George Michael Bass v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 95-KP-00065-SCT
GEORGE MICHAEL BASS
v.
STATE OF MISSISSIPPI
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED,
PURSUANT TO M.R.A.P. 35-A
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
12/14/94
HON. JOHN B. TONEY
RANKIN COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
DISTRICT ATTORNEY
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BY: JEFFREY A. KLINGFUSS
JOHN KITCHENS
CRIMINAL - POST CONVICTION RELIEF
AFFIRMED - 5/29/97
6/12/97
8/14/97
BEFORE PRATHER, P.J., PITTMAN AND SMITH, JJ.
PITTMAN, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
Appellant Bass was indicted by the grand jury of Rankin County for capital murder in violation of
Miss. Code Ann. ยง 97-3-19(2)(e). In a plea agreement to avoid the death penalty, Bass agreed and
pled guilty to murder, burglary of an occupied dwelling and grand larceny based upon waiver of
indictments signed by Bass and bills of information. Petitions to plead guilty for each offense were
presented to the trial court. Bass was represented a trial by two attorneys, Dennis Horn and Chris
Tabb. After a hearing, the trial court, as recommended, sentenced Bass to life imprisonment for
murder; fifteen years for the crime of burglary of an occupied dwelling to run consecutively to the life
sentence for murder; and five years for grand larceny to run consecutively to the life sentence for
murder and the fifteen-year sentence for burglary of an occupied dwelling.
Bass subsequently filed his post-conviction relief motion, which is the subject of this appeal. The trial
court summarily dismissed the motion, stating that after a review of all the records and the transcript
of Bass' plea of guilty, the motion was not well taken.
SUMMARY OF THE ISSUES
Bass contends that the trial court erred by not granting him an evidentiary hearing to prove that his
due process rights were violated. He claimed in his post-conviction motion that he was deprived of
his right to be present during jury selection on the capital murder charge. This was before the plea of
guilty to the lesser charge was accepted. There is no record of those proceedings. He also asserts that
he was denied effective assistance of counsel. Specifically, he asserts that his attorneys used fear to
coerce him into pleading guilty by telling him the jury selected was a "death" jury and also by giving
him incorrect parole information.
ANALYSIS
Section 99-39-11 (2) of Miss. Code Ann. provides that a judge may order dismissal of a postconviction relief motion if it plainly appears from the face of the motion, any exhibits and the prior
proceedings that the movant is not entitled to any relief. The Court employs a substantial
evidence/clearly erroneous standard when reviewing the trial court's decision on proceedings for
post-conviction relief. McClendon v. State, 539 So. 2d 1375, 1376 (Miss. 1989). This standard limits
the Court's scope of review. Id.
The following analysis is a review of the issues raised in Bass' denied post-conviction relief motion.
I.
Bass contends it was error for him not to be present during the questioning and selection of the jury
for the charge of capital murder. In support, Bass quotes this sentence from Strickland v. State, 477
So. 2d 1347, 1349 (Miss. 1985), "[t]he examination of [the] jurors represented an important and
crucial stage in the trial proceedings, which mandated the presence of either this defendant or his
counsel." Bass argues that prejudice resulted when counsel used Bass' absence from the jury selection
to coerce him into an involuntary plea of guilty. He contends that had he been present during the jury
selection, he would not have plead guilty.
The Court's recent decision in Villaverde v. State, 673 So. 2d 745 (Miss. 1996), supports Bass'
argument that he should be allowed to be present during jury selection in spite of the fact that his
attorneys were present at this phase. Unfortunately for Bass, the record does not contain any
evidence that these proceedings took place. The only evidence in the record regarding his right to be
present is an Assertion of Right to be Present at all phases of the trial filed by Bass' attorney, in which
Bass asserts his right to be present at the drawing of the jury pool and voir dire. A Bill of Information
and Bass' Waiver of Indictment and Agreement to Prosecution by Information follow the Assertion
of Right. The trial judge's order allowing Bass' waiver follows those documents. There is no record
of jury selection in this case. Only Bass' affidavit supports his assignment of error.
The Court has held that it is the Appellant's responsibility to see that the record contains all material
essential to an understanding and presentation of matters relied upon for reversal on appeal. Shelton
v. Kindred, 279 So. 2d 642, 644 (Miss. 1973). The Court must confine itself to what actually appears
in the record. Id. In this instance, there is no record of the issue (defendant's denial of his right to be
present at the jury trial) being appealed. It is Bass' responsibility to make sure the record is complete.
Based on Shelton, it appears that this issue is not reviewable by the Court, and the lower court's
denial of the evidentiary hearing on this issue should be affirmed based on the standard of review.
II.
Bass also maintains that he was subject to ineffective assistance of counsel because counsel told him
this was a "death" jury and coerced him into pleading guilty to the lesser charge. He further argues
that he was denied effective assistance of counsel because counsel stated that he would be eligible for
parole in "eight to ten years," when a sentence of life plus twenty years carries a fifteen-year parole
eligibility date.
The United States Supreme Court promulgated a two-part test for analyzing claims of ineffective
assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). That test requires the
defendant to show that (1) counsel's representation fell below an objective standard of
reasonableness, and (2) that there is a reasonable chance that, but for counsel's unprofessional errors,
the result of the proceeding would have been different. Id. at 687-688, 694.
In his petitions to plead guilty, Bass stated that no one had coerced him into pleading guilty. He
specifically swore that his attorney, Dennis Horn, had not made any threats or promises to him and
that he was satisfied by Horn's representation. Based on these sworn representations by Bass, the trial
court is correct in finding that Bass' motion was not well taken. He did not establish a prima facie
case of ineffective assistance of counsel based on the alleged threats. See Harveston v. State, 597 So.
2d 641 (Miss. 1992) (the Court held that where the defendant had acknowledged to the court that no
one had threatened, abused or mistreated him or promised him anything to plead guilty and he
acknowledged his guilt, the claim of an involuntary plea was without merit). Bass' claim that he was
denied effective assistance of counsel because counsel stated Bass "would be eligible for parole in
eight or ten years" when in actuality it would be fifteen years is, likewise, without merit. In Hill v.
Lockhart, 474 U.S. 52, 106 S.Ct. 366, 371 (1985), the claimed error of counsel was erroneous
advice as to eligibility for parole under the agreed-to sentence. The United States Supreme Court
held that it was unnecessary to determine this issue because the petitioner's allegations did not satisfy
the "prejudice" requirement of Strickland. The petitioner in Hilldid not allege in his petition that if he
had been correctly informed of his parole eligibility date, he would not have plead guilty and would
have insisted on going to trial. Further, he did not assert special circumstances that supported the
conclusion that he placed particular emphasis on his parole eligibility in deciding whether or not to
plead guilty. Id.
In the case at bar, Bass was asked by the trial court "if he understood that nobody can guarantee you
any early release or parole or so-called good time and that if you are sentenced to serve a term of
years you may serve each and every day of that term." Bass clearly understood at the plea hearing
that no one (attorneys included) could guarantee parole terms. Bass was fully aware that parole is not
a foregone conclusion whether it be for eight years or fifteen years. He has not met the prejudice
element required by Strickland.
CONCLUSION
Bass failed in his duty to supplement the record with the jury selection proceedings. Therefore, there
is nothing for this Court to review regarding his claim that he was denied the right to be there.
Concerning his claims of ineffective assistance of counsel, the record indicates that he acknowledged
at trial that no one had threatened him or coerced him in to making his plea. He further
acknowledged that he understood no one could guarantee him a parole date or early release. Bass'
claims are wholly without merit. The trial court is correct in summarily denying Bass' motion and
there is nothing "clearly erroneous" in its decision.
LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
LEE, C.J., PRATHER, P.J., ROBERTS, SMITH AND MILLS, JJ., CONCUR. SULLIVAN,
P.J., CONCURS IN RESULT ONLY. BANKS, J., CONCURS WITH SEPARATE WRITTEN
OPINION JOINED BY McRAE, J.
BANKS, JUSTICE, CONCURRING:
I concur in the result reached by the majority. I do not do so, however, based upon any supposed
deficiency of the record as to his presence during jury selection. This case was decided summarily.
Bass was not given a full opportunity to make a record. At the point of decision, his affidavit should
be sufficient to take his allegation as true. My concurrence is based on the fact that Bass waived any
failing of the trial court in not assuring his presence during jury selection when he entered his guilty
plea. As for ineffective assistance, I agree with what is written by the majority.
McRAE, J., JOINS THIS OPINION.
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