Willie Cherry, Jr. v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01705-COA
WILLIE CHERRY, JR.
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
03/19/2008
HON. KENNETH L. THOMAS
BOLIVAR COUNTY CIRCUIT COURT
WILLIE CHERRY, JR. (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
CIVIL - POST- CONVICTION RELIEF
MOTION FOR POST-CONVICTION
COLLATERAL RELIEF DENIED
AFFIRMED: 01/05/2010
BEFORE MYERS, P.J., IRVING AND GRIFFIS, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Willie Cherry, Jr., appeals the denial of his motion for post-conviction collateral relief.
Cherry claims that: (1) he received ineffective assistance of counsel; (2) there was no factual
bases for his guilty plea; (3) his guilty pleas were not knowingly and voluntarily entered into;
(4) the circuit court was required to inform him of his right of appeal; (5) his sentence was
excessive; (6) the prosecution withheld information; and (7) the circuit court erred when it
denied his motion for post-conviction discovery. We find no error and affirm.
FACTS
¶2.
Cherry was indicted for the crime of armed robbery, individually or while aiding and
abetting Henry Jennings. Cherry pleaded guilty and was sentenced to a term of eight years
in the custody of the Mississippi Department of Corrections. The sentence was to run
consecutively to any prior sentences.
¶3.
Cherry filed a motion for post-conviction collateral relief on May 7, 2007. The circuit
court denied the motion without an evidentiary hearing.
STANDARD OF REVIEW
¶4.
A circuit court's denial of post-conviction collateral relief will not be reversed absent
a finding that the trial court's decision was clearly erroneous. Smith v. State, 806 So. 2d
1148, 1150 (¶3) (Miss. Ct. App. 2002). However, when reviewing issues of law, this Court's
proper standard of review is de novo. Brown v. State, 731 So. 2d 595, 598 (¶6) (Miss. 1999).
ANALYSIS
1.
¶5.
Ineffective Assistance of Counsel
Cherry argues that he would not have pleaded guilty to armed robbery but for his
counsel’s errors and lack of effort expended in his representation. Cherry claims that his
counsel was ineffective because he failed to know the applicable law, failed to investigate
the case, and advised Cherry to plea guilty blindly. Cherry contends that if his counsel had
been effective and properly investigated the case, then his counsel would have informed the
circuit court that Cherry was guilty of accessory after the fact, not aiding and abetting.
Further, Cherry claims that his attorney never interviewed any witnesses and told him to
plead guilty without any discussion of the consequences. Cherry contends that these errors
2
made his guilty plea involuntary and unintelligent.
¶6.
To prove ineffective assistance of counsel, a defendant must show that: (1) counsel’s
performance was deficient, and (2) this deficiency prejudiced the defendant. Strickland v.
Washington, 466 U.S. 668 (1984). The burden of proof rests with the defendant to show both
prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Under Strickland, there is
a strong presumption that counsel’s performance was effective. Strickland, 466 U.S. at 689.
To overcome this presumption, “[t]he defendant must show that there is a reasonable
probability that, but for the counsel's unprofessional errors, the result of the proceeding
would have been different.” Id. at 694. In cases involving post-conviction collateral relief,
“where a party offers only his affidavit, then his ineffective assistance claim is without
merit.” Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995).
¶7.
Cherry offers only his statements that allege the deficiencies of his counsel. Such
allegations are directly contradictory to his statements made under oath. Further, Cherry
failed to show his counsel’s inaction prejudiced the result in this case. Cherry admitted the
factual bases for the charges were correct. He testified that his counsel reviewed the plea
petition with him that he signed and submitted to the court.
¶8.
We find that Cherry failed to prove any instance of deficiency on the part of his
counsel. Furthermore, Cherry failed to show with reasonable probability that, but for his
counsel’s unprofessional errors, the result of his proceeding would have been different.
Accordingly, this issue is without merit.
2.
¶9.
Factual Bases of Cherry’s Guilty Plea
Cherry claims that no factual bases existed for the trial court’s acceptance of his guilty
3
plea. “Before the trial court may accept a plea of guilty, the court must determine that . . .
there is a factual basis for the plea.” URCCC 8.04(A)(3). We look to the entire record to
determine if such a factual basis exists. Drake v. State, 823 So. 2d 593, 594 (¶5) (Miss. Ct.
App. 2002) (citing Corley v. State, 585 So. 2d 765, 767-68 (Miss. 1991)). The mere fact that
the factual basis does not provide all the details which may be produced at trial does not
make the guilty plea invalid. Id. This Court has held that, “if sufficiently specific, an
indictment or information can be used as the sole source of the factual basis for the plea.”
Id. at (¶6) (quoting U.S. v. Hinojosa-Lopez, 130 F.3d 691, 695 (5th Cir. 1997) (overruled on
other grounds)).
¶10.
The indictment alleged that Henry Jennings and Willie Cherry took from the presence
of Joseph Chandler and/or Ricardo Hollingsworth $50 of the property of Joseph Chandler
and $1,961.40 of the property of Retzer Resources d/b/a McDonald’s. Further, it alleged that
the taking was against the will of Joseph Chandler and/or Ricardo Hollingsworth and he/they
were in fear of immediate injury to his and/or their person by the exhibition of a pistol, a
deadly weapon. After the reading of the indictment, the circuit court asked Cherry if he
committed the crime charged. He responded, “Yes.”
¶11.
Here, as in Drake, the indictment was specific as to the crime charged. Cherry’s
indictment provided all of the elements of the offense of armed robbery. Those elements
included: “(1) feloniously take or attempted to take another's personal property; (2) from the
person or from the presence; (3) against the person's will; (4) by violence to his person, or
by putting such person in fear of immediate injury to his person by the exhibition of a deadly
weapon.” Clayton v. State, 946 So. 2d 796, 804 (¶28) (Miss. Ct. App. 2006) (citing Miss.
4
Code Ann. § 97-3-79) (Rev. 2000)).
¶12.
We find that the indictment was specific as to the crime of aiding and abetting armed
robbery and that there was a sufficient factual basis to support Cherry's conviction for armed
robbery. Thus, this issue has no merit.
3.
¶13.
Voluntariness of Cherry’s Guilty Plea
Cherry argues that his guilty plea was not knowingly and voluntarily entered into
because no one explained to him what constitutes a deadly weapon. Specifically, he claims
that a B.B. gun is not a deadly weapon within the armed robbery statute. See Miss. Code
Ann. § 97-3-79 (Rev. 2006). Further, Cherry argues that the circuit court never informed
Cherry of all the elements of the crime.
¶14.
A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v.
State, 583 So. 2d 174, 177 (Miss. 1991). Such a plea is voluntary and intelligently made
when the defendant is informed of the charges against him and the consequences of his plea.
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992). The State read the charges in the
indictment, and the following exchange then occurred:
By the Court:
All right. Mr. Cherry, do you understand that charge?
By Mr. Cherry:
Yes, sir.
By the Court:
Did you commit that offense?
By Mr. Cherry:
Yes, sir.
....
By the Court:
The least amount of time you can get is three years, and
the most amount of time you can get is life by a jury.
And you’ve already said to me earlier that your attorney
5
has explained this to you; is that correct?
By Mr. Cherry:
By the Court:
Recommendation?
By Ms. Mitchell:
The State recommends a sentence of eight years in an
institution under the supervision and control of the
Mississippi Department of Corrections.
By the Court:
Did you accept this recommendation?
By Mr. Cherry:
¶15.
Yes, sir.
Yes, sir.
An examination of the plea colloquy shows that the judge informed Cherry of the
nature of the charges against him and the consequences of a guilty plea. Cherry’s argument
that the plea was not voluntary because no one explained to him what constitutes a deadly
weapon fails. See Miss. Code Ann. § 97-3-79. “A deadly weapon is defined as any object,
article or means which, when used as a weapon is, under the existing circumstances
reasonably capable of or likely to produce death or serious bodily harm to a human being
upon whom the object, article, or means is used as a weapon.” Duckworth v. State, 477 So.
2d 935, 938 (Miss. 1985). Although this Court has not specifically addressed whether a B.B.
gun is a “deadly weapon,” the supreme court has found that a metal pellet gun which was
unloaded and inoperable was a deadly weapon as a matter of law, because it could have been
used to club a victim and inflict serious bodily injury. Id. As a matter of law, this weapon
is a “deadly weapon” within the statute.
¶16.
Because we find Cherry was informed of all the elements of the crime and that the
B.B. gun constituted a “deadly weapon,” Cherry’s claim on appeal that his plea was
involuntary and unintelligent because he claims that he did not know all of the elements and
6
that a B.B. gun is not a “deadly weapon” is without merit.
4.
¶17.
Trial Court’s Requirement to Inform the Defendant of his Right to
Appeal
Cherry contends that the trial court committed reversible error when it failed to advise
him of his right to appeal his sentence through a direct appeal. Mississippi Code Annotated
section 99-35-101 (Rev. 2007) states that “[a]ny person convicted of an offense in a circuit
court may appeal to the supreme court, provided, however, an appeal from the circuit court
to the supreme court shall not be allowed in any case where the defendant enters a plea of
guilty.” See Cook v. State, 990 So. 2d 788, 793 (¶11) (Miss. Ct. App. 2008)1 . However, a
defendant may directly appeal the sentence given as a result of that plea even though a
conviction from a guilty plea may not be directly appealed. Trotter v. State, 554 So. 2d 313,
315 (Miss. 1989). Nevertheless, a trial court is not required to inform the defendant of his
right to direct appeal his sentence after he enters a guilty plea. Cook, 990 So. 2d at 793
(¶11). Thus, this issue is without merit.
5.
¶18.
Excessive Sentence
Cherry alleges that he is not guilty of aiding and abetting; instead, he claims he is
guilty of being an accessory after the fact. As such, he argues that his sentence is excessive
because eight years is above the maximum sentence for being an accessory after the fact of
armed robbery. Cherry also argues that he did not admit to aiding and abetting a robbery by
use of a deadly weapon.
1
“As of July 1, 2008, an amended section 99-35-101 reads, ‘Any person convicted
of an offense in a circuit court may appeal to the Supreme Court. However, where the
defendant enters a plea of guilty and is sentenced, then no appeal from the circuit court to
the Supreme Court shall be allowed.’” Cook, 990 So. 2d at 793 n.2.
7
¶19.
However, as discussed above, Cherry did in fact admit to aiding and abetting an
armed robbery with a pistol in his plea colloquy. Thereafter, the judge stated that the
minimum sentence was three years, and the maximum sentence was life imprisonment for
the charge.
¶20.
The supreme court has stated that “sentencing is within the complete discretion of the
trial court and not subject to appellate review if it is within the limits prescribed by statute.”
Beamon v. State, 9 So. 3d 376, 380 (¶11) (Miss. 2009) (quoting Wall v. State, 718 So. 2d
1107, 1114 (Miss. 1998)). Further, the general rule in this state is that a sentence cannot be
disturbed on appeal so long as it does not exceed the maximum term allowed by statute.
Corley v. State, 536 So. 2d 1314, 1319 (Miss. 1988).
¶21.
Since Cherry’s sentence was within the limits of the sentencing guidelines, this Court
has no basis to regard Cherry’s sentence as excessive. This issue is without merit.
6.
¶22.
Prosecutorial Misconduct
Cherry claims that the State knowingly used false information and that the State failed
to provide the pistol in discovery that was used in the armed robbery. Cherry avers that, had
the grand jury known the weapon was a B.B. gun, he “most likely would have been indicted
only for accessory after the fact.”
¶23.
In order to establish prosecutorial misconduct, the defendant must show: “(1) that the
State possessed evidence favorable to the defendant; (2) that the defendant did not possess
the evidence and could not have obtained it himself with reasonable diligence; (3) that the
prosecution suppressed the favorable evidence; and (4) that had the evidence been disclosed
to the defense, a reasonable probability exists that the outcome of the proceedings would
8
have been different.” Howell v. State, 989 So. 2d 372, 378 (¶14) (Miss. 2008).
¶24.
Cherry failed to show that had the B.B. gun been disclosed to the defense and that
had the grand jury known that the weapon was a B.B. gun, a reasonable probability exists
that the outcome of Cherry’s proceedings would have been different. Thus, he failed to show
that the State is guilty of prosecutorial misconduct. This issue is without merit.
7.
¶25.
Denial of Cherry’s Post-Conviction Discovery
Cherry claims that the circuit court acted arbitrarily and capriciously when it denied
his motion for post-conviction discovery. In Fleming v. State, 553 So. 2d 505, 506 (Miss.
1989), the supreme court stated where “[a] prisoner who has filed a proper motion pursuant
to the [Mississippi Uniform Post-Conviction Collateral Relief] Act, and whose motion has
withstood summary dismissal under section 99-39-11(2) (Supp. 1989), may be entitled to
trial transcripts and other relevant documents in the discovery provision in section 99-39-15
(Supp. 1989), upon good cause shown and under the discretion of the trial judge.” A postconviction-relief petitioner is entitled to post-conviction discovery for good cause shown
only if his motion withstands summary dismissal. Fleming, 553 So. 2d at 506.
¶26.
Here, Cherry’s motion did not survive summary dismissal, and he failed to show good
cause for the discovery which he sought. In his brief, Cherry did not show how the grant of
post-conviction discovery would have helped his case, and he only alleges that his motion
should have been granted. Accordingly, we find that the circuit court did not act arbitrarily
or capriciously when it denied Cherry’s request for post-conviction discovery. This issue is
without merit.
¶27.
THE JUDGMENT OF THE CIRCUIT COURT OF BOLIVAR COUNTY
9
DENYING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO BOLIVAR
COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
