Prunty Arrington v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CP-00797-COA
PRUNTY ARRINGTON
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
APPELLANT
APPELLEE
03/28/2001
HON. V. R. COTTEN
NEWTON COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
KEN TURNER
CIVIL - POST CONVICTION RELIEF
PETITIONER'S MOTION TO VACATE SENTENCE
AND CONVICTION IS DISMISSED.
AFFIRMED - 04/30/2002
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
5/21/2002
BEFORE McMILLIN, C.J., LEE, MYERS, AND BRANTLEY, JJ.
MYERS, J., FOR THE COURT:
¶1. Prunty Arrington pled guilty to strong arm robbery on August 8, 2000, in the Circuit Court of Newton
County, Circuit Judge V. R. Cotten presiding. The plea was accepted and Arrington was sentenced to
thirteen years in the custody of the Mississippi Department of Corrections and ordered to pay a fine of $1,
500 as well as court costs and restitution to the victims in the amount of $1,092.95. Aggrieved by the length
of the sentence imposed, Arrington properly filed a motion for post-conviction relief in the trial court. The
trial court summarily denied Arrington's motion for post-conviction relief. Arrington raises the following
issues on appeal:
1. WHETHER THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT'S
GUILTY PLEA WAS VOLUNTARILY ENTERED AND BY DENYING HIS PETITION
FOR POST-CONVICTION RELIEF; AND
2. WHETHER DEFENDANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL AT THE ENTRY OF THE GUILTY PLEA.
STATEMENT OF FACTS
¶2. On February 19, 2000, the Spaceway Oil store in Newton County was robbed. Later the same day,
Prunty Arrington was arrested without an arrest warrant for the robbery. On February 20, 2000, Arrington
was placed in a lineup but was not identified as the robber by the witnesses. A photograph of Arrington
was then placed in a photographic lineup where he was identified as the robber by the witnesses. Arrington
was not provided assistance of counsel during either identification proceeding. Arrington was indicted on
August 3, 2000, and re-arraigned on August 8, 2000, wherein he pled guilty to the crime of strong arm
robbery. Arrington was then sentenced to thirteen years in the custody of the Mississippi Department of
Corrections, fined $1,500 and ordered to pay restitution in the amount of $1,092.95. Arrington petitioned
the trial court for post-conviction relief which was summarily denied. From the denial of that petition,
Arrington perfects the present appeal.
LEGAL ANALYSIS
1. WHETHER THE TRIAL COURT ERRED BY FINDING THAT DEFENDANT'S
GUILTY PLEA WAS VOLUNTARILY ENTERED AND BY DENYING HIS PETITION
FOR POST-CONVICTION RELIEF.
¶3. Arrington first contends that his guilty plea was not voluntarily entered as he was not apprized that he
was waiving certain constitutionally protected rights such as the right to a jury trial, the right to confront
witnesses, and the right to not incriminate himself. When reviewing the voluntariness of guilty pleas, this
Court exercises a clearly erroneous standard of review. Weatherspoon v. State, 736 So. 2d 419, 421
(¶5) (Miss. Ct. App. 1999). The guilty plea must be knowingly and voluntarily entered and, as such the
defendant must be properly advised by his counsel and fully understand the consequences of entering such a
plea. Id. In determining whether the guilty plea was made knowingily and voluntarily, an examination of the
entire record must be conducted. Id. Arrington stated under oath that he understood that he was waiving his
constitutional rights by pleading guilty and that he committed the crime charged against him. Arrington was
informed of the maximum and minimum sentences that could be imposed against him. Arrington stated that
the plea was being entered of his own free will and not from any promises of a lenient sentence or coercion.
Arrington had the advice of counsel throughout the proceeding. It is the defendant's burden to prove by a
preponderance of the evidence that the guilty plea was not voluntarily given. Id. at 422 (¶8). Arrington has
failed to meet this burden as he has presented no evidence to indicate that the guilty plea was not entered
knowing and intelligently. This issue is without merit as the guilty plea was voluntarily entered.
2. WHETHER DEFENDANT WAS PROVIDED INEFFECTIVE ASSISTANCE OF
COUNSEL AT THE ENTRY OF THE GUILTY PLEA.
¶4. Arrington complains that he was provided ineffective assistance of counsel at the entry of his guilty plea
because his counsel did not assert that Arrington's warrantless arrest was illegal, that Arrington was
subjected to a photographic lineup without counsel present, and that Arrington was denied his right to a
speedy trial. For Arrington to prevail on this issue, he must prove that his "counsel's performance was
deficient and that he was prejudiced by counsel's mistakes." Weatherspoon, 736 So. 2d at 422 (¶10),
citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984). There is a rebuttable presumption that an
attorney's conduct "falls within a wide range of reasonable professional assistance," and as such, this Court's
review of the attorney's performance is "highly deferential" and viewed under a totality of circumstances
standard. Id. With these standards in mind, we look to the issues raised by Arrington to determine whether
his counsel's actions were deficient.
¶5. Arrington first contends that the assistance rendered by his counsel was deficient because his attorney
failed to investigate whether Arrington's arrest was valid, even though done without an arrest warrant. An
officer may make an arrest without a warrant when he has reasonable grounds to suspect that the person
arrested committed a felony. Miss. Code Ann. § 99-3-7 (Rev. 2000). Arrington has not asserted that the
police officer did not have reasonable grounds to suspect that Arrington had committed a felony when the
officer arrested him. As such, Arrington has not demonstrated that his counsel's action or inaction was
deficient or that he was prejudiced by them as a police officer may make an arrest without a warrant where
the officer has probable cause to believe the person arrested has committed a felony. Linson v. State, 799
So. 2d 890, 893 (¶7) (Miss. Ct. App. 2001).
¶6. Arrington next contends that he was rendered ineffective assistance of counsel when his attorney was
not present during a post-indictment photographic lineup. On the day after he was arrested, Arrington was
placed in a physical lineup but was not picked by the witnesses as the person who committed the robbery.
Arrington was later placed in a photographic lineup and was pointed out as the person who committed the
robbery. It is well settled that the accused does not enjoy the right to counsel during a photographic lineup
as it is not viewed as a critical stage of the criminal prosecution process. Magee v. State, 542 So. 2d 228,
233 (Miss. 1989). Arrington was not subjected to ineffective assistance of counsel because of the absence
of his attorney during the photographic lineup.
¶7. Arrington does not raise the issue of whether his rights were violated by not being represented during
the initial physical lineup. Arrington did have the right to have an attorney present during the physical lineup
as adversarial proceedings had arguably been initiated against him. Magee, 542 So. 2d at 233. However,
this argument is moot as Arrington suffered no prejudice by the absence of counsel as he was not identified
in the physical lineup. Id.
¶8. Arrington's final contention of ineffective assistance of counsel concerns whether his attorney should
have raised the issue of denial of a right to a speedy trial. "The constitutional right to a speedy trial attaches
at the time of a formal indictment, information, or arrest." Birkley v. State, 750 So. 2d 1245, 1249 (¶11)
(Miss. 1999). This Court utilizes the balancing test set forth in Barker v. Wingo, 407 U.S. 514, 530 (1972)
, to determine whether a defendant has received a speedy trial. Birkley, 750 So. 2d at 1249 (¶11). "The
factors to be considered are: (1) length of delay; (2) reason for the delay; (3) whether the defendant has
asserted his right to a speedy trial; and (4) whether the defendant was prejudiced by the delay." Id. In
weighing these factors, the totality of the circumstances must be considered. Id. at (¶12). The analysis of the
Baker factors begins with the first factor, length of delay, as it operates as a triggering mechanism. Id. at
(¶13). Any delay of eight months or more is presumptively prejudicial to the defendant. Id. at (¶14).
¶9. Arrington was arrested on February 19, 2000, indicted on August 3, 2000, and arraigned on August 8,
2000, where he entered his guilty plea. Arrington was subjected to a delay of approximately six months.
Arrington presented no evidence to support the reason for the delay and the record is silent on this issue.
Arrington does assert this right in his motion for post-conviction relief. Finally, Arrington has failed to argue
or demonstrate that he was prejudiced by any delay in this case. Arrington was not denied his right to a
speedy trial and his attorney did not err in failing to raise this issue.
CONCLUSION
¶10. The issues asserted by Arrington in this appeal are without merit. Arrington's plea was knowingly and
voluntarily given. Arrington's counsel did not render ineffective assistance of counsel by failing to assert nonexistent issues.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF NEWTON COUNTY DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO NEWTON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND BRANTLEY, JJ., CONCUR.
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