James Davis Yates v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2004-CP-02067-COA
JAMES DAVIS YATES
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF 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:
MANDATE ISSUED:
APPELLEE
12/17/2004
HON. JOSEPH H. LOPER, JR.
WINSTON COUNTY CIRCUIT COURT
JAMES DAVIS YATES (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
DOUG EVANS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED.
AFFIRMED: 12/13/2005
BEFORE LEE, P.J., IRVING AND CHANDLER, JJ.
IRVING, J., FOR THE COURT:
¶1.
James D. Yates pleaded guilty to manslaughter by culpable negligence and D.U.I. death. He was
sentenced to concurrent sentences of twenty-five years, with five years suspended and five years of
probation; and twenty years, respectively. Yates now appeals, and asserts that he is entitled to postconviction relief because (1) he was exposed to double jeopardy, (2) all of the counts following the first
count of the indictment were invalid, (3) his plea was involuntary, (4) his sentence was illegal, and (5) his
counsel was ineffectivel.
¶2.
Finding no error, we affirm.
FACTS
¶3.
After a drunk driving accident that killed two people and injured another, Yates was indicted on
three criminal counts: D.U.I. death, manslaughter, and aggravated D.U.I. Each count in the indictment
related to a different victim of the accident. After consulting with his attorneys, Yates pleaded guilty to
manslaughter and D.U.I. death. The remaining charge of aggravated D.U.I. was remanded to the file.
¶4.
Before accepting his guilty plea, the court placed Yates under oath and asked him a series of
questions. In response, Yates testified that (1) he could read and write, (2) he was not under the influence
of any drugs or alcohol, (3) he did not suffer from any mental defects, (4) he understood the constitutional
rights that he was giving up by entering a guilty plea, (5) he had not been offered any reward for pleading
guilty, (6) he had not been threatened or coerced into pleading guilty, (7) he understood that the judge was
not required to impose the sentence suggested by the prosecutor, (8) he understood the maximum
sentences that could be imposed by the judge, (9) he was completely and totally satisfied with the
representation provided to him by his attorneys, and (10) the sentence suggested by the prosecutor (which
was adopted by the court) was what he expected. After this questioning, the court found that Yates’s plea
was knowingly, voluntarily, and freely made.
¶5.
Additional facts, as necessary, will be given during the discussion of the issues.
ANALYSIS AND DISCUSSION OF THE ISSUES
(1) Double jeopardy
¶6.
In his first point of error, Yates argues that the multiple counts charged in his indictment improperly
subjected him to double jeopardy. Yates reaches this conclusion by first pointing out that aggravated
D.U.I. is a lesser–included offense of manslaughter. Mayfield v. State, 612 So. 2d 1120, 1124 (Miss.
2
1992) (citations omitted). Yates then reasons that he was subjected to double jeopardy because he was
charged with both of these offenses as separate crimes. In the interest of thoroughness, we address any
potential double jeopardy issues rising from any of the three crimes that Yates was charged with.
¶7.
We note at the outset that since the aggravated D.U.I. charge was remanded to file, Yates suffered
no possible harm from its inclusion on the indictment. Since Yates was not convicted for aggravated D.U.I.
and suffered no possible harm from the charge, we do not address here whether a conviction for it would
have constituted double jeopardy. As for the D.U.I. death and manslaughter, Yates’s argument would have
merit only if both of these charges related to the same victim and incident. This same issue has been before
the Mississippi Supreme Court, who held that “when a single unlawful act results in the killing of more than
one person, each homicide constitutes a separate offense for which the defendant may be tried without
being twice put in jeopardy for the same offense. . . .” Burton v. State, 226 Miss. 31, 48, 79 So. 2d 242,
250 (1955).
¶8.
In the present case, Yates was charged with D.U.I. death for the death of David Parker, and
manslaughter for the death of Christy Thomas. Since two people were killed as a result of Yates’s drunk
driving, it was proper for the State to indict him on two counts: one for each victim killed. If Yates had
killed only one person, and then been indicted on two separate counts for manslaughter and D.U.I. death,
his argument would be proper. Since Yates was convicted for the killing of two different individuals, no
double jeopardy occurred in relation to those two offenses. Yates’s first point of error is therefore
rejected.
(2) Invalid counts
¶9.
In his second point of error, Yates argues that his manslaughter conviction should be overturned
because his indictment contained the words “against the peace and dignity of the State” after each count,
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instead of using the language only at the conclusion of the indictment. Yates contends that the words,
placed after the first count of his indictment, invalidated the second and third counts of the indictment.
¶10.
As support for his contention, Yates cites Love v. State, 8 So. 465, 465 (Miss. 1891), wherein
the Mississippi Supreme Court reversed a convictionbecause the indictment did not conclude with “against
the peace and dignity of the State.” We find Love distinguishable from the present case by virtue of the
fact that the indictment in Love failed entirely to conclude with the required language. In the case sub
judice, however, the indictment concluded with the required language, which was also unnecessarily
included at the end of each of the three counts.
¶11.
Yates’s argument on this point is refuted by Mississippi case law. In Starling v. State, 90 Miss.
255, 43 So. 953 (1907), the Mississippi Supreme Court held that “against the peace and dignity” is
required only at the conclusion of the indictment, not after each count of the indictment. Id. at 265-67, 43
So. at 953-54. Later, this Court specifically held that an indictment is not defective for containing the
statutory language after each count of an indictment. Switzer v. State, 828 So. 2d 1277, 1278-79 (¶¶5-7)
(Miss. Ct. App. 2002). Yates attempts to distinguish his case from Switzer because the counts of his
indictment arose from a single criminal incident. Having reviewed the applicable case law, we find Yate’s
case indistinguishable from Switzler.
¶12.
Therefore, Yates’s second point of error is rejected.
(3) Voluntariness of plea
¶13.
In his third point of error, Yates claims his plea was not voluntary. When reviewing whether a plea
was voluntary, we will not reverse unless the findings of the court below are clearly erroneous. House v.
State, 754 So. 2d 1147, 1152 (Miss. 1999) (citing Schmitt v. State, 560 So. 2d 148, 151 (Miss. 1990)).
The burden is on Yates to show that his plea was involuntary. MISS. CODE ANN. § 99-39-23(7) (Rev.
4
2000). If Yates is able to prove that his plea was involuntary, then we must find that his plea is not binding
on him.
¶14.
A plea is voluntary when “the defendant is advised concerning the nature of the charge against him
and the consequences of the plea.” Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992) (citing
Wilson v. State, 577 So. 2d 394, 396-97 (Miss. 1991)). The defendant must be apprised of several
constitutional rights, which the defendant must knowingly waive: “the 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.” Id. (citing Boykin v. Alabama, 395 U.S. 238, 243 (1969)).
Mississippistatutory law provides that a defendant must be informed of the minimum and maximum jail time
possible for pleading guilty. URCCC 8.04 (A)(4)(b). The court is also required to determine that “the
accused is competent to understand the nature of the charge.” Id. at (4)(a).
¶15.
After reviewing the transcript of the plea hearing, we find that Yates’s plea was voluntarily made.
The court clearly informed him of the constitutional rights he was giving up, and made sure that he knew
he was waiving those rights. At the hearing on Yates’s motion for post-conviction relief, Yates claimed that
he had never been informed of his right against self-incrimination. While the court did not use the word
“incriminate” in its statement of the right, it did inform Yates that “[y]ou’ve got a right to testify at trial or
a right to remain silent at trial.” There is no interpretation of that statement other than that Yates had the
right to remain silent and say nothing incriminating about himself if he chose to go to trial. The court also
informed Yates that he would have the right to cross-examine adverse witnesses and the right to a trial by
jury, among other constitutional rights that Yates was waiving by entering a guilty plea.
¶16.
The court informed Yates of the minimum and maximum sentences possible on each count Yates
was pleading to, as well as the fact that the court could impose any sentence in those ranges. Yates testified
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that he understood those sentences. The court also conducted an examination into Yates’s competence,
inquiring as to his level of education, ability to read and write, lack of intoxication, and understanding of the
charges against him. Yates specifically testified that his plea was entered voluntarily. Therefore, we find
that Yates has presented no evidence that his guilty plea was involuntary, and the decision of the lower
court to accept the plea was not clearly erroneous.
¶17.
Yates’s third point of error is rejected.
(4) Legality of sentence
¶18.
Yates next argues that he is entitled to relief because his sentence is illegal. He contends that this
is so because he was effectively sentenced to thirty years: twenty to serve, plus five suspended, and five
years of probation assigned by the court.
¶19.
In Mississippi, probation is not equivalent with time to serve: “No part of the time that one is on
probation shall be considered as any part of the time that he shall be sentenced to serve.” MISS. CODE
ANN. § 47-7-37 (Rev. 2004). If Yates had been sentenced to post-release supervision, that time would
count as part of his sentence and would work toward meeting the statutory maximum. Carter v. State,
754 So. 2d 1207, 1208 (¶4) (Miss. 2000). Probation, however, can be imposed without counting toward
the statutory maximum: “a probationary period does not equal time served.” Id. at 1209 (¶7).
¶20.
In Carter, the defendant was convicted and sentenced to nineteen and one-half years, with six
months suspended – the maximum sentence for his crime. Id. The Carter defendant was also sentenced
to serve five years of probation. Id. The Mississippi Supreme Court held that this did not violate the
statutory maximum because “if [the defendant] violates the conditions of his five-year probationary period,
he would also have to serve the one-half year suspended, resulting in a total of twenty years served, but
no more.” Id. The same is true in Yates’s case. He was sentenced to twenty years to serve, with five
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suspended (the maximum for D.U.I. death). If Yates violates the conditions of his probation, he will serve
the additional five suspended years, but no more than that, for a total of twenty-five years: the statutory
maximum.
¶21.
Yates also makes the argument that he could have received the “same” sentence if he had gone to
trial, but instead saved the State “thousands” of dollars by pleading, and he therefore should have been
rewarded with something other than the “maximum” sentence allowed by law. We note that Yates was
charged with three counts in his indictment. Convictions on all three counts at trial would have exposed
Yates to a potential total of seventy years imprisonment. Therefore, Yates did not receive the “same” or
“maximum” that he may have gotten at trial.
¶22.
Yates contends that he was “denied due process of law” because the court did not enter separate
judgments on each count it ruled upon. As support, Yates cites Mississippi Code Annotated section 99-72(4), as annotated, which states: “The jury or the court, in cases in which the jury is waived, shall return
a separate verdict for each count of an indictment. . . .” Yates confuses a verdict with that of a judgment
order. Nothing in section 99-7-2 requires that each count be sentenced in a separate judgment. Yates’s
own guilty plea returned a verdict on each count – that of guilty.
¶23.
Therefore, Yates’s fourth point of error is rejected.
(5) Ineffectiveness of counsel
¶24.
In his last point of error, Yates alleges that he is entitled to relief because his counsel was ineffective
in pursuing his defense. In order to prevail on this point, Yates must meet the two-pronged test set out in
Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Mississippi Supreme Court in
Stringer v. State, 454 So. 2d 468, 476 (Miss. 1984). According to that test, Yates must prove (1) that
his attorney’s performance was defective, and (2) that that deficiencyprejudiced Yates’s right to a fair trial.
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Stringer, 454 So. 2d at 477.
When reviewing Yates’s claim, we will look at the totality of the
circumstances surrounding his attorneys’ performance. Hiter v. State, 660 So. 2d 961, 965 (Miss. 1995).
Yates has a significant hurdle to overcome in proving his claim: “analysis begins with the strong but
rebuttable presumption that counsel’s conduct fell within the wide range of reasonable professional
assistance. Appellate review of counsel’s performance is ‘highly deferential.’” Id. (citations omitted).
¶25.
The primary thrust of Yates’s arguments on this point is that his counsel was ineffective in failing
to recognize and instruct Yates regarding all the defects alleged in his first four points of error. For
example, Yates argues that his counsel was ineffective in not recognizing that Yates’s sentence was greater
than the statutory maximum. As we have already explained, the sentence was not outside the statutory
maximum. Yates also argues that his counsel was ineffective in advising him to plead guilty to “the
maximum sentence.” As also already explained, Yates did not plead to the “maximum,” which was seventy
years. Instead, he received a sentence of twenty years, far from the seventy-year maximum. Yates also
criticizes his attorney for not recognizing the alleged double jeopardy issue, which we have also found to
be without merit.
¶26.
Yates’s attorneys testified that they had fully advised him of his rights, and of the likelihood of
successfully defending his case if he went to trial. They testified that they had fully explained to him the
possible sentences that he could receive, and they testified that Yates appeared to understand completely
what they were telling him.1 Given the seventy years of potential sentence facing Yates, the twenty years
1
Although not stressed in his appeal briefs, Yates claimed below that his attorneys had
misrepresented to him that he would only have to serve twenty-five percent of his sentence. This allegation
was refuted by the sworn testimony of both attorneys, who testified that they had informed him that he
would have to serve at least eighty-five percent of his sentence, not twenty-five. Given the highly deferential
nature of our review of attorney performance, we will not overturn Yates’s sentence simply because he
alleges that his attorneys told him one thing, when both attorneys testified that they told him something else.
Yates also claimed below that his attorneys had coerced him into pleading guilty by threatening him with
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negotiated by his attorneys seems entirely reasonable. Yates also testified at the plea hearing that he was
“completely and totally satisfied in all respects” with his attorneys, and that he had no complaints about their
service. Yates’s attorneys testified that the prosecuting attorneys in Yates’s case initially refused to lower
the sentence to less than twenty-five years, but backed down after careful negotiating by Yates’s attorneys.
¶27.
After reviewing all of the above, we do not find that the service provided by Yates’s attorneys was
deficient in any way. Therefore, Yates’s fifth and final point of error is rejected.
¶28. THE JUDGMENT OF THE CIRCUIT COURT OF WINSTON COUNT DENYING
APPELLANT’S MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO WINSTON COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, CHANDLER, GRIFFIS, BARNES
AND ISHEE, JJ., CONCUR.
the notion that he would get seventy-five years in jail if he did not plead. This claim is refuted by the sworn
testimony of Yates himself, who testified at his plea hearing that he was happy with his attorneys, and had
not been coerced into pleading guilty.
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