Ladennis Graham v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-01576-COA
LADENNIS GRAHAM
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
8/20/2007
HON. BILLY JOE LANDRUM
JONES COUNTY CIRCUIT COURT
LADENNIS GRAHAM (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 3/9/2010
BEFORE LEE, P.J., IRVING AND BARNES, JJ.
BARNES, J., FOR THE COURT:
¶1.
This is an appeal from the denial by the Circuit Court of Jones County of LaDennis
Graham’s motion for post-conviction relief. Finding no reversible error, we affirm.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶2.
On December 13, 2005, Graham was indicted for possession of 11.59 grams of
cocaine with the intent to distribute pursuant to Mississippi Code Annotated section 41-29142 (Rev. 2005). Graham pleaded guilty on March 28, 2006, and was sentenced, pursuant
to Mississippi Code Annotated section 41-29-139 (Rev. 2005), to serve sixteen years in the
custody of the Mississippi Department of Corrections (MDOC), with fifteen years
conditionally suspended upon the successful completion of twelve months of house arrest,
four years of supervised post-release supervision, and the successful completion of the
Circuit Court Community Service Program. On July 25, 2006, Graham violated the terms
of his house arrest and is currently serving the rest of his sentence in the custody of the
MDOC.
¶3.
Graham timely filed a motion for post-conviction relief with the circuit court on July
27, 2007. Relief was summarily denied on the basis that the circuit court did not have
jurisdiction to hear Graham’s claims. It is from this denial of post-conviction relief that
Graham now appeals, alleging the following assignments of error: (1) the circuit court and
defense counsel failed to advise him of his right to appeal his sentence; (2) the indictment
under which Graham was charged failed to set forth the correct statute and judicial district;
(3) the sentence imposed constituted an unconstitutional, illegal sentence; (4) he was denied
effective assistance of counsel; and (5) his guilty plea was not voluntarily and intelligently
entered. Finding that the circuit court had jurisdiction over the motion, but that the motion
lacked merit, we affirm.
STANDARD OF REVIEW
¶4.
This Court will not disturb the findings of the trial court denying a motion for post-
conviction relief unless they are found to be clearly erroneous. Brown v. State, 731 So. 2d
595, 598 (¶6) (Miss. 1999). Questions of law are reviewed de novo. Id.
ANALYSIS
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¶5.
We must first address the issue of jurisdiction as this was the deciding factor in the
circuit court’s denial of Graham’s motion for post-conviction relief. For the reasons stated
below, we find that the circuit court erred in determining that it lacked jurisdiction to review
Graham’s motion for post-conviction relief.
¶6.
In denying Graham’s motion, the circuit judge relied heavily on precedent from
Babbitt v. State, 755 So. 2d 406 (Miss. 2000). Demethris Babbitt was accused of violating
the terms of his intensive supervision program (ISP), which is also termed “house arrest,”
and the circuit court ordered him to complete the original sentence imposed. Id. at 407-08
(¶¶6, 7). The MDOC Classification Committee later found that Babbitt was not guilty of the
alleged violation; however, Babbitt was not returned to the ISP. Id. at 408 (¶7). Babbitt then
filed a motion for post-conviction relief with the circuit court, which dismissed the motion.
Id. at 407 (¶3). The Mississippi Supreme Court ruled that, while the circuit court was correct
in dismissing Babbitt’s motion for post-conviction relief, the circuit court lacked jurisdiction
to reinstate his original sentence as that power is given to the Classification Committee by
Mississippi Code Annotated section 47-5-1003(3) (Supp. 1999). Id. at 409 (¶14). The court
held that, instead of moving for post-conviction relief, Babbitt should have followed the
“offender grievance procedure” established by the MDOC. Id. at (¶15). In sum, Babbitt’s
claim came under the jurisdiction of the MDOC as he was attacking aspects of his ISP, not
the legality of his original sentence.
¶7.
The instant case can be distinguished from Babbitt, however, because Graham is not
attacking his removal from the ISP. Graham’s argument attacks his guilty plea and the
original sentence imposed by the circuit court. Therefore, Graham’s motion for post-
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conviction relief would be subject to review by the circuit court. See Miss. Code Ann. 9939-5 (Rev. 2007). Accordingly, we find that the circuit court erred in its conclusion that it
did not have jurisdiction to consider Graham’s motion, and we will proceed to address
Graham’s individual assignments of error.
I.
¶8.
Whether Graham was advised of his right to appeal.
Graham claims that neither defense counsel, nor the circuit court judge, informed him
of his right to appeal his sentence directly to the Mississippi Supreme Court. We first note
that the circuit court clearly stated to Graham that, by entering a plea of guilty, he waived any
right to appeal. At the time that Graham pleaded guilty, section 99-35-101 of the Mississippi
Code Annotated (Rev. 2000), denied appeal from the circuit court to the supreme court “in
any case where the defendant enters a plea of guilty.” However, this section was not
interpreted to deny the defendant the right to appeal the sentence given as a result of that
plea. See Trotter v. State, 554 So. 2d 313, 315 (Miss. 1989) (“an appeal from a sentence
imposed pursuant to a guilty plea is not equivalent to an appeal from the guilty plea itself”).1
In a recent case, Elliott v. State, 993 So. 2d 397, 399 (¶10) (Miss. Ct. App. 2008), the
defendant raised the same issue as the one put forth by Graham, and this Court found that:
“While it is true that a defendant may appeal the sentence resulting from a plea of guilty
independently of the plea itself, there is no corresponding requirement that the circuit court
notify the defendant of that right during the plea process.” Accordingly, we found that the
1
Section 99-35-101 of the Mississippi Code Annotated has been amended, effective
July 1, 2008, to provide that “where [a] defendant enters a plea of guilty and is sentenced,
then no appeal from the circuit court to the Supreme Court shall be allowed.” Miss. Code
Ann. §99-35-101 (Supp. 2009) (emphasis added).
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circuit court’s failure to inform a defendant of the ability to appeal the sentence separately
did not deny the defendant due process. Id. at 399-400 (¶10). We find Graham’s argument
regarding the circuit court’s failure to advise him of the right to appeal his sentence is
without merit. We will address Graham’s contention regarding his counsel’s similar failure
under his claim of ineffective assistance of counsel.
II.
¶9.
Whether the indictment was defective.
Graham alleges that his original indictment contained a defect because it only
referenced the enhancement statute, section 41-29-142, not section 41-29-139, under which
he ultimately pleaded guilty. He also claims that the indictment did not list the correct
judicial district where he was charged.
¶10.
First, we find no error as to the judicial district listed on the indictment. The
indictment stated that Graham was indicted in the Second Judicial District of Jones County,
Mississippi. The sentencing order also stated that he was in the Second Judicial District of
Jones County, Mississippi. Therefore, there is no discrepancy between the indictment and
the sentencing order.
¶11.
Second, the statute under which Graham was indicted, section 41-29-142, was a
penalty enhancement to the statute under which Graham was ultimately sentenced, section
41-29-139.2 “An indictment must contain (1) the essential elements of the offense charged,
2
The sentencing order on Graham’s guilty plea stated that it was a violation of
Mississippi Code Annotated section 41-29-139, not 41-29-142 as stated in the indictment.
Section 41-29-142 is a statute that calls for enhanced penalties for crimes committed under
41-29-139, which are within a certain distance of a specified venues (i.e., schools, churches,
and parks).
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(2) sufficient facts to fairly inform the defendant of the charge against which he must defend,
and (3) sufficient facts to enable him to plead double jeopardy in the event of a future
prosecution for the same offense.” Gilmer v. State, 955 So. 2d 829, 836-37 (¶24) (Miss.
2007). Section 41-29-142(1) states in part:
Except as provided in subsection (f) of Section 41-29-139 or in subsection (2)
of this section, any person who violates or conspires to violate Section 41-29139(a)(1) . . . by selling, bartering, transferring, manufacturing, distributing,
dispensing or possessing with intent to sell, barter, transfer, manufacture,
distribute or dispense, a controlled substance, in or on, or within one thousand
five hundred (1,500) feet of, a building or outbuilding which is all or part of
a public or private elementary, vocational or secondary school, or any church,
public park, ballpark, public gymnasium, youth center or movie theater or
within one thousand (1,000) feet of, the real property comprising such public
or private elementary, vocational or secondary school, or any church, public
park, ballpark, public gymnasium, youth center or movie theater shall, upon
conviction thereof, be punished by the term of imprisonment or a fine, or both,
of that authorized by Section 41-29-139(b) and, in the discretion of the court,
may be punished by a term of imprisonment or a fine, or both, of up to twice
that authorized by Section 41-29-139(b).
(Emphasis added). It is apparent from our review of the record that the reason for the
different statute was a result of Graham’s plea agreement with the State in order to receive
the more lenient sentence available under section 41-29-139. Consequently, we find no error
in the disparity between the indictment and sentencing order.
¶12.
Regardless of these findings, Graham waived any claim of defect with his entry of a
guilty plea. The Mississippi Supreme Court “has held that a guilty plea waives any claim to
a defective indictment.” Harris v. State, 757 So. 2d 195, 197 (¶9) (Miss. 2000) (citing
Jefferson v. State, 556 So. 2d 1016, 1019 (Miss. 1989)). “The entry of a guilty plea
constitutes an admittance of ‘all elements of a guilty charge’ and ‘operates as a waiver of all
non-jurisdictional defects contained in an indictment.’” Adams v. State, 950 So. 2d 259, 261
6
(¶6) (Miss. Ct. App. 2007) (quoting Brooks v. State, 573 So. 2d 1350, 1352 (Miss. 1990)).
“The only two exceptions to this rule are if the indictment fails to state an essential element
of the crime charged or if there exists no subject matter jurisdiction.” Elliott, 993 So. 2d at
398 (¶4) (citation omitted). As neither of these exceptions apply to the instant case, we find
this issue is without merit.
III.
¶13.
Whether the sentence imposed upon Graham constituted an
unconstitutional, illegal, and indeterminate sentence.
“The right of freedom from an illegal sentence is a fundamental right.” Edwards v.
State, 839 So. 2d 578, 579 (¶4) (Miss. Ct. App. 2003) (citing Luckett v. State, 582 So. 2d 428,
430 (Miss. 1991)). Graham argues that his original sentence was unconstitutionally vague
and amounts to an indeterminate term not sanctioned by Mississippi law. The sentencing
order reads, in pertinent part, as follows:
In Cause No. 2005-233-KR2, whereby Defendant is charged with Possession
of Cocaine, 11.59 grams, the Defendant is to serve a sixteen (16) year sentence
with the Mississippi Department of Corrections, with fifteen (15) years to be
suspended conditioned upon the successful completion of twelve (12) months
of house arrest and four (4) years on supervised post-release supervision and
successful completion of the Circuit Court Community Service Program.
Graham specifically asserts that since his final arrest occurred because of the failure to
comply with the house-arrest rules, not on the basis of any additional criminal conduct, the
circuit court should have only the authority to impose the amount of time Graham was on
house arrest. We find this argument without merit. The order clearly stated a specific time
of sixteen years to be served. The plain meaning of the sentencing order is apparent – that
the suspended sentence of fifteen years was conditioned upon Graham’s successful
completion of the terms of his house arrest, post-release supervision, and community-service
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program. Therefore, we find no merit to this argument by Graham.
¶14.
Graham also contends that, as he was sentenced under section 41-29-139, he was not
subject to the house-arrest program. Mississippi Code Annotated section 47-5-1003(1) (Rev.
2004) states:
An intensive supervision program may be used as an alternative to
incarceration for offenders who are low risk and nonviolent as selected by the
department or court. Any offender convicted of a sex crime or a felony
violation of Section 41-29-139(a)(1) shall not be placed in the program.
Graham points to the portion of section 47-5-1003(4) which states: “The courts may not
require an offender to complete the intensive supervision program as a condition of probation
or post-release supervision.” We find this portion of the statute not applicable to the present
case. Only Graham’s suspension of fifteen years, not his probation, was conditional upon
his completion of house arrest. This Court has held that “[m]aking [a] suspension of part of
a defendant’s sentence contingent upon successful completion of the ISP is not prohibited
by statute.” Jenkins v. State, 910 So. 2d 23, 25 (¶9) (Miss. Ct. App. 2005) (emphasis added).
¶15.
Accordingly, although Graham’s sentence was a violation of section 47-5-1003(1),
we do not find that this constituted reversible error. Graham did not suffer any prejudice by
the imposition of house arrest. This Court has stated that where “a [d]efendant is given an
illegal sentence that is more favorable than what the legal sentence would have been then
he/she is not later entitled to relief through a post-conviction action.” Jefferson v. State, 958
So. 2d 1276, 1279 (¶9) (Miss. Ct. App. 2007). Under section 41-29-139(c)(1)(D), Graham
could have been sentenced to no “less than six (6) years nor more than twenty-four (24) years
and a fine of not more than Five Hundred Thousand Dollars ($500,000.00).” As we have
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already mentioned, Graham was originally indicted under section 41-29-142, which was a
penalty-enhancement statute to section 41-29-139. Graham, as a result of his plea bargain
with the State, only pleaded guilty to violating 41-29-139, which was mere possession of
cocaine, as opposed to 41-29-142, which involved the intent to distribute and carried a
harsher sentence. As such, Graham received what we consider to be an extremely lenient
sentence from the circuit court. As Graham “benefitted from the illegal sentence” that was
“more lenient than the sentence to which he was entitled[,] . . . he did not suffer ‘any
fundamental unfairness from the illegal sentence, nor were his fundamental rights violated.’”
Jefferson, 958 So. 2d at 1279 (¶11) (citations omitted).
He received the sentence
recommended by the State and, as such, was provided the opportunity to reduce his sentence
by successfully completing the conditions set forth in that order. Having failed to satisfy
those conditions, he cannot now attempt to set aside the sentence as prejudicial. This Court
has stated: “[A] defendant cannot stand mute when he is handed an illegal sentence which
is more favorable than what the legal sentence would have been, reap the favorable benefits
of that illegal sentence, and later claim to have been prejudiced as a result thereof.” Hughery
v. State, 915 So. 2d 457, 459 (¶8) (Miss. Ct. App. 2005) (quoting Graves v. State, 822 So.
2d 1089, 1091 (¶8) (Miss. Ct. App. 2002)).
¶16.
Although not specifically addressed by either party, the separate opinion has raised
an additional question regarding the legality of the sentencing order – namely, whether the
circuit court’s failure to retain jurisdiction in the sentencing order, or its failure to conduct
a revocation hearing following Graham’s removal from the ISP constituted error. We agree
with the separate opinion (hereafter “the dissent”) that this sentencing order was unusual as
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fifteen years of Graham’s sixteen-year sentence were “to be suspended conditioned upon the
successful completion of twelve (12) months of house arrest and four (4) years on supervised
post-release supervision and successful completion of the Circuit Court Community Service
Program.” (Emphasis added).3 Under the order, Graham’s completion of the ISP and postrelease supervision were conditions precedent to the suspension of his remaining sentence.
Thus, it appears that the circuit court intended for the suspension to be self-executing; that
is, once Graham had successfully completed the ISP, the suspension would automatically
occur without Graham’s being returned to the circuit court for re-sentencing. See Brown v.
Miss. Dep’t of Corr., 906 So. 2d 833, 835 (¶5) (Miss. Ct. App. 2004) (finding that once the
MDOC determines that a prisoner has violated the terms of his ISP, the MDOC is required
to enforce the judge’s original sentencing order.)
¶17.
The dissent claims the sentence is “impossible” as it “suspends part of Graham’s
sentence while simultaneously requiring Graham to serve that sentence” and contends that
this Court should reverse and remand for re-sentencing, or if necessary, withdrawal of
Graham’s guilty plea as the order impermissibly delegated to the MDOC the authority to
revoke Graham’s suspended sentence. Due to the unique nature of Graham’s sentence and
his status as a self-represented litigant, we requested and were provided with an Amicus
3
However, this type of conditional suspended sentence has occurred occasionally in
the Mississippi circuit court system. See Burns v. State, 933 So. 2d 329, 330 (¶3) (Miss. Ct.
App. 2006) (“if and when defendant successfully completes the [ISP,] the remaining FOUR
(4) years be SUSPENDED, pending successful completion of a FOUR (4) year period of
post-release supervision, pursuant to Mississippi Code 47-7-34”); and Jenkins, 910 So. 2d
at 25 (¶8) (Miss. Ct. App. 2005) (sentence of five years in the custody of the MDOC, with
one year in ISP, remaining four years suspended upon successful completion of one years
in the IS and four years reporting probation).
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Curiae brief from the Criminal Appeals Clinic at the University of Mississippi School of
Law.4 The Amicus Curiae brief asserts that the “self-executing” provision of the sentence,
coupled with the court’s failure to retain jurisdiction, constituted an improper delegation of
authority over sentencing to the MDOC. The State also filed a supplemental brief wherein
it argues that there is no improper delegation as it was the circuit court which determined the
sentence should be suspended upon successful completion of the ISP; the MDOC merely
decided whether the offender violated the ISP. We agree with the State that since the circuit
court set the condition for the suspension of the sentence, it did not impermissibly delegate
authority to the MDOC. The suspended sentence never came into being as the condition was
not met; therefore, Graham is not entitled to a revocation hearing as the dissent argues. See
Moore v. State, 830 So. 2d 1274, 1276-77 (¶¶8, 13) (Miss. Ct. App. 2002) (an inmate must
complete the terms of his ISP and receive his suspended sentence in order to receive his right
to a hearing prior to revocation). The removal from the ISP “to the general prison population
is nothing more than an internal reclassification matter for which the inmate enjoys no liberty
interest that would trigger the need for the kind of due process hearing necessary to revoke
probation or parole.” Lewis v. State, 761 So. 2d 922, 923 (¶3) (Miss. Ct. App. 2000). Even
in cases where the circuit court has retained jurisdiction, this Court has found no violation
of due process in the MDOC’s reclassification of a prisoner in the ISP. Miller v. State, 804
So. 2d 1062, 1066 (¶12) (Miss. Ct. App. 2001). Graham had the opportunity to have fifteen
4
The Criminal Appeals Clinic is headed by Professor Phillip Broadhead. Nakesha
McQuirter, Senior Research Counsel, also contributed to the Amicus Curiae brief. We thank
her and Professor Broadhead for their assistance to the Court.
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years of his sentence suspended; all he had to do was to complete the ISP. There is nothing
to indicate that, had Graham successfully completed the ISP, the MDOC would not have
interpreted the sentencing order as automatically suspending the remainder of Graham’s
sentence as envisioned by the circuit court. It is only because Graham failed to complete the
ISP that his suspended sentence never came into being. Therefore, the issue of whether the
court had retained jurisdiction to modify his sentence is moot. See Ivory v. State, 999 So. 2d
420, 429 (¶27) (Miss. Ct. App. 2008) (as the defendant violated the terms of her ISP, any
omission of language by the circuit court to have the defendant return for modification of
sentence “becomes a nullity”).
¶18.
Further, as the State points out, Graham had the right to seek judicial review of the
MDOC’s decision regarding an ISP violation pursuant to Mississippi Code Annotated
sections 47-5-801 to - 807 (Rev. 2004). In Edwards v. Booker, 796 So. 2d 991, 995-96
(¶¶20-22) (Miss. 2001), the Mississippi Supreme Court interpreted section 47-5-807 as
giving jurisdiction to a circuit court to review the MDOC’s removal of a prisoner from the
ISP. We held similarly in Lewis, 761 So. 2d at 923 (¶6), stating that, under section 47-5-807,
a prisoner who is aggrieved by a decision of the MDOC, after exhausting his administrative
remedies, has a right “to judicial review of the matter[.]” Consequently, although the failure
to conduct a revocation hearing before a prisoner is removed from the ISP does not violate
any constitutional rights held by the prisoner, there is a statutory avenue which provides for
judicial review over an prisoner’s removal from the ISP. Accordingly, there was a procedure
which, if followed by Graham, would have resulted in a judicial review of his removal from
the ISP. There is no indication in the record that this procedure was followed. This appeal
12
does not arise from that process.
¶19.
In sum, we do not find that the circuit court’s failure to retain jurisdiction was fatal
to the efficacy of Graham’s sentence in this case, nor do we find that the failure to conduct
a revocation hearing violated Graham’s constitutional rights. Accordingly, with all respect
to our dissenting colleagues, we find this issue is without merit.
IV.
¶20.
Whether defense counsel rendered ineffective assistance of counsel.
Graham claims that his trial counsel failed to render effective assistance of counsel.
Specifically, he alleges that his counsel did not make him aware of the elements of the crime
for which he pleaded guilty, and his counsel failed to advise him of his right to appeal.
Graham also contends that his counsel neglected to investigate facts regarding the arrest prior
to advising him to enter a plea of guilty.
¶21.
“This Court employs the standard of review set forth in Strickland v. Washington, 466
U.S. 668, 687-96, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) in evaluating an ineffective
assistance of counsel claim.” Calvert v. State, 726 So. 2d 228, 231 (¶9) (Miss. Ct. App.
1998). Under Strickland, Graham “must prove that the performance of his attorney was
deficient, and the deficiency was so substantial as to deprive [him] of a fair trial.” Id.
“[W]hen a convicted defendant challenges his guilty plea on grounds of ineffective assistance
of counsel, he must show unprofessional errors of substantial gravity.” Buck v. State, 838
So. 2d 256, 260 (¶12) (Miss. 2003). The defendant must also show that, but for counsel’s
errors, the defendant would not have entered a plea of guilty. Id.
¶22.
Graham was fully advised by the court as to the consequences of his guilty plea,
which we will discuss in further detail below. Also, as we have already found that there was
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no error in regard to the judicial district, we find that Graham’s allegation of ineffective
assistance of counsel as to that particular issue is without merit. As to the claim that counsel
failed to investigate the charge, this Court has found that “[f]or failure to investigate to arise
to the level of ineffective assistance of counsel, the defendant must state with particularity
what the investigation would have revealed and how it would have altered the outcome.”
Middlebrook v. State, 964 So. 2d 638, 640 (¶10) (Miss. Ct. App. 2007) (citing Triplett v.
State, 840 So. 2d 727, 731 (¶11) (Miss. Ct. App. 2002)). Therefore, we have to ask “whether
the evidence and testimony, if properly investigated and presented, would have changed the
outcome had the parties gone forward.” Hannah v. State, 943 So. 2d 20, 25 (¶9) (Miss.
2006).
¶23.
Graham has presented this Court with no evidence to this effect. Although he
contends that his counsel should have mentioned to him or the circuit court that the elements
of possession of cocaine had not been met by the admissions made by Graham, we find that
Graham knowingly and intelligently admitted to the charge against him, which included the
possession of cocaine.
¶24.
As to his right to appeal his sentence, Graham’s affidavit does not even state that
defense counsel failed to advise him of this right. Nor did he show how this alleged error
affected his guilty plea. Mississippi Code Annotated section 99-39-9 (Rev. 2007) requires
a movant for post-conviction relief to include, along with his filing, “an affidavit setting forth
those facts and proof of facts within the scope of his personal knowledge as well as those
beyond his personal knowledge[,]” not just “mere conclusions.” Sutton v. State, 873 So. 2d
120, 123 (¶17) (Miss. Ct. App. 2004). Even if Graham’s counsel failed to advise him of his
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right to appeal his sentence, Graham has not alleged that he would have appealed his illegally
lenient sentence. Any such claim would have been viewed with skepticism, as it was not in
Graham’s interest to appeal the sentence until four months later when his ISP status was
revoked. By that time, his time for a direct appeal of his sentence had expired. See Maston
v. State, 750 So. 2d 1234, 1237 (Miss. 1999) (appeals to the Mississippi Supreme Court must
be made “by filing a notice of appeal with the trial court ‘within 30 days after the date of
entry of the judgment or order appealed from’”) (citing M.R.C.P. 4(a)).
¶25.
Thus, we find that Graham has not properly supported his claim of ineffective
assistance of counsel. This issue is without merit.
V.
¶26.
Whether Graham’s guilty plea was voluntarily and intelligently
entered.
Graham alleges that his guilty plea was entered unknowingly and involuntarily. “A
plea of guilty is binding only if it is entered voluntarily and intelligently[,]” which requires
that “the defendant [be] informed of the charges against him and the consequences of his
plea.” Jones v. State, 922 So. 2d 31, 34 (¶10) (Miss. Ct. App. 2006) (citations omitted). “A
defendant [also] 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.” Epps v. State, 926 So. 2d 242, 245 (¶11) (Miss. Ct. App. 2005) (citation
omitted).
¶27.
Based on our review of the record, it is apparent that the circuit judge carefully
questioned Graham about his ability to understand the charges against him, the repercussions
of his guilty plea, and his willingness to enter into the plea arrangement. The circuit court
15
found Graham’s decision was freely, voluntarily, and intelligently made and accepted his
plea. Therefore, we find that this issue is without merit.
¶28. THE JUDGMENT OF THE CIRCUIT COURT OF JONES COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO JONES COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, ISHEE AND MAXWELL, JJ.,
CONCUR. ROBERTS, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE WRITTEN OPINION JOINED BY GRIFFIS, J.
ROBERTS, J., CONCURRING IN PART, DISSENTING IN PART:
¶29.
I concur with the majority’s resolution of Issues I, II, IV, and V. I write separately
to address the majority’s resolution of Issue III. In my opinion, the sentencing order, as
drafted by the circuit judge, allowed or at least implicitly authorized the Mississippi
Department of Corrections (MDOC) to revoke Ladennis Graham’s suspended sentence, and
the circuit court impermissibly made completion of the Intensive Supervision Program –
colloquially known as house arrest – a condition of Graham’s post-release supervision. In
effect, the circuit court’s sentence is illegal in that it suspends part of Graham’s sentence
while simultaneously requiring Graham to serve that sentence. In my judgment, such a
sentence is logistically impossible. A defendant cannot be an inmate and serve a suspended
sentence simultaneously, all based on the same sentence. Inmate status and simultaneous
service of a suspended sentence, based on the same sentence, are mutually exclusive of one
another. This is exactly what has occurred in Graham’s case. Accordingly, I respectfully
concur in part and dissent in part to the majority opinion.
¶30.
I will briefly address certain factual and procedural matters in this case not because
the majority’s well-written opinion is inadequate, but to provide a framework for my own
16
analysis. The circuit court’s sentencing order stated as follows:
the Defendant is to serve a sixteen (16) year sentence with the Mississippi
Department of Corrections, with fifteen (15) years to be suspended conditioned
upon the successful completion of twelve (12) months of house arrest and four
(4) years on supervised post-release supervision and successful completion of
the Circuit Court Community Service Program.
It is important to note that, in this case, the circuit court judge did not retain sentencing
authority for one year pursuant to Mississippi Code Annotated section 47-7-47(2)(a) (Rev.
2004), which states that a sentencing court may:
upon its own motion, acting upon the advice and consent of the commissioner
not earlier than thirty (30) days nor later than one (1) year after the defendant
has been delivered into the custody of the [MDOC], to which he has been
sentenced, suspend the further execution of the sentence and place the
defendant on earned probation . . . .
¶31.
According to the circuit court’s order summarily denying post-conviction relief, the
circuit court sentenced Graham on March 28, 2006. On July 25, 2006, Graham was arrested
again. At that time, he was an inmate in the house-arrest program serving his twelve-month
sentence to house arrest. House arrest is “the confinement of a person convicted or charged
with a crime to his place of residence under the terms and conditions established by the
[MDOC] or court.” Miss. Code Ann. § 47-5-1001(e) (Rev. 2004). House arrest is not a
probationary status, but merely an alternative form of confinement. Lewis v. State, 761 So.
2d 922, 923 (¶4) (Miss. Ct. App. 2000).
¶32.
An offender on house arrest is under the full and complete jurisdiction of the MDOC,
and only a classification hearing officer may remove that offender from the program and reclassify him to custody status. Miss. Code Ann. § 47-5-1003(3) (Rev. 2004). Thus, the
authority to reclassify an inmate from house arrest and to place him in the general prison
17
population is within the exclusive jurisdiction of the MDOC and outside the authority of the
original sentencing judge. Lewis, 761 So. 2d at 923 (¶4). In Babbitt v. State, 735 So. 2d 406,
409 (¶14) (Miss. 2000), the Mississippi Supreme Court made it clear that an offender in the
house-arrest program is an inmate within the exclusive custody and control of the MDOC.
Pursuant to that authority, the MDOC reclassified Graham, removed him from house arrest,
and placed him in custody status.
¶33.
However, based on the language used in the sentencing order, the MDOC required
that Graham not only serve the eight remaining months of his house-arrest sentence, but also
the fifteen-year suspended sentence. The record reflects that Graham is now serving his
entire sixteen-year sentence in the custody of the MDOC.
That is, the MDOC
“unsuspended” the suspended portion of Graham’s sentence. Only a sentencing court is
authorized to revoke a suspended sentence. Evidently, this occurred based on the language
of the circuit court’s sentencing order that made Graham’s fifteen-year suspended sentence
conditional upon his successful completion of house arrest.
However, pursuant to
Mississippi Code Annotated section 47-5-1003(4) (Rev. 2004), a sentencing court may not
require that an offender complete the house-arrest program as a condition of probation or
post-release supervision. The majority attempts to distinguish Graham’s case by stating that
only Graham’s suspended sentence was conditioned on successful completion of house
arrest, not his probation or his post-release supervision. Such is a distinction without a
difference. An offender cannot logically be placed on probation without all or part of his
sentence being simultaneously suspended. Stated differently, the fallacy in this case is that,
at the time the MDOC reclassified Graham and “unsuspended” his suspended sentence,
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Graham was an inmate in custody. His suspended sentence had yet to begin. It could only
begin after the MDOC discharged him from the one-year-incarceration portion of his
sentence.
¶34.
In Moore v. State, 830 So. 2d 1274, 1274 (¶2) (Miss. Ct. App. 2002), a circuit court
sentenced Don Moore to ten years, placed him on house arrest, and retained sentencing
jurisdiction over him for one year. A handwritten addendum to the circuit court’s sentencing
order stated that “post[-]release supervision for a period of 3 years will follow successful
completion of [the] house[-]arrest program.” Id. at 1274-75 (¶2). Moore later violated the
terms of his house arrest. Id. at 1275 (¶3). The MDOC removed Moore from house arrest
and reclassified him. Id. Moore was then required to serve the remainder of his ten-year
sentence. Id. This Court held that Moore’s probation or post-release supervision was not
conditional upon completion of the house-arrest program. Id. at 1276 (¶9). Instead, because
Moore failed to complete the house-arrest program, “rescission of the possibility of
probation” occurred. Id. at 1277 (¶15).
¶35.
The majority relies on Jenkins v. State, 910 So. 2d 23, 25 (¶9) (Miss. Ct. App. 2005)
as authority for its conclusion that the circuit court did not violate section 47-5-1003(4).
With utmost respect for the majority, as with the facts in Moore, I would find that the facts
of this case are distinguished from the facts in Jenkins. In Jenkins, an offender was
sentenced to five years in the custody of the MDOC with one year on house arrest with the
possibility that the remaining four years would be suspended. Id. at 24 (¶1). When Otha
Jenkins violated the house-arrest rules, he was placed in the general prison population and
told that he would have to serve the remainder of his five-year sentence. Id. at 25 (¶6).
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Jenkins failed to provide an adequate record for review, and this Court stated that “[b]ecause
Jenkins failed to include his motion for post-conviction relief in the record before us, we
must affirm the judgment of the circuit court.” Id. at (¶5). It is unclear in the Jenkins opinion
whether the circuit court retained sentencing jurisdiction pursuant to section 47-7-47 because
we concluded that “[b]ecause Jenkins did not successfully complete the one year of [house
arrest], four years of his sentence were never suspended and he was never placed on
probation. Rather, for violating the [house-arrest rules], Jenkins had to serve his entire five[]year sentence.” Id. at (¶10). Had the circuit court retained jurisdiction and had Jenkins
completed the first year of house arrest, the remaining four years of his sentence could have
then been suspended, and he would have been placed on probation. Id. at (¶6).
¶36.
Here, the circuit court did not sentence Graham to an entire sentence while retaining
jurisdiction over Graham for one year, thereby making future suspension of his sentence
conditional upon completion of one year on house arrest. Instead, the circuit court sentenced
Graham to sixteen years and then went further and apparently gave the MDOC the authority
to suspend fifteen years of that sentence upon successful completion of house arrest. Future
suspension by the circuit court was not at issue. In fact, it was rendered impossible when the
circuit court declined to retain jurisdiction over Graham for one year. Without retention of
sentencing jurisdiction pursuant to section 47-7-47, the circuit court’s authority to modify
Graham’s sentence terminated at the expiration of the term of court. Miss. Comm'n on
Judicial Performance v. Russell, 691 So. 2d 929, 944 (Miss. 1997). The fact remains that
it is unclear whether the circuit court suspended fifteen years of Graham’s sentence at the
time it sentenced Graham.
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¶37.
An offender in the house-arrest program, just like an offender incarcerated in prison,
is in the legal custody of the MDOC. For the year following March 28, 2006, Graham was
for all intents and purposes an “inmate” in the custody of the MDOC until discharged by the
MDOC. After discharge from house-arrest inmate status by the MDOC, Graham would have
begun his four years of supervised post-release supervision. If Graham violated any
condition of his post-release supervision during that four-year period, the circuit court could
then revoke all or part of his previously suspended fifteen-year sentence.
¶38.
Moreover and most importantly, Graham was not afforded his constitutional rights
incident to revocation of a suspended sentence. Graham has constitutionally protected dueprocess rights to a hearing before the circuit court prior to the revocation of his suspended
sentence. Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973). The record does not indicate that
there was ever a revocation hearing before the circuit court. When the MDOC removed
Graham from the house-arrest program and reclassified him to inmate status, the MDOC’s
only authority was to maintain custody of Graham for the balance of his one-year original
custodial sentence.
¶39.
Mississippi Code Annotated 47-7-37 (Supp. 2009) codifies the minimum due-process
requirements applicable to probation-revocation procedures mandated by the United States
Supreme Court in Morrissey v. Brewer, 408 U.S. 471, 487-88 (1972) and in Gagnon, 411
U.S. at 781-82. Riely v. State, 562 So. 2d 1206, 1209-12 (Miss. 1990). The procedures for
revocation of post-release supervision and recommitment of the offender to the correctional
facility must be “conducted in the same manner as procedures for the revocation of probation
and imposition of a suspended sentence.” Miss. Code Ann. § 47-7-34(2) (Rev. 2004). After
21
the final revocation hearing, the court “may continue or revoke all or any part of the
probation or the suspension of sentence, and may cause the sentence imposed to be executed
or may impose any part of the sentence which might have been imposed at the time of
conviction.” Miss. Code Ann. § 47-7-37. Only a court has the authority to revoke probation
or post-release supervision under section 47-7-37. Grace v. State, 919 So. 2d 987, 989 (¶8)
(Miss. Ct. App. 2005). Likewise, only the circuit court may revoke a suspended sentence.
Miss. Code Ann. § 47-7-37. It follows that the MDOC has no such authority. Graham did
not go before the circuit court for a revocation hearing. Instead, the MDOC effectively
revoked Graham’s suspended sentence and ordered him to serve the fifteen-year-suspended
portion of his sentence.
¶40.
In my judgment, this case hinges on the fundamental illegally indeterminate nature
of the sentence imposed by the circuit court that resulted from the plea-bargain agreement.
The circuit court’s use of the phrase “to be suspended conditioned upon the successful
completion of” creates the confusion in this sentence. At the time of sentencing on March
26, 2006, did the circuit court suspend part of Graham’s sentence, or did it not? I submit that
the answer to that question is undeterminable. Unquestionably, the circuit court lost
sentencing jurisdiction over Graham’s admitted crime at the end of the term of court during
which Graham pled guilty, since the circuit court did not retain sentencing jurisdiction
pursuant to section 47-7-47. Russell, 691 So. 2d at 944. Only the circuit court can determine
if a felony offender’s sentence, or part of it, has been suspended. Such authority cannot be
delegated or transferred to an agency of the executive department, such as the MDOC. This
principle is a constitutional element in maintaining a separation of the branches of the
22
government. In this case, it is clear beyond peradventure that the circuit court did not revoke
Graham’s suspended sentence. There was no revocation hearing before the circuit court.
When the MDOC classification committee determined that Graham had violated the terms
of house arrest, Graham’s classification status was changed from house-arrest classification
to actual custody in prison – not for the remaining eight months of his house arrest, but for
the entire fifteen-year period of his potentially suspended sentence. I submit that the circuit
court’s sentence was illegally indeterminate, rather than illegally lenient. “An argument that
the sentence violates [the] law, either because it is clearly erroneous or because it is
unredeemably ambiguous or incomplete, would be proper under the post-conviction[-]relief
procedures.” Burns v. State, 933 So. 2d 329, 331 (¶8) (Miss. Ct. App. 2006).
¶41.
In my opinion, the proper resolution would be to reverse the circuit court’s summary
denial of post-conviction relief and remand this matter for an evidentiary hearing. Graham
was sentenced pursuant to a plea bargain with the prosecution. If the circuit court concludes
that the illegal plea recommendation was a material factor in Graham’s free and voluntary
decision to plead guilty, then the circuit court should consider allowing Graham to withdraw
his plea. Graham’s case would then be reinstated to the active trial docket. Because the
majority finds no error, I respectfully dissent.
GRIFFIS, J., JOINS THIS OPINION.
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