Gail Lee Burris v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01255-COA
GAIL LEE BURRIS A/K/A SLIM
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:
07/07/2008
HON. MICHAEL R. EUBANKS
LAWRENCE COUNTY CIRCUIT COURT
GAIL LEE BURRIS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 09/22/2009
BEFORE LEE, P.J., GRIFFIS AND ROBERTS, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL HISTORY
¶1.
Gail Lee Burris pleaded guilty in the Circuit Court of Lawrence County to possession
of less than .8 gram of cocaine. Burris was sentenced to sixteen years in the custody of the
Mississippi Department of Corrections, with four of those years suspended, and to pay a fine
of $3,000. Burris filed a motion for post-conviction relief with the trial court, which was
dismissed.
¶2.
Burris now appeals the dismissal of his motion for post-conviction relief, asserting the
following issues: (1) his sentence was erroneously enhanced based on a prior misdemeanor
offense; (2) he received ineffective assistance of counsel; and (3) he was denied due process
of law because the trial court failed to advise him that his sentence could be appealed
separately from his plea of guilty. Finding no error, we affirm the trial court’s dismissal of
Burris’s motion for post-conviction relief.
STANDARD OF REVIEW
¶3.
We review the dismissal of a post-conviction-relief petition for an abuse of discretion.
Watts v. State, 1 So. 3d 886, 888 (¶6) (Miss. Ct. App. 2008) (citing Willis v. State, 904 So.
2d 200, 201 (¶3) (Miss. Ct. App. 2005)). Questions of law, however, are reviewed de novo.
Ruff v. State, 910 So. 2d 1160, 1161 (¶7) (Miss. Ct. App. 2005).
DISCUSSION
I. SENTENCE ENHANCEMENT
¶4.
Burris was indicted as a habitual offender for the sale or transfer of .8 gram of cocaine
within 1,500 feet of a school. Miss. Code Ann. § 41-29-139(a)(1) (Rev. 2005). At his plea
hearing, Burris’s indictment was amended to reflect a reduced charge of possession of .8
gram of cocaine.
His habitual offender status was changed to reflect the sentence
enhancement under Mississippi Code Annotated section 41-29-147 (Rev. 2005) for being a
second or subsequent offender. Burris argues that the sentence enhancement was in error
because it was based on a prior misdemeanor rather than a prior felony.
¶5.
The statute under which Burris was sentenced, section 41-29-147, states:
Except as otherwise provided in Section 41-29-142, any person convicted of
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a second or subsequent offense under this article may be imprisoned for a term
up to twice the term otherwise authorized, fined an amount up to twice that
otherwise authorized, or both.
For purposes of this section, an offense is considered a second or subsequent
offense, if, prior to his conviction of the offense, the offender has at any time
been convicted under this article or under any statute of the United States or
of any state relating to narcotic drugs, marihuana, depressant, stimulant or
hallucinogenic drugs.
¶6.
Section 41-29-147 permits a doubling of the sentence where it can be shown that a
defendant has prior drug offenses, regardless of whether the prior offenses are felonies or
misdemeanors. See Alexander v. State, 875 So. 2d 261, 272 (¶¶46-47) (Miss. Ct. App. 2004)
(finding that three prior misdemeanor convictions were sufficient to allow doubling of the
sentence under section 41-29-147). The State showed that Burris had a prior misdemeanor
conviction in the Circuit Court of Lawrence County of possession of less than .1 gram of
cocaine.
¶7.
The applicable sentencing range for Burris’s second offense was between a minimum
of four years and a maximum of sixteen years with a fine of up to $100,000. Miss. Code
Ann. § 41-29-139 (c)(1)(B) (Rev. 2005) and § 41-29-147. The trial court’s sentence of
sixteen years, with twelve years to serve and four years suspended on post-release
supervision, and $3,000 in fines was within the sentencing guidelines. Therefore, we find
that this issue is without merit.
II. INEFFECTIVE ASSISTANCE OF COUNSEL
¶8.
Burris argues his counsel was ineffective for advising him to plead guilty to an
enhanced sentence based on a prior misdemeanor conviction, rather than a felony conviction.
¶9.
“In order to prevail on the issue of whether his defense counsel’s performance was
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ineffective, [the petitioner] must prove that his counsel’s performance was deficient and that
he was prejudiced by counsel’s mistakes.” Kinney v. State, 737 So. 2d 1038, 1041 (¶8)
(Miss. Ct. App. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)).
¶10.
As discussed in issue one, section 41-29-147 permits the doubling of a sentence where
a defendant has a prior misdemeanor drug offense. Therefore, we find that Burris’s attorney
was not ineffective for failing to object to the sentence enhancement. This issue is without
merit.
III. INSTRUCTIONS BY THE TRIAL COURT
¶11.
In his final issue on appeal, Burris argues that he was denied due process of law
because the trial court failed to advise him of how to appeal his sentence independent of his
guilty plea.
¶12.
Uniform Rule of Circuit and County Court 8.04(a)-(c) states the following advice a
trial court is required to give a defendant:
Advice to the Defendant. When the defendant is arraigned and wishes to plead
guilty to the offense charged, it is the duty of the trial court to address the
defendant personally and to inquire and determine:
a. That the accused is competent to understand the nature of the
charge;
b. That the accused understands the nature and consequences of
the plea, and the maximum and minimum penalties provided by
law;
c. That the accused understands that by pleading guilty (s)he
waives his/her constitutional rights of trial by jury, the right to
confront and cross-examine adverse witnesses, and the right
against self-incrimination; if the accused is not represented by
an attorney, that (s)he is aware of his/her right to an attorney at
every stage of the proceeding and that one will be appointed to
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represent him/her if (s)he is indigent.
¶13.
While Burris is correct that he had the right to appeal his sentence, the rules regarding
the advice the trial court was under a duty to give Burris do not require an explanation of the
appeals process. “[O]ur law has never required a trial judge to inform a criminal defendant
about the right to appeal directly the sentence received based on a guilty plea.” Burrough
v. State, 9 So. 3d 368, 374 (¶20) (Miss. 2009) (citing Coleman v. State, 979 So. 2d 731, 733
(¶4) (Miss. Ct. App. 2008)). Therefore, we find that this issue is without merit.
¶14. THE JUDGMENT OF THE LAWRENCE COUNTY CIRCUIT COURT
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY.
KING, C.J., MYERS, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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