Timothy Wayne Diggs v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-01546-COA
TIMOTHY WAYNE DIGGS
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
08/25/2008
HON. R.I. PRICHARD
LAWRENCE COUNTY CIRCUIT COURT
TIMOTHY WAYNE DIGGS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY, JR.
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED: 02/09/2010
BEFORE KING, C.J., ISHEE AND MAXWELL, JJ.
KING, C.J., FOR THE COURT:
¶1.
Timothy Wayne Diggs filed a motion for post-conviction relief in the Circuit Court
of Lawrence County. The trial court dismissed the motion, and Diggs now appeals. On
appeal, Diggs claims that:
I. His constitutional rights were violated because: (a) he was sentenced to a
mandatory sentence, without the benefit of earned time; (b) he was not indicted
for the offense; and (c) there was no firearm or deadly weapon introduced into
evidence to substantiate the charge of armed robbery;
II. He was denied due process of law because the trial court failed to advise
him that he could seek a direct appeal of his sentence;
III. He received ineffective assistance of counsel; and
IV. A sufficient factual basis was not established for his guilty plea.
We find no error and affirm.
FACTS AND PROCEDURAL HISTORY
¶2.
Diggs executed a waiver of indictment and consented to be charged by information
for the crime of armed robbery. The information alleged that:
On or about February 9, 2005, in Lawrence County, Mississippi, Timothy
Wayne Diggs did feloniously take the personal property of Valley Quick Stop
from its clerk, Wanda Renfroe, by putting her in fear of immediate injury to
her person by the exhibition of a handgun, a deadly weapon, contrary to and
in violation of [Mississippi Code Annotated section] 97-3-79, as amended,
against the peace and dignity of the State of Mississippi.
On April 21, 2005, Diggs entered his guilty plea to the charge in the Circuit Court of
Lawrence County. Satisfied that Diggs was making an intelligent and voluntary guilty plea,
the trial court accepted his plea.
¶3.
Diggs’s sentencing hearing was held on May 13, 2005. During the hearing, Diggs
apologized for his involvement in the crime. However, he informed the trial court that he
was not the person who actually went into the convenience store with the gun. Diggs
claimed that he never left the car and remained outside the entire time. The trial court agreed
to take Diggs’s claims into consideration when sentencing him. Subsequently, on June 27,
2005, the trial court entered a judgment of conviction and sentence, finding Diggs guilty of
armed robbery and sentencing Diggs to thirty years in the custody of the Mississippi
Department of Corrections (MDOC), with twenty years suspended, ten years to serve, and
2
five years of post-release supervision.
¶4.
On May 9, 2008, Diggs filed his motion for post-conviction relief. The trial court
found that Diggs’s motion was deficient on its face and without merit, and the trial court
summarily dismissed the motion. Aggrieved, Diggs timely filed his notice of appeal.
ANALYSIS
¶5.
The trial court may dismiss a motion for post-conviction relief without an evidentiary
hearing where “it plainly appears from the face of the motion, any annexed exhibits and the
prior proceedings in the case that the movant is not entitled to any relief[.]” Miss. Code Ann.
§ 99-39-11(2) (Supp. 2009). This Court will not disturb the trial court’s dismissal of a
motion for post-conviction relief absent a finding that it was clearly erroneous. Williams v.
State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). However, issues of law are reviewed
de novo. Id.
I.
Diggs’s Constitutional Rights
A.
¶6.
Earned Time
Diggs contends that his constitutional rights were violated because he was sentenced
to serve a mandatory ten-year sentence without the benefit of earned time. Mississippi Code
Annotated section 47-5-139 (Rev. 2004) precludes some inmates from eligibility for earnedtime credit. In pertinent part, section 47-5-139(1)(e) provides that an inmate is not eligible
for earned-time credit when “[t]he inmate has not served the mandatory time required for
parole eligibility for a conviction of robbery or attempted robbery with a deadly weapon.”
¶7.
Mississippi Code Annotated section 47-7-3(1)(d)(ii) (Supp. 2009) dictates an inmate’s
parole eligibility and provides that any inmate convicted of armed robbery on or after
3
October 1, 1994, shall not be eligible for parole. Thus, it logically follows that “since an
offender serving a sentence for an armed robbery committed on or after October 1, 1994[,]
can never serve the mandatory time required for parole eligibility, he is not eligible to accrue
earned[-]time credits.” Sykes v. Epps, 963 So. 2d 31, 33 (¶7) (Miss. Ct. App. 2007). Based
on the foregoing, it is clear that Diggs is not entitled to accumulate earned-time credit. Thus,
we find that this argument is without merit.
B.
¶8.
Indictment
Diggs argues that his guilty plea was not valid because he was not indicted for the
offense of armed robbery. Diggs further contends that his guilty plea is invalid because the
information did not notify him that the first ten years of his sentence was mandatory, and the
information allegedly failed to cite the charging statute.
¶9.
Article 3, Section 27 of the Mississippi Constitution provides, in pertinent part, that:
No person shall, for any indictable offense, be proceeded against criminally by
information, except in cases . . . where a defendant represented by counsel by
sworn statement waives indictment[.]
At the guilty plea proceeding, Diggs, who was represented by trial counsel, acknowledged
that he understood the nature and consequences of the charge against him.
He also
acknowledged that he was entitled to have the matter presented to a grand jury. However,
Diggs executed a sworn waiver of indictment and consented to be proceeded against by
criminal information. Thus, we find that Diggs was lawfully proceeded against by criminal
information in accordance with Article 3, Section 27 of the Mississippi Constitution. See
Edwards v. State, 995 So. 2d 824, 826 (¶¶7-8) (Miss. Ct. App. 2008).
¶10.
In regard to Diggs’s remaining arguments, any complaints regarding non-
4
jurisdictional defects in an indictment are waived upon the defendant’s entry of a guilty plea.
Harris v. State, 811 So. 2d 373, 374 (¶¶6-7) (Miss. Ct. App. 2001). We must note that the
information did in fact cite the charging statute for armed robbery. Thus, there is no basis
for this argument. Also, Diggs’s argument that his indictment failed to put him on notice that
the first ten years of his sentence for armed robbery were mandatory is non-jurisdictional in
nature. Thus, Diggs waived this argument upon the entry of his guilty plea. See id. (finding
that a defendant’s argument that his indictment was deficient because it failed to put him on
notice of restrictions denying parole and earned-time credit for the first ten years of his
sentence for armed robbery were non-jurisdictional in nature and, thus, waived upon the
entry of his guilty plea).
C.
¶11.
Firearm
Diggs contends that his guilty plea is invalid because there was no firearm introduced
into evidence to substantiate the charge of armed robbery. However, because Diggs pleaded
guilty to the charge of armed robbery, he waived his right to challenge the sufficiency of the
State’s evidence. See Young v. State, 797 So. 2d 239, 246 (¶17) (Miss. Ct. App. 2001).
II.
¶12.
Direct Appeal of Sentence
Diggs argues that he was denied due process of law because the trial court failed to
inform him that he could seek a direct appeal of his allegedly illegal sentence. This Court
previously addressed this issue in Coleman v. State, 979 So. 2d 731, 733-34 (¶¶3-6) (Miss.
Ct. App. 2008). Pursuant to Uniform Rule of Circuit and County Court 8.04(A)(4), the Court
found that the trial court was not obligated to inform a defendant of his right to appeal his
sentence. Id. (¶6); see also Harris v. State, 5 So. 3d 1127, 1131 (¶14) (Miss. Ct. App. 2008).
5
¶13.
Diggs was convicted of armed robbery under Mississippi Code Annotated section 97-
3-79 (Rev. 2006), which provides, in pertinent part, that:
[W]here the jury fails to fix the penalty at imprisonment for life in the state
penitentiary the court shall fix the penalty at imprisonment in the state
penitentiary for any term not less than three (3) years.
Accordingly, the minimum term of imprisonment is three years and the maximum term of
imprisonment is “a definite term reasonably expected to be less than life.” Williams v. State,
922 So. 2d 853, 856 (¶8) (Miss. Ct. App. 2006) (quoting Payton v. State, 897 So. 2d 921, 950
(¶110) (Miss. 2003)).
¶14.
At the time of his guilty plea, Diggs was approximately thirty-four years old. He was
sentenced to thirty years in the custody of the MDOC, with twenty years suspended, ten
years to serve, and five years of post-release supervision. Diggs has not presented any
evidence to this Court showing that his sentence is illegal. To the contrary, we find that the
trial court properly sentenced Diggs within the statutory guidelines. This issue is without
merit.
III.
¶15.
Ineffective Assistance of Counsel
Diggs claims that his trial counsel was ineffective. There is a strong but rebuttable
presumption that trial counsel was competent and performed within the wide range of
reasonable conduct expected from counsel. Wrenn v. State, 802 So. 2d 177, 180 (¶12) (Miss.
Ct. App. 2001). However, the defendant may rebut this presumption upon a showing that:
(1) his trial counsel’s performance was deficient, and (2) this deficiency prejudiced his
defense. Id. (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).
¶16.
Diggs claims that his trial counsel was ineffective because he failed to interview
6
witnesses in preparation for trial. However, Diggs has failed to provide this Court with a list
of witnesses or any affidavits of the witnesses who would have testified on his behalf, and
he has failed to show how any of the alleged testimony would have altered the outcome of
his guilty plea. See Miss. Code Ann. § 99-39-9 (Supp. 2009); see also Steen v. State, 868 So.
2d 1038, 1040 (¶10) (Miss. Ct. App. 2004)).
¶17.
Diggs also claims that his trial counsel coerced him into pleading guilty and that his
trial counsel failed to properly advise him of the potential sentence he could receive for the
crime. However, the plea colloquy clearly belies Diggs’s allegations of ineffective assistance
of counsel. See Nichols v. State, 994 So. 2d 236, 238 (¶7) (Miss. Ct. App. 2008) (finding that
the defendant’s claim of ineffective assistance of counsel was without merit where the plea
colloquy contradicted the defendant’s allegations). The trial court informed Diggs of the
charges pending against him and informed Diggs of his constitutional rights. The trial court
specifically asked Diggs whether he was satisfied with trial counsel’s representation and
whether his trial counsel properly advised him regarding the charge. Diggs responded
affirmatively. The trial court also asked Diggs whether anyone had coerced him into
pleading guilty to the crime, and Diggs assured the trial court that his guilty plea was
voluntary. The trial court also informed Diggs of the applicable sentencing range for the
crime of armed robbery, to which Diggs raised no objections.
¶18.
The law is clear that “[t]rial judges are entitled to place great weight upon a
defendant’s initial plea under oath.” Green v. State, 880 So. 2d 377, 381 (¶17) (Miss. Ct.
App. 2004) (quoting Templeton v. State, 725 So. 2d 764, 767 (¶10) (Miss. 1998)). Diggs has
provided this Court with nothing more than his bare assertions to support his claims of
7
ineffective assistance of counsel. However, more is required. See Steen, 868 So. 2d at 1040
(¶11). Based on the foregoing, we find that Diggs’s allegations of ineffective assistance of
counsel are without merit.
IV.
¶19.
Factual Basis for Guilty Plea
Diggs argues that he was wrongly convicted of armed robbery because the trial court
failed to establish a sufficient factual basis to demonstrate that he was guilty of the offense.
In addition to determining that a defendant’s guilty plea was made intelligently and
voluntarily, the trial court must determine that there was a factual basis for the guilty plea.
See Corley v. State, 585 So. 2d 765, 767 (Miss. 1991).
¶20.
In the plea colloquy, Diggs explained to the trial court that he was pleading guilty
because he was indeed guilty of armed robbery. Through Diggs’s own testimony, he
admitted that he was waiting outside in the car while the robbery took place. Diggs assumes
that he cannot be guilty of armed robbery if he was not the person who actually robbed the
convenience store. However, the law is clear that an accessory to armed robbery is just as
guilty as the principal. McCuiston v. State, 791 So. 2d 315, 317 (¶¶5-6) (Miss. Ct. App.
2001). Based on the foregoing, we find that there was a sufficient factual basis established
to warrant the trial court’s acceptance of Diggs’s guilty plea. This argument is also without
merit.
¶21. THE JUDGMENT OF THE CIRCUIT COURT OF LAWRENCE COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO LAWRENCE COUNTY.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
8
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.