Derrick Poss v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-00370-COA
DERRICK POSS
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
1/31/2006
HON. PAUL S. FUNDERBURK
LEE COUNTY CIRCUIT COURT
DERRICK POSS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF BE
AND SAME IS DISMISSED.
AFFIRMED – 03/20/2007
BEFORE KING, C.J., CHANDLER AND ISHEE, JJ.
ISHEE, J., FOR THE COURT:
¶1.
Derrick Poss pleaded guilty in the Lee County Circuit Court to armed robbery and was
sentenced to a term of twenty years in the custody of the Mississippi Department of Corrections, with
fifteen years to serve, five years on post-release supervision, and five years suspended at the close
of successful post-release supervision. He filed a petition for post-conviction relief in the circuit
court, which was summarily denied. He appeals, asserting that his plea was involuntary. Finding
that the circuit court did not err, we affirm.
ISSUES AND ANALYSIS
¶2.
This Court will not reverse a trial court’s denial of post-conviction relief on appeal unless
the trial court was clearly erroneous. Smith v. State, 806 So. 2d 1148, 1150 (Miss. Ct. App. 2002).
¶3.
Poss's argument is that his counsel erroneously informed him, off the record, that he would
be eligible for parole after serving twenty-five percent of his sentence. No affidavit was attached to
his pleadings showing how he would prove this fact. Poss attached a letter from his attorney stating
that the attorney's knowledge is that the exact release date is determined by the Mississippi
Department of Corrections.
¶4.
Where erroneous legal advice on sentencing has been given to a defendant by his counsel,
no error attaches if the record affirmatively shows the defendant was correctly advised of his peril
by the sentencing court. Roland v. State, 666 So. 2d 747, 750 (Miss. 1995). In some cases, however,
mistaken advice from counsel can vitiate a guilty plea. Gardner v. State, 531 So. 2d 805, 809 (Miss.
1988). Having viewed the record of the sentencing hearing, it is clear in this case that Poss was
thoroughly questioned and fully advised of his potential sentence by the trial court. Therefore, this
issue is without merit.
¶5.
While the only issue Poss specifically addressed in his appeal before this Court is whether
his plea was voluntary, we may review pro se arguments for any self-evident errors for which
authority would be unnecessary. Kellar v. Mississippi Empl. Sec. Comm’n, 756 So. 2d 840, 842 (¶6)
(Miss. Ct. App. 2000). Since Poss's claim of erroneous advice as to parole is connected to
ineffective assistance of counsel, it is conceivable Poss sought to raise that issue as well, so this
Court will address its merits.
¶6.
The test for ineffective assistance of counsel is well known and requires a showing of
deficiency in the performance of counsel and prejudice to the defendant. Strickland v. Washington,
466 U.S. 668, 687-96 (1984); Stringer v. State, 454 So. 2d 468, 476-77 (Miss. 1984). The letter
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from Poss's attorney suggests that there was no deficiency in performance. As the letter explicitly
states, an experienced attorney wisely advises a defendant to look to the Mississippi Department of
Corrections to determine his release date. However, even if we were to assume a deficiency in
performance, which we do not, any possible prejudice was cured when the circuit court advised Poss
of the potential minimum and maximum sentences. Donnelly v. State, 841 So. 2d 207, 211 (¶7)
(Miss. Ct. App. 2003). Therefore, there can be no showing of ineffective assistance of counsel.
¶7.
THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DENYING POSTCONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED
TO LEE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES
AND CARLTON, JJ., CONCUR. ROBERTS, J., CONCURS IN RESULT ONLY.
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