2d 313, 315 (Miss.1989), claiming that this case demonstrated that it is possible to appeal directly to the Mississippi Supreme Court. However, in viewing this ease in its entirety, it states “while the conviction itself cannot be appealed, an illegal sentence handed down pursuant to the plea is appealable.” Trotter, 554 So.2d at 315. Therefore, it becomes a question of whether the petitioner claims his plea was involuntary or whether he claims his sentence was illegal. If the latter is the claim, the guilty plea is directly appealable. Id.

¶ 21. As it is obvious to all, Gunter is challenging his conviction and not that his sentence was illegal. Since he is challenging his conviction, the law and statute stand correct. His only relief was a motion for post-conviction relief.

¶ 22. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT DENYING POST CONVICTION RELIEF IS HEREBY AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.

McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


author: SOUTHWICK, P.J.,

text:
    Jason ALSTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CA-00560-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      K. Elizabeth Davis, Greenwood, for appellant.
    Office of the Attorney General by Scott Stuart, for appellee.
    Before SOUTHWICK, P.J., BRIDGES AND CHANDLER, JJ.
   SOUTHWICK, P.J.,

FOR THE COURT:

¶ 1. Jason Alston appeals from the denial of his petition for post-conviction relief. He alleges that the trial court erroneously held that Alston had waived his Eighth Amendment rights, and the sentence imposed constitutes cruel and unusual punishment. We disagree and affirm.

FACTS

¶ 2. On February 9, 2000, Alston entered a guilty plea in Choctaw County to the charge of burglary of a dwelling. The State had agreed to recommend a sentence of fifteen years with ten years to serve and five years’ post-release supervision. However, in order to coincide with the release date of a sentence imposed by the Attala County Circuit court on a separate charge, the court sentenced Alston to sixteen years with fourteen to serve and two years’ post-release supervision.

¶ 3. On February 22, 2002, Alston filed for post-conviction relief on the ground that his sentence was so excessive as to constitute cruel and unusual punishment. The petition was denied on March 5, 2002. The trial court found Alston’s sentence was within the statutory guidelines and Alston had waived his right to object to the proportionality of his sentence by entering a guilty plea.

DISCUSSION

1. Waiver of proportionality review

¶ 4. Alston’s first assignment of error stems from one of the grounds the trial court relied upon to deny the post-conviction relief petition. In its order, the circuit court held, “[t]he Court finds that Alston, by entering a plea of guilty, waived his right to object to the proportionality of his sentence and that his petition for post-conviction relief is without merit and should be denied.”

¶ 5. In entering a guilty plea, a defendant waives three specific constitutional rights: the right to a jury trial, the right to confront one’s accusers, and the privilege against self-incrimination. Chunn v. State, 669 So.2d 29, 32 (Miss.1996) (quoting Boykin v. Alabama, 396 U.S. 238, 243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969)). The right to be free of cruel and unusual punishment is not among the rights waived.

¶ 6. However, we find that the trial court’s possible belief that a waiver of this right occurred did not infect his or our interpretation that the sentence itself does not violate some Eighth Amendment guarantee of proportionality. The United States Supreme Court has held that the Eighth Amendment does not contain a guarantee of proportionality. Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Not having an Eighth Amendment right to a proportional sentence, the statement that Alston had waived that right does not constitute reversible error.

2. Cruel and unusual 'punishment

¶ 7. Alston also alleges that his sentence is so excessive as to constitute cruel and unusual punishment. The trial court found the sentence was within the statutory parameters for the crime charged and not disproportionate.

¶ 8. Alston urges that he is entitled to a proportionality review under Solem v. Helm, 463 U.S. 277, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Solem applies a three-factor analysis to determine if a sentence is disproportionately harsh so as to violate the Eighth Amendment prohibition against cruel and unusual punishment: (1) the gravity of the crime; (2) comparison with sentences imposed on other defendants for the same crime in the same jurisdiction; and (3) comparison with sentences imposed in surrounding jurisdictions. Id. at 292, 103 S.Ct. 3001. Alston argues the gravity of his crime was minor and the sentence was far in excess of those imposed on other defendants for the same or similar crimes, examples of which were included in the brief to this court.

¶ 9. The Supreme Court has subsequently altered its interpretation. The Eighth Amendment does not contain a proportionality guarantee. Severe penalties are not, by themselves, violative of the Eighth Amendment. Harmelin, 501 U.S. at 994-95, 111 S.Ct. 2680. Alston must do more than show his sentence was more severe than those imposed on other, similarly situated defendants. Before such comparisons will be made, Alston must meet the threshold requirement of showing the sentence imposed is grossly disproportionate to the crime charged. Hoops v. State, 681 So.2d 521, 538 (Miss.1996). Unless Alston can satisfy this preliminary requirement, he is not entitled to the extended Solem comparison analysis. Id.

¶ 10. By statute, the crime of burglary of a dwelling carries a maximum imprisonment penalty of twenty-five years. Miss.Code Ann. § 97-17-23 (Rev.2000). As a general rule, we will not disturb sentences which are permissible by statute. Reynolds v. State, 585 So.2d 753, 756 (Miss.1991). Alston places much emphasis upon the comparison of his sentence with others but suggests no argument as to why his sentence is inappropriate for the crime of burglary. We do not find that a sentence of this length is grossly disproportionate to the crime.

¶11. THE JUDGMENT OF THE CIRCUIT COURT OF CHOCTAW COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ„ CONCUR.


text:
    Bobby Leonard GRAY, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-01581-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      Bobby Leonard Gray, pro se.
    Office of the Attorney General by Billy L. Gore, for Appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   SOUTHWICK, P.J.,

FOR THE COURT:

¶ 1. Bobby Leonard Gray appeals the decision of the Wayne County Circuit Court to deny his petition for post-conviction relief. He asserts that the court had lacked jurisdiction to try him and that he was entitled to an evidentiary hearing on his petition for relief. We disagree and affirm.

FACTS

¶ 2. This is the third denial of post-conviction relief for Gray and the second appearance before this Court. In July 1998, Gray was convicted of sale of cocaine following a jury trial. A confidential informant, Brandy Edwards, testified at trial that she had purchased cocaine from Gray. The transaction was personally witnessed by Simone Reeves, a narcotics law enforcement officer, and it was videotaped. Gray was sentenced,to thirty years which was enhanced under the habitual offender statute to sixty years’ imprisonment without benefit of parole.

¶ 3. The first petition for post-conviction relief was filed in January 1999, alleging a variety of errors in the trial court. The petition was denied without benefit of an evidentiary hearing. Gray filed notice of appeal but withdrew it a few days later. Instead, he filed a second petition for post-conviction relief, claiming that the indictment against him had been forged. He also submitted an affidavit from Brandy Edwards recanting her trial testimony. Edwards swore that she had perjured herself under pressure from the district attorney’s office.

¶ 4. The trial court summarily dismissed the petition as violating the bar to successive motions. Miss.Code Ann. § 99-39-23(6) (Rev.2000). The denial was appealed to this Court. In December 2001, we reversed the summary dismissal, finding that Gray’s allegation of a manufactured indictment concerned a fundamental constitutional right which was not subject to summary procedural dismissal. Gray v. State, 819 So.2d 542, 544 (Miss.Ct.App.2001). We disclaimed any belief that the indictment was manufactured. We only said that the mere outrageousness of the claimed misconduct was not a reason on which we could rule when the trial court had dismissed on inappropriate procedural grounds. We also directed the trial court to consider the affidavit by the confidential informant recanting her trial testimony. Id. at 547-48.

¶ 5. On remand, the trial court reviewed the claims made by Gray, entered extensive findings of fact without an evidentiary hearing, and denied the petition. Gray again appeals.

DISCUSSION

¶ 6. The trial court addressed the factual allegations both as to the indictment and as to the confidential informant. We examine each issue.

1. Indictment

¶ 7. Gray argues that his evidence proves that no grand jury was in session on the date of his indictment. He submitted affidavits from members of the jury pool called for duty the first week of January 1998, all swearing that no grand jury was convened that week. Some of the affiants indicate that they were called to serve on a grand jury, while others refer more generally to jury duty. Gray also urges that the absence of an order in the court records calling for the convening of a grand jury is prima facie evidence that none was convened. As we noted in our earlier opinion, private individuals who have been called to the courthouse for any purpose are unlikely to have personal knowledge about whether a grand jury was then meeting. Gray, 819 So.2d at 546.

¶ 8. The State on remand submitted affidavits from the district attorney, the circuit clerk, the foreman of the grand jury and an investigator from the district attorney’s office, all swearing that the jury was convened, the case against Gray was presented, and an indictment was properly issued. In addition, the district attorney and the circuit clerk averred that it was not the policy of the Wayne County Circuit Court to issue an order to convene a grand jury. Rather, the schedule is set by administrative order and juries are convened on that schedule without further action by the court. Finally, in his order denying the petition, the trial judge found that he had presided over the qualification of the grand jury in question.

¶ 9. After an answer has been filed and discovery, if any, is completed, it is the trial court’s duty to determine whether or not an evidentiary hearing is warranted on a petition for post-conviction relief. Miss.Code Ann. § 99-39-19(1) (Rev.2000). An evidentiary hearing is not mandated merely because of the existence of contradictory affidavits, as we have here. Wright v. State, 577 So.2d 387, 390 (Miss.1991). Where there is unimpeachable documentary evidence which belies the petitioner’s contrary affidavits, a hearing is not required. Id.

¶ 10. Grand juries are ordinarily impaneled only twice per year. Miss.Code Ann. § 13-5-39 (Rev.2000). In districts comprised of more than one county, the circuit court shall enter an order setting the terms of court annually before October 1 of the preceding year. Miss.Code Ann. § 9-7-3(2) (Rev.2000). Gray asserts that the administrative order alone calling for a grand jury in January 1998 is insufficient but cites no authority to substantiate this claim. We find none either. We conclude that the convening of this grand jury was properly ordered.

¶ 11. The evidence that a grand jury was convened for January 1998 is overwhelming. In addition to the affidavits previously described, in the record is a copy of the indictment itself, a list of the names and addresses of the individuals who served, and the final report of the grand jury.

¶ 12. While the affidavits submitted by Gray assert that no grand jury was convened that week, they do not contain any basis for knowledge other than that the affiants themselves were never selected for the grand jury. The existence of official documentation such as the grand jury final report adequately discredits these affidavits. Official acts of public bodies are afforded a strong presumption of validity. Raper v. State, 317 So.2d 709, 712 (Miss.1975). Gray has not rebutted this presumption.

2. New Evidence

¶ 13. Gray next argues that he was entitled to a new trial or an evidentia-ry hearing on the claim of new evidence, the basis of which was the affidavit of Brandy Edwards’ recanting her trial testimony that she purchased drugs from Gray.

¶ 14. There are precedents that when an indispensable witness to the State’s case recants, an evidentiary hearing on the matter may be required. E.g., Tobias v. State, 505 So.2d 1014, 1015 (Miss.1987). The trial court found that Edwards was not an indispensable witness because the State had also put on testimony by Simone Reeves, a narcotics officer, who was present at the drug sale. Reeves testified to the events she witnessed and identified Gray as the seller of the cocaine. We find no reason for an evidentiary hearing because of the recantation, since the recan-ter’s testimony was corroborated by Reeves.

¶ 15. Gray also asked that he be granted a new trial, not just a post-conviction evidentiary hearing, on the basis of this new evidence. Gray has to show that the newly discovered evidence would probably produce a different verdict. Meeks v. State, 781 So.2d 109, 112 (Miss.2001). Although we do not have the trial transcript available to us, the record indicates that the testimony of Reeves and Edwards mirrored each other in factual content. Assuming Edwards did not testify at a second trial, the same facts would be before the jury through the testimony of Reeves alone. We cannot find that having only one explanation of these facts would probably have altered the jury’s verdict.

¶ 16. THE JUDGMENT OF THE WAYNE COUNTY CIRCUIT COURT DENYING POST CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO WAYNE COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER and GRIFFIS, JJ., CONCUR.


author: McMILLIN, C.J.,

text:
    Lonnie DONNELLY, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-00496-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      Lonnie Donnelly, pro se appellant.
    Office of the Attorney General by Jean Smith Vaughan, for appellee.
    Before McMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
   McMILLIN, C.J.,

FOR THE COURT:

¶ 1. Lonnie Donnelly has appealed pro se from an order of the Circuit Court of Grenada County denying his motion for post-conviction relief without a hearing. In his motion before the circuit court, Don-nelly sought to attack a previous plea of guilty to two counts of armed robbery. He alleged that (a) the two counts of robbery were based on a single event causing him to be punished twice for the same offense, (b) the trial court failed to inform him of the mandatory minimum sentence for the crime of robbery, casting into doubt the informed nature of his plea, (c) he received ineffective assistance of counsel when he was incorrectly advised that, if he pled guilty and accepted a recommendation of a twenty year sentence, he would be eligible for release after serving eighty-five percent of the sentence. The trial court denied Donnelly’s motion without a hearing based on the conclusion that the motion was without merit on its face. We agree and affirm.

I.

Facts

¶ 2. Donnelly was originally indicted on three separate counts; one for conspiracy to commit armed robbery, one for armed robbery, and one for capital murder in the commission of an armed robbery. As a part of a plea agreement, the conspiracy charge was dropped. Donnelly pled guilty to the armed robbery count. The capital murder count was reduced to the underlying felony of armed robbery. Donnelly pled guilty to that modified count, also. The trial court accepted the prosecution’s recommendation and Donnelly was sentenced to serve twenty years on each armed robbery count, with the sentences to run concurrently.

II.

Issues On Appeal

¶ 3. In this appeal, Donnelly urges that the trial court erred by failing to conduct an evidentiary hearing that would have allowed him to present proof of the assertions in his motion. However, the underlying assertions in Donnelly’s appellate brief supporting his claim of entitlement to a hearing do not correspond precisely with those in his motion before the circuit court. Based on a lenient reading of Donnelly’s brief, we conclude that the issues appear to be (a) a renewal of the claim that he was incorrectly informed that he could be eligible for early release after serving eighty-five percent of his sentence, (b) that he thought he was only being required to plead to one count of robbery rather than two, (c) that he was deceived or improperly induced by defense counsel to enter his plea, and (d) that new evidence tending to demonstrate his innocence has been discovered since his original motion for post-conviction relief was filed.

¶ 4. We begin our analysis of the issues presented in this appeal by noting the applicable standard of review. “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). We further observe the well-established principle that our duty is to determine whether reversible error occurred at the trial level and that, as a result, we generally do not consider matters that are attempted to be raised for the first time on appeal. Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988).

III.

Ineffective Assistance of Counsel

¶ 5. Donnelly asserted in his motion that his attorney informed him that he would be eligible to participate in the earned time release program under which he had the prospect, based on his good behavior, of being released after serving eighty-five percent of his sentence of twenty years. However, Section 47 — 5—139(l)(e) prohibits a prisoner sentenced for armed robbery from participation in the earned time program if he “has not served the mandatory time required for parole eligibility ....” Miss.Code Ann. §47-5-139(l)(e) (Rev.2000). Under prior provisions of a separate statute governing parole eligibility, this provision had the effect of denying an armed robber an opportunity to participate in the earned time release program until he had served at least ten years of his sentence. Miss.Code Ann. § 47 — 7—3(1)(d)(i); Cooper v. State, 439 So.2d 1277, 1278 (Miss.1983). However, a subsequent addition to the parole eligibility statute that was in effect at all times relevant to this case provided that an armed robber would never be eligible for parole. Miss.Code Ann. § 47 — 7—3(l)(d)(ii). What effect this subsequent amendment to Section 47-7-3 has on an affected prisoner’s eligibility to ever participate in the earned time release program has not been answered in any subsequent decisions by the Mississippi Supreme Court or this Court. Certainly, the “worst case” interpretation for Donnelly would be that the Legislature, intending to make the penalties for armed robbery more severe by depriving such a convict of any possibility for parole, fully intended to also permanently deprive him of any prospect of obtaining an early release based on earned time credits. Whether or not this is a correct interpretation of the Legislature’s intentions is not the issue in the case now before us. Donnelly and the State both proceed on the assumption that Donnelly will, during the entire term of his confinement, remain ineligible for participation in the earned time early release program. The issue we face, rather, is whether defense counsel’s advice offered prior to the plea hearing that Donnelly could work toward early release under the earned time program from the commencement of his sentence served to make his subsequent plea invalid.

¶ 6. Plainly, whether Donnelly is permanently barred from the earned time release program or is ineligible only for the first ten years of his sentence, defense counsel’s original advice was incorrect. This Court has said that a plea based on a defendant’s incorrect understanding of his eligibility for the earned time release program is not intelligently and knowingly made. Hall v. State, 800 So.2d 1202, 1206 (¶ 12) (Miss.Ct.App.2001).

¶ 7. However, case law further demonstrates that, even in the situation where defense counsel has offered erroneous advice on matters of this sort, if the defendant’s resulting misconception is subsequently corrected by the trial court in the course of exploring the voluntariness of the defendant’s plea, then any harm arising from defense counsel’s misapprehension of the law is effectively counteracted and can no longer form the basis for post-conviction relief. Roland v. State, 666 So.2d 747, 750 (Miss.1995).

¶ 8. Our review of the plea hearing reveals that the circuit court explored in some depth the matter of Donnelly’s right to participate in the earned time early release program and, in plain language, informed him that he should be prepared to serve his sentence “day for day” without any prospect of early release. It was during the course of discussion that defense counsel’s earlier incorrect advice came to light. This revelation appears to have been the impetus for a careful inquiry by the trial court, at the conclusion of which the court extracted from Donnelly an affirmative statement that he was entering a plea on the assumption that he was ineligible to participate in the earned release program. After affirming his understanding that he would have to serve the entire twenty year sentence, there was further discussion as to whether, in light of that information, he still desired to enter a plea of guilty. Donnelly responded affirmatively and there is nothing in the record to suggest that he was coerced, rushed, or pressured to so decide. A claim of ineffective assistance of counsel, in order to entitle the defendant to relief, requires both a showing of deficient performance and a showing that, but for the deficient performance, a different result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because defense counsel’s incorrect advice was discovered and corrected before Donnelly entered his plea, his claim fails to satisfy the second prong of the test.

¶ 9. The circuit court may properly deny a hearing where, upon review of the existing record including the plea hearing transcript, it is plain on the face of the motion that no relief is proper. Miss.Code Ann. § 99-39-11(2) (Rev.2000); Mosley v. State, 749 So.2d 286, 288 (¶ 11) (Miss.Ct.App.1999). There was no error in denying Donnelly relief on this claim without the necessity of a hearing.

IV.

Plea to Two Counts

¶ 10. Nowhere in the record at the circuit court level is there any indication that Donnelly asserted, or offered any evidence in support of, a contention that he was somehow misled or coerced into pleading to two separate counts when he had understood that he was only pleading to one count of armed robbery. This is not the same issue asserted in his motion before the circuit court, in which he seemed to contend that the two robberies were so close in time as to constitute a single occurrence and, thus, only one crime. The issue as framed in Donnelly’s brief is one brought for the first time on appeal and is, for that reason, procedurally barred. Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988).

V.

Coercion in Entering Plea

¶ 11. Also for the first time on appeal, Donnelly appears to assert that defense counsel somehow coerced him into going ahead with his plea of guilty after counsel’s erroneous advice about the earned release program was discovered. It would seem that this allegation, in the nature of a claim of ineffective assistance of counsel, is pro-eedurally barred by virtue of not having been asserted in the proceeding before the circuit court. Crenshaw, 520 So.2d at 134-35. Nevertheless, under the broad umbrella of Donnelly’s general claim of ineffective assistance of counsel asserted at the trial level and because Donnelly is proceeding pro se, we have elected to consider this assertion on the merits. Evans v. State, 725 So.2d 613, 678 (Miss.1997).

¶ 12. The movant has the obligation to assert specific facts that would show entitlement to relief and then, either through his own oath, by supporting affidavits, or other satisfactory means, demonstrate the existence of proof that, if found credible, would support the movant’s theory. Robinson v. State, 809 So.2d 734, 736(¶ 7) (Miss.Ct.App.2002). If such a showing is not satisfactorily made in the motion, the trial court may deny relief without the necessity of a hearing. Miss. Code Ann. § 99-39-11(2) (Rev.2000); Mosley v. State, 749 So.2d 286, 288 (¶ 11) (Miss.Ct.App.1999). Case law has also established the principle' that, if the sole source of evidence in support of the particular aspect of the motion consists of the movant’s own sworn declaration, the court may still deny a hearing if the assertions are effectively contradicted by other available evidence, including the transcript of proceedings during the original trial. State v. Santiago, 773 So.2d 921, 923-24 (¶ 11) (Miss.2000).

¶ 13. In this case, we have reviewed the transcript of the plea hearing as to what transpired during the discussion of the availability of the “eighty-five percent rule.” After counsel’s previous error was discovered, the only additional discussion between Donnelly and his counsel consisted of a brief conversation on the record to the effect that counsel believed that, in view of the fact that Donnelly had been indicted on a capital offense, the plea agreement still represented a favorable resolution of the case to Donnelly. That does not appear to this Court to be an unreasonable characterization of the situation insofar as Donnelly was concerned and such an assertion does not, in our view, suggest any improper coercion, threat, or bad faith advice offered for the sole purpose of deceiving Donnelly into accepting a deal that was not in his best interest. We do not think the circuit court erred in denying relief on this claim.

VI.

Newly Discovered Evidence

¶ 14. Donnelly has attached to his brief before this Court a collection of letters and statements from his co-defendants that he claims plainly demonstrates his innocence. He contends that these writings were not made available to him until after he had pled guilty and been sentenced and, in fact, were not received by him until after he had filed his post-conviction relief motion in the circuit court.

¶ 15. Plainly, this is a new matter attempted to be brought for the first time on appeal and, as such, we are procedurally barred from considering it. Crenshaw, 520 So.2d at 134-35.

¶ 16. Nevertheless, a contention that new evidence having a substantial likelihood of changing the outcome of the trial has been discovered is a claim excepted from both the three year statute of limitations bar and the successive filings bar. Miss.Code Ann. §§ 99-39-5(2) and 99-39-23(6) (Rev.2000). Thus, our refusal to reach the merits of this claim must necessarily be without prejudice as to Don-nelly’s right to bring the claim in a subsequent motion. In so holding, we do nothing to suggest that the writings relied upon by Donnelly even begin to approach the high threshold necessary to set aside a guilty verdict, nor do we offer a view as to the propriety of permitting a defendant to impeach his own testimony offered at the plea hearing admitting his involvement in the crime in this manner. Those and similar questions will simply have to be reserved for another day.

vil

Conclusion

¶ 17. In conclusion, we note for the record that Donnelly did not pursue two claims asserted at the circuit court level in this appeal; namely, (a) that the two robbery charges arose out of a single episode and, thus, constituted a single crime, and (b) that the circuit court failed to advise him of the minimum mandatory sentence in the event he pled guilty to armed robbery. We treat those issues as having been abandoned and will not address them on the merits. Sumrall v. State, 758 So.2d 1091, 1094(¶ 6) (Miss.Ct.App.2000).

¶ 18. THE JUDGMENT OF THE CIRCUIT COURT OF GRENADA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO GRENADA COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Almonzo JONES a/k/a “Monzo,” Appellant, v. STATE of Mississippi, Appellee.
    No. 2002-KA-00625-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      Attorney for Appellant: Azki Shah.
    Attorney for Appellee: Office of the Attorney General by Charles W. Maris.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the court.

¶ 1. Almonzo Jones was convicted in Coahoma County Circuit Court on a multiple count indictment for possession and sale of controlled substances. On appeal, Jones challenges the weight of the evidence supporting the conviction. Finding no merit to his argument, we affirm.

STATEMENT OF FACTS

¶ 2. On March 16, 2001, the Mississippi Bureau of Narcotics, working in conjunction with the Coahoma County Sheriffs Department, was engaged in an undercover drug operation in Lula. Frenchie Taylor, a confidential informant, was outfitted in an automobile equipped with audio and video surveillance capability. Taylor was given $100 in marked funds to use for the purchase of crack cocaine. Taylor soon encountered Almonzo Jones. When Jones approached his vehicle, Taylor requested two fifty-dollar rocks of crack cocaine. Jones at first refused and suggested that a contact be made in Arkansas. Taylor responded that he did not want to go that far, and Jones then instructed him to wait nearby. Jones then ordered eighteen-year-old Kevin Hall to carry some crack to Taylor and bring the money to Jones. Hall delivered the drugs to Taylor and received the $100.

¶ 3. The completion of the transaction caused law enforcement officers to swarm to the scene. Hall immediately obeyed the command to drop the money and surrender. Jones, however, fled. A Bureau of Narcotics agent pursued him. As Jones ran, he took items from his pocket and threw them aside. Jones was quickly apprehended. Among the items discarded by Jones were several bags of marijuana and a plastic Chap Stick containing several rocks of crack cocaine.

¶4. Jones was convicted for the sale of crack cocaine, and on separate counts for possession of a controlled substance, one for cocaine, the other for marijuana.

DISCUSSION

¶ 5. On appeal, Jones claims that his motion for new trial should have been granted. In ruling on such an argument, we accept as true the evidence that supports the verdict. We will set the verdict aside only if failure to grant a new trial was an abuse of discretion or if the verdict was an unconscionable injustice. Jones v. State, 635 So.2d 884, 887 (Miss.1994). The basis for this admittedly high standard is our deference to a jury’s verdict. “Any less stringent rale would denigrate the constitutional power and responsibility of the jury in our criminal justice system.” Burrell v. State, 613 So.2d 1186, 1191 (Miss.1993).

¶ 6. Here, various witnesses testified as to the technical aspects of the undercover operation. A videotape of the events was introduced and viewed by the jury. Confidential informant Taylor testified about events. The agent who pursued Jones in his flight described that part of the day’s occurrences. A forensic chemist with the Mississippi Crime Laboratory testified to the analyses undergone to prove the substances as crack cocaine and marijuana. Kevin Hall, Jones’ young assistant in the drug sale, testified that Jones instructed him to deliver the cocaine to Taylor and return the money. A post-arrest statement in which Jones admitted to conducting the sale was admitted into evidence. Hall’s physical delivery of the drugs does not insulate Jones from guilt. Hollins v. State, 799 So.2d 118, 121-22 (Miss.Ct.App.2001).

¶ 7. Finally, Jones’ attempt on appeal to discredit Hall’s trial testimony merely presents a question already appropriately resolved by the jury below. No new trial was needed.

¶ 8. THE JUDGMENT OF THE CIRCUIT COURT OF COAHOMA COUNTY OF CONVICTION OF COUNT I SALE OF A CONTROLLED SUBSTANCE AND SENTENCE OF SIX YEARS; COUNT II POSSESSION OF A CONTROLLED SUBSTANCE AND SENTENCE OF SIX YEARS, ALL IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS; AND COUNT III MISDEMEANOR POSSESSION OF A CONTROLLED SUBSTANCE AND FINE OF $250 IS AFFIRMED. SENTENCE IN COUNT II SHALL RUN CONCURRENTLY TO SENTENCE IN COUNT I AND CONSECUTIVELY TO ANY AND ALL SENTENCES PREVIOUSLY IMPOSED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Jason ALSTON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CA-00555-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.

      K. Elizabeth Davis, Greenwood, for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   SOUTHWICK, P.J.,

FOR THE COURT:

¶ 1. Jason Alston appeals the denial of his petition for post-conviction relief. The basis of the petition and this appeal is that the sentence imposed is disproportionately harsh and constitutes cruel and unusual punishment. We disagree with the appellant and affirm.

FACTS

¶ 2. On March 9, 1999, Jason Alston entered a plea of guilty to a charge of burglary of a dwelling under Mississippi Code section 97-17-23. As part of the plea negotiations, the prosecution agreed to recommend a sentence of twenty years’ imprisonment with six years suspended and partial restitution. This recommendation was accepted by the court and Alston was so sentenced.

¶3. In February 2002, Alston filed a petition for post-conviction relief in Attala County Circuit Court, claiming the sentence constituted cruel and unusual punishment in violation of both the federal and state constitutions. The facts he cites as supportive of his claim of undue harshness are these: the home burglarized was unoccupied at the time; only $1,500 worth of valuables were taken; he was only seventeen at the time of the burglary and youthful offender diversionary programs were available as an option to imprisonment; he had no prior felony convictions; and the sentence was far in excess of others imposed for the same crime in Attala and adjacent counties.

¶ 4. The circuit court denied the petition on the ground that Alston failed to meet the threshold requirement of showing the sentence was disproportionately harsh for the crime charged. From this denial, Alston now appeals.

DISCUSSION

¶ 5. Alston claims that his sentence is unduly harsh when compared to the gravity of the crime he committed. To illustrate the excessive nature of his sentence, Alston lists sentences imposed on other defendants in Attala County and surrounding jurisdictions for the same or similar crimes.

¶ 6. The gravity of the crime, comparison with sentences imposed on other defendants for the same crime in the same jurisdiction and comparison with sentences imposed in surrounding jurisdictions constitute the three prongs of the dispropor-tionality test outlined by the United States Supreme Court to determine whether a sentence violated the Eighth Amendment prohibition against cruel and unusual punishment. Solem v. Helm, 463 U.S. 277, 292, 103 S.Ct. 3001, 77 L.Ed.2d 637 (1983). Solem, however, was modified some years later to hold that the Eighth Amendment does not guarantee proportionality. Harmelin v. Michigan, 501 U.S. 957, 965, 111 S.Ct. 2680, 115 L.Ed.2d 836 (1991). Only punishments that are grossly disproportional to the crime will be reviewed under the Solem test. Id. at 1005, 111 S.Ct. 2680.

¶ 7. The Mississippi Supreme Court has interpreted Hcmnelin to mean that the necessary first step in reviewing a claim of excessive punishment is to compare the sentence imposed to the crime charged. Hoops v. State, 681 So.2d 521, 538 (Miss.1996). As a threshold to further inquiry, the petitioner must show that the sentence imposed is “grossly disproportional” to the crime charged. Id. Without such an initial showing, we never advance to the three-prong Solem analysis. Id.

¶ 8. Alston pled guilty to the crime of burglary of a dwelling which carries a maximum penalty of twenty-five years’ imprisonment. Miss.Code Ann. § 99-17-23 (Rev.2000). This crime carries such a heavy potential penalty because of the high potential for injury or loss of life the nature of burglary necessarily includes. The twenty-year sentence with only fourteen actually to serve is within the statutory parameters and is not grossly disproportionate to the crime. The threshold requirement not having been met, the So-lem analysis is inapplicable.

¶ 9. THE JUDGMENT OF THE CIRCUIT COURT OF ATTALA COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.


text:
    Willie L. WATSON, Appellant v. STATE of Mississippi, Appellee.
    No. 2002-CP-00488-COA.
    Court of Appeals of Mississippi.
    April 1, 2003.
    Willie L. Watson (Pro Se), attorney for appellant.
    Office of the Attorney General by Billy L. Gore, attorney for appellee.
    Before SOUTHWICK, P.J., BRIDGES and CHANDLER, JJ.
   SOUTHWICK, P.J.,

for the Court.

¶ 1. Willie Watson appeals after his guilty plea was accepted. He alleges error in the length of his sentence, that his counsel was ineffective, and that his plea was not knowing and voluntary. We find this appeal procedurally barred and dismiss.

FACTS

¶ 2. On March 27, 2001, Willie Watson entered a plea of guilty to the charge of fondling a child under the age of fourteen. In accordance with its plea negotiations with Watson, the State recommended a ten year sentence. The court instead sentenced Watson to fifteen years with ten years to serve, five years suspended and five years’ probation.

¶ 3. Four months later, in a letter to the circuit court, Watson requested that the sentencing judge correct the order to reflect Watson’s understanding of his sentence: five years to serve, five years suspended and five years’ probation for a total of fifteen years. No order on that motion appears in the record. On September 11, 2001, Watson filed a motion for the plea transcript and record, which was denied the following week.

¶ 4. On March 20, 2002, Watson simultaneously filed in the Supreme Court a notice of appeal of the March 27, 2001 order that accepted his guilty plea and sentenced him, and filed in the circuit court a petition to proceed in forma pauperis on appeal of denial of post-conviction relief. On April 18, 2002, the circuit court granted the in forma pauperis petition “insofar as court/transcript costs and expenses are concerned.”

DISCUSSION

¶ 5. In his notice of appeal, Watson identifies -the order, entered by the Bolivar County Circuit Court on March 27, 2001 as the basis of his appeal. That is the order that accepted Watson’s guilty plea. A defendant who enters a guilty plea loses the right to file a direct appeal of the merits of the conviction. Miss.Code Ann. § 99-35-101 (Rev.2000). The proper procedure would be to file for post-conviction relief. Miss.Code Ann. § 99-39-5 (Rev.2000). A defendant may appeal the sentence imposed following a guilty plea. Trotter v. State, 554 So.2d 313, 315 (Miss.1989).

¶ 6. Although one of Watson’s concerns is the propriety of the sentence imposed upon him, we find we are without jurisdiction to review even that claim. Watson did not file his notice of appeal until nearly one year after the entry of his guilty plea. He was required to file his notice of appeal within thirty days of the entry of the order that he seeks to appeal. M.R.A.P. 4(a). Moreover, Watson did not exercise his right to move within 180 days of the order being appealed to have the time for appeal reopened. M.R.A.P. 4(h).

¶ 7. Watson experienced some difficulty obtaining an order on his motion to obtain records and a transcript of his guilty plea. However, this is not the order from which he appeals. Physical possession of the record is not required before a notice of appeal is to be filed.

¶ 8. Watson may still file a petition for post-conviction relief. Miss.Code Ann. § 99-39-5 (Rev.2000). Although his pleadings to this Court identify this as an appeal from the denial of a petition for post-conviction relief, he has never filed for such relief. The most that can be said is that he filed a motion for correction of sentence that, according to this record, has not yet been ruled upon.

¶ 9. We dismiss the appeal without any prejudice for Watson’s proceeding appropriately under the statutes for seeking post-conviction review of his claims.

¶ 10. THE APPEAL OF THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY IS DISMISSED. COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR COUNTY.

McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.