Howard Arthur Patrick v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2000-CP-01809-COA
HOWARD ARTHUR PATRICK
v.
STATE OF MISSISSIPPI
APPELLANT
APPELLEE
DATE OF TRIAL COURT JUDGMENT: 09/19/2000
TRIAL JUDGE:
HON. GEORGE B. READY
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT:
PRO SE
ATTORNEY FOR APPELLEE:
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
DISTRICT ATTORNEY:
ANN H. LAMAR
NATURE OF THE CASE:
CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION:
POST-CONVICTION COLLATERAL RELIEF DENIED
DISPOSITION:
AFFIRMED - 10/16/2001
MOTION FOR REHEARING FILED: ; denied 1/29/2002
CERTIORARI FILED:
2/28/2002; denied 5/9/2002
MANDATE ISSUED:
5/30/2002
BEFORE McMILLIN, C.J., THOMAS, AND CHANDLER, JJ.
CHANDLER, J., FOR THE COURT:
¶1. Appellant Howard Arthur Patrick pled guilty to two counts of exploitation of children in both state and
federal court. The federal plea was entered on April 2, 1998, and the state plea was entered on February
2, 1999. Patrick was sentenced to seventy-eight months by the federal court and eight years by the state
court with the sentences to run concurrently. Patrick filed a motion for post-conviction collateral relief
claiming that he received ineffective assistance of counsel and that the state conviction was barred by the
doctrine of Double Jeopardy. The Circuit Court of DeSoto County found the motion to be without merit
and dismissed it without an evidentiary hearing. On appeal from the dismissal of his motion, Patrick brings
only the ineffective assistance of counsel claim. He alleges that he received ineffective assistance of counsel
when his attorney: 1) failed to discuss the case with him and failed to investigate the facts or discuss possible
defenses, 2) failed to present mitigating evidence to the court, 3) permitted him to be sentenced in
Mississippi before he was sentenced in federal court, 4) gave him erroneous information about the actual
amount of time he would serve under the plea agreement, and 5) maintained an alleged business relationship
with the prosecuting attorney.
¶2. Finding no error, we affirm.
FACTS
¶3. Howard Patrick was indicted on federal and state charges for the sexual exploitation of children as a
result of photographs Patrick took of two underage girls. On April 2, 1998, Patrick pled guilty to the crime
charged in the United States District Court for the Western District of Tennessee. He was sentenced to
seventy-eight months. Ten months later, on February 2, 1999, Patrick pled guilty to two counts of the same
crime in the circuit court of DeSoto County, Mississippi. Patrick received fifteen years for each count. The
court suspended the last seven years of count one pending Patrick's future good behavior. The second
count was suspended entirely. The state time was set to run concurrently with the federal time.
LAW AND ANALYSIS
¶4. Patrick argues on appeal that he was denied effective assistance of counsel during the state court
proceedings. He alleges that his court appointed attorney never discussed the case with him, never
conducted an investigation, never interviewed potential witnesses, and did not present mitigating evidence at
the sentencing hearing. He also asserts that his attorney was deficient in his representation because he
allowed him to be sentenced in state court before federal court and because he gave him erroneous
information about the actual amount of time he would serve under the plea agreement. Patrick further
contends that there was a business relationship between his attorney and the prosecutor.
¶5. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington,
466 U.S. 668 (1984). The two-part test set out in Strickland is whether counsel's performance was
deficient and, if so, whether the deficiency prejudiced the defendant to the point that "our confidence in the
correctness of the outcome is undermined." Richardson v. State, 769 So. 2d 230 (¶10) (Miss. Ct. App.
2000). This standard is also applicable to a guilty plea. Brooks v. State, 573 So. 2d 1350, 1353 (Miss.
1990). A strong but rebuttable presumption exists that "counsel's conduct falls within a broad range of
reasonable professional assistance." McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). To
overcome this presumption, the defendant must show that "but for" the deficiency a different result would
have occurred. Strickland, 466 U.S. at 694. To meet this burden of proof, Patrick was required to: "[s]
pecifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must
allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the
trial court would have been different." Ford v. State, 708 So. 2d 73 (¶8) (Miss. 1998) (citing Smith v.
State, 434 So. 2d 212, 219 (Miss. 1983)). Patrick has failed to meet the above standard in reference to
every allegation made.
¶6. Patrick's claims that his attorney failed to investigate his case and to discuss his options with him are not
supported by any competent evidence in the record. His bald assertion that counsel failed to investigate his
case lacks the specificity required by Ford and makes it impossible for this Court to evaluate his claim of
deficient performance. Also, the trial transcript reflects that the trial court questioned Patrick closely about
his understanding of the proceedings. The court asked if he had fully discussed the case with his attorney
and if he was satisfied with the advice rendered by his attorney; Patrick answered both questions in the
affirmative.
¶7. The fact that counsel did not present mitigating evidence at the sentencing hearing does not indicate
ineffective representation either. Patrick's sentence was the result of a plea arrangement agreed upon prior
to the sentencing hearing. Under the terms of the agreement Patrick was sentenced to spend only eight
years in prison for crimes that carried a maximum penalty of forty years.
¶8. Patrick's third claim for ineffective representation concerns the timing of the two sentencing hearings.
Patrick claims that he received a heavier sentence in federal court because he was first sentenced in state
court. He asserts that the state sentence was regarded as a prior conviction at the federal sentencing and
earned him more time. This claim is without merit. Patrick's sentence in federal court was the result of an
agreed upon plea arrangement, just as in state court. Assuming the court was willing to accept the plea
agreement, Patrick knew the amount of time he would be serving prior to the sentencing hearing. There is
no indication in the record that this plea agreement was affected by the state sentence.
¶9. Next, Patrick claims that his attorney was incompetent because he failed to explain the actual amount of
time he would be serving under the plea agreement. The crux of this argument is Patrick's contention that he
was told by his attorney that the two sentences would "end very close together." He asserts that he believed
the difference in the terms would be made up by the difference in the sentencing dates and "good time." At
no time does Patrick allege that he was told by his attorney that he would receive "good time."
¶10. Patrick's claim that he was led to believe that he would receive "good time" is clearly controverted by
the trial transcript. At the sentencing hearing, the court explained that Patrick would not receive parole and
that he would not be guaranteed any "good time." The judge went on to inform Patrick that he was not
bound by the plea agreement and that he could sentence Patrick to a total of forty years and a $200,000
fine. Patrick indicated that he understood this and still wanted to plead guilty. Although the trial judge should
have informed Patrick that as a sex offender, he could not receive good time under Miss. Code Ann. § 475-139 (1)(d) (Rev. 2000), failure to do so was harmless error. In Smith v. State, 636 So. 2d 1220, 1226
(Miss. 1994), the Mississippi Supreme Court held that the harmless error doctrine should be applied when
a defendant does not claim that the alleged misinformation induced the plea. Patrick has made no assertion
that information given to him by the sentencing judge induced his plea. Indeed, how could it, when Patrick
had agreed to a term of eight years some time prior to this hearing. It should be noted that this hearing of
February 2, 1999, was the third scheduled by the State in an effort to accommodate Patrick in his attempt
to ensure that his federal and state sentences would run concurrently.
¶11. Further, Patrick's assertion that he agreed to the pleas because he was promised the two sentences
would end closely together is also contradicted by the trial transcript. The trial judge asked Patrick if he had
been promised anything in exchange for his plea. Patrick answered in the negative. The conversation
between the sentencing judge and Patrick was as follows:
Q: Have you fully discussed all of the facts and circumstances surrounding your cases with your
lawyer?
A: Yes, sir.
Q: Are you satisfied with the advice he's given you?
A: Yes, sir.
Q: After a full discussion of your cases, was it your own decision to enter a plea of guilty?
A: Yes, sir.
Q: Has anyone promised you or offered you any reward trying to get you to plead guilty?
A: No, sir.
The trial court was justified in relying upon Patrick's clear assertions in open court. In Richardson, the court
noted that "[s]olemn declarations in open court carry a strong presumption of verity." Richardson, 769 So.
2d at (¶6).
¶12. The trial judge also questioned Patrick closely concerning his knowledge of the maximum and
minimum sentences of the crimes charged. The judge informed him that he could be sentenced to a
maximum of twenty years for each count and a minimum of four years. Patrick entered a guilty plea with full
knowledge of the maximum sentence. Because Patrick entered the guilty pleas with full knowledge of the
maximum and minimum sentences, he must prove that he relied on erroneous advice from his counsel "to the
point that the outcome of the case was changed." Richardson, 769 So. 2d at (¶12). As in Richardson,
Patrick was given the crucial opportunity to change his mind about his plea. Moreover, he testified that he
was satisfied with the representation of his attorney. Id. "If [Patrick] expected a more lenient sentence, he
should have questioned the sentence at the hearing instead of two years later." Id. Further, the court stated
that when the record shows that the trial court fully informed the defendant of the mandatory sentence and
the defendant admitted to understanding the sentence, the defendant's claimed expectation of a more lenient
sentence is rebutted. Id.; Houston v. State, 461 So. 2d 720, 722 (Miss. 1984). In Roland v. State, 666
So. 2d 747, 750 (Miss. 1995), the court held that when the trial court questions the defendant and explains
his rights and the effects and consequences of the plea on record, the plea is rendered voluntary despite
advice given to the defendant by his attorney. Therefore, Patrick's claim of ineffective assistance of counsel
based upon erroneous information about the actual sentence is without merit.
¶13. Patrick's last claim involves an alleged business relationship between his public defender and the
prosecutor. Patrick contends that the prior business relationship created a conflict of interest that was
prejudicial to his defense. In Smith v. State, 666 So. 2d 810, 812-13 (Miss. 1995), the Mississippi
Supreme Court noted that where there is an actual conflict of interest, a showing of prejudice is generally
not necessary. "Prejudice is presumed only if the defendant demonstrates that counsel 'actively represented
conflicting interests' and that an 'actual conflict of interest adversely affected his lawyer's performance.'"
Cabello v. State, 524 So. 2d 313, 316 (Miss. 1988). In this case, Patrick has made no such showing.
Even if a prior business relationship existed between the defendant's attorney and the prosecutor, the
defendant has failed to prove that his attorney "actively represented conflicting interests" or "an actual
conflict of interest adversely affected his performance." Without proof that he was prejudiced by any prior
representation between the two attorneys, this claim must also fail.
¶14. Patrick's claims of ineffective assistance of counsel are wholly without merit. He has failed to meet the
two-part test expounded in Strickland and he set forth no evidence to indicate that the result would have
been different had his attorney acted in any other way during Patrick's representation. He pled guilty to state
and federal charges, accepted a plea agreement in both courts, and was adjudged to have made knowing
and voluntary confessions in both courts. Therefore, the lower court's dismissal of his motion for postconviction collateral relief is affirmed in full.
¶15. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY DENYING POSTCONVICTION RELIEF IS HEREBY AFFIRMED. COSTS ARE ASSESSED TO DESOTO
COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, MYERS AND BRANTLEY, JJ., CONCUR.
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