Charles Anthony Murphy v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-01698-COA
CHARLES ANTHONY MURPHY
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT
JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
DISTRICT ATTORNEY:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
09/05/2000
HON. JERRY O. TERRY SR.
HARRISON COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
CONO CARANNA
CIVIL - POST-CONVICTION RELIEF
09/05/2000: MOTION FOR POST- CONVICTION
RELIEF DENIED
AFFIRMED - 09/18/2001
10/3/2001; denied 11/20/2001
12/11/2001
BEFORE McMILLIN, C.J., THOMAS, AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1. Charles Anthony Murphy, pro se, appeals an order of the Circuit Court of Harrison County,
Mississippi denying his petition for post-conviction relief. Aggrieved, Murphy perfected this appeal, raising
the following issues as error:
I. MURPHY WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.
II. AN IMPROPER SENTENCE WAS IMPOSED ON MURPHY WHEN HIS
PROBATION WAS REVOKED.
III. MURPHY'S DUE PROCESS RIGHTS WERE VIOLATED.
FACTS
¶2. In December of 1995, Murphy was indicted by a grand jury for the sale or transfer of a controlled
substance. On June 22, 1998, Murphy entered a plea of guilty to the indictment and he was sentenced to a
term of seven years imprisonment, with six and a half of those years suspended upon good behavior. Upon
release, Murphy was to be placed on probation for two years.
¶3. Murphy failed to comply with the terms of his probation. On January 28, 1999, upon a petition to
revoke probation filed by the Mississippi Department of Corrections and by his own admission, the court
found that Murphy had violated the terms of his probation. The court gave him a second chance and, rather
than revoking probation, extended his probation period to a total of four years as a sanction for his failure to
comply. Murphy was then placed in the restitution center until he paid a fine and court costs.
¶4. Again, Murphy failed to comply with the terms of his probation. On July 1, 1999, upon a petition to
revoke probation filed by the Mississippi Department of Corrections and again by his own admission, the
court found that Murphy had violated the terms of his probation. The court revoked Murphy's probation
and he was placed in the custody of the Mississippi Department of Corrections to serve the original
sentence of seven years.
¶5. In June of 2000, Murphy filed, pro se, a motion for post-conviction relief. In these pleadings he alleged
that he received ineffective assistance of counsel, his due process rights were violated and his sentence had
been unduly prolonged. The lower court denied Murphy any relief and he now appeals.
ANALYSIS
¶6. In reviewing a trial court's decision to deny a motion for post-conviction relief, the standard of review is
clear. The trial court's denial will not be reversed absent a finding that the trial court's decision was clearly
erroneous. Kirksey v. State, 728 So. 2d 565, 567 (Miss. 1999).
I. WAS MURPHY DENIED EFFECTIVE ASSISTANCE OF COUNSEL?
¶7. Murphy's claim is addressed under a two-part test established in Strickland v. Washington, 466 U.S.
668, 687 (1984), and followed by the Mississippi Supreme Court in Stringer v. State, 454 So. 2d 468,
476 (Miss. 1984). A successful completion of this test is paramount to Murphy's argument. Under
Strickland and Stringer, Murphy must show that the counsel's performance was so deficient that it
constituted prejudice. Strickland, 466 U.S. at 687; Stringer, 454 So.2d at 476. The asserting party must
also show that "but for his attorney's errors, there is a reasonable probability that he would have received a
different result in the trial court." Rankin v. State, 636 So. 2d 652, 656 (Miss. 1994). The defendant has
the burden of successfully demonstrating that both prongs have been met. Leatherwood v. State, 473 So.
2d 964, 968 (Miss. 1985).
¶8. Additionally, there is a strong but rebuttable presumption that an attorney's performance falls within a
wide range of reasonable professional assistance and that the decisions made by trial counsel are strategic.
Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995). Application of the Strickland test is applied with
deference to counsel's performance, considering the totality of the circumstances to determine whether
counsel's actions were both deficient and prejudicial. Conner v. State, 684 So. 2d 608, 610 (Miss. 1996).
The test is to be applied to the overall performance of the attorney. Strickland, 466 U.S. at 695. With
respect to the overall performance of the attorney, "counsel's choice of whether or not to file certain
motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial
strategy." Scott v. State, 742 So. 2d 1190 (¶14) (Miss. Ct. App. 1999); Cole v. State, 666 So. 2d 767,
777 (Miss. 1995); Murray v. Maggio, 736 F.2d 279, 283 (5th Cir. 1984). With these principles in mind,
we now turn to Murphy's allegations of ineffectiveness.
¶9. Murphy asserts that his attorney was out of town at the time of his probation revocation hearing,
therefore, he was without the assistance of effective counsel at the hearing. The United States Supreme
Court in Mempha v. Rhay, 389 U.S. 128 (1967) held that a probationer is entitled to be represented by
appointed counsel at a combined revocation and sentencing hearing unless probationer was sentenced at the
time of the trial or plea. Id. See also Riely v. State, 562 So. 2d 1206, 1209 (Miss. 1990). However, the
case sub judice is distinguishable from Mempa. Murphy was sentenced at the time of his plea for a period
of seven years, although suspended. In Mempa, there was no sentence at the time of the plea. Mempa
differs from the case at bar, due to the fact that Mempa did not receive an actual sentence until his
probation was revoked and a sentencing hearing was held. Mempa could have been sentenced for a period
of one day or ten years, and in this regard, the United States Supreme Court requires counsel to be present
for the sentencing hearing. In the instant case, the trial judge at the plea hearing informed Murphy that a
violation of the conditions of probation would result in revocation of his probation and execution of the
seven year sentence. Our supreme court in Riely held that probationers and parolees do not "have, per se, a
right to counsel at revocation hearings." Crowell v. State, No. 1999-CA-02118-COA (Miss. Ct. App.
Nov. 28, 2000) (citing Riely v State 562 So 2d 1206, 1209 (Miss. 1990)).
II. WAS AN IMPROPER SENTENCE IMPOSED ON MURPHY WHEN HIS
PROBATION WAS REVOKED?
¶10. When Murphy's probation was revoked, he was ordered to serve the original sentence of seven years.
Murphy should receive credit for the six months time served prior to the probation period. That term of six
months was the portion of the seven year sentence that was not suspended. However, Murphy should not
receive credit for time he spent on probation. Miss. Code Ann. § 47-7-37 (Rev. 2000). In the case at
hand, a post-conviction relief pleading is not the proper means to calculate and receive credit for the initial
six months time served. Murphy should send such requests to the proper authorities within the Mississippi
Department of Corrections administrative system. If he is denied the proper relief, or credit for time served,
by the administrative system, he should then turn to the courts to seek remedy.
III. WERE MURPHY'S DUE PROCESS RIGHTS VIOLATED?
¶11. Murphy complains that he did not receive a written notice of the parole revocation hearing and, thus,
did not have enough time to adequately prepare for the hearing. There is nothing in the record that indicates
that Murphy did not receive a written notice of the parole revocation hearing. Further, this argument seems
to be an extension of the ineffective assistance of counsel claim, and lacks merit.
¶12. THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO HARRISON COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, IRVING, MYERS
AND CHANDLER, JJ., CONCUR. BRANTLEY, J., NOT PARTICIPATING.
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.
