Timothy Nash Loden v. State of Mississippi
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IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 2001-CP-00933-COA
TIMOTHY NASH LODEN
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
05/15/2001
HON. THOMAS J. GARDNER III
PRENTISS COUNTY CIRCUIT COURT
PRO SE
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
JOHN RICHARD YOUNG
CIVIL - POST CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF IS
DISMISSED.
AFFIRMED - 04/30/2002
5/21/2002
BEFORE McMILLIN, C.J., LEE, MYERS, AND BRANTLEY, JJ.
MYERS, J., FOR THE COURT:
¶1. Timothy Nash Loden filed a petition for post -conviction relief which was denied. His claims are that his
plea was unknowingly and involuntarily given and that he did not receive effective assistance of counsel. He
now appeals the denial of his petition. Finding no error, we affirm.
FACTS
¶2. Loden pled guilty before the Circuit Court of Prentiss County as a habitual offender to the capital
murder of Joey Pannell, the Honorable Thomas Gardner presiding. At the time of the plea, Loden was
represented by both Thomas H. Comer and Christopher Kitchens. Loden was sentenced to life
imprisonment without parole in the custody of the Mississippi Department of Corrections. Loden filed his
petition for post-conviction relief claiming that his plea was unknowingly and involuntarily given and that he
received ineffective assistance of counsel.
DISCUSSION
¶3. Loden claims that his plea was not voluntary because his mental state was unstable and this was evident
by the fact that he was under the influence of the medication, "Paxil". The question of whether one's plea is
voluntary is grounds for post-conviction relief. Miss. Code Ann. § 99-39-5 (1)(f) (Supp. 2001). He claims
his need for the medication arose when he developed depression because of his incarceration and future in
jail. He claims that the onset of his depression occurred due to his attorneys constantly telling him that he
would receive the death penalty if he went to trial. His attorneys were correct in advising Loden that if he
went to trial he would face the death penalty as a conviction for capital murder carries the possibility of the
death penalty. Miss. Code Ann. § 97-3-21 (Supp. 2001). Attorneys are to advise a client as to the best
course of action in the attorney's opinion. An attorney does not make the final decision in plea bargains. The
district attorney and the defendant make the decisions.
¶4. In addition to what his attorneys were telling him, Loden was completely and thoroughly advised by the
court about the possible sentencing if he went to trial. During the course of the plea hearing, the judge
pressed through the litany of constitutional rights and provisions afforded to and waived by Loden. Loden
indicated that not only did he understand the proceeding, it was his choice to continue. No information was
withheld from Loden. We have previously held that when the court questions the defendant, explains his
rights and the effects of the consequences of his plea on the record, then the plea is held to be voluntary
regardless of the advice offered by his attorney. Roland v. State, 666 So. 2d 747, 750 (Miss. 1995).
¶5. In order for a claim of ineffective assistance of counsel to justify an evidentiary hearing, a claimant must
raise sufficient questions of fact. Walker v. State, 703 So. 2d 266, 268 (Miss. 1997). Loden has not done
so. He offered two affidavits from a relative and his girl friend containing the exact same language. The only
difference is the names of the affiants and notaries public names. These do not lend credibility to his claims.
Loden presents nothing from attorneys supporting his charges nor from anyone else. His allegations are
inconsistent with "sworn testimony before the trial court at the time he entered his guilty plea," and do not
merit performing an evidentiary hearing. Taylor v. State, 682 So. 2d 359, 364 (Miss. 1996).
¶6. Loden has pled guilty several times before which is why he was sentenced as a habitual offender. He
has never claimed to have misunderstood the procedures involved in pleading guilty. No inducements or
coercion came from his attorneys. His only choices were to plead guilty and go to jail for the rest of his life
or go to trial and take his chances with a jury and the possibility of the death penalty. Loden was advised of
his rights and he waived many of them by pleading guilty just as he had in his past plea agreements. The
judge made that clear in his discourse with Loden. Loden was not coerced into pleading guilty. It was a
pragmatic move on his part, if not facing the death penalty was his goal. There is no merit to any of Loden's
claims. We affirm.
¶7. THE JUDGMENT OF THE CIRCUIT COURT OF PRENTISS COUNTY DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO PRENTISS COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE,
IRVING, CHANDLER AND BRANTLEY, JJ., CONCUR.
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