Lewis Brock v. State of Mississippi
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IN THE SUPREME COURT OF MISSISSIPPI
NO. 95-KP-00105-SCT
LEWIS BROCK
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:
02/22/95
HON. ROBERT LOUIS GOZA, JR.
MADISON COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
DISTRICT ATTORNEY:
NATURE OF THE CASE:
DISPOSITION:
BY: W. GLENN WATTS
JOHN KITCHENS
CRIMINAL - POST CONVICTION RELIEF
LOWER COURT'S DENIAL OF POST
CONVICTION RELIEF AFFIRMED - 9/11/97
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
10/2/97
BEFORE PRATHER, P.J., ROBERTS AND MILLS, JJ.
MILLS, JUSTICE, FOR THE COURT:
STATEMENT OF THE CASE
Lewis Brock appeals to this Court from the Circuit Court of Madison County where Judge Robert
Louis Goza, Jr. denied his Motion for Post Conviction Relief. The trial court found Brock's Motion
to Vacate Sentence to be time barred as it was filed on July 18, 1994, while the record indicated that
Brock entered a guilty plea on March 24, 1976. From the trial court's denial of his Motion for Post
Conviction Relief, Brock appeals to this Court.
STATEMENT OF THE ISSUES
I. DID THE TRIAL COURT ERR BY NOT ADVISING BROCK OF THE MAXIMUM
AND MINIMUM PENALTIES OF THE CRIMES CHARGED, MAKING HIS GUILTY
PLEA INVOLUNTARY?
II. WAS BROCK SUBJECTED TO INEFFECTIVE ASSISTANCE OF COUNSEL FOR
COUNSEL'S ALLEGED FAILURE TO INFORM BROCK OF THE MAXIMUM AND
MINIMUM SENTENCES FOR THE CRIMES CHARGED?
STATEMENT OF THE FACTS
On March 24, 1976, Brock plead guilty to the murder of Horace Johnson in the Circuit Court of
Madison County, Mississippi. He was represented by counsel, Mr. Ben Block Jones. He was
informed by the trial court that the penalty for murder was life imprisonment. The State also stated
for the record that its recommendation, as part of a plea bargain agreement with Brock's counsel, was
life imprisonment. Brock had been indicted for capital murder and robbery, and he could have faced
the death penalty if convicted. After Brock stated that he had not been threatened or promised
anything in return for pleading guilty and the trial court advised Brock of the rights he was waiving
by pleading guilty, the Circuit Court of Madison County accepted Brock's guilty plea as having been
knowingly, freely and voluntarily entered. The trial court then sentenced Brock to serve the
remainder of his life in prison.
On July 18, 1994, Brock filed a Motion to Vacate Judgment. On February 22, 1995, the trial court
denied the motion as time barred. Brock now appeals to this Court asserting that his plea was
involuntary and his counsel was ineffective.
ANALYSIS
I. DID THE TRIAL COURT ERR BY NOT ADVISING BROCK OF THE MAXIMUM
AND MINIMUM PENALTIES OF THE CRIMES CHARGED, MAKING HIS GUILTY
PLEA INVOLUNTARY?
Brock claims that the trial court did not inform him of the maximum and minimum sentences that
could be imposed for a conviction of murder in violation of Mississippi Uniform Circuit and County
Court Rule 8.04(4)(b) (1996). See Vittitoe v. State, 556 So.2d 1062 (Miss. 1990); Mallett v. State,
592 So.2d 524 (Miss. 1991). Therefore, his plea is involuntary because, had he known that the only
sentence available for murder was life imprisonment, he would have taken the case to trial.
Brock's argument is wholly without merit. Brock cites a myriad of cases that do nothing to alter the
fact that he was properly informed by the trial court. As indicated by the following excerpt from the
transcript of the plea hearing, Brock was properly informed of the sentence for murder.
(By the Court)
Q. Do you understand that the killing of a human being without authority of law or by any
means or in any manner in the following cases: when done with deliberate design to effect the
death of the person killed of any human being; when done in the commission of an act eminently
dangerous to others, and evincing a depraved heart, regardless of human life, although without
any premeditated design to effect the death of any particular individual; when done without any
design to effect death, by any person engaged in the commission of the crime of rape, burglary
arson, or robbery, or in any attempt to commit such felonies(1). Do you understand that is the
crime of murder?
(Brock)
A. Yes, sir.
(The Court)
Q. Do you understand that every person who shall be guilty of murder shall be sentenced by the
Court to imprisonment in the state penitentiary for life?
(Brock)
A. Yes, sir.
Brock was clearly informed of the maximum and minimum sentences for the crimes involved because
life imprisonment is the only sentence available under Miss. Code Ann. § 97-3-21. This fact was
clearly stated by the trial court. The fact that the trial judge did not say that "the maximum penalty for
murder is life and the minimum penalty for murder is life" does not negate the effectiveness of his
words.
Brock claims that his plea was involuntary because he would have taken the case to trial if he had
known the maximum and minimum sentences available. However, Brock fails to mention that he was
indicted for capital murder and robbery. It is obvious from the record that Brock had no interest in
facing the death penalty and entered a plea to avoid that prospect.
The State argues that Brock's motion is time barred, regardless of its merit. Brock plead guilty on
March 24, 1976, and filed his Motion to Vacate on July 18, 1994. Miss. Code Ann. § 99-39-5 was
adopted on April 17, 1984. Therefore, Brock was time barred as of April 17, 1987, three years after
the enactment of the statute. Brock's motion was filed over seven years after the last available date
for filing. The trial court was correct in finding Brock's motion to be time barred.
Brock's argument is without merit and time barred. It is clear from the record that Brock was
informed that the only sentence that he could possibly receive was life in prison. Brock entered this
agreement to avoid facing a capital murder charge and the death penalty. Furthermore, his motion is
time barred by over seven years. Therefore, we affirm the lower court's denial of Brock's Motion for
Post Conviction Relief as to this issue.
II. WAS BROCK SUBJECTED TO INEFFECTIVE ASSISTANCE OF COUNSEL FOR
COUNSEL'S ALLEGED FAILURE TO INFORM BROCK OF THE MAXIMUM AND
MINIMUM SENTENCES FOR THE CRIMES CHARGED?
Brock contends that he was subjected to ineffective assistance of counsel for his attorney's failure to
inform him of the maximum and minimum sentences available for murder. As discussed above, it is
clear that Brock was informed of the only sentence available for the charge of murder: life in prison.
Ineffective assistance of counsel is reviewed under the standard set forth in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This standard was reiterated by
this Court in Gilliard v. State, 462 So.2d 710, 714 (Miss. 1985), which requires the Appellant to
meet the following two-part test to be successful in an action for ineffective assistance of counsel:
"(a) The petitioner must show that counsel's conduct was so deficient that he was not
functioning as counsel guaranteed by the Sixth Amendment, and
(b) If the petitioner can show that his counsel was ineffective, then he must show that he was
prejudiced by counsel's mistakes."
Gilliard, at 714.
Brock meets neither part of the Strickland test. Brock was charged with capital murder and robbery.
He entered a plea to the lesser included offense of murder in order to avoid a possible death sentence.
The robbery charge was dismissed altogether. Brock can show no negative effects of the alleged
ineffective assistance of counsel. It appears that Brock's attorney was quite effective in negotiating
with the prosecution to avoid the possibility of the death penalty. In fact, Brock's attorney stated at
the plea hearing that he was ready for trial and did not recommend the guilty plea, but Brock insisted.
Furthermore, it is quite clear from the record that Brock was properly informed of the impending
sentence by both his counsel and the trial court. When asked if he was satisfied with his counsel at the
plea hearing, Brock answered in the affirmative.
The State argues that Brock waived this argument because he did not include an affidavit from the
accused counsel or a statement showing "good cause" for failing to include such affidavit as required
by Miss. Code Ann. § 99-39-9(1)(e). See Smith v. State, 490 So.2d 860 (Miss. 1986). The State also
contends that this issue is time barred, as discussed above. We agree with the State on both points.
This issue is without merit. Brock meets neither part of the Strickland test and is in violation of Miss.
Code Ann. § 99-39-9(1)(e) for failing to include an affidavit from his allegedly ineffective counsel.
Furthermore, this issue is time barred. It is clear from the record that Brock was informed of the
sentence for murder and that his counsel was effective by entering a plea agreement. Therefore, the
trial court's denial of Brock's Motion for Post Conviction Relief is affirmed as to this issue.
CONCLUSION
Brock makes no argument of merit in his Motion for Post Conviction Relief. The motion is clearly
time barred by over seven years, and Brock's arguments are in contradiction to the record. Therefore,
we affirm the decision of the trial court.
LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.
LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE, ROBERTS AND
SMITH, JJ., CONCUR.
1. The trial court read § 97-3-19(1) almost verbatim but should have stated that murder applies when
"in the commission of a crime other than rape, burglary, etc." However, he did include the proper
sentence of life imprisonment as applied to murder rather than the sentence of death for capital
murder.
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