Sammie Lee Epps, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-01526-COA
SAMMIE LEE EPPS, JR.
APPELLANT
v.
APPELLEE
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
06/23/2004
HON. C. E. MORGAN, III
MONTGOMERY COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
SAMMIE LEE EPPS, JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: CHARLES W. MARIS
JOHN R. HENRY
JIM HOOD
DOUG EVANS, DISTRICT ATTORNEY
CIVIL - POST CONVICTION RELIEF
PLEAD GUILTY TO THE CRIME OF
POSSESSION WITH INTENT TO SELL
COCAINE. SENTENCED TO SEVENTEEN
YEARS, TWELVE TO SERVE AND FIVE YEARS
POST RELEASE SUPERVISION
AFFIRMED: 12/06/2005
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
GRIFFIS, J., FOR THE COURT:
¶1.
On April 15, 2003, Sammie Lee Epps, Jr. pled guilty to the crime of possession with intent to sell
cocaine. The Honorable C.E. Morgan, III, sentenced Epps:
To serve a term of seventeen years with the Mississippi Department of Corrections. After
the defendant has served a period of twelve years, the Mississippi Department of
Corrections is hereby ordered to place him in a program of post-release supervision
pursuant to section 47-7-34 of the Mississippi Code of 1972 for a period of five years,
provided the defendant has abided by all the rules and regulations of the Mississippi
Department of Corrections during his period of incarceration.
¶2.
On May 14, 2004, Epps, pro se, filed a motion for post-conviction relief. The motion was denied
without an evidentiary hearing. On appeal, Epps argues that: (1) he was denied effective assistance of
counsel, (2) his guilty plea was involuntary, (3) he was denied due process because he was not informed
of his right to appeal his sentence, (4) his sentence was illegal, and (5) he is entitled to an evidentiary hearing
in regards to the factual issues presented in the motion for post-conviction relief. We find no error and
affirm.
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.
¶4.
Jurisdiction
We first consider the threshold issue of jurisdiction. The State claims that Epps failed to appeal in
a timely manner.
¶5.
This Court has held that the prison mailbox rule extends to all actions under the Uniform Post
Conviction Collateral Relief Act (“UPCCRA”) and appeals in those actions. Gaston v. State, 817 So.
2d 613, 616 (Miss. Ct. App. 2002). A pro se prisoner’s motion for post-conviction relief is delivered for
filing, under the UPCCRA and the Mississippi Rules of Civil Procedure, when the prisoner delivers the
papers to prison authorities for mailing. Id. at 615. The State claims that Epps filed his appeal on July 29,
2004, thirty-one days after the trial court entered the order denying relief.
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¶6.
Epps’ brief did not address the timeliness of his appeal. To him, it was apparently not an issue.
Epps is incarcerated at the Winston County Correctional Facility. His notice of appeal was received by
the Supreme Court Clerk on July 29, 2004. With the Clerk receiving the notice on the thirty-first day after
the order was entered, we believe it reasonable to infer that Epps deposited his notice of appeal in the mail,
at the Winston County Correctional Facility, at least the day before it was received by the Clerk. Thus,
the appeal was timely served and is properly before this Court.
II.
¶7.
Ineffective Assistance of Counsel
Epps next claims ineffective assistance of counsel. The standard applied to claims of ineffective
assistance of counsel was first articulated in Strickland v. Washington, 466 U.S. 668 (1984). Epps must
demonstrate that his counsel's performance was deficient and that this deficiency prejudiced his defense.
Id. at 687. The burden of proof rests with Epps, and we will measure the alleged deficiency within the
totality of circumstances. Hiter v. State, 660 So. 2d 961, 965 (Miss. 1995); Carney v. State, 525 So.
2d 776, 780 (Miss. 1988). However, a presumption exists that the attorney's conduct was adequate.
Burns v. State, 813 So. 2d 668, 673 (¶14)(Miss. 2001); Stringer v. State, 454 So. 2d 468, 477 (Miss.
1984).
¶8.
Epps argues first that his counsel had a duty to pursue a violation of the 270 day rule and that his
counsel expressly told him that no such violation existed. Epps’ guilty plea waived his right to a speedy trial
and is not a basis for relief on a motion for post-conviction relief. Anderson v. State, 577 So. 2d 390,
391-92 (Miss. 1991). During his plea hearing, Judge Morgan asked Epps if he understood that he had a
right to a public and speedy trial by jury. Judge Morgan also clearly asked if he understood that his guilty
plea would waive these rights. Epps answered affirmatively. There is no merit to this issue.
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¶9.
Epps argues next that he was persuaded to plead guilty by his counsel’s “predicament” that he
could be sentenced to 120 years if convicted at trial. Indeed, this was Epps predicament and not his
counsel’s predicament. His counsel was obligated to advise Epps of the potential consequences of trial
and conviction. Indeed, if he was convicted at trial on both counts charged in the indictment, including the
sentence enhancement, Epps faced a potential maximum sentence of 120 years imprisonment. Epps also
admitted that his counsel informed him of the constitutionalrights he would waive, what the prosecution was
required to prove, the possible defenses available to him, and he stated that he was satisfied with his
counsel’s representation.
¶10.
For these reasons, we find no merit to Epps’ claim of ineffective assistance of counsel.
III.
¶11.
Voluntariness of Guilty Plea
Epps claims that his guilty plea was involuntary and was entered after being ill advised by his
counsel. A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and
intelligently. Myers v. State, 583 So. 2d 174, 177 (Miss. 1991). A plea is viewed as voluntary and
intelligent when the defendant is informed of the charges against him and the consequences of his plea.
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992). A defendant must be told that a guilty plea
involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to
protection against self incrimination. Boykin v. Alabama, 395 U.S. 238, 243 (1969).
¶12.
As discussed above, Epps was afforded effective assistance of counsel. The record is void of any
plea agreement, but it does indicate that Epps was thoroughly questioned about his decision to plead guilty.
Judge Morgan was very clear in his explanation that he did not have to follow the prosecutor’s
recommendation, and that he was free to sentence Epps to a term of thirty years if he choose to do so.
Epps answered Judge Morgan’s question that it was his own decision to plead guilty. Epps’ responses also
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indicated that his plea was neither the result of coercion nor any physical violence, nor had he been
promised anything, nor given anything of value in order to persuade him to plead guilty.
¶13.
We find that Epps was fully advised of his rights and acknowledged that he intended to waive these
rights. Therefore, we conclude that Epps voluntarily and intelligently plead guilty. We find no merit to this
issue.
IV.
¶14.
Denial of Due Process - Failure to Inform of Appeal Process
Epps contends that he should have been advised by Judge Morgan that he had the right to appeal
his sentence. Epps correctly states that the trial court is required to make the defendant aware of any
constitutional rights which a guilty plea tends to waive. Here, Judge Morgan advised Epps that if he was
convicted he would have a right to appeal to the Mississippi Supreme Court. He asked if he understood
that he would waive this right by pleading guilty. Epps affirmatively indicated that he understood these
rights. Accordingly, this issue is without merit.
V.
¶15.
Illegal Sentence
Epps asserts that the sentence imposed was illegal. Epps was sentenced to a term of seventeen
years with the Mississippi Department of Corrections, with instructions that he was to be incarcerated for
twelve years and in a program of post-release supervision for a term of five years. Epps contends that
under Mississippi Code Annotated Section 47-7-33 (Rev. 2002), as a prior convicted felon, he is not
eligible for a suspended sentence. Epps correctly interprets the provisions of Section 47-7-33. As a prior
convicted felon, Epps would not be eligible for a suspended sentence. Indeed, he was not given a sentence
with any portion suspended.
¶16.
It is perfectly within the sentencing judges province to sentence the defendant to a term of
imprisonment followed by a term of post-release supervision, so long as the sum of the two do not exceed
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the maximum sentence authorized to be imposed by statute for the felony committed. Miss. Code Ann.
§47-7-34 (Rev. 2002). We find no merit to this issue.
VI.
¶17.
Evidentiary Hearing.
Finally, Epps argues that he is entitled to an evidentiary hearing. He is not entitled to an evidentiary
hearing. Section 99-39-11(2) provides that if “it plainly appears from the face of the motion, any annexed
exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may
make an order for its dismissal and cause the prisoner to be notified.” There is no merit to this issue. Judge
Morgan was correct to dismiss the motion without an evidentiary hearing.
¶18.
Finding no error, we affirm the judgment of the Circuit Court of Montgomery County that denied
Epps’ motion for post-conviction relief.
¶19. THE JUDGMENT OF THE MONTGOMERY COUNTY CIRCUIT COURT
DISMISSING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL
ARE ASSESSED TO MONTGOMERY COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, BARNES AND
ISHEE, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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