George A. Holmes v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-00412-COA
GEORGE A. HOLMES
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
02/15/2006
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
GEORGE A. HOLMES (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED.
REVERSED AND REMANDED - 10/02/2007
EN BANC.
CHANDLER, J., FOR THE COURT:
¶1.
George A. Holmes appeals from the dismissal of his motion for post-conviction relief (PCR)
by the Circuit Court of Forrest County, Robert B. Helfrich presiding. We find that Judge Helfrich
was disqualified from ruling on Holmes's PCR. Therefore, we reverse and remand this case for the
appointment of a substitute judge before whom further proceedings are to be held.
FACTS AND PROCEDURAL HISTORY
¶2.
Holmes attached documentation to his PCR establishing the following. Holmes was indicted
for aggravated assault and grand larceny for events that occurred on or about March 9, 2000. On
March 10, 2000, Robert B. Helfrich, an assistant district attorney for Forrest and Perry Counties,
swore out arrest warrants against Holmes for aggravated assault and grand larceny. On March 21,
2000, Holmes turned himself in to authorities in Perry County.
¶3.
On November 21, 2003, the day of his arraignment, Holmes executed and filed a sworn
petition to enter a guilty plea to the aggravated assault charge. He also filed a waiver of conflict of
interest concerning Judge Helfrich. In the waiver, Holmes stated, "It is my desire and I do freely
and voluntarily waive any and all conflicts of interest that could arise out of the above stated facts,
and it is my desire that Judge Robert Helfrich preside as the Circuit Judge in the above styled cause
pending against me." According to the allegations in Holmes's PCR and the attached affidavits,
Holmes waived the conflict of interest upon the advice of his attorney that Judge Helfrich was likely
to accept the State's sentencing recommendation.
¶4.
At the plea hearing, Judge Helfrich addressed the issue of his recusal from the case. Judge
Helfrich ascertained that Holmes had discussed the matter with his attorney and had filed a waiver
of conflict of interest. Judge Helfrich stated that he did not remember Holmes's case. He told
Holmes that he would recuse himself and request appointment of another judge. Holmes stated that
he desired to go forward with Judge Helfrich, and the hearing continued.
¶5.
Judge Helfrich accepted the plea and sentenced Holmes to twenty years in the custody of the
Mississippi Department of Corrections, with thirteen years to serve and seven years suspended, with
five years on post-release supervision. The judge also ordered Holmes to pay court costs, a fine of
$1,000, $100 to the Mississippi Crime Victims' Compensation Fund, restitution to the victim in the
amount of $5,700, and restitution to the Mississippi Victim Compensation Program in the amount
of $6,106.10. This punishment was in accordance with the State's sentencing recommendation.1
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We observe that Holmes's plea deal was quite favorable because, in Holmes's sworn petition
to enter a guilty plea, Holmes indicated that he was a violent habitual offender. If Holmes had gone
to trial and his indictment was amended pursuant to Rule 7.09 of the Uniform Rule of Circuit and
County Court Practice to charge him as a violent habitual offender, he would have risked an
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¶6.
Holmes timely filed a PCR seeking to withdraw his guilty plea and proceed to trial. He
asserted that the guilty plea was involuntary, that he received ineffective assistance of counsel, that
his indictment was fatally defective, that he received an illegal suspended sentence, and that Judge
Helfrich was disqualified from presiding over his plea hearing. Holmes also filed a motion to recuse
Judge Helfrich from ruling on his PCR. Judge Helfrich denied the motion to recuse and summarily
dismissed Holmes's PCR pursuant to Missississppi Code Annotated section 99-39-11(2) (Rev.
2000).
¶7.
Holmes appeals, re-asserting all the arguments in his PCR. We find that, due to his active
participation in Holmes's prosecution, Judge Helfrich was disqualified from ruling on Holmes's PCR
and was required to recuse himself. Therefore, we reverse and remand this case for the appointment
of a substitute judge, before whom further proceedings in this case may be had. Because we are
reversing and remanding for another judge to rule on the PCR, we do not reach Holmes's other
issues as they are unripe for appellate review.
LAW AND ANALYSIS
I. WAS JUDGE HELFRICH REQUIRED TO RECUSE HIMSELF FROM RULING ON
HOLMES'S PCR?
¶8.
Holmes argues that Judge Helfrich erred by denying his motion for recusal and adjudicating
his PCR. Mississippi constitutional and statutory law applies to the disqualification of a judge.
Article 6, section 165 of the Mississippi Constitution of 1890 provides: "No judge of any court shall
preside on the trial of any cause, where the parties or either of them, shall be connected with him
by affinity or consanguinity, or where he may be interested in the same, except by the consent of the
judge and of the parties." Mississippi Code Annotated section 9-1-11 (Rev. 2002) reiterates the
enhanced sentence of life without the possibility of parole or early release. Miss. Code Ann. § 9919-83 (Rev. 2000).
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disqualifications listed in section 165 and additionally requires disqualification where the judge was
of counsel in the cause. As with constitutional disqualification, a judge may preside despite
statutory disqualification if the judge and parties consent. Miss. Code Ann. § 9-1-11.
¶9.
The Code of Judicial Conduct is also applicable to judicial disqualification. Canon 3(B)(1)
of the Code of Judicial Conduct states: "A judge shall hear and decide all assigned matters, except
those in which disqualification is required." According to Canon 3(E):
(1) Judges should disqualify themselves in proceedings in which their
impartiality might be questioned by a reasonable person knowing all the
circumstances or for other grounds provided in the Code of Judicial Conduct or
otherwise as provided by law, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding;
(b) the judge served as lawyer in the matter in controversy, or a lawyer with
whom the judge previously practiced law served during such association as a lawyer
concerning the matter, or the judge or such lawyer has been a material witness
concerning it;
When a canon is used to assess the conduct of a judge, the canon enjoys the status of law. Banana
v. State, 635 So. 2d 851, 853 (Miss. 1994).
¶10.
The court has condemned situations in which the accuser also functions as the trier of fact,
holding that "[w]here one actively engages in any way in the prosecution and conviction of one
accused of a crime, he is disqualified from sitting as a judge in any matter which involves that
conviction." Banana v. State, 638 So. 2d 1329, 1330 (Miss. 1994); see Jenkins v. State, 570 So. 2d
1191, 1192 (Miss. 1990). A judge is disqualified from ruling on a motion for post-conviction relief
when the judge participated in the prosecution of the underlying conviction. Moore v. State, 573
So. 2d 688, 689 (Miss. 1990); Ryals v. State, 914 So. 2d 285, 287 (¶9) (Miss. Ct. App. 2005). In this
case, Judge Helfrich actively participated in Holmes's prosecution and, therefore, was disqualified
from adjudicating Holmes's motion for post-conviction relief.
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¶11.
In his order denying Holmes's motion to recuse, Judge Helfrich relied upon Holmes's waiver
of the conflict of interest regarding Judge Helfrich's presiding over his guilty plea hearing. The
supreme court has held that, under the statutory provision for waiver of disqualification, a criminal
defendant may effectively waive the conflict presented by the acceptance of his guilty plea by a
judge who was the district attorney who brought the charges against him. Banana, 635 So. 2d at
853. The issue of whether Holmes's waiver effectively barred his subsequent challenge to Judge
Helfrich's acceptance of his guilty plea is not presently before this Court, as that is a matter for
adjudication by the substitute judge appointed to rule on Holmes's PCR. But, assuming Holmes
effectively waived Judge Helfrich's disqualification to preside over his guilty plea hearing, the
waiver did not extend to Holmes's motion for post-conviction relief. A civil action brought under
the Uniform Post-Conviction Collateral Relief Act is a collateral attack on a judgment of conviction
and is separate and distinct from the underlying criminal proceeding. Miss. Code Ann. § 99-39-5(1)
(Rev. 2007). When Holmes filed his PCR with the court, an entirely new legal proceeding was
commenced. Miss. Code Ann. § 99-39-7 (Rev. 2007). In that new proceeding, Holmes did not seek
to waive Judge Helfrich's disqualification but instead moved to recuse Judge Helfrich. As we have
held, Judge Helfrich was disqualified from ruling on Holmes's motion for post-conviction relief and
his recusal was required. We reverse and remand this case for the appointment of a substitute judge
before whom further proceedings may be had.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS REVERSED AND
REMANDED FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.
KING, C.J., LEE, P.J., IRVING, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.
CARLTON, J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED BY MYERS,
P.J. AND GRIFFIS, J.
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CARLTON, J., DISSENTING:
¶13.
I disagree with the majority’s finding that Judge Helfrich was disqualified from adjudicating
Holmes’s motion for post-conviction relief. Because Holmes knowingly and voluntarily executed
a waiver expressing his consent that Judge Helfrich be allowed to hear his case, and further waived
any non-jurisdictional defect by entering his plea of guilty, I find that Holmes should not be allowed
to revoke his consent that Judge Helfrich hear his case. Accordingly, I respectfully dissent.
¶14.
I agree with the majority to the extent that the court has condemned situations where the
accuser also acts as the trier of fact. It is beyond dispute that Article 6 section 165 of our
constitution, as well as Mississippi Code Annotated section 9-1-11 (Rev. 2002), generally require
disqualification where a judge has an interest or has participated as counsel in any material respect
in the case. However, both provisions equally provide that a conflicted judge may preside over a
trial “[b]y the consent of the judge and of the parties.” See Miss. Const. art. 6, § 165; Miss. Code
Ann. § 9-1-11. The notion that consent trumps the prospect of impartiality is also provided for in
the Code of Judicial Conduct in the form of remittal of disqualification. See Code of Judicial
Conduct Canon. 3(F). As acknowledged by the majority, our supreme court has squarely held as
much. Banana v. State, 635 So. 2d 851, 853 (Miss. 1994). It follows, that Holmes waived any
conflict by executing a written waiver of conflict after being informed both by his own counsel and
by Judge Helfrich himself. Moreover, it is well-settled that all non-jurisdictional defects are waived
by the entry of a valid guilty plea. Id. at 853-54 (quoting Anderson v. State, 577 So. 2d 390, 391
(Miss. 1999)). Therefore, I find that Holmes effectively waived any objection to Judge Helfrich
presiding over his case for this reason also.
¶15.
Beyond all this, “[j]urisdiction to hear and determine post-conviction collateral relief efforts
is in the court last having jurisdiction of the case.” McDonall v. State, 465 So. 2d 1077, 1078 (Miss.
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1985) (citing Dunn v. Reed, 309 So. 2d 516 (Miss. 1975)). Our post-conviction relief statutes
contain no provision requiring that a judge separate from the one presiding at trial hear a motion for
post-conviction relief. Mississippi Code Annotated Section 99-39-11(1) (Rev. 2007) provides only
that “the judge to whom [the PCR] is assigned” examine the motion.
¶16.
In conclusion, I find that Holmes waived this issue by the entry of his guilty plea and by
consent. Because the majority cites no authority requiring a different result, I find that the waiver
should be given effect at Holmes’s post-conviction proceeding and would affirm Judge Helfrich’s
denial of Holmes’s motion for recusal.
MYERS, P.J. AND GRIFFIS, J., JOIN THIS OPINION.
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