Raymond Bowling, Sr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00135-COA
RAYMOND BOWLING, SR.
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
01/02/2008
HON. THOMAS J. GARDNER III
ITAWAMBA COUNTY CIRCUIT COURT
RAYMOND BOWLING, SR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA HOGAN TEDDER
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED: 06/30/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Raymond Bowling, Sr., pleaded guilty to fondling. He was sentenced to fifteen years
in the custody of the Mississippi Department of Corrections (MDOC), with eight years
suspended. Bowling filed a motion for post-conviction relief, which the trial court denied.
Aggrieved from the denial, he appeals. Finding no error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
On or about August 2, 2005, Bowling was indicted pursuant to Mississippi Code
Annotated section 97-5-23 (Rev. 2000) for fondling a child under the age of sixteen. On
January 26, 2006, Bowling withdrew his not guilty plea and entered a plea of guilty.
Following the recommendation of the State, the trial court sentenced Bowling to fifteen years
in the custody of the MDOC, with eight years suspended. Due to the nature of the crime, the
trial court sentenced the remaining seven years of Bowling’s sentence to be served day-forday. The court also fined Bowling $1,000 and ordered him to pay court costs in the amount
of $476.50. Furthermore, the court placed him on post-release supervision for five years
once he was released from incarceration, and he was ordered to register as a sex offender.
¶3.
On or about September 21, 2006, Bowling filed a motion for post-conviction relief
and motion to vacate, set aside, or correct his sentence in the Circuit Court of Itawamba
County. The trial court denied Bowling’s motion for post-conviction relief. Aggrieved from
the denial, Bowling filed his appeal in a timely manner. On appeal, Bowling alleges five
errors: (1) his rights were violated when he was sentenced to serve his time day-for-day; (2)
his guilty plea was not knowing and voluntary; (3) his sentence was outside the statutory
limits; (4) his indictment was faulty; and (5) he received ineffective assistance of counsel.
STANDARD OF REVIEW
¶4.
It is well settled that “[w]hen reviewing a lower court's decision to deny a petition for
post[-]conviction relief [,] [the appellate court] will not disturb the trial court's factual
findings unless they are found to be clearly erroneous.” Lambert v. State, 941 So. 2d 804,
807 (¶14) (Miss. 2006). “However, where questions of law are raised[,] the applicable
standard of review is de novo.” Id.
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DISCUSSION
¶5.
Bowling’s motion for post-conviction relief in the trial court only contained two
issues: whether Bowling’s sentence was legal, and whether he received ineffective assistance
of counsel. On appeal, he raises the five issues listed above. Therefore, we will only address
the issues that were raised in his motion for post-conviction relief to the trial court. See
Lockhart v. State, 980 So. 2d 336, 340 (¶14) (Miss. Ct. App. 2008) (additional issues raised
on appeal that were not raised in the motion for post-conviction relief at the trial court are
procedurally barred).
I.
¶6.
Sentence
Bowling argues that he was improperly sentenced because he was sentenced to serve
his time day-for-day. Mississippi Code Annotated section 97-5-23 states that a person
convicted under this section shall receive a sentence of imprisonment of not less than two
years and not more than fifteen years. Bowling was sentenced to fifteen years, with eight of
those years suspended. The remaining seven years were to be served day-for-day.
¶7.
“[T]he imposition of a sentence, if it is within the limits prescribed by statute, is a
matter left to the sound discretion of the trial court.” Hersick v. State, 904 So. 2d 116, 128
(¶49) (Miss. 2004) (quoting King v. State, 857 So. 2d 702, 731 (¶107) (Miss. 2003)). “[A]
sentence will not be disturbed on appeal as long as it does not exceed the maximum term
allowed by statute.” Williams v. State, 936 So. 2d 387, 390 (¶17) (Miss. Ct. App. 2006).
Clearly, as Bowling’s sentence is within the prescribed limits of Mississippi Code Annotated
section 97-5-23, we find that it does not exceed the maximum term allowed by statute.
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Accordingly, this argument is without merit.
II.
¶8.
Ineffective Assistance of Counsel
A claim of ineffective assistance of counsel is judged by the standard stated in
Strickland v. Washington, 466 U.S. 668 (1984). The two inquiries under that standard are:
(1) whether counsel's performance was deficient, and if so, (2) whether that deficient
performance was prejudicial to the defendant’s defense in the sense that the defendant was
deprived of a fair trial. Id. at 687. “To show prejudice, the claimant must demonstrate that,
but for his attorney's errors, there is a reasonable probability that a different result would
have occurred.” Watts v. State, 981 So. 2d 1034, 1039 (¶12) (Miss. Ct. App. 2008). “This
standard is also applicable to the entry of a guilty plea.” Roland v. State, 666 So. 2d 747, 750
(Miss. 1995). The burden of proving both prongs of Strickland is on the defendant, “who
faces a ‘rebuttable presumption that counsel's performance falls within the broad spectrum
of reasonable professional assistance.’” Walker v. State, 703 So. 2d 266, 268 (¶8) (Miss.
1997) (citation omitted).
¶9.
Bowling argues that his attorney was ineffective because she failed to object to the
indictment. Bowling argues that his indictment was faulty because it did not contain a
provision that discussed the eligibility of parole for prisoners pursuant to Mississippi Code
Annotated section 47-7-3 (Rev. 2004). In Richardson v. State, 769 So. 2d 230 (Miss. Ct.
App. 2000), this Court faced the exact same argument that Bowling is making in the present
case. In a separate issue section, the Richardson court held that a valid indictment does not
have to contain language regarding whether a person will be eligible for parole, holding
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“[t]he only deficiency that survives waiver by a guilty plea is not including the essential
elements of the crime or lack of jurisdiction.” Id. at 233 (¶5). Using this ruling, the
Richardson court addressed the defendant’s ineffective assistance of counsel argument,
holding that “[a]n attorney cannot be expected to object to a valid indictment.” Id. at 234-35
(¶11).
¶10.
The same analysis applies here. Bowling’s indictment was not faulty for its failure
to contain a provision for his eligibility for parole because it is not an essential element of
the crime or has no effect on jurisdiction. Applying the rule in Richardson, Bowling’s
attorney was not ineffective for her failure to object to a valid indictment.
¶11.
Bowling also argues that his attorney was ineffective because she represented
Bowling’s ex-wife in their divorce. He states that this caused a conflict of interest, which the
court should have resolved.
¶12.
This Court in Lawrence v. State, 970 So. 2d 1291, 1297 (¶13) (Miss. Ct. App. 2007)
faced a similar argument and ruled that the defendant must prove that his attorney was
“actively representing a conflicting interest” and that the conflict of interest adversely
affected his attorney’s performance.
¶13.
Bowling does not provide any evidence that the possible conflict of interest affected
his attorney’s performance. In fact, during his guilty plea, Bowling stated that he was
satisfied with the assistance his attorney had provided and that she had represented his best
interest in the case. “We give ‘great weight . . . to statements made under oath and in open
court during sentencing.’” Id. at (¶15) (citation omitted). “Statements made during guilty
plea hearings are made under oath; as such, ‘there should be a strong presumption of
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validity.’” Id. (citation omitted).
¶14.
Furthermore, Bowling had not provided any proof that the outcome of his case would
have been any different if his counsel would have objected to the indictment and a court
would have resolved the alleged conflict of interest. Accordingly, this assignment of error
is without merit.
¶15. THE JUDGMENT OF THE ITAWAMBA COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO ITAWAMBA COUNTY.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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