Alan Ross v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CP-00486-COA
ALAN ROSS
v.
STATE OF MISSISSIPPI
DATE OF TRIAL COURT JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
APPELLANT
APPELLEE
02/06/2001
HON. THOMAS J. GARDNER III
PONTOTOC COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CIVIL - POST-CONVICTION RELIEF
PETITION SUMMARILY DENIED
AFFIRMED - 12/18/2001
1/8/2002
BEFORE SOUTHWICK, P.J., BRIDGES, AND CHANDLER, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1. Alan Ross pled guilty to the charge of sale of crack cocaine in 1998. Six months later he filed for postconviction relief, arguing that his guilty plea was not voluntarily given and that counsel had been ineffective.
The trial court denied the motion without granting an evidentiary hearing. On appeal, we find no error and
affirm.
DISCUSSION
¶2. The procedural obligations of a circuit judge upon receiving a post-conviction motion such as this are
set by statute:
(1) The original motion, together with all the files, records, transcripts and correspondence relating to
the judgment under attack, shall be examined promptly by the judge to whom it is assigned.
(2) If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in
the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and
cause the prisoner to be notified.
(3) If the motion is not dismissed under subsection (2) of this section, the judge shall order the state to
file an answer or other pleading within the period of time fixed by the court or to take such other
action as the judge deems appropriate.
Miss. Code Ann. § 99-39-11 (Rev. 2000). The judge decided that from the face of the motion that it was
obvious that it had no merit.
¶3. Among the shortcomings of Ross's motion is that there were no supporting affidavits. A motion must
indicate what the prisoner himself can state from personal knowledge, include affidavits from others or
documents on matters that are not within his personal knowledge, and show good cause for any evidentiary
omissions. Miss. Code Ann. § 99-39-9 (1) (Rev. 2000).
¶4. We now look at each claim and whether a hearing was required.
1. Ineffective assistance of counsel
¶5. Ross maintains that since he has no witnesses to his claim of ineffective assistance of counsel who will
testify, he need not comply with this statute. To the contrary, a party usually cannot maintain a claim for
ineffective assistance of counsel where that party has only his affidavit to support it. Vielee v. State, 653
So. 2d 920, 922 (Miss. 1995). Before a claim of ineffective assistance of counsel will warrant an
evidentiary hearing, sufficient questions of fact must be raised. Walker v. State, 703 So. 2d 266, 268
(Miss. 1997).
¶6. Ross must be able to prove that his counsel's performance was deficient, and if so, that the deficiency
caused the outcome of his case to be different than it otherwise would have been. Neal v. State, 525 So.
2d 1279, 1281 (Miss. 1987). It is the defendant's burden to prove these two elements. Leatherwood v.
State, 473 So. 2d 964, 968-69 (Miss. 1985). 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).
¶7. Ross makes several allegations about how his counsel's lack of diligence prejudiced him at trial, but
never does he establish that but for counsel's conduct he would not have entered a guilty plea. We find
nothing from Ross's assertions that required a hearing.
2. Involuntary plea
¶8. Ross also contends that the court committed error in denying an evidentiary hearing on the issue of the
involuntariness of his plea. Mississippi precedents define "a voluntarily and intelligently entered plea as one
in which the defendant was advised about the nature of the crime charged against him and the consequences
of the guilty plea." Stovall v. State, 770 So. 2d 1019, 1020 (Miss. Ct. App. 2000). Ross was throughly
questioned on the record at the plea hearing. He responded that he was aware of the nature of his charges
and the consequences of entering a guilty plea. Ross was specifically asked about and did not express any
dissatisfaction with his attorney's performance.
¶9. When the defendant's allegations in his affidavit for post-conviction relief are totally opposite to the
"sworn testimony before the trial court at the time he entered his guilty plea," there is no need for a hearing
to explore them. Taylor v. State, 682 So. 2d 359, 364 (Miss. 1996). The guilty plea transcript adequately
shows that Ross's plea was voluntary.
¶10. THE JUDGMENT OF THE CIRCUIT COURT OF PONTOTOC COUNTY DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THE APPEAL ARE
ASSESSED TO PONTOTOC COUNTY.
McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND BRANTLEY, JJ., CONCUR.
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