Christopher Joe Dennis v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-02113-COA
CHRISTOPHER JOE DENNIS
APPELLANT
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:
APPELLEE
10/30/2002
HON. BILLY JOE LANDRUM
JONES COUNTY CIRCUIT COURT
CHRISTOPHER JOE DENNIS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
ANTHONY J. BUCKLEY
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF - DENIED
AFFIRMED: 05/18/2004
EN BANC.
GRIFFIS, J., FOR THE COURT:
¶1.
Christopher Joe Dennis pled guilty to one count of aggravated assault, three counts of burglary, and
two counts of second degree arson. He was sentenced to serve a total of fifty years in the custody of the
Mississippi Department of Corrections, with thirty-five years suspended, and five years' probation. Dennis
petitioned the trial court for post-conviction relief, which was denied. We find no error and affirm.
¶2.
Although Dennis assigns fourteen errors, we are of the opinion that the allegations of error may be
reduced to six issues.
ANALYSIS
I.
¶3.
Involuntary Plea
Dennis claims that his plea was involuntary. A plea is considered "voluntary and intelligent" if the
defendant is advised about the nature of the charge and the consequences of the entry of the plea.
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992). The defendant must be instructed that a guilty
plea waives his or her rights to a jury trial, to confront adverse witnesses, and to protection against
self-incrimination. Id.
¶4.
Dennis bears the burden of proving, by a preponderance of the evidence, that he is entitled to post-
conviction relief. McClendon v. State, 539 So. 2d 1375, 1377 (Miss. 1989). "Once the trial judge has
determined at a preliminary hearing that a confession is admissible, the defendant/appellant has a heavy
burden in attempting to reverse that decision on appeal." Sills v. State, 634 So. 2d 124, 126 (Miss. 1994)
(quoting Frost v. State, 483 So. 2d 1345, 1350 (Miss. 1986)). “Such findings are treated as findings of
fact made by a trial judge sitting without a jury as in any other context. As long as the trial judge applied
the correct legal standards, his decision will not be reversed on appeal unless it is manifestly in error, or is
contrary to the overwhelming weight of the evidence.” Foster v. State, 639 So. 2d 1263, 1281 (Miss.
1994).
¶5.
First, Dennis claims that his plea was involuntary because he was never advised of his right against
self-incrimination. Dennis' plea petition contradicts this claim. The petition, signed by Dennis, clearly
enumerated the rights that he would be guaranteed if he pled not guilty; the right against self-incrimination
was included. In his plea transcript, the trial judge conducted a "face-to-face exchange in open court" with
Dennis, to determine whether Dennis understood his rights. See Nelson v. State, 626 So. 2d 121, 126
(Miss.1993) (holding the judge must conduct a face-to-face exchange in order to determine whether the
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accused knows and understands the rights to which he is entitled). The trial judge specifically explained
that Dennis had the right to a jury trial, the right to call witnesses, and the right to testify or not testify on his
behalf. The trial judge further explained that, if he chose not to testify, the jury would be informed that
Dennis had the right to remain silent. Dennis acknowledged that he understood each of these rights.
Accordingly, the plea petition and the transcript from the court’s acceptance of his plea contradict Dennis'
claim that he was not advised of his right against self-incrimination.
¶6.
Second, Dennis asserts that he was not informed of the maximum and minimum penalties that he
could face. Although the trial judge did not verbally state the maximum and minimum penalties during
Dennis' plea hearing, Dennis' guilty plea petition recited the maximum and minimum sentences for burglary
and arson, and the maximum sentence for aggravated assault. In Thompson v. State, 724 So. 2d 1070,
1073-74 (¶ 14) (Miss. Ct. App. 1998), we held that:
failure by a trial court specifically to inform a defendant of the maximum and minimum
sentences may be harmless if the defendant was correctly informed by another source of
or "if appears beyond a reasonable doubt that the plea would have been entered anyway.
. . ." State v. Pittman, 671 So. 2d 62, 64 (Miss. 1996). If a trial court fails to advise a
defendant of a minimum sentence, the defendant must establish that he was misinformed
and "that the case was misrepresented or the defendant expected to receive a lesser
sentence." Courtney v. State, 704 So. 2d 1352, 1358 (Miss. Ct. App. 1997).
¶7.
Since Dennis was informed in his plea petition of the maximum and minimum sentences for burglary
and arson, the trial judge's failure to verbally state the possible sentencing range during the plea hearing was
harmless. Thompson, 724 So. 2d at 1073 (¶ 14). As to his claim that he was not advised of the minimum
sentence for aggravated assault, Dennis has failed to establish that he was misinformed or that he expected
to receive a lesser sentence due to the trial judge's failure to inform him of the minimum sentence range.
¶8.
Moreover, the supreme court has held that "[w]here the statute specifies no minimum number of
years of imprisonment, the judge is not obliged to inform the defendant that no minimum sentence is
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provided, or that the minimum penalty he faces is 'zero.'" Bevill v. State, 669 So. 2d 14, 18-19
(Miss.1996). A person convicted of aggravated assault is subject to serve "imprisonment in the county jail
for not more than one (1) year or in the penitentiary for not more than twenty (20) years." Miss. Code
Ann. §97-3-7 (2) (Rev. 2000). Since this statute sets no minimum penalty, the trial judge was not obligated
to inform Dennis of the minimum sentence for aggravated assault.
¶9.
Third, Dennis claims that the trial judge erred by accepting a plea from him without arraignment on
the charges for aggravated assault and burglary of a non-residence. Mississippi courts have consistently
held that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident
to trial. Anderson v. State, 577 So. 2d 390, 391 (Miss. 1991); Ellzey v. State, 196 So. 2d 889, 892
(Miss. 1967). By pleading guilty, Dennis waived his right to raise this challenge. Notwithstanding this
waiver, Dennis filed a written waiver of indictment and consented that the proceeding may be by
information.
¶10.
Finally, Dennis claims that he never pled guilty to the charge of aggravated assault. The record
does not support this claim. During the plea hearing, Dennis' counsel confirmed that the criminal information
on the aggravated assault charge was one of the charges to which Dennis was pleading guilty. The
prosecution articulated the facts of each charge for the record, including the facts of the aggravated assault
charge. The trial judge asked Dennis if he was pleading to "all of the matters" and later read a sentence for
each of the charges, including aggravated assault.
¶11.
Based on our review of the record, Brown entered a guilty plea to all of the charges in a manner
that was knowing, voluntary, and intelligent. Therefore, Dennis' claim that his plea was involuntary is
without merit.
II.
Sentencing
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¶12.
Dennis contends that the trial judge sentenced him to a longer sentence than allowed by law for
each of his three convictions. Dennis also asserts that the judge erred in imposing one sentence for two
separate crimes in each of his multi-count indictments.
¶13.
Our supreme court has ruled that a defendant who has pled guilty may take a direct appeal from
an aggrieved sentence. Trotter v. State, 554 So. 2d 313, 315 (Miss. 1989). This Court has further held
that the failure to raise sentencing issues on direct appeal bars consideration of the issues in post-conviction
relief. Swindle v. State, No. 2001-CP-01668-COA (¶ 9) (Nov. 18, 2003). Dennis’ challenge to his
sentence existed immediately after the sentencing hearing and was an appropriate issue for a direct appeal.
Dennis' failure to raise these issues on direct appeal precludes consideration in post-conviction relief
proceedings. Id.
¶14.
Nonetheless, our review of Dennis' sentence reveals that no portion was in excess of the statutory
maximum.
III.
¶15.
Ineffective Assistance of Counsel
Dennis claims that he received ineffective assistance of counsel. To support this claim, Dennis
argues that his counsel presented him a blank plea petition to sign and stated that it was just a form stating
he was willing to take a plea. He contends that the plea petition was filled out after he signed it, without
his knowledge, and it was presented to the court as his petition to enter a plea of guilty. In addition, Dennis
claims that his counsel promised him that if he pled guilty he would receive a sentence of fifteen years. But
for his expectation of a fifteen year sentence, Dennis claims that he would not have pled guilty.
¶16.
Dennis failed to raise the issue of ineffective assistance of counsel and the supporting allegations
in his motion for post-conviction relief before the circuit court. This Court will not address issues initially
on appeal. Von Brock v. State, 794 So. 2d 279, 281 (¶ 6) (Miss. Ct. App. 2001). The appropriate time
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to raise an ineffective assistance of counsel claim was on appeal to the circuit court in his petition for postconviction relief. Accordingly, Dennis has waived his right to raise this issue.
¶17.
The claim of ineffective assistance of counsel would also fail on its merits. To establish an
ineffective assistance of counsel claim, Dennis must show (1) a deficiency of his counsel's performance that
was (2) sufficient to constitute prejudice to his defense. Swift v. State, 815 So. 2d 1230 (¶ 17) (Miss.
Ct. App. 2001).
¶18.
Mississippi Code Annotated Section 99-39-9 (Rev. 2000) provides that motions for post-
conviction relief should contain affidavits which include facts and state how or by whom these facts will be
proven. Laushaw v. State, 791 So. 2d 854 (¶ 14) (Miss. Ct. App. 2001). Dennis failed to provide
affidavits or other evidence that states the facts and evidence to support his allegations.
¶19.
At the plea hearing, Dennis told the trial judge, under oath, that he was satisfied with his attorney's
representation. This Court places great weight upon the sworn testimony of a defendant given during a plea
hearing and requires something more than mere assertions to disregard that testimony. Calvert v. State,
726 So. 2d 228 (¶ 11) (Miss. Ct. App. 1998).
¶20.
Because no evidence has been presented to this Court to support Dennis' allegation of ineffective
assistance of counsel, we find no merit in this issue.
IV.
¶21.
Sentence Recommendation
Dennis claims that a sentence recommendation was made in violation of his plea agreement, which
indicated that his plea was to be made without a recommendation from the prosecutor. He points to two
different areas in the record to support this contention.
¶22.
First, Dennis notes that the court stated, "[a]ccording to the recommendation of the State of
Mississippi will be the sentence in these matters, and will adopt the same as an Order." In making this
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statement, the trial judge was referring to the other defendant represented by the same counsel who was
also pleading guilty at the same time. Therefore, this comment by the trial judge was not referring to Dennis
and does not support Dennis' claim.
¶23.
Second, Dennis claims that the prosecutor made a sentence recommendation in violation of the plea
agreement and that because of this, his plea is void. We quote the relevant exchange from the record:
MR. PARISH: This one right here in the orange. He's 18 years of age. On
Christopher J. Dennis, on all of these charges, he wishes to withdraw his former pleas of
not guilty and also enter a plea of guilty to the criminal information. The agreement with
the District Attorney's office in these cases, Your Honor, is that we will request that a presentence investigation be made by the Mississippi Department of Corrections, submitted
to the Court, and that the Court will consider that in imposing whatever sentence that you
deem appropriate. And they will not make a recommendation other than what's contained
in the Department of Corrections report. That's to Mr. Dennis.
MR. STRICKLAND: Your Honor, we've made a recommendation that the total
consisted of about twenty years to serve - MR. PARISH: Please don't get into that.
MR. STRICKLAND: We couldn't reach an agreement then. But he wants to
plead guilty in the blind subject to a recommendation of the Department of corrections.
But we didn't have an agreement in this case, other than if he wanted to plead, he could.
And then let the court make its decision based on the recommendation of the Department
of Corrections after the pre-sentence investigation.
MR. PARRISH: That's correct.
¶24.
A review of the entire exchange reveals that the prosecution's mention of a recommendation was
made in the context of explaining that no plea agreement had been reached and that Dennis' plea would be
open.
¶25.
Next, Dennis complains that the trial judge erred in allowing the Mississippi Department of
Corrections official to state a sentence recommendation. Dennis contends that the trial judge violated the
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Code of Judicial Conduct by allowing the Mississippi Department of Corrections official to give his presentence report because the official was "advancing his private interests."
¶26.
Dennis argues that Uniform Circuit and County Court Rule 11.02 prohibited the official from giving
a recommendation. The rule provides:
Upon acceptance of a plea of guilty, or upon a finding of guilt, and where the court has
discretion as to the sentence to be imposed, the court may direct that a presentence
investigation and report be made.
The report of the presentence investigation may contain, but is not limited to, the
following information:
1.
2.
3.
4.
5.
6.
7.
8.
9.
A description of the offense and the circumstances surrounding it, not
limited to aspects developed for the record as part of the determination of
guilt;
Any prior criminal convictions of the defendant, or juvenile adjudications of
delinquency;
The defendant's financial condition;
The defendant's educational background;
A description of the employment background of the offender, including any military
record and including present employment status and capabilities;
The social history of the defendant, including family relationships, marital status and
residence history;
Information about environments to which the offender might return or to which the
offender could be sent should probation be granted;
Information about special resources which might be available to assist the
defendant such as treatment centers, rehabilitative programs or vocational training
centers; and
A physical and mental examination of the defendant if it is ordered by the court.
(emphasis added).
¶27.
Although the rule lists several items that may be included in a pre-sentence report, it does not
prohibit a recommendation as Dennis claims. Moreover, Dennis agreed that his sentence would be based
on the recommendation of the Department of Corrections after a pre-sentence investigation. Indeed, there
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is nothing in the record to support the claim that the Mississippi Department of Corrections’ official was
"advancing his private interest."
¶28.
Dennis' claim that the trial judge accepted sentence recommendations in violation of the plea
agreement is without merit.
V.
¶29.
Hearing Procedure
Dennis contends the court erred in accepting pleas from Dennis and another defendant, who
was represented by like counsel, during the same plea hearing. However, Dennis failed to raise this
complaint in his motion for post-conviction relief before the circuit court. Consequently, this issue is
procedurally barred and will not be considered for the first time on appeal. Coleman v. State, 772 So.
2d 1101, 1103 (¶ 8) (Miss. Ct. App. 2000).
VI.
¶30.
Post-Arrest Statement
Dennis contends that his post-arrest statement was unlawfully obtained. He asserts that the
arresting officers coerced the statement since he was seventeen years old at the time of his arrest and no
parental guardian was present.
¶31.
A "valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident
to trial." Anderson v. State, 577 So. 2d 390, 391 (Miss. 1991). Dennis, by pleading guilty, has waived
this claim. This assignment of error is without merit.
¶32. THE JUDGMENT OF THE JONES COUNTY CIRCUIT COURT DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED TO
JONES COUNTY.
KING, C.J., BRIDGES AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING, MYERS
AND CHANDLER, JJ., CONCUR.
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