Paul Nelson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-00119-COA
PAUL NELSON
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
12/10/2003
HON. MIKE SMITH
PIKE COUNTY CIRCUIT COURT
PAUL NELSON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST- CONVICTION RELIEFDENIED
AFFIRMED: 05/24/2005
BEFORE KING, C.J., CHANDLER AND BARNES, JJ.
KING, C.J., FOR THE COURT:
¶1.
Paul Nelson pled guilty in the Circuit Court of Pike County to a charge of burglary. On August 29,
2003, he was sentenced to a term of twenty-five years in the custody of the Mississippi Department of
Corrections, with seventeen years of incarceration and the remaining eight to be served on post-release
supervision. Nelson filed a motion for post conviction relief on November 19, 2003, which was denied by
the court. Aggrieved by the denial of this motion, he has appealed asserting as error the following:
I.
There was no factual basis to support the plea of guilty.
II.
III.
There was a denial of due process because he was denied an opportunity to use newly
retained counsel.
The period of post-release supervision exceeds the maximum twenty-five (25) years in a
guilty plea to burglary without the authority of a jury.
IV.
The trial court prejudicially erred in that it held the Petitioner’s ineffective assistance of
counsel was effective.
¶2.
Finding no error, we affirm.
FACTS
¶3.
On February 22, 2003, Paul Nelson was charged with the burglary of the home of Tamara Bowie
and Delwin Robinson. Nelson does not dispute that he was in the home; however, he contends that he was
“running for his life” and entered Bowie’s home for safety. According to Nelson, there were no items taken
from the home.
¶4.
At his arraignment, Nelson entered a guilty plea. Nelson contends that he entered the plea of guilty
under the erroneous direction of his then counsel, Raymond Boutwell. According to Nelson, Boutwell
indicated that he would seek to have the charge reduced to trespassing. Nelson claims that Boutwell
advised him to plead guilty to the trespass charge to obtain a sentence of four years or alternatively , possibly
face a sentence of twenty-five years as an habitual offender. Subsequently, Nelson dismissed Boutwell as
his attorney, and secured other legal counsel.
¶5.
According to Nelson, on August 22, 2003, he was informed by Boutwell that the case could be
continued and go to trial or he could plead guilty that day. Nelson entered into a plea agreement for a
sentence of ten years, with the suspension of six years, leaving four years to serve. On August 29, 2003, the
trial court rejected the plea bargain, and sentenced Nelson to twenty-five years in the custody of the
Mississippi Department of Correction, with seventeen years to serve eight years on post-release
supervision, with the first five years to be supervised and the remaining three years to be served on an
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unsupervised, non-reporting basis.
ISSUES AND ANALYSIS
¶6.
“It is elementary that a party seeking reversal of the judgment of a trial court must present this Court
with a record adequate to show that an error of reversible proportions has been committed and that the
point has been procedurally preserved.” Hansen v. State, 592 So.2d 114, 127 (Miss. 1991). Nelson’s
brief raises several concerns regarding his conviction. The record which Nelson has provided to this Court
does not provide evidence which supports his claims. Instead, the only document in the record, which may
be considered as evidence by this Court is the order denying post-conviction relief. That order is entitled
to a presumption of correctness. Branch v. State, 347 So.2d 957 (Miss.1977). Nelson provides nothing
to overcome that presumption. In the absence of said evidence, this Court must affirm.
¶7.
This Court "must decide each case by the facts shown in the record, not assertions in the brief. . .
." Burney v. State, 515 So.2d 1154, 1160 (Miss.1987). The burden falls upon an appellant to ensure the
record contains "sufficient evidence to support his assignments of error on appeal." Id. Nelson has failed
to do so. This Court finds no error.
¶8. THE JUDGMENT OF THE CIRCUIT COURT OF PIKE COUNTY DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
THE APPELLANT.
BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, GRIFFIS, BARNES AND
ISHEE, JJ., CONCUR.
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