text:
    Henry Lee PRUITT, Appellant v. STATE of Mississippi, Appellee.
    No. 2006-CP-00041-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      Henry Lee Pruitt, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before MYERS, P.J., IRVING and BARNES, JJ.
   MYERS, P.J.,

for the Court.

¶ 1. Henry Lee Pruitt takes his appeal from the order of the Circuit Court of Monroe County denying his motion for post-conviction relief. On March 2, 1999, Pruitt pled guilty to conspiracy to sell cocaine and was assessed various fines, ordered to pay restitution, and sentenced to serve a term of eight years in the custody of the Mississippi Department of Corrections (MDOC). However, Pruitt received credit for approximately one year and two months time served, the balance of his eight-year sentence was suspended, and he was placed on post-release supervision subject to certain terms and conditions in the custody of MDOC for a term of five years.

¶ 2. During the suspension of Pruitt’s sentence while he was serving his five years’ post-release supervision, he was arrested and convicted for a violation of federal law, in turn, violating the terms that the circuit court established as a condition of his post-release supervision. Subsequently, a revocation hearing was held in the circuit court and the court ordered the revocation of four years of Pruitt’s original eight-year suspended sentence. However, the reinstated four years of Pruitt’s original sentence were ordered to run concurrently with the federal sentence he was serving, provided that Pruitt refrain from violating any laws upon his release from custody. Pruitt moved for post-conviction relief; however, his petition was denied. He now appeals, arguing several issues that are combined and recast below:

I. WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN FAILING TO ISSUE AN ORDER LISTING THE EVIDENCE RELIED UPON IN REVOKING THE SUSPENDED SENTENCE;
II. WHETHER THE APPELLANT WAS SUBJECTED TO DOUBLE JEOPARDY BY THE REVOCATION OF HIS SUSPENDED SENTENCE;
III. WHETHER THE APPELLANT WAS UNCONSTITUTIONALLY DENIED RIGHT TO COUNSEL AT HIS REVOCATION HEARING.

¶ 3. Finding no error in the decision of the lower court to deny Pruitt’s motion for post-conviction relief, we affirm.

DISCUSSION

¶ 4. Our review of a lower court’s denial of a motion for post-conviction relief is limited to reversal only when the decision is clearly erroneous. Kirksey v. State, 728 So.2d 565, 567(¶ 8) (Miss.1999). We review issues of law, however, de novo. Johnson v. State, 923 So.2d 237, 238(¶ 7) (Miss.Ct.App.2006).

I. WHETHER THE LOWER COURT ABUSED ITS DISCRETION IN FAILING TO ISSUE AN ORDER LISTING THE EVIDENCE RELIED UPON IN REVOKING THE SUSPENDED SENTENCE?

¶ 5. Pruitt argues that denial of his motion for post-conviction relief was error because he was denied due process by the lower court. Specifically, he argues that he was deprived of a written list of evidence the circuit court relied upon in revoking his suspended sentence for his failure to comply with the conditions of his post-release supervision. Pruitt supports his position by arguing that the minimum requirements of due process applicable in a final revocation hearing include “a written statement by the factfinders as to the evidence relied on and reasons for revoking [probation or] parole.” Gagnon v. Scarpelli 411 U.S. 778, 786, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973) (citing Morrissey v. Brewer, 408 U.S. 471, 489, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972)). Petitioner correctly states the applicable law; however, we find his argument that he did not receive such protections of his due process rights unfounded. Upon our review of the record, we find that the lower court properly listed the evidence relied upon in revoking Pruitt’s suspended sentence. Particularly, the circuit court pointed to Pruitt’s criminal conviction and sentence in the federal system, occurring during the time he was under post-release supervision, to support the revocation. Furthermore, the lower court stated three different reasons in its order revoking Pruitt’s suspended sentence. The court stated that Pruitt violated the terms of his post-release supervision by (1) failing to live at liberty without violating any laws, (2) failing to report to his probation officer as directed, and (3) failing to abstain from the possession or use of controlled substances. Based upon the ample evidence contained in the record indicating that the lower court complied with the requirements of due process, we find that this issue is without merit.

II. WHETHER THE APPELLANT WAS SUBJECTED TO DOUBLE JEOPARDY BY THE REVOCATION OF HIS SUSPENDED SENTENCE?

¶ 6. Pruitt argues that the decision of the trial court to revoke his suspended sentence was illegal as it subjects him to double jeopardy, citing to the case of Johnson v. State, 753 So.2d 449 (Miss.Ct. App.1999), in support of his proposition. Based upon the precedent of Johnson, he asks this Court to reverse the dismissal of his motion for post-conviction relief. We find that Pruitt’s reliance on the Johnson case is mistaken and that he was not subjected to double jeopardy.

¶ 7. In Johnson, this Court revoked and set aside a sentence imposed by the trial court, finding that the sentence violated the double jeopardy clauses of the federal and state constitutions. Johnson was initially sentenced to a term of twenty years, with five years suspended and fifteen years to serve. However, after Johnson refused to comply with his end of a plea bargain agreement by testifying against a co-conspirator, the trial court resentenced him to a term of thirty years. Johnson filed a motion for post-conviction relief asserting that he received an illegal sentence, but the trial court denied his petition. This Court reversed the trial court’s denial of Johnson’s post-conviction relief, holding that it was error to resentence a defendant to a greater sentence than was initially imposed as it constitutes double jeopardy.

¶ 8. The case sub judice is distinguishable from the Johnson decision in that Pruitt was not resentenced to a different term following his violation of the terms of his post-release supervision, rather his initial sentence was reinstated. Because of these violations, Pruitt was arrested for violations of the conditions of his post-release supervision and, following his hearing on the matter, his suspended sentence was revoked approximately ten and one-half months later. The original sentence handed down from the circuit court sentenced Pruitt to eight years in the custody of the MDOC, credited him with the approximate one year and two months time served but suspended the remaining approximate six year and ten month sentence, provided that he comply with the terms of his post-release supervision. Revocation based on a violation of a condition of post-release supervision is provided for by Mississippi Code Annotated section 47-7-37 (Supp.2006) and states in pertinent part:

the court ... may continue or revoke all or any part of the ... suspension of sentence, and may cause the sentence imposed to be executed or may impose any part of the sentence which might have been imposed at the time of conviction.

After Pruitt was arrested, the trial judge had within his power the authority to reinstate Pruitt’s entire six year and ten month sentence that was previously suspended. However, the judge chose only to revoke four years of Pruitt’s originally suspended sentence. Therefore, no violations of double jeopardy have occurred here. Thus, we find this issue is without merit as the circuit court’s revocation of four years of Pruitt’s originally suspended sentence was not error.

III. WHETHER THE APPELLANT WAS UNCONSTITUTIONALLY DENIED RIGHT TO COUNSEL AT HIS REVOCATION HEARING?

¶ 9. Pruitt asserts that the lower court erred in dismissing his argument that he was unconstitutionally denied his

right to counsel at his revocation hearing. It is well established in Mississippi that there is no per se right to counsel at revocation hearings. Riely v. State, 562 So.2d 1206, 1209 (Miss.1990) (quoting Lassiter v. Dep’t of Social Servs., 452 U.S. 18, 26, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)). The Supreme Court of the United States has addressed this specific issue and held that the decision of whether counsel is to be provided at a revocation hearing is one that is to be made on a case-by-case basis. Gagnon, 411 U.S. at 790, 93 S.Ct. 1756. The Supreme Court declined to formulate a bright line test to determine when counsel would be constitutionally required, but stated that the “presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings,” however, “there will remain certain cases in which fundamental fairness — the touchstone of due process — will require that the State provide at its expense counsel for indigent probationers or parolees.” Id. The Supreme Court further stated,

[Cjounsel should be provided in cases where, after being informed of his right to request counsel, the probationer or parolee makes such a request, based on a timely and colorable claim (i) that he has not committed the alleged violation of the conditions upon which he is at liberty; or (ii) that, even if the violation is a matter of public record or is uncontested, there are substantial reasons which justified or mitigated the violation and make revocation inappropriate, and that the reasons are complex or otherwise difficult to develop or present. In passing on a request for the appointment of counsel, the responsible agency also should consider, especially in doubtful cases, whether the probationer appears to be capable of speaking effectively for himself. In every case in which a request for counsel at a preliminary or final hearing is refused, the grounds for refusal should be stated succinctly in the record.

Id. at 790-91, 93 S.Ct. 1756.

¶ 10. Pruitt does not allege, nor can it be argued, that his request for counsel is based on a colorable claim. In the order denying Pruitt’s motion for post-conviction relief, the trial judge found that an appointment of counsel, in this case, was not warranted because the hearing did not involve complex or otherwise difficult issues to develop. Pruitt’s subsequent conviction in the federal system is a matter of public record and he presents no argument that his violation is an otherwise difficult issue to litigate. We agree with the lower court’s finding that the issues in this case are not complex. Pruitt’s sentence was suspended and he was placed on post-release supervision in lieu of his having to fully serve out his term, with the condition that he not violate the terms set forth by the circuit court. During his post-release supervision, Pruitt was convicted of drug related charges in the federal system. This federal conviction was in violation of the conditions of his post-release supervision. An appointment of counsel to Pruitt for his revocation hearing was not warranted or required by law. Therefore, we find this issue is without merit.

IF 11. THE JUDGMENT OF THE CIRCUIT COURT OF MONROE COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO MONROE COUNTY.

KING, C.J., LEE, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . Mississippi Code Annotated section 99-19-23 (Rev.2000), dictates that “[t]he number of days spent by a prisoner in incarceration in ... jail while awaiting trial on a criminal charge, or awaiting an appeal to a higher court upon conviction, shall be applied on any sentence rendered by a court of law....”

      . The ten and one-half month period Pruitt spent incarcerated after he was arrested for his post-release supervision violation, but before his probation was revoked, is automatically credited to him via statutory mandate of Mississippi Code Annotated section 99-19-23.


source: Caselaw Access Project

author: BARNES, J.,

license: Public Domain

text:
    Charlie J. WILSON, Appellant v. Shane STRICKLAND, Appellee.
    No. 2005-CA-02235-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      Robert W. Atkinson, Gulfport, attorney for appellant.
    James Kenneth Wetzel, Gulfport, attorney for appellee.
    Before LEE, P.J., BARNES and ISHEE, JJ.
   BARNES, J.,

for the Court.

¶ 1. Charlie J. Wilson appeals the ruling of the Circuit Court of Harrison County reversing a Harrison County Court jury verdict in favor of defendant Charlie Wilson and remanding the matter for a new trial. Wilson was sued by Shane Strickland in county court for damages for injuries allegedly sustained in an automobile accident. Strickland appealed the jury’s verdict to the circuit court, claiming, inter alia, that the county court erred in denying a peremptory challenge by Strickland during jury selection. The circuit court accepted Strickland’s argument regarding the jury selection, but found his other issues to be without merit. Wilson now appeals to this Court. We find the circuit court was in error and reinstate the county court’s judgment for Wilson.

SUMMARY OF FACTS AND PROCEDURAL HISTORY

¶ 2. On the evening of October 10, 2001, Shane Strickland and Charlie Wilson were involved in an automobile accident at the intersection of Highway 49 and St. Charles Street in Gulfport, Mississippi. Strickland was a back-seat passenger in an automobile driven by his friend, Peter Blake. Another friend, Shannon Farve, was also in the car. The young men, all of whom are white, were on their way to eat in celebration of Strickland’s birthday. Charlie Wilson, who is black, was driving a van belonging to Grace Temple Baptist Church. He had been taking children home from the church’s youth activities that evening. Wilson was making a left turn from a signaled left-turn lane when Blake’s vehicle “t-boned” the church van. At the time of the accident, there were no passengers in the church van. No one involved in the accident claimed to be injured that evening.

¶ 3. Strickland sued Wilson on August 21, 2002, in Harrison County Court for injuries he claims were sustained in the automobile accident and other damages.

The issue in dispute was which vehicle had the right-of-way. Blake claimed that he had a green light, while Wilson claimed he had a green left-turn arrow. On December 8, 2003, trial commenced with the Honorable Gaston H. Hewes, Jr. presiding. The instant issue arose during jury selection. In creating the six-juror panel, from a venire which included a total of only three black individuals, Strickland properly excused, for cause, two black jurors, and then unsuccessfully attempted to strike Zella Harris, the last remaining black veni-re member, using his first peremptory challenge. The following colloquy ensued between James Wetzel, counsel for Strickland; Robert Atkinson, counsel for Wilson; and the trial judge:

Mr. Wetzel: We would strike Ms. Harris.
Mr. Atkinson: Judge, before we go on, can I ask a question about Ms. Harris?
The Court: Oh, that’s a good point. Okay.
Mr. Atkinson: She never said a word in response to anything and so I would have to question, with all due respect, why she’s being kicked off.
Mr. Wetzel: Okay. Do you need a—
The Court: — Yeah, I do. I need a racially neutral reason.
Mr. Wetzel: One, she’s of Baptist faith and secondly, she works for the Harrison County DHS in the Child Support Office and I believe that because of her background and the fact that she is a Baptist, I have a real problem with that because of the Baptist Church being involved.
The Court: Well, they’re not a party.
Mr. Wetzel: They’re not a party but I believe that because of the Baptist
Church and that’s going to come in with all the witnesses Bobby is going to bring in, ... I believe that that’s going to be a problem.
Mr. Atkinson: Judge, the mere fact that she is Baptist in and of itself is all he’s going on; that there was no answers to any questions by that lady.
Mr. Wetzel: Because I knew going in—
The Court: Look, look. You didn’t kick Hester off, he’s Baptist.
Mr. Wetzel: Mr. Hester, the reason I didn’t, because he is a, he’s a millwright and he’s a working man, he’s a blue collar man and I felt like because of his background as a millwright, I felt that he would be, he would be a good juror.
The Court: I’m not going to strike her. She’s the only black remaining. I, for cause, struck Necole Brown, who is black. I struck Dorothy Coleman for you, she’s black.
Mr. Wetzel: But that was based on the causes. That was not peremptory challenges, Judge.
The Court: I understand the difference.
Mr. Wetzel: It would be different if I struck three, if I struck three blacks in a row on a peremptory challenge, then you could say that-you have to first determine—
The Court: I’ve ruled. You can make your record.
Mr. Wetzel: Okay, let me, I’m just making my record. I think that the Edmondson[Edmonson] case as followed by the Mississippi Supreme Court says there has to be a showing that there is, by the use of the challenges, you have to first show that there is some type of, there is some type of use of those challenges that would indicate a racial purpose for those challenges. And I have, I’ve only exercised one challenge and that was on her.
The Court: Yeah.
Mr. Wetzel: That was the first challenge that I used. The other ones were for cause and you granted those.
The Court: Well, the defendant is black. Every other black, for good cause, has been stricken. And I don’t find that the fact that Harris is a Baptist is a racially neutral reason. So I think you made your record.

¶ 4. After the jury was empaneled, which consisted of five white jurors and Harris, Strickland called six witnesses to the stand, including: the police officer at the accident, an independent witness to the accident who is a part-time Baptist preacher, Peter Blake, Shane Strickland, Dr. Harry Danielson, and finally the defendant Wilson as an adverse witness. Wilson did not call any witnesses, but rested after Strickland’s case-in-chief. In a five-to-one decision, the jury found for defendant Wilson.

¶ 5. Strickland consequently filed a motion for judgment notwithstanding the verdict (“JNOV”) or alternatively a new trial. Strickland claims he received an unfair trial for several reasons, including the county court’s denying his peremptory strike of Harris during jury selection. The court denied Strickland’s JNOV motion, and Strickland appealed to the Harrison County Circuit Court, arguing four points of error by the county court. The circuit court, serving as an appellate court, reversed the judgment of the county court in favor of Strickland and remanded the matter for a new trial, basing its decision solely on the peremptory challenge. That court found Strickland’s race-neutral reasons for the strike credible. Wilson timely appealed to this Court.

ANALYSIS

¶ 6. The United States Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), held that racial discrimination through the use of peremptory strikes is prohibited. The proper analysis for a potential peremptory challenge violation has been articulated in Batson, held applicable to private litigants in civil cases in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660 (1991), and recognized by the Mississippi Supreme Court in Dedeaux v. J.I. Case Co., 611 So.2d 880 (Miss.1992). Batson requires a three-prong analysis of the validity of peremptory challenges. Batson, 476 U.S. at 96-98, 106 S.Ct. 1712. First, the opponent of the peremptory challenge must make a prima facie showing that the challenge was based on race. Id. Second, if that showing is made, the burden of proof shifts to the proponent of the strike to offer a race-neutral reason for attempting to strike the juror at issue. Id. at 97-98, 106 S.Ct. 1712. Finally, the trial court must determine whether the opponent of the strike has proven purposeful discrimination. Id. at 98, 106 S.Ct. 1712.

¶ 7. The Harrison County Circuit Court, in reviewing Strickland’s appeal, reversed the county court’s decision based solely on the peremptory challenge issue. In its order, the circuit court stated that Wilson was required to “make a prima facie showing that a peremptory challenge has been exercised on the basis of race. Only then should a party be required to establish race-neutral reasons for the peremptory challenge[s]. The Court did not require, and defense counsel did not provide, a prima facie case on racial discrimination justifying the denial of the peremptory challenge.” Regardless of whether Strickland may have waived his argument by voluntarily providing race-neutral reasons for the strike, the circuit court stated Wilson’s failure to support his Batson challenge goes to the weight of the evidence, and “[njothing in the record sufficiently counters the race-neutral reason given [by Strickland].”

¶ 8. On appeal to this Court, Wilson argues that great deference should be given to the ruling of the county court to determine whether the race-neutral reasons given to strike Harris were credible. Also, he argues that since the county court did not require a prima facie showing by Wilson that Strickland’s first peremptory challenge was racially based, and Strickland did not object to this fact but went ahead and provided alleged race-neutral reasons for his strike, Strickland waived any argument regarding the lack of a pri-ma facie showing by Wilson. Lastly, Wilson argues that the race-neutral reasons provided by Strickland were invalid, as they were pretextual.

A. Deference to the Trial Court.

¶ 9. Our standard of review requires that this Court give great deference to the trial court’s decision regarding whether the race-neutral reasons presented by the proponent of the strike are truly race-neutral reasons. Burnett v. Fulton, 854 So.2d 1010, 1016(¶ 16) (Miss.2003) (citing Walters v. State, 720 So.2d 856, 865(1128) (Miss.1998)). In the context of a direct review, the trial court’s decision is given great deference since the issue is a factual finding involving credibility — that is — whether the trial judge is to believe the counsel’s race-neutral explanation for the peremptory challenge. Miller-El v. Cockrell, 537 U.S. 322, 339, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003) (citing Hernandez v. New York, 500 U.S. 352, 365, 111 S.Ct. 1859,114 L.Ed.2d 395 (1991)); McGilberry v. State, 741 So.2d 894, 923 (¶ 118) (Miss. 1999). For this determination, findings of fact are best suited to the trial court. United States v. Williams, 264 F.3d 561, 572 (5th Cir.2001) (citing Hernandez, 500 U.S. at 373, 111 S.Ct. 1859). “There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge.” Miller-El, 537 U.S. at 339, 123 S.Ct. 1029. The reviewing court analyzes only the transcripts of voir dire and is not as reliable at determining credibility as the trial judge. Id. The Mississippi Supreme Court has adopted this rationale as well, finding the credibility of the challenging attorney is often decisive. Stewart v. State, 662 So.2d 552, 559 (Miss.1995) (citing Hernandez, 500 U.S. at 365, 111 S.Ct. 1859). Thus, the trial judge’s decision will only be reversed when the decision is clearly erroneous or against the overwhelming weight of the evidence. Gary v. State, 760 So.2d 743, 748 (¶ 110) (Miss.2000) (citations omitted).

¶ 10. Strickland, in his brief, does not address this well-established standard of review, but instead argues that the circuit court was correct in reversing the county court’s decision denying the peremptory challenge. However, this Court agrees that the most accurate determination of whether a peremptory challenge is truthful or pretextual is made by the trial judge. See Collins v. State, 817 So.2d 644, 656(¶ 32) (Miss.Ct.App.2002) (citing Humphrey v. State, 759 So.2d 368, 384(¶ 50) (Miss.2000)). On direct appeal, we find the circuit court did not give proper weight to the county court’s determination, but instead reversed primarily on the weight of the evidence. However, we find the evidence presented sufficient, and the decision of the county court was not clearly erroneous.

B. The Prima Facie Showing is Rendered Moot.

¶ 11. The first step in a Batson analysis is for the opponent of the strike to make a prima facie showing that the peremptory challenge was based on race. Batson, 476 U.S. at 96-97, 106 S.Ct. 1712. To establish this prima facie showing, the opponent of the strike must prove that the juror: (1) is a member of a cognizable racial group, (2) that the proponent has exercised peremptory challenges to remove from the venire members of the opposing party’s race, and (3) the facts and circumstances raise an inference that the proponent of the strikes used his peremptory challenge for the purpose of striking minorities. Snow v. State, 800 So.2d, 472, 478(¶ 10) (Miss.2001) (citing Walker v. State, 740 So.2d 873, 879(¶22) (Miss.1999)). However, the United States Supreme Court has held, and it has long been the law of this State, that whether or not a prima facie showing is made is rendered moot once the proponent of the strike offers a race-neutral reason for the peremptory challenge, and the trial court rules on the ultimate question of purposeful discrimination. Hernandez v. New York, 500 U.S. 352, 359, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991); Walker v. State, 863 So.2d 1, 28(¶ 85) (Miss.2003); Burnett v. Fulton, 854 So.2d 1010,1014(¶ 9) (Miss.2003). The more important inquiry in a Batson analysis is whether the proponent of the strike was able to offer credible race-neutral reasons for the peremptory strikes. Collins v. State, 691 So.2d 918, 926 (Miss.1997) (citing Griffin v. State, 607 So.2d 1197, 1202 (Miss.1992)).

¶ 12. In our case, Wilson did not make a prima facie showing, and the trial court did not require that showing as the colloquy at issue unfolded. Instead, Strickland’s counsel, Mr. Wetzel, proceeded to give race-neutral reasons after the trial judge requested them, which was at Wetzel’s prompting. Since Wetzel gave alleged race-neutral reasons without objecting to the request, his argument on appeal that Wilson did not meet his prima facie showing of intentional discrimination is moot. Similarly, in Hernandez, the Supreme Court stated that because the prosecutor defended his peremptory strikes without prompting from the trial court, the trial court did not have a chance to rule on whether the petitioner had made a prima facie showing of intentional discrimination; however, “[t]his departure from the normal course of proceeding need not concern us.” Hernandez, 500 U.S. at 359, 111 S.Ct. 1859. Once the trial judge has ruled on the challenge, the prima facie showing, which is simply a preliminary issue, is rendered moot. Id. Here too, as case law states repeatedly, the essential inquiry is not whether Wilson made his prima facie showing in opposition to the strike, but whether there was a credible race-neutral reason for the strike. We find the issue of whether Wilson established a prima facie showing is moot.

C. ' The Race-Neutral Reasons Proffered by Strickland were Pretextual.

¶ 13. In Batson’s second analytical step, the burden shifts to the proponent of the strike to offer race-neutral justifications for the strike. Batson, 476 U.S. at 97-98, 106 S.Ct. 1712. Batson’s third step is to determine if the reasons proffered by the proponent of the strike are credible or pretextual. Id. The Mississippi Supreme Court has identified five indicia of pretext when analyzing alleged race-neutral reasons under Batson for peremptorily striking jurors: “(1) disparate treatment, that is, the presence of unchallenged jurors of the opposite race who share the characteristic given as the basis for the challenge; (2) the failure to voir dire as to the characteristic cited; ... (3) the characteristic cited is unrelated to the facts of the case” (4) “lack of record support for the stated reason”; and (5) “group-based traits.” Mack v. State, 650 So.2d 1289, 1298 (Miss.1994) (citing Whitsey v. State, 796 S.W.2d 707, 707 (Tex.Crim.App.1989)). Likewise, other findings of fact at the trial court level may assist in determining whether the strike was pretextual, such as the nature of the voir dire relating to the reasons the strike was exercised; the relationship between the reasons given for the strike and the facts of the case; the demeanor of the attorney; and disparate impact upon minorities. Snow, 800 So.2d at 481(¶ 19) (Miss.2000) (citing Randall v. State, 716 So.2d 584, 588(¶ 21) (Miss.1998)).

¶ 14. Wetzel, in requesting the strike, stated two alleged race-neutral reasons to justify it: that Harris was Baptist and that Harris worked for the Department of Human Services (“DHS”). Wet-zel went on to remark that because Wilson worked for the Baptist Church at the time of the accident, even though the Baptist Church was not a party to the case, he “had a problem” with the juror. Yet, the trial judge found these alleged race-neutral reasons unpersuasive, remarking that Wetzel did not strike another juror, who was also a Baptist and white.

¶ 15. In its order, the circuit court accepted Strickland’s race-neutral reasons because there was no evidence in the record to contradict them and Wilson did not rebut them. This Court, however, finds those race-neutral reasons to be pre-textual in nature and, when examined in totality, the record does contradict them. When the treatment of a minority juror is different from the treatment of similar non-minority jurors, this may be a basis for deciding the race-neutral reason for striking the juror is invalid. Mack, 650 So.2d at 1298. It was clear that, under the totality of the circumstances, because Harris was the last black juror to be considered for the jury panel, Atkinson, attorney for defendant Wilson, was concerned that his black client would face an all-white jury. Two prior challenges for cause had stricken the only other black jurors. Strickland used his first available peremptory challenge on Harris, the last remaining black juror in the venire. This might have been proper had Strickland better justified his strike.

¶ 16. Further, Strickland’s race-neutral reasons are unable to satisfy the specific findings of fact as articulated in Snow on whether a strike is pretextual, such as the totality of the circumstances of the voir dire, the relationship of the reasons with the facts of the case, and the disparate impact on a minority. Snow, 800 So.2d at 481(¶ 19). During voir dire, Strickland’s counsel stated he knew some of the venire were Baptist because he saw it on their jury information cards, and he asked if anyone had a problem with the fact a Baptist church van was involved in the accident. He received no response from the venire. Harris was not questioned individually about her religion or employment and whether these factors would impair her ability to be an impartial juror. As stated above, ■ the fact that Harris is Baptist, when the Baptist Church is not even a party to the case, and that another white Baptist juror was empaneled and not stricken, points most strongly to pretext, not race-neutrality.

¶ 17. Interestingly, the second race-neutral reason Strickland proffered for his peremptory strike, that Harris worked for DHS, was not pursued beyond the voir dire colloquy until after the trial was completed, during the hearing for JNOV or a new trial. During voir dire, instead, Strickland’s argument centered on religious affiliation. Strickland’s counsel did not voir dire the venire on educational background or vocation. Further, neither the county court nor the circuit court mentioned the DHS rationale as a race-neutral factor in their respective rulings. However, during the hearing on his motion for JNOV or a new trial before the county court, Strickland’s counsel brought up the fact that “education level” has been held by the supreme court to be a race-neutral reason, although Strickland did not mention education level during voir dire, but only the fact Harris worked for DHS. Wet-zel made the link during the hearing, explaining his reasoning during voir dire in more detail: “[T]his is an educated woman. She works at the Welfare Department and I believe that she would not be a good juror for this case.” Apparently because of her employment, Wetzel thought Harris was too well-educated to sit on this jury. Although case law abounds on finding under-education as a race-neutral rationale for peremptory strikes, in this case, neither party has cited to this Court any legal authority that being too well-educated would be a race-neutral factor for peremptorily striking a juror. Additionally, the record before this Court does not include the jury’s information cards, nor do we have any information before us that identifies Harris’s educational level. Therefore, the trial court, under a pretextual analysis, could properly find Strickland’s DHS rational unpersuasive, especially since there was no voir dire on the subject and the record before us is void regarding juror educational level. Consequently, we cannot find, as a matter of law, that the trial court erred by rejecting Strickland’s DHS rationale.

¶ 18. In his brief, Strickland also claims that because Wilson did not rebut Strickland’s peremptory challenge with specific arguments of discriminatory intent, his argument is waived according to Burnett v. Fulton, 854 So.2d 1010, 1015(¶ 16) (Miss.2003). Additionally, Strickland states that not rebutting the race-neutral reasons makes it improper for the trial court to reverse on that point. See Davis v. State, 551 So.2d 165, 172 (Miss.1989). However, upon reading Burnett, the case does not stand for the proposition that the nonstriking party is required to rebut the reasons for the strike. Instead, Burnett found the opponent of the strike’s argument was waived because there were no other arguments offered in opposition to the strike, and that court was forced to base its decision solely on the reasons given by the striking party. Burnett, 854 So.2d at 1014(¶ 11). Moreover, in Davis, the supreme court noted that “[t]he Bat-son Court specifically declined to formulate a procedure to be followed by trial courts in dealing with this question [of rebuttal].” Davis, 551 So.2d at 172. There, the defense did not offer any rationale at all against the race-neutral reasons, but merely alleged that the strikes amounted to a Batson violation. Id.

¶ 19. In our case, upon reviewing the record, we find that defense counsel properly noted Harris did not comment, nor was she questioned about any subject matter during voir dire. Additionally, defense counsel stated that the mere fact she is Baptist was insufficient grounds for a race-neutral strike. We find this sufficiently constitutes, if not a rebuttal, then a substantial argument in opposition to the strike which the trial court could consider in its final determination.

CONCLUSION

¶20. Strickland claims he was prejudiced by the denial of his first peremptory strike, and ultimately he did not receive a fair trial. We fail to see how, in a nearly unanimous five-to-one decision, where five jurors were white and one was black, how Strickland, who is white, was prejudiced. The essential issue is whether Strickland utilized his peremptory challenges in a discriminatory manner. Ultimately, the trial judge found Strickland’s rationales pretex-tual rather than race-neutral, and the strike was properly disallowed. We find the circuit court was in error in reversing the county court’s decision, and we therefore reinstate the trial court’s judgment for defendant Wilson.

¶ 21. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY IS REVERSED AND THE JUDGMENT OF THE COUNTY COURT OF HARRISON COUNTY IS REINSTATED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE AP-PELLEE.

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . The injuries Strickland claimed he sustained during the accident were "permanent spinal injuries.” However, Strickland had been involved in another automobile accident in 1996 and went to see Dr. Harry Danielson, the same doctor he saw in the instant case, for back pain. In his deposition testimony, Dr. Danielson explained that in 1996 Strickland’s treatment consisted of an evaluation for a possible herniated disc.

      . Apparently, this information was known because it was requested from the venire on a juror questionnaire.

      . The trial judge did not remark about the other race-neutral reason proffered-that Harris was employed by DHS.

      .Likewise, the circuit court, in its order, did not mention the DHS rationale but only referred to one race-neutral reason — that Harris was Baptist.

      . Strickland's counsel reasoned that he kept the other white Baptist on the panel because he was a blue collar man.

      . We should note here that a peremptory challenge based solely on religious affiliation is invalid under the Mississippi Constitution and our statutory law. McGilberry v. State, 741 So.2d 894, 923 (¶ 122) (Miss.1999) (citing Thorson v. State, 721 So.2d 590, 594(¶ 8) (Miss. 1998)).


author: GRIFFIS, J.,

text:
    Richard Earl PARKMAN, Appellant v. STATE of Mississippi, Appellee.
    No. 2005-CP-02127-COA.
    Court of Appeals of Mississippi.
    April 3, 2007.

      Richard Earl Parkman, Appellant, pro se.
    Office of the Attorney General by Jacob Ray, attorney for appellee.
    Before KING, C.J., IRVING and GRIFFIS, JJ.
   GRIFFIS, J.,

for the Court.

¶ 1. Richard Earl Parkman pled guilty to sexual battery. He was sentenced to serve twenty years in the custody of the Mississippi Department of Corrections, with ten years suspended, followed by five years of post-release supervision. He was also fined $1,500. Parkman filed a motion for post-conviction relief, and it was denied by the trial court. On appeal, Parkman argues that: (1) his plea was involuntary, (2) there was no factual basis to support the plea, (3) he had ineffective assistance of counsel, and (4) his signature on his motion to plead guilty was obtained illegally and was inadmissible. We find no error and affirm.

STANDARD OF REVIEW

¶ 2. A trial court’s denial of post-conviction relief will not be reversed absent a finding that the trial court’s decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150(¶3) (Miss.Ct.App.2002). However, when reviewing issues of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. Was Parkman’s plea involuntary?

II. Was Parkman’s signature on his plea motion illegally obtained?

¶3. Under both of these issues, Parkman alleges that police obtained his confession in violation of the Fifth and Sixth Amendments. Parkman claims that he was beaten by the police for six days and told to confess, he was never read his Miranda warnings, and the police refused his request for an attorney and continued interrogating him. The State argues that Parkman’s motion is barred as a successive writ. Alternatively, the State maintains that Parkman waived the right to raise these issues by virtue of his guilty plea.

A. Successive writ

¶ 4. Although the trial court denied Parkman’s post-conviction motion on its merits, the State maintains the motion was a successive writ. If the State is correct, then Parkman’s appeal may be procedurally barred. Miss.Code Ann. § 99-39-23(6) (Supp.2006).

¶ 5. The record before us contains two identical judgments, both denied Parkman’s motion on its merits. The first judgment was signed by the judge and dated October 24, 2005. The clerk stamped it “filed” on October 25, 2005. The judgment identified the cause number as 2005-CV-390-SC-C.

¶ 6. The second judgment appears at an unusual place in the record — after the notice of appeal and after a notice of deficiency sent by the Clerk of this Court. The judgment dismissed the motion for post-conviction relief and was signed by the judge and dated March 21, 2005. This judgment was not stamped “filed” until March 23, 2006. The second judgment is also identified as cause number 2005-CV-390-SC-C.

¶ 7. Despite two judgments on file, the record only contains one motion. It was filed on August 29, 2005. This motion seems to correspond with the October 24 judgment that denied the motion.

¶ 8. The record also contains, in proper sequence, a letter the clerk received from Parkman on September 13, 2004. In the letter, Parkman claims to have mailed a motion for post-conviction relief on January 14, 2004, and inquires as to the status of the motion. In another letter dated December 9, Parkman writes the circuit clerk to complain that he never received a file stamped copy of his motion nor any response to his previous inquiry.

¶ 9. On March 23, 2005, Parkman filed a motion for records and transcripts, to compel the circuit clerk to provide all records and transcripts in his case. This motion was granted. It was followed by the only motion for post-conviction relief that is contained in the record before this Court.

¶ 10. The record seems to indicate that Parkman attempted to file a post-conviction motion in January 2004. But, this fact is not established by the record before us. We find no 2004 motion. We do find the motion filed in August and denied in October of 2005, which all parties agree is the judgment that is the subject of this appeal. Although the record contains two final judgments, the judgment dated March of 2005 and filed in March of 2006 is not the subject of this appeal. Hence, we find that Parkman’s appeal is not precluded by the successive writ bar.

B. Involuntary confession

¶ 11. Parkman argues that his confession was involuntary, because it was obtained after beatings and torture by the police. At the plea colloquy, the trial judge made the appropriate inquiries. Parkman indicated that he was not under the influence of drugs or alcohol and that he understood the waiver of rights that the trial judge explained to him. He was asked whether anyone “threatened you or are you afraid?” Parkman replied, “No, sir.” Parkman affirmatively replied that the plea was his decision, and it was freely and voluntarily made.

¶ 12. “[A] guilty plea waives all non-jurisdictional rights or defects which are incident to trial.” Jones v. State, 747 So.2d 249, 251(¶ 8) (Miss.1989) (quoting Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991)). Generally included in this class are those rights secured by the Fifth, Sixth, and Fourteenth Amendments and their counterparts in the Mississippi Constitution. Id.

¶ 13. The United States Supreme Court has explained that a “conviction after trial in which a coerced confession is introduced rests in part on the coerced confession, a constitutionally unacceptable basis for conviction.” McMann v. Richardson, 397 U.S. 759, 773, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). “The defendant who pleads guilty is in a different posture. He is convicted on his counseled admission in open court.... The prior confession is not the basis for the judgment, has never been offered in evidence at a trial, and may never be offered in evidence.... ” Id. “[Wjhile claims of prior constitutional deprivation may play a part in evaluating the advice rendered by counsel, they are not themselves independent grounds for ... collateral relief.” Tollett v. Henderson, 411 U.S. 258, 266-67, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). The Court also ruled that:

[A] guilty plea represents a break in the chain of events which has preceded it in the criminal process. When a criminal defendant has solemnly admitted in open court that he is in fact guilty of the offense with which he is charged, he may not thereafter raise independent claims relating to the deprivation of constitutional rights that occurred prior to the entry of the guilty plea.

Id. at 267.

¶ 14. We find Parkman’s guilty plea waived his challenge by post-conviction relief that his confession was involuntary. Accordingly, we find no merit to these issues.

III. Was there a factual basis to support the plea?

¶ 15. Parkman also argues that there was no factual basis to support his plea of guilty to sexual battery. The State argues that Parkman’s plea waived the right to have the prosecution prove the offense.

¶ 16. A factual basis is not established by the mere fact that a defendant enters a plea of guilty. Lott v. State, 597 So.2d 627, 628 (Miss.1992). A factual basis for a plea may be established by the admission of the defendant, but the admission must contain factual statements constituting a crime or be accompanied by independent evidence of guilt. Reynolds v. State, 521 So.2d 914, 917 (Miss.1988). Neither Parkman nor the State provided factual statements constituting the crime of sexual battery at the plea hearing.

¶ 17. Nevertheless, we are not limited to the plea hearing and may look to the record as a whole to determine if there is a factual basis for the plea. Boddie v. State, 875 So.2d 180, 183(¶8) (Miss.2004). The crime of sexual battery occurs when the defendant sexually penetrates another without his or her consent or when the defendant sexually penetrates a minor under the age of fourteen, when the defendant is at least twenty-four months or older than the minor. Miss.Code Ann. § 97 — 3—95(1)(a)(d) (Rev.2006). The record established that the victim was thirteen years old, and Parkman was twenty-five years old at the time of the incident. The physical evidence revealed that the victim had been penetrated vaginally. The victim accused Parkman of having forced intercourse with her. Parkman confessed to police that he digitally penetrated the victim. Therefore, we find that there was a factual basis to support a plea of guilty to sexual battery. See also Miss.Code Ann. § 97-8-97(a) (Rev.2006) (defining sexual penetration).

TV. Was Parkman denied effective assistance of counsel?

¶ 18. Parkman argues that his attorney was ineffective because he failed to investigate and appeal Parkman’s guilty plea. The State responds that Parkman’s allegations are contradicted by his testimony at the plea hearing.

¶ 19. To prove ineffective assistance of counsel, Parkman must demonstrate that his counsel’s performance was deficient, and this deficiency prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The burden of proof rests with Parkman. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). There is a strong presumption that counsel’s performance falls within the range of reasonable professional assistance. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. To overcome this presumption, “the defendant must show that there is a reasonable probability that, but for the counsel’s unprofessional errors, the result would have been different.” Id. Additionally, “In order to establish that failure to investigate a line of defense constituted ineffective assistance, a [movant] must show that knowledge of the uninves-tigated evidence would have caused counsel to vary his course.” Thomas v. State, 881 So.2d 912, 918(¶ 18) (Miss.Ct.App.2004) (quoting King v. State, 503 So.2d 271, 275 (Miss.1987)).

A. Failure to investigate

¶ 20. Parkman alleges that his attorney did not investigate the case and did not ask him his version of the story. Had he done so, Parkman alleges he would have discovered several pieces information with which to impeach the victim and would have discovered that nothing happened. Parkman claims that his attorney did not ask him how and why he made the confession and consistently refused Parkman’s request to go to trial. Parkman also claims that his attorney told him he could not win at trial because he had confessed.

¶ 21. Parkman’s testimony at his plea hearing contradicts his claims here that his attorney failed to investigate the case and his confession. In the plea colloquy, Parkman testified that he thought that his attorney did a good job and investigated the case. We also read Parkman’s motion to state that he never told his attorney that anything was wrong with his confession. Certainly, this was known to him at the time of the plea hearing, and it could have been told to the judge.

¶ 22. Parkman’s allegation that his counsel advised him he could not win at trial is not deficient performance. Because Parkman confessed to the crime, chances were high that he would have been convicted at trial. Consequently, Parkman’s attorney’s advice to accept a plea bargain appears to us a reasonable representation and part of his strategy to get the best outcome possible for his client. Accordingly, this Court will not second guess counsel’s reasonable trial strategy. Hall v. State, 906 So.2d 34, 38(¶ 15) (Miss.Ct.App.2004). We find that this issue has no merit.

B. Failure to appeal guilty plea

¶23. A defendant who pleads guilty waives his right to an appeal. Page v. State, 812 So.2d 1039, 1042(¶ 13) (Miss. Ct.App.2001). Therefore, his counsel cannot be considered ineffective for not filing a direct appeal of Parkman’s guilty plea. We find that this issue has no merit.

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

KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ., CONCUR.

      . This judgment was filed after Parkman appealed but before the record was sent to this Court.