Carl Porter v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CA-00338-COA
CARL PORTER A/K/A CARLOS PORTER A/K/A CARL ARNOLD, JR.
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:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
12/18/2000
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
PATSY ANN BUSH
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
ALEXANDER C. MARTIN
CIVIL - POST CONVICTION RELIEF
MOTION FOR PCR SUMMARILY DENIED
AFFIRMED - 8/20/2002
9/10/2002
BEFORE KING, P.J., LEE, AND IRVING, JJ.
KING, P.J., FOR THE COURT:
¶1. Carl Porter appeals the dismissal of his request for post-conviction relief by the Copiah County Circuit
Court. Porter raises a single issue for this Court's review that we cite verbatim: "Whether the trial court
erred when petitioner's motion for post-conviction relief was denied without hearing."
FACTS
¶2. On October 26, 1998, Porter was indicted in Copiah County on charges of capital murder and
conspiracy. On November 9, 1998, the circuit court accepted Porter's pleas of guilty to the offenses of
capital murder and conspiracy.
¶3. The plea hearing established that on September 7, 1998, in Hazlehurst, Mississippi, Porter, James Fair,
Cordel Moreland and Ben Tanner, Jr., were in attendance at a card game. Porter, Fair and Moreland
conspired to rob Tanner, who was intoxicated. Moreland and Fair were to assist Tanner in walking home.
Porter struck Tanner on the head with a board commonly referred to as two-by-four. Fair removed the
wallet from Tanner's unconscious body. Tanner later died from these injuries.
¶4. The parties were arrested and given their Miranda rights. Porter gave three statements, including one
denying involvement and one admitting that he struck Tanner.
¶5. On November 9, 1998, Porter was sentenced "to serve the remainder of his natural life in the custody
of the Mississippi Department of Corrections without the benefit of early release or parole as to the charge
of Capital Murder and to serve twenty (20) years in the custody of the Mississippi Department of
Corrections as to the charge of Conspiracy; said sentences to run concurrent with each other."
¶6. On December 5, 2000, Porter filed a motion for post-conviction relief. The circuit court determined that
Porter's motion lacked merit and on December 20, 2000, dismissed Porter's post-conviction relief motion
without an evidentiary hearing.
Analysis
Whether the trial court erred when petitioner's motion for post-conviction relief was denied
without hearing.
¶7. Porter challenges the trial court's denial of his motion for post-conviction relief without an evidentiary
hearing. Porter argues three grounds for post-conviction relief.
¶8. He asserts that he received ineffective assistance of trial counsel, which rendered his pleas of guilty
involuntary. To demonstrate the ineffective assistance of counsel, Porter states (1) that counsel spent only
an hour with him prior to the plea hearing, (2) that counsel misrepresented the plea bargain, (3) that counsel
was confused as to the minimum and maximum sentence and (4) that counsel was not from Copiah County.
¶9. Secondly, he asserts that the district attorney failed to establish a factual basis for the plea.
¶10. Lastly, Porter asserts that the trial judge abused his authority in sentencing him as an habitual offender.
¶11. Mississippi Code Ann. Section 99-39-9(1) provides that a post-conviction motion must include (1) a
concise statement of the grounds for relief, (2) a sworn statement of those facts within the prisoner's
personal knowledge, and (3) a statement of facts outside of the prisoner's personal knowledge and how or
by whom these facts will be proven. Affidavits of these persons and any supporting documents should also
be attached. Miss. Code Ann. §99-39-9(1) (Rev. 2000).
¶12. Upon receipt of this information, the trial judge must promptly examine "[t]he original motion, together
with all of the files, records, transcripts and correspondences relating to the judgment under attack." Miss.
Code Ann.§99-39-11(1) (Rev. 2000).
¶13. If after doing so, it appears that the movant is not entitled to any relief, the trial judge may enter an
order dismissing the motion without conducting an evidentiary hearing. Miss. Code Ann.§99-39-11(2)
(Rev. 2000). The decision to grant or deny an evidentiary hearing is within the sound discretion of the trial
judge. Andrews v. State, 791 So. 2d 902 (¶4) (Miss. Ct. App. 2001). Upon a review of the record, this
Court is satisfied that Porter did not produce evidence of such a weight to suggest an entitlement to relief,
and that the trial court did not abuse its discretion.
¶14. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT DISMISSING
PETITIONER'S REQUEST FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
AND BRANTLEY, JJ., CONCUR. CHANDLER , J., NOT PARTICIPATING.
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