author: GRIFFIS, P.J.,

text:
    Stephen POWELL a/k/a Steve Powell, Appellant v. STATE of Mississippi, Appellee.
    No. 2009-KA-01414-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.

      Joshua Aaron Turner, Jackson, attorney for appellant.
    Office of the Attorney General by Jeffrey A. Klingfuss, Jackson, attorney for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   GRIFFIS, P.J.,

for the Court:

¶ 1. Stephen Powell appeals his convictions of sexual battery and conspiracy to commit sexual battery under Mississippi Code Annotated sections 97-3-95 (Rev. 2006) and 97-1-1 (Supp.2010), respectively. He argues that the trial judge erred: (1) when he sent the jury to continue deliberations twice without giving the Sharplin instruction and (2) when he denied Powell’s motion for a mistrial. We find no error and affirm.

FACTS

¶ 2. Powell and his girlfriend, Candace McKenzie, were indicted for sexual battery and conspiracy to commit sexual battery upon McKenzie’s seven-year-old daughter. At trial, after the State and the defense had rested, the trial judge instructed the jury and sent the jury to deliberate.

¶ 3. After approximately two-and-half hours, the trial court recessed for the day. The following morning, the jury sent the trial judge a note that stated that they had failed to reach a verdict. The jury was brought into the courtroom, and the trial judge asked each juror if further deliberations would help them reach a verdict. Nine jurors answered, ‘Yes,” and three jurors answered, “No.” The trial judge stated: “I think we ought to try to work a little more again then,” and he sent the jury back to continue its deliberations.

¶ 4. A short time later, the jury sent out another note that stated they had reached a verdict. The jury was brought into the courtroom, and the verdict was announced. Powell was found guilty on all counts. Defense counsel asked for the jury to be polled. The trial judge asked each juror if the verdict, as announced, reflected his or her individual decision. Ten jurors answered, “Yes,” while two jurors answered, “No.” The trial judge then stated:

All right. Ladies and gentlemen, what I have here, I want to ask the jury to go back into the jury room. I’m getting a misread here. When you tell me we are ready to report, that indicates to me that is a unanimous decision; but as I poll the jury individually, it seems to be a ten-to-two decision. I’m not suggesting anyone change their mind or anything, but I just want you to go back and reconvene and I have got to know whether it’s a split decision or whether it’s a unanimous decision. I just want you all to go back there and huddle up and send me another note when you are ready to come back out, and I’ll do the same thing again and see if the results are the same.

He then sent the jury back to continue its deliberations. The defense immediately moved for a mistrial, which the trial judge denied.

¶ 5. Shortly thereafter, the jury sent another note to the trial judge that stated they had reached a verdict. The jury was brought into the courtroom, and the verdict was announced. Powell was again found guilty on all counts. The jury was polled. This time, each juror affirmed that the verdict reflected his or her individual decision.

¶ 6. Powell was sentenced to twenty years, with twelve years suspended, in the custody of the Mississippi Department of Corrections for the sexual-battery charge. In addition, he was sentenced to five years for the conspiracy charge, with that sentence ordered to run concurrently with the twenty-year sentence for sexual battery. It is from this judgment that Powell appeals.

ANALYSIS

1. Whether the trial judge erred when he ordered the jury to resume its deliberations without either giving the Sharplin instruction or stating, “Please continue your deliberations.”

¶7. If a jury initially fails to reach a verdict and the trial judge believes there is a possibility that further deliberations would result in a verdict, he “may return the jury for further deliberations by simply instructing the jury to continue its deliberations or he may give the Sharplin instruction.” McDonald v. State, 881 So.2d 895, 904 (¶ 41) (Miss.Ct.App.2004) (citing Brantley v. State, 610 So.2d 1139, 1142 (Miss.1992)).

¶ 8. In Sharplin v. State, 330 So.2d 591, 596 (Miss.1976), the Mississippi Supreme Court stated:

If the trial judge feels that there is a likelihood that the jury might reach a verdict, he may return the jury for further deliberations by simply stating to the jurors: “Please continue your deliberations,” or he may give the following instruction[:]....
I know that it is possible for honest men and women to have honest different opinions about the facts of a case, but, if it is possible to reconcile your differences of opinion and decide this case, then you should do so.
Accordingly, I remind you that the court originally instructed you that the verdict of the jury must represent the considered judgment of each juror. It is your duty as jurors to consult with one another and to deliberate in view of reaching agreement if you can do so without violence to your individual judgment. Each of you must decide the case for yourself, but only after an impartial consideration of the evidence with your fellow jurors. In the course of your deliberations, do not hesitate to reexamine your own views and change your opinion if you are convinced it is erroneous, but do not surrender your honest convictions as to the weight or effect of the evidence solely because of the opinion of your fellow jurors or for the mere purpose of returning a verdict. Please continue your deliberations.

The rule is stated in the disjunctive. That is, the trial judge may give the Sharplin instruction, or he may simply order the jury to continue its deliberations.

¶ 9. Here, the trial judge chose not to give the Sharplin instruction. Instead, he simply ordered the jury to resume its deliberations. He did this on two occasions. First, when the jury reported that they could not reach a verdict, he asked them if further deliberations would help. Nine of the twelve jurors said that it would. The trial judge then stated: “I think we ought to try to work a little more again then,” and he sent them back for further deliberations. Second, when the results of the jury poll conflicted with the announced verdict, he sent the jury back so that they could clear up the discrepancy. The trial judge clearly advised: “I’m not suggesting anyone change their mind or anything.”

¶ 10. We find that the trial judge did not coerce the jury into reaching a verdict. See, e.g., United States v. Warren, 594 F.2d 1046, 1050 (5th Cir.1979) (trial court’s direction for jury to continue deliberations and denial of mistrial was not abuse of discretion where juror stated verdict was not his). He did not say anything to apply undue pressure on the jury. He merely ordered the jury to continue its deliberations. While it is true that he did not say the exact words, “Please continue your deliberations,” that is the meaning of what he said. Therefore, we find that the trial court complied with the Sharplin holding, and this issue is without merit.

2. Whether the trial judge erred when he denied Powell’s motion for a mistrial.

¶ 11. Powell argues that the trial judge erred when he denied Powell’s motion for a mistrial. Powell moved for a mistrial when the results of the jury poll conflicted with the announced verdict. He argues that, by that time, the jury had indicated twice that they could not agree on a verdict.

¶ 12. Whether to grant a mistrial is within the sound discretion of the trial judge, and we will not reverse his decision unless it amounts to an abuse of discretion. McDonald 881 So.2d at 902 (¶ 28). Uniform Rule of Circuit and County Court 3.12 provides that the trial judge may declare a mistrial if “[i]t appears there is no reasonable probability of the jury’s agreement upon a verdict.” As previously stated, if the trial judge finds there is a possibility that further deliberations would result in a verdict, he may order the jury to resume its deliberations. McDonald, 881 So.2d at 904 (¶41).

¶ 13. Here, the trial judge was within his discretion when he denied the motion for a mistrial. After the jury indicated that they could not reach a verdict, nine jurors stated that additional time would help. This certainly gave the trial judge a reasonable basis to find that further deliberations might result in a verdict. Also, based on the jury poll after the verdict was announced, the trial judge had every reason to determine that further deliberations would help clear up the discrepancy.

¶ 14. The supreme court has held that, when the jury poll conflicts with the verdict, the trial judge may either order the jury to resume its deliberations or order a mistrial. State v. Taylor, 544 So.2d 1387, 1389 (Miss.1989). In this case, the trial judge, in his discretion, chose to order the jury to resume its deliberations. Accordingly, we find this issue is without merit.

¶ 15. THE JUDGMENT OF THE PA-NOLA COUNTY CIRCUIT COURT OF CONVICTION OF COUNT I, CONSPIRACY TO COMMIT SEXUAL BATTERY, AND SENTENCE OF FIVE YEARS AND COUNT II, SEXUAL BATTERY, AND SENTENCE OF TWENTY YEARS, WITH TWELVE YEARS SUSPENDED, TO RUN CONCURRENTLY IN THE CUSTODY OF THE MISSISSIPPI DEPARTMENT OF CORRECTIONS, IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.

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

      . This appeal only involves Powell; McKenzie is not a party.


source: Caselaw Access Project

author: MYERS, J.,

license: Public Domain

text:
    Derrick MITCHELL, Appellant v. STATE of Mississippi, Appellee.
    No. 2010-CP-00327-COA.
    Court of Appeals of Mississippi.
    April 5, 2011.

      Derrick Mitchell, appellant, pro se.
    Office of Attorney General by Billy L. Gore, attorneys for appellee.
    Before GRIFFIS, P.J., MYERS and CARLTON, JJ.
   MYERS, J.,

for the Court:

¶ 1. Derrick Mitchell pleaded guilty in the Lafayette County Circuit Court to the crime of selling cocaine, as a habitual offender, and he was sentenced to ten years without eligibility for probation or parole. Mitchell thereafter filed a motion for post-conviction relief (PCR) in the circuit court, in which he claimed that: his indictment was fatally defective for not including the judgment dates of his prior convictions, and he had received constitutionally ineffective assistance of counsel as a result. The circuit court summarily dismissed the PCR motion, and this appeal followed. Finding no error, we affirm the circuit court’s dismissal.

FACTS

¶ 2. In April 2006, Mitchell was indicted by a Lafayette County grand jury on one count of selling cocaine and one count of selling marijuana. Following a motion by the State, which was filed on January 3, 2007, Mitchell’s indictment was amended to charge Mitchell as a habitual offender under Mississippi Code Annotated section 99-19-83 (Rev.2007).

¶ 3. Based on a plea agreement, the State agreed to reduce the charge to habitual-offender status under section 99-19-81 (Rev.2007). In addition, the State agreed to retire the marijuana charge and another unrelated pending charge to the files. The State also agreed to recommend to the circuit court that Mitchell receive a ten-year sentence.

¶ 4. On January 8, 2007, a guilty-plea hearing was held. The circuit court accepted Mitchell’s plea after determining that Mitchell knew and understood that he was pleading guilty as a habitual offender to the crime of selling cocaine, and Mitchell’s plea was voluntary. The circuit court then sentenced Mitchell as a habitual offender to ten years without eligibility for probation or parole in the custody of the Mississippi Department of Corrections.

DISCUSSION

¶ 5. The circuit court may summarily dismiss a PCR motion without an evi-dentiary hearing “if ‘it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.’ ” Staggs v. State, 960 So.2d 563, 565 (¶ 2) (Miss.Ct.App.2007) (quoting Miss. Code Ann. § 99-39-11(2) (Rev.2000)). This Court will affirm the summary dismissal of a PCR motion “if the petitioner has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Flowers v. State, 978 So.2d 1281, 1283 (¶ 5) (Miss.Ct.App.2008) (citation and internal quotations omitted).

I. Mitchell’s Indictment as a Habitual Offender

¶ 6. Mitchell contends that when his indictment was amended to charge him as a habitual offender, the date of judgment was omitted for each of his previous convictions. Mitchell argues that these omissions thereby made the habitual-offender portion of his indictment invalid. We disagree. .

¶ 7. In cases involving enhanced punishment for habitual offenders, Rule 11.03 of the Uniform Rules of Circuit and County Court applies. Rule 11.03(1) states: “The indictment must allege with particularity the nature or description of the offense constituting the previous convictions, the state of federal jurisdiction of any previous conviction, and the date of judgment.”

¶ 8. As Mitchell correctly points out, the habitual-offender portion of his amended indictment failed to include the judgment dates of his prior convictions. The amendment to Mitchell’s indictment reads, in relevant part, as follows:

The defendant was previously convicted in this court of two separate and distinct felonies which arose at different times, which are otherwise wholly unrelated, one to the other, and which were separately prosecuted. In cause number LK98-265B[,] the defendant was convicted of the felony crime of possession of cocaine with intent to distribute and was sentenced to serve a term of three years incarceration in the custody of the Mississippi Department of Corrections. In cause number LK98-265B the defendant served more than one year in prison. In cause number LK98-331D the defendant was convicted of the felony crime of sexual battery and was sentenced to serve a term of three years incarceration in the custody of the Mississippi Department of Corrections. In cause number LK98-331D the defendant served more than one year in prison.

¶ 9. The Mississippi Supreme Court addressed a similar issue in Benson v. State, 551 So.2d 188, 195 (Miss.1989), and found it meritless. There, the contention was made that because the indictment charging the defendant as a habitual offender failed to state the date of the previous judgments, it was fatally defective. Id. In speaking to Rule 6.04, Mississippi Uniform Criminal Rules of Circuit Court Practice (URCCC 11.03 effective May 1, 1995), the Benson court noted that: “The indictment must allege with particularity the nature or description of the offenses constituting the previous felonies, the state or federal jurisdiction of previous conviction, and the date of judgment.” Benson, 551 So.2d at 195. The Benson court then held as follows:

While it is correct that the date of the judgment is not specifically stated in the indictment, all of the information that is contained, and specifically the cause number, afforded the defendant access to the date of the judgment. This Court holds that information pertaining to the date of the judgment was substantially set forth in the indictment and that sufficient information was afforded the defendant to inform him of the specific prior convictions upon which the State relied for enhanced punishment to comply with due process.

Id. at 196.

¶ 10. In accord with Benson, we find in the instant case that even though the date of judgment for each prior conviction was not provided in the amendment to Mitchell’s indictment, all the information contained therein afforded Mitchell access to the date of judgment. The amendment provides the nature and description of each prior felony conviction; it indicates the court in which each conviction was adjudicated; it states the sentence given by the court for each conviction and that Mitchell served one year or more for each sentence; and it provides the cause number for each case.

¶ 11. All this fairly enabled Mitchell to defend against the State’s habitual-offender charge if Mitchell so chose. Mitchell did not.

¶ 12. As previously mentioned, Mitchell told the circuit court that he knew and understood he was pleading guilty as a habitual offender. And Mitchell indicated to the circuit court that he knew the State would recommend a ten-year sentence to the court. This issue is without merit.

II. Ineffective Assistance of Counsel

¶ 13. Mitchell contends that he received constitutionally ineffective assistance of counsel because his attorney failed to object to the fact that the date of judgment for each of his prior convictions was not provided in the amendment to the indictment.

¶ 14. In order to demonstrate ineffective assistance of counsel, a petitioner must satisfy the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the convicted defendant must show that counsel’s representation fell below an objective standard of reasonableness. Second, the defendant must show there is reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006) (internal citations omitted).

¶ 15. This being a case which involves a guilty plea, in order to satisfy the second prong, Mitchell was required to show that but for his counsel’s error(s): he would not have pleaded guilty; he would have instead insisted on going to trial; and the ultimate outcome would have been different. Id. at (¶ 7). Mitchell failed to make such a showing.

¶ 16. Mitchell simply alleges that his attorney was ineffective because his attorney made no objection to the omissions contained in the amendment to the indictment. This is not enough to demonstrate ineffective assistance of counsel. Accordingly, this issue is without merit.

¶ 17. THE JUDGMENT OF THE CIRCUIT COURT OF LAFAYETTE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAFAYETTE COUNTY.

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