Bilbo Bush v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CA-00210-COA
BILBO BUSH
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
12/22/2003
HON. SHARION R. AYCOCK
ITAWAMBA COUNTY CIRCUIT COURT
LAUREL G. WEIR
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
PETITIONER’S MOTION FOR POSTCONVICTION RELIEF IS DENIED.
AFFIRMED: 06/07/2005
BEFORE KING, C.J., IRVING AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Bilbo Bush appeals the trial court’s denial of his motion for post-conviction relief. On appeal he
argues that: (1) his plea of guilty is void, (2) the trial court erred in finding that he pled guilty under Alford,
(3) the trial court erred in finding no minimum sentence for his alleged crime, (4) he received ineffective
assistance of counsel, and (5) his guilty plea was not entered voluntarily. We find no error and affirm.
FACTS
¶2.
Despite his claim of innocence, Bilbo Bush pled guilty to the charge of sexual battery of a ten-year-
old girl. He acknowledged that the State’s proof, if presented to a jury, would warrant the jury in finding
him guilty of sexual battery. He further acknowledged that it was in his best interest to offer a plea of guilty
under the circumstances. He was sentenced to serve a term of twelve years in the custody of the
Mississippi Department of Corrections with four years suspended and five years post-release supervision.
Bush was ordered to pay a $2,500 fine as well as all court costs. He was further ordered, upon release,
to register as a sex offender and to be evaluated by a competent psychiatrist or psychologist trained in the
evaluation and treatment of sex offenders. Bush filed a motion for post-conviction relief which was denied
by the trial court. He now appeals to this Court.
STANDARD OF REVIEW
¶3.
In reviewing a trial court's decision to deny a motion for post-conviction relief, the standard of
review is clear. The trial court's denial will not be reversed absent a finding that the trial court's decision
was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150 (¶3) (Miss. Ct. App. 2002).
ANALYSIS
I.
II.
¶4.
Is Bush’s plea of guilty void?
Did the trial court err in finding that Bush pled guilty under Alford?
Since Bush’s first two arguments are interrelated, we will discuss them together. Bush contends
that his plea of guilty is void under Mississippi law. He claims he entered a plea of nolo contendere. He
argues that this plea is void because Mississippi does not permit a plea of nolo contendere in felony cases.
In support of his argument, Bush cites Keyes v. State, 312 So. 2d 7, 10 (Miss. 1975), which states that
a plea of nolo contendere is only available in misdemeanor cases, not felony cases. Bush is correct that
a plea of nolo contendere is inapplicable in felony cases. However, the record indicates that Bush did not
enter a plea of nolo contendere. Instead, the record shows that Bush entered a valid plea of guilty often
referred to as an Alford plea in recognition of the holding by the Supreme Court in North Carolina v.
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Alford, 400 U.S. 25 (1970). In Alford, the Court held that Alford’s guilty plea to murder together with
evidence from three witnesses formed a sufficient factual basis for accepting Alford’s plea even though it
was accompanied by Alford’s protestation of innocence. Id. at 37. The court found no constitutional error
in accepting a guilty plea despite a protestation of innocence, when the defendant knowingly and intelligently
concluded that his best interests required entry of the guilty plea and the trial judge made a determination
on the record that there was strong evidence of actual guilt. Id.
¶5.
Bush argues the trial court erred in concluding that he pled guilty under Alford. However, after
Bush stated that he fully understood the charge, he and the trial judge engaged in the following conversation:
Q:
I’ve been advised by your attorney that you are requesting that the court allow you
to enter what’s called an Alford plea under the authority of the case of Alford v.
North Carolina, that you are telling the Court that while you are not making an
admission to actually committing this offense, you are telling me, the Court, that
you recognize and agree that the State of Mississippi has proof which, if presented
to a jury in the trial of this case, would warrant a jury in finding you guilty of that
offense. Is that what you are telling me, Mr. Bush?
A:
Yes, sir.
Q:
And, further, are you telling me that in light of that evidence which the State has
and which could prove and which would warrant a jury in convicting you of this
offense, that you believe it’s in your best interests to offer this plea of guilty under
these circumstances?
A:
Yes, sir. Yes, sir.
Thus, Bush clearly acknowledged the nature of his plea.
¶6.
Bush contends that there was no factual basis to his plea of guilt and that no witnesses testified that
he was guilty of the alleged crime. However, the ten-year-old victim testified that Bush had placed his
finger in her vagina “every morning” for “three months.” Furthermore, the State prosecutor stated in detail
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what he intended to prove and how he intended to prove it. Before it may accept the plea, the trial court
must have before it substantial evidence that the accused did commit the legally defined offense to which
he is offering the plea. Corley v. State, 585 So. 2d 765, 767 (Miss. 1991). There must be enough that
the court may say with confidence the prosecution could prove the accused guilty of the crime charged.
Id. Upon review, we find there was substantial evidence that Bush committed sexual battery. Thus, the
trial court did not err in accepting Bush’s plea under Alford.
III.
¶7.
Did the trial court err in finding no minimum sentence for Bush’s alleged crime?
Bush argues that the trial court erred in finding there was no minimum sentence for the alleged crime
of sexual battery. He claims that the minimum sentence is zero years and since the trial court failed to
inform him of the minimum penalty, his sentence should be reversed.
¶8.
“[W]here the statute specifies no minimum number of years of imprisonment, the judge is not
obliged to informthe defendant that no minimum sentence is provided, or that the minimum penalty he faces
is zero.” Vance v. State, 803 So. 2d 1265, 1269 (¶16) (Miss. Ct. App. 2002) (citing Bevill v. State, 669
So. 2d 14, 18 (Miss. 1996). Thus, Bush had no right to be informed that the statute contains no minimum
sentencing requirement or that the minimum penalty was zero years. Nevertheless, the trial judge informed
Bush that the minimum sentence for the crime charged was “any term of years . . . up to 30 [years].” Zero
years falls within that time frame. Thus, this issue is without merit.
IV.
¶9.
Did Bush receive ineffective assistance of counsel?
Bush contends he received ineffective assistance of counsel. The standard applied to claims of
ineffective assistance of counsel was first articulated by the United States Supreme Court in Strickland v.
Washington, 466 U.S. 668 (1984). To prove ineffective assistance of counsel, Bush must demonstrate
that his counsel's performance was deficient and that this deficiency prejudiced his defense. Id. at 687.
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The burden of proof rests with Bush. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Bush
contends that his counsel was deficient since he failed to explain the consequences of a plea nolo
contendere and misrepresented the Alford rule. As discussed previously, the record reflects that Bush did
not enter a plea of nolo contendere, but instead pled guilty under Alford. The trial judge clearly explained
to Bush the consequences of pleading guilty under Alford and therefore did not misrepresent the rule.
¶10.
Bush also claims his attorney gave him erroneous advise and “threatened” that if he went to trial,
he would receive twenty to thirty years. We find nothing wrong with a lawyer informing his client of the
realities of the situation. The record indicates that the evidence proffered by the State was strong. The
State’s proof included the testimony of the ten-year-old victim, the victim’s mother, and the physician who
observed a vaginal abrasion suffered by the victim, which the physician opined was caused by digital
penetration. Thus, there was sufficient evidence against Bush. Therefore, the defense counsel’s generalized
prediction that Bush might receive the maximum penalty of thirty years if he went to trial and was found
guilty is insufficient to entitle Bush to any post-conviction relief.
¶11.
In a post-conviction relief proceeding, the post-conviction applicant must demonstrate with
specificity and detail the elements of the claim. Woodward v. State, 635 So. 2d 805, 808 (Miss. 1993).
Upon review, we find the trial court was correct in ruling that Bush did not meet this burden. Thus, we find
no error.
V.
¶12.
Was Bush’s guilty plea entered voluntarily?
Bush contends that his guilty plea was involuntary since his lawyer told him that if he did not enter
a plea of guilty, he would be sentenced to thirty years in prison. However, the record reflects that Bush
was advised of his constitutional rights and the consequences of his guilty plea. Bush stated under oath that
his plea of guilty was made freely and voluntarily without any threats or promises. Statements such as these
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made in open court under oath are viewed as highly credible. Gable v. State, 748 So. 2d 703, 706 (¶11)
(Miss. 1999). Furthermore, if the defendant is advised regarding the nature of the charge and the
consequences of the plea, then the plea is considered voluntary and intelligent. Alexander v. State, 605
So. 2d 1170, 1172 (Miss. 1992). A trial judge may disregard the assertions made by a post-conviction
movant where, as here, they are substantially contradicted by the court record of proceedings that led up
to the entry of judgment of guilt. White v. State, 818 So. 2d 369, 371 (¶4) (Miss. Ct. App. 2002).
Therefore, Bush’s argument that his guilty plea was not entered voluntarily is without merit.
¶13.
Upon review, we find the trial court was correct in denying Bush’s motionfor post-conviction relief.
Therefore, we find no error.
¶14. THE JUDGMENT OF THE CIRCUIT COURT OF ITAWAMBA COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO THE APPELLANT.
KING, C.J., BRIDGES AND LEE, P.JJ., IRVING, MYERS, CHANDLER, BARNES
AND ISHEE, JJ., CONCUR.
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