Kendrick Berry v. State of Mississippi
Annotate this Case
Download PDF
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 1999-CA-01462-COA
KENDRICK BERRY
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
05/19/1999
HON. JOHN L. HATCHER
COAHOMA COUNTY CIRCUIT COURT
DARNELL FELTON
OFFICE OF THE ATTORNEY GENERAL
BY: JEAN SMITH VAUGHAN
HON. LAURENCE Y. MELLEN
CIVIL - POST-CONVICTION RELIEF
PETITION FOR POST- CONVICTION COLLATERAL
RELIEF DENIED
REVERSED: 11/20/2001
12/11/2001
BEFORE KING, P.J., BRIDGES, AND IRVING, JJ.
BRIDGES, J., FOR THE COURT:
¶1. This case comes from the Circuit Court of Coahoma County, Honorable John L. Hatcher presiding.
Kendrick Berry pled guilty to the crime of robbery and was sentenced to a term of ten years, suspended,
and placed on supervisory probation. Subsequent to the sentencing hearing, the State discovered Berry had
been convicted of the crime of robbery in Tennessee. The State then moved to re-sentence Berry, and
Berry moved to set aside his guilty plea. Berry's motion was denied, and Berry was sentenced to serve a
term of five years with the Mississippi Department of Corrections. Berry appealed to the Mississippi
Supreme Court. The Supreme Court ruled the length of his sentence was legal, but the Court did not decide
whether the trial court should have allowed Berry to withdraw his guilty plea. Berry filed a motion for postconviction relief with the circuit court, but it was denied. Berry now appeals the denial of his motion for
post- conviction relief on the basis of two issues:
1. WHETHER THE PLEA RECOMMENDATION CAN BE AN INDUCEMENT FOR A
GUILTY PLEA; AND
2. WHETHER BERRY COULD WITHDRAW HIS GUILTY PLEA AFTER HE
DISCOVERED THAT THE SENTENCE BASED ON THE PLEA RECOMMENDATION
WAS ILLEGAL UNDER § 47-7-33 OF THE MISSISSIPPI CODE ANNOTATED (REV.
2000).
Finding error, we reverse.
STATEMENT OF THE FACTS
¶2. Kendrick Berry was indicted for the crime of armed robbery on December 9, 1996. Berry was indicted
with a co-defendant, Kenneth Watson, who pled guilty on January 13, 1997. Berry pled not guilty and
chose to go to trial. Berry's trial began on January 17, 1996. On the second day of the trial, Berry
announced he would like to change his plea. A hearing was had outside of the presence of the jury. The
State had come to an agreement with Berry for a plea recommendation of a ten year suspended sentence
and Berry would have to pay court costs.
¶3. The trial judge questioned Berry extensively to insure Berry's plea was knowingly and voluntarily
entered. After a thorough examination, in which the trial judge asked Berry if he had been coerced into
pleading guilty, informed Berry of the rights he was giving up by pleading guilty, stated the maximum and
minimum sentence Berry could receive, and reminded Berry that the trial court was not bound to accept the
State's plea recommendation, the trial court found Berry was entering the guilty plea knowingly and
voluntarily. Berry then pled guilty to the charge of robbery. The trial court accepted the plea and orally
sentenced Berry to a ten year suspended sentence, ten years of probation, and the payment of court costs.
¶4. The clerk entered the sentence and guilty plea into the docket, but no written order of sentence or guilty
plea was entered by the trial court. Prior to the entrance of a written order, the State became aware that
Berry had been previously convicted twice of the crime of robbery in the State of Tennessee. Berry filed a
motion for his guilty plea to be set aside, and the State filed a motion for re-sentencing because § 47-7-33
of the Miss. Code Ann. (Rev. 2000) prevents the suspension of a sentence for anyone who has been
previously convicted. The trial court denied Berry's motion to withdraw his guilty plea, and re-sentenced
Berry to a five year term in the custody of the Mississippi Department of Corrections. The trial court found
the State's motion to re-sentence moot because no written judgment had been entered and the oral
sentence was void in light of the defendant's failure to disclose his two prior sentences. Berry filed a motion
for post-conviction relief. This motion was denied by the circuit court, and Berry has appealed the denial to
this Court.
STANDARD OF REVIEW
¶5. "This Court reviews the denial of post-conviction relief under an abuse of discretion standard."
Andrews v. State, 791 So. 2d 902 (¶4) (Miss. Ct. App. 2001).
¶6. In dealing with the voluntariness of guilty pleas, this Court's standard of review states this Court will not
set aside the findings of the trial court unless they are clearly erroneous. Pleas v. State, 766 So. 2d 41 (¶4)
(Miss. Ct. App. 2000). In addition, a guilty plea meets constitutional requirements when it is freely and
voluntarily entered. Id.
ANALYSIS
1. WHETHER THE PLEA RECOMMENDATION CAN BE AN INDUCEMENT FOR A
GUILTY PLEA; AND 2. WHETHER BERRY COULD WITHDRAW HIS GUILTY PLEA
AFTER HE DISCOVERED THAT THE SENTENCE BASED ON THE PLEA
RECOMMENDATION WAS ILLEGAL UNDER § 47-7-33 OF THE MISSISSIPPI CODE
ANNOTATED (REV. 2000).
¶7. These two issues will be discussed together because they are interrelated such that if the State's plea
recommendation was an inducement for Berry to plead guilty, then Berry should be allowed to withdraw his
guilty plea. Berry argues the State's plea recommendation of a suspended sentence acted as an inducement
for him to plead guilty, and since the sentence recommendation was for an illegal sentence then he should be
allowed to withdraw his guilty plea. Berry recognizes that the trial court did not have to follow the
prosecution's plea recommendation, but regardless of whether it was a plea recommendation or a plea
bargain, the plea recommendation still acted as an inducement. The State counters by arguing Berry's guilty
plea was knowingly and intelligently entered, as found by the trial court.
¶8. As stated above, this Court must find an abuse of discretion in order to overturn a circuit court's denial
of post-conviction relief. Andrews, 791 So. 2d at (¶4). Also, this Court will only overturn a trial court's
finding of a knowing and voluntary guilty plea if that finding is clearly erroneous. Pleas, 766 So. 2d at (¶4).
Therefore, the question becomes whether the trial court abused its discretion by erroneously finding Berry's
guilty plea knowingly and voluntarily entered. If a guilty plea is improperly induced, the defendant should be
allowed to withdraw the plea and should be allowed to enter a new plea or be given the opportunity for a
new trial. Weaver v. State, 785 So. 2d 1085 (¶9) (Miss. Ct. App. 2001).
¶9. It should be noted that the plea recommendation offered to Berry by the prosecution was for an illegal
sentence. The State offered Berry a plea recommendation of a ten year suspended sentence. Section 47-733 (1) of the Mississippi Code Annotated states:
When it appears to the satisfaction of any circuit court or county court in the State of Mississippi,
having original jurisdiction over criminal actions, or to the judge thereof, that the ends of justice and
the best interest of the public, as well as the defendant, will be served thereby, such court, in termtime
or in vacation, shall have the power, after the conviction or a plea of guilty, except in a case where a
death sentence or life imprisonment is the maximum penalty which may be imposed or where the
defendant has been convicted of a felony on a previous occasion in any court or courts of the United
States and of any state or territories thereof, to suspend the imposition or execution of sentence, and
place the defendant on probation as herein provided, except that the court shall not suspend the
execution of a sentence of imprisonment after the defendant shall have begun to serve such sentence.
Miss. Code Ann. § 47-7-33 (Rev. 2000). It should be noted that the State did not know of Berry's
previous convictions prior to making its offer, and the trial court did not ask Berry if he had been previously
convicted. However, because of this statute, the plea recommendation offered by the State was for an
illegal sentence.
¶10. The Mississippi Supreme Court has previously held where a defendant pled guilty on the mistaken
belief he was eligible for a suspended sentence, then the defendant must be allowed to withdraw his guilty
plea and be allowed to either enter a new plea or have a trial. Robinson v. State, 585 So. 2d 757, 759
(Miss. 1991). In the Robinson case, the trial judge was aware Robinson had been previously convicted and
still gave Robinson a suspended sentence. Id. In this case, the trial judge was unaware of the fact Berry had
previously been convicted in Tennessee, and this is the point upon which the trial court based its denial of
post-conviction relief. This, however, is not a valid basis, because while the judge may not have known of
the prior convictions, the State offered Berry the plea recommendation. Berry was led to believe he was
eligible for such a sentence, thus making his guilty plea improperly induced.
¶11. The State argues the trial court found Berry's guilty plea to be knowingly and voluntarily given. While
this is true, the trial court never asked Berry whether he had been previously convicted of a crime, and the
record does not indicate Berry was ever told that a previous conviction would prevent him from receiving a
suspended sentence. This fact goes to the very heart of Berry's plea and prevents it from being knowingly
entered. When Berry filed his motion to withdraw his guilty plea, the trial court refused his motion because
the State offered him a plea recommendation, not a plea bargain, and the court was not obligated to follow
such a recommendation. This kind of distinction in terms has little effect on the voluntariness of Berry's guilty
plea. It still led Berry to believe he was eligible for an illegal sentence, and because of this Berry should be
allowed to withdraw his guilty plea.
CONCLUSION
¶12. Because Berry's guilty plea was induced by a plea recommendation for an illegal sentence, Berry
should be allowed to withdraw his guilty plea and be given the chance to enter a new plea or go to trial.
¶13. THE JUDGMENT OF THE COAHOMA COUNTY CIRCUIT COURT DENYING POSTCONVICTION RELIEF IS HEREBY REVERSED, AND BERRY SHOULD BE ALLOWED
TO WITHDRAW HIS GUILTY PLEA AND EITHER ENTER A NEW PLEA OR BE GIVEN A
TRIAL. COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., THOMAS, LEE, IRVING,
CHANDLER AND BRANTLEY, JJ., CONCUR. MYERS, J., DISSENTS WITHOUT
SEPARATE WRITTEN OPINION.
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.
