Lee, III Mason v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 94-KP-00414-SCT
LEE MASON, III a/k/a LEE MASON a/k/a JOHN
MONTGOMERY a/k/a LEE MASON MONTGOMERY
a/k/a JOSEPH MASON
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:
DISTRICT ATTORNEY
NATURE OF THE CASE:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
03/25/94
HON. KOSTA N. VLAHOS
HARRISON COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: DEWITT ALLRED, III
CONO CARANNA
CRIMINAL - POST CONVICTION RELIEF
AFFIRMED - 2/6/97
BEFORE SULLIVAN, P.J., McRAE AND ROBERTS, JJ.
McRAE, JUSTICE, FOR THE COURT:
The appellant, Lee Mason, was originally arrested on January 31, 1990 by the Harrison County
Sheriff's Department and was charged with capital murder of Gloria Jean Thornton and aggravated
assault of Shirley Ann Bogan. On September 6, 1990, the Harrison County Grand Jury indicted
Mason for capital murder and aggravated assault as an habitual offender under Miss. Code Ann. ยง
99-19-83. Mason was given court-appointed counsel, and after two of his original attorneys
withdrew, Earl Stegall and Mack Bethea represented Mason during preparation for trial and plea
negotiations. Mason pled guilty to capital murder and aggravated assault on September 6, 1991, in
exchange for the State's agreement not to seek the death penalty and recommendation that the court
order of the two life sentences be served concurrently. Mason is currently serving concurrent life
sentences without opportunity for parole on each crime as an habitual offender.
Mason filed a motion for post-conviction relief on October 5, 1992, and amended it on January 21,
1993. The circuit court denied Mason's motion in an order dated March 25, 1994. Mason filed his
notice of appeal on April 7, 1994, raising the following issues:
I. THE TRIAL COURT ERRED IN SECURING CONSTITUTIONAL SAFEGUARDS AGAINST
POSTACCUSATION DELAY.
II. HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.
III. HIS CONVICTION WAS OBTAINED BY PLEA OF GUILTY WHICH WAS
UNLAWFULLY INDUCED OR NOT MADE VOLUNTARILY WITH UNDERSTANDING OF
THE NATURE OF THE CHARGES OR THE CONSEQUENCES OF THE PLEA.
IV. HIS CONVICTION WAS OBTAINED BY THE UNCONSTITUTIONAL FAILURE OF THE
PROSECUTION TO DISCLOSE TO THE DEFENDANT EVIDENCE FAVORABLE TO THE
DEFENDANT.
UNLAWFULLY INDUCED AND INVOLUNTARY PLEA
Mason asserts that his pleas were unlawfully induced or not made voluntarily with understanding of
the nature of the charges and the consequences of the pleas. He claims that he was not advised of his
right to remain silent, his right to a jury trial, his right to confront and cross-examine adverse
witnesses, his right against self-incrimination, and the maximum and minimum penalty provided by
the law for the crime to which he was pleading guilty.
"A guilty plea must be made voluntarily in order to satisfy the defendant's constitutional rights."
Wilson v. State, 577 So.2d 394, 396-97 (Miss. 1991). A plea is voluntary if the defendant knows
what the elements are in the charge against him, including an understanding of the charge and its
relation to him, the effect of the plea, and the possible sentence. Schmitt v. State, 560 So.2d 148,
153 (Miss. 1990). Further, a complete record should be made of the plea proceeding to ensure that
the defendant's plea was entered voluntarily. Taylor, 682 So.2d at 362.
Here, the transcript of the plea hearing is replete with careful explanations by the trial judge of the
charges against Mason and the consequences of those charges to Mason. All of this discussion
occurred before the court accepted Mason's guilty pleas. In addition, the defendant was well aware of
the potential sentences that could be sought by the State. The trial judge also made an independent
determination of the defendant's "habitual offender" status, by which the State sought to prosecute
him. Not only did the defendant admit to serving jail time in Florida, but also the State submitted
certified copies of Mason's convictions and sentences. Therefore, Mason's argument that his pleas
were involuntary and unlawfully induced is without merit.
SPEEDY TRIAL
The appellant contends that the trial court erred in failing to guarantee that he received a speedy trial.
Mason asserts that the time for trial had expired, as the indictments against him were returned on
September 6, 1990, and he did not come on for trial until September 21, 1991. He says that this
inaction by the state deprived him of his constitutional right to a speedy trial.
This issue was not raised in the circuit court, and cannot be raised for the first time on appeal.
Patterson v. State, 594 So.2d 606, 609 (Miss. 1992). Therefore, Mason is procedurally barred from
making such a claim here. Even without the procedural bar, Mason's speedy trial claim is without
merit. The defendant in this case knowingly waived his right to a speedy trial. In petitioning the court
to plead guilty, Mason swore that by pleading guilty he waived, among other Constitutional
guarantees, the right to a speedy and public trial by jury. Since there was an "intentional
relinquishment or abandonment of a known right or privilege," and his plea was made independently
and voluntarily, Mason suffered no constitutional violation. Anderson v. State, 577 So.2d 390, 391
(Miss. 1991).
INEFFECTIVE ASSISTANCE OF COUNSEL
The standard of review for ineffective assistance of counsel is set out in Strickland v. Washington,
466 U.S. 688 (1984). The Strickland standard was first adopted by this Court in Gilliard v. State,
462 So.2d 710, 714 (Miss. 1985). The test to be applied is (1) whether counsel's overall performance
was deficient and (2) whether or not the deficient performance, if any, prejudiced the defense. Taylor
v. State, 682 So.2d 359, 363 (Miss. 1996); Cole v. State , 666 So.2d 767, 775 (Miss. 1995).
The defendant has the burden of proving both prongs. Id. The adequacy of counsel's performance, as
to its deficiency and prejudicial effect, should be measured by a "totality of the circumstances." Cole,
666 So.2d at 775. The level of scrutiny to be applied when measuring the performance of counsel
against the deficiency and prejudicial prongs of Strickland is to look at the overall performance.
Taylor, 682 So.2d at 363. There is a strong, yet rebuttable, presumption that the actions by the
defense counsel are reasonable and strategic. Id. Under the second prong of Strickland, the
prejudicial prong, the defendant must show that there was a reasonable probability that, but for
counsel's unprofessional errors, the result would have been different. A reasonable probability is a
probability sufficient to undermine confidence in the outcome. Strickland, 466 U.S. at 694.
Mason alleges that his court-appointed attorneys never used a rationale for their insistence in his
pleas of guilty, that they had no intentions of preparing a defense for the case, and that they knew the
State's case against him was weak. Mason argues that his court-appointed attorneys prejudiced him
by: a) failing to challenge his arrest; b) failing to interview potential witnesses who could corroborate
his whereabouts and an alibi; c) failing to inquire into his background, family and personal
circumstances, employment, associations, and other related matters; and d) failing, at the sentencing
hearing, to articulate any factors in his favor that would mitigate against his sentence.
To obtain an evidentiary hearing on an ineffective assistance claim, a post-conviction relief movant
must allege deficient performance with specificity and details. Brooks v. State, 573 So.2d 1350, 1353
(Miss. 1990). In his motion for post-conviction relief, Mason stated that he pled guilty without the
assistance of competent counsel. He stated that there were no investigations or any discovery
motions submitted by his attorneys on the charges against him, nor was there any representation or
investigation conducted in the case. However, these alleged facts are not supported by affidavits
other than Mason's own statements. Such mere allegations are insufficient to require the trial court to
grant an evidentiary hearing. Cambpell v. State, 611 So.2d 209, 210 (Miss. 1992); Brooks, 573
So.2d at 1354; see also Smith v. State, 490 So.2d 860 (Miss. 1986).
Moreover, the record refutes Mason's allegations. His attorneys filed several motions on Mason's
behalf, including a motion for a continuance, a motion regarding jury selection, a motion for
exclusion of evidence, and others. These included requests for production of documents, examination
of the crime scene, and copies of witness statements. All of these actions went to the heart of
Mason's representation. On the basis of Mason's pleadings and the record in the proceedings, the trial
court did not err in finding that Mason did not make the requisite showing under the two-pronged
Strickland test.
FAILURE TO DISCLOSE FAVORABLE EVIDENCE
Finally, Mason argues that the State withheld information from him that could possibly establish his
innocence. Mason alleges that Shirley Ann Bogan, the victim of his aggravated assault conviction,
would be able to corroborate his innocence. He claims in his appellate brief that Bogan refused to
testify against him and that she was "hauled away" upon discovery that she was on probation/parole,
thus prejudicing Mason's defense by preventing her for testifying for him.
To be successful in a claim of failure to disclose, the defense must show: 1) a suppression of evidence
by the prosecution; 2) that the suppressed evidence is favorable to the defense; and 3) that the
suppressed evidence is material. Smith v. State, 500 So.2d 973, 976 (Miss. 1986). However, nothing
in Mason's petition for post-conviction relief alleges an effort by the State to withhold favorable
evidence from him, and there are no affidavits to support Mason's allegation. In fact, Shirley Bogan
was present at the plea hearing, and after her presence was noted, Mason was given an opportunity
to speak. However, he did not make an effort to suggest that she had possible exculpatory evidence.
Her presence at the plea hearing also refutes Mason's allegations that the State somehow "hauled her
away" and prevented her from testifying on his behalf.
Once again, Mason makes a self-serving allegation, but has offered no other evidence in support of
the allegation. Because Mason has not made a showing of suppression of evidence by the
prosecution, the trial court did not err by denying Mason's post-conviction relief. See Campbell, 611
So.2d at 210 (defendant's uncorroborated allegation that witness was available to exonerate him was
not sufficient to warrant evidentiary hearing regarding claims of ineffective assistance of counsel,
involuntary guilty plea, etc.).
As Mason has not presented any meritorious arguments for reversal of the trial court's denial of postconviction relief, we therefore allow his conviction and sentence to stand on appeal.
LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, ROBERTS, SMITH
AND MILLS, JJ., CONCUR.
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