Rodrequiz W. Hargett v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-00545-COA
RODREQUIZ W. HARGETT
APPELLANT
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:
APPELLEE
3/5/2002
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
RODREQUIZ W. HARGETT (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CONO A. CARANNA, II
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF DENIED
AFFIRMED - 07/29/2003
BEFORE KING, P.J., THOMAS AND CHANDLER, JJ.
THOMAS, J., FOR THE COURT:
¶1.
Rodrequiz W. Hargett, pro se, appeals an order of the Circuit Court of Harrison County,
Mississippi denying his petition for post-conviction relief. Aggrieved, Hargett asserts the following issues
on appeal:
I.
THE CIRCUIT COURT ERRED IN FAILING TO ADVISE APPELLANT
SUFFICIENTLY OF THE MANDATORY SENTENCE REQUIRED BY STATUTE.
II.
THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S MOTION TO
VACATE GUILTY PLEA BECAUSE IT WAS NOT KNOWINGLY,
VOLUNTARILY, AND INTELLIGENTLY ENTERED INTO FOR FAILURE TO
FULLY AND ADEQUATELY ADVISE OF NATURE AND CONSEQUENCES OF
THE GUILTY PLEA.
III.
THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S MOTION TO
VACATE GUILTY PLEA WHERE APPELLANT HAS BEEN DEPRIVED OF
LIBERTY WITHOUT FULL DUE PROCESS BY PROSECUTING OFFICERS' USE
OF PERJURED TESTIMONY AND STATES FAILURE TO PROVIDE
CORRECTIVE JUDICIAL PROCESS.
IV.
THE CIRCUIT COURT ERRED IN DENYING APPELLANT'S MOTION TO
VACATE GUILTY PLEA BECAUSE APPELLANT WAS DENIED EFFECTIVE
ASSISTANCE OF COUNSEL FOR PROVIDING APPELLANT WITH CLEARLY
ERRONEOUS INFORMATION.
Finding no error, we affirm.
PROCEDURAL HISTORY AND FACTS
¶2.
Rodrequiz W. Hargett pled guilty to transfer of a controlled substance as a habitual offender with
the advice and assistance of counsel on May 9, 2000. The trial court sentenced Hargett to ten years in the
custody of the Mississippi Department of Corrections. Hargett filed a motion for post-conviction relief on
March 1, 2001, which the trial court summarily denied. Hargett then perfected an appeal to this Court.
ANALYSIS
¶3.
In his original motion for post-conviction relief, Hargett complained that his guilty plea was not
knowingly, intelligently, freely and voluntarily given and that he did not receive effective assistance of
counsel. Hargett also now argues on appeal that he was given an illegally lenient sentence.
I. VOLUNTARINESS OF GUILTY PLEA
¶4.
Hargett asserts that his guilty plea was not knowingly, intelligently, freely, and voluntarily given
because he allegedly was not informed of the mandatory minium sentence that he could receive for his guilty
plea. The standard of review pertaining to voluntariness of guilty pleas is well settled: "this Court will not
set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous."
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Weatherspoon v. State, 736 So. 2d 419, 421(¶5) (Miss. Ct. App. 1999). The burden of proving that
a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence.
Id. at 422 (¶8) (superceded by Miss. Code Ann. §§ 99-39-23 (Rev. 2000)); Terry v. State, 839 So. 2d
543, 545 (¶7) (Miss. Ct. App. 2002). A plea is considered "voluntary and intelligent" if the defendant is
advised about the nature of the charge against him and the consequences of the entry of the plea.
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992).
¶5.
Hargett signed a sworn statement which acknowledged that he was pleading guilty as a habitual
offender and that acknowledged the maximum and minimum sentences as well as the maximum and
minimum fine he could receive. Hargett's claims in his motion for post-conviction relief were unsupported
by affidavits or any other evidence, and they contradict his sworn statements given before the court in his
guilty plea. "Great weight is given to statements made under oath and in open court during sentencing."
Gable v. State, 748 So. 2d 703, 706 (¶11) (Miss. 1999) (quoting Young v. State, 731 So. 2d 1120,
1123 (¶12) (Miss. 1994)). This issue is without merit.
II. EFFECTIVENESS OF COUNSEL
¶6.
Hargett argues that he was denied effective assistance of counsel because he did not actually
commit the offense to which he pled guilty, perjured testimony was used against him, and he was not
properly advised that he was pleading guilty as a habitual offender. Hargett provided no affidavits or
proposed testimony in support of his argument, alleging that his witnesses could not be located or were in
prison. According to Campbell v. State, 611 So. 2d 209, 210 (Miss. 1992), "such mere allegation is
insufficient to require the trial court to grant an evidentiary hearing."
¶7.
In order to be successful in a claim of ineffective assistance of counsel, the defendant is required
to make both a showing of deficient performance and that, but for the deficient performance, a different
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result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686 (1984); Donnelly v.
State, 841 So. 2d 207, 211 (¶8) (Miss. Ct. App. 2003). In order for Hargett to prove the ineffective
assistance of counsel claim, under Miss. Code Ann. §§ 99-39-11(2) (Rev. 2000), the allegation must be
alleged with specificity. "[H]e must specifically 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 decision would have been different." Smith v. State, 434
So. 2d 212, 219 (Miss. 1983). See also Miss. Code Ann. §§ 99-39-9(1)(c) (Rev. 2000); Terry v. State,
839 So. 2d 543, 546 (¶14) (Miss. Ct. App. 2002). "On review, we look with deference upon counsel's
performance, considering the totality of the circumstances to determine whether it was both deficient and
prejudicial." Conner v. State, 684 So. 2d 608, 610 (Miss. 1996).
¶8.
"In a case involving post-conviction relief, the Mississippi Supreme Court has held, 'that where a
party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.'" Lindsey v.
State, 720 So. 2d 182, 184 (¶6) (Miss. 1998). We hold that Hargett has failed to meet his statutory
burden of proof required to establish a prima facie showing. Hargett is required to show that counsel's
performance was deficient and that the defendant was prejudiced by counsel's mistakes. Strickland, 466
U.S. at 686-87. Having failed to do so, this issue is without merit.
III. LEGALITY OF SENTENCE
¶9.
Hargett claims for the first time on appeal that the trial court imposed an illegal sentence when it
ordered him to serve ten years in the custody of the Mississippi Department of Corrections without benefit
of probation or parole pursuant to Section 99-19-81. He argues now that the trial court should have
imposed the maximum sentence of thirty years without parole. In what can only be classified as a tongue
in cheek argument, Hargett argues not that he be re-sentenced to the full maximum sentence but that his
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plea and sentence be totally vacated when considered in conjunction with his claims of ineffective assistance
and voluntariness of guilty plea.
¶10.
The State's position is that since Hargett raised this issue for the first time on appeal in a
supplemental brief that he is procedurally barred from complaining now. This argument is inviting but
ignores the question of whether some fundamental right of Hargett's has been implicated and violated in his
receiving an illegal sentence, which argument transcends a procedural bar.
¶11.
We are increasingly witnessing arguments like that advanced by Hargett in post-conviction cases.
These cases can be loosely characterized into three categories: (1) a defendant is trying to set aside an old
conviction used to enhance a present day sentence as a habitual offender, (2) a defendant with a prior
felony record is given a total or partially suspended sentence which is later revoked and the defendant now
claims the sentence he is serving is illegal, and finally as to the case here, (3) a defendant pleads guilty as
a habitual offender, receives a sentence less than the maximum and later, while serving that sentence,
attempts to set the conviction and sentence aside because the judge was lenient.
¶12.
McGleachie v. State, 800 So. 2d 561 (Miss. Ct. App. 2001), Chancellor v. State, 809 So. 2d
700 (Miss. Ct. App. 2001), Edwards v. State, 839 So. 2d 578 (Miss. Ct. App. 2003), and Graves v.
State, 822 So. 2d 1089 (Miss. Ct. App. 2002) (cert. denied May 1, 2003) all involved the scenario of
a defendant trying to set aside an old conviction used to enhance a sentence the defendant was then serving.
In each case, the motion was filed after this three year time bar of the post-conviction relief statute.
McGleachie, 800 So. 2d at 562 (¶2); Chancellor, 809 So. 2d at 701 (¶4); Edwards, 839 So. 2d at 579
(¶3); Graves, 822 So. 2d at 1090 (¶3). In each case, we explicitly held that the defendant was time
barred from complaining at this point because no fundamental right had been implicated since the defendant
was not prejudiced by receiving a harsher sentence but rather benefitted from a lighter sentence than that
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which the defendant should have received. McGleachie, 800 So. 2d at 563 (¶4); Chancellor, 809 So.
2d at 701 (¶8); Edwards, 839 So. 2d at 580 (¶7); Graves, 822 So. 2d at 1091 (¶8).
¶13.
In Weaver v. State, 785 So. 2d 1085 (Miss. Ct. App. 2001), a defendant with a prior felony
conviction was given an illegally suspended sentence which the State later attempted to revoke. We
vacated the sentence and conviction in that case on the basis of Robinson v. State, 585 So. 2d 757 (Miss.
1991), and reasoned that the State's attempt to revoke was based solely on the fact that Weaver should
not have been given a suspended sentence rather than on some new violation of the suspension. However,
as cogently stated by Judge Irving in Graves:
A literal reading of Weaver would permit results not intended by this Court. Therefore, it
is appropriate that we clarify Weaver. Weaver should not be read as permitting a prior
convicted felon to withdraw a guilty plea induced by a beneficial though illegal plea bargain
if the convicted felon has enjoyed the benefits of the favorable illegal bargain. Weaver
applies to situations in which a guilty plea was induced at least in part by a recommendation
that some part of the sentence be suspended. If the State later seeks to rescind that
suspension solely because the sentence was statutorily barred and not because of an
alleged violation of the terms of the probation, then removing the suspension would also
require that the defendant be allowed to withdraw his guilty plea. On the other hand, a
defendant should not be allowed to reap the benefits of an illegal sentence, which is lighter
than what the legal sentence would have been, and then turn around and attack the legality
of the illegal, lighter sentence when it serves his interest to do so. Allowing such actions
would reap havoc upon the criminal justice system in this state. For example, all
subsequent convictions and sentences of that defendant which are reliant upon the
conviction concomitant with the illegal sentence would have to be set aside. This would
result in a number of enhanced and habitual offender sentences being set aside for the very
offender who had already enjoyed greater leniency than the law allows. Likewise, the
State should not be allowed to engage in a plea bargain encompassing a recommendation
for a sentence more lenient than what the law permits, reap the benefit of not having to go
to trial and later seek to have the illegal, lighter sentence set aside while maintaining the
validity of the attendant conviction. We can perceive no constitutional imperative or
compelling state interest which would require or permit either scenario.
Graves, 822 So. 2d at 1092 (¶11).
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¶14.
Juxtaposed between our latest pronouncement in Graves and the case at bar is Robinson v. State,
No. 2000-CP-02087-COA (Miss. Ct. App. Feb. 26, 2002). In our Robinson opinion, we held, as in
McGleachie, Chancellor, Edwards, and Graves, that the defendant could not argue about a less than
maximum habitual sentence he was presently serving. On certiorari, our supreme court affirmed this Court
on other grounds, finding from a review of later acquired document sheets that Robinson could receive less
than a maximum sentence because the State had, in fact, dropped the habitual portion of his indictment as
part of a plea bargain. Robinson, 836 So. 2d 747, 750 (¶10) (Miss. 2002). As an apparent afterthought
and without further discussion including the potential consequences of its comment, or discussion of
McGleachie or Chancellor, that court in dicta stated that "[b]ut for the inclusion of the reference docket
sheet of Monroe County which absolutely indicates the reduced non-habitual status of this plea of guilt and
sentence, this Court could not affirm the Court of Appeals and trial court." Id. at 749 (¶6). Inexplicably,
the supreme court went on to hold that Robinson could be sentenced to a twenty year suspended sentence
as a non-habitual even though he had prior felony convictions. This ruling flies in the face of Goss v. State,
721 So. 2d 144 (Miss. 1998) (overruled on other grounds), which held that one could not receive a
suspended sentence if the defendant had a prior felony conviction. Goss, 721 So. 2d at 146 (¶12). Justice
Carlson correctly pointed this out in a concurring opinion in Robinson even though he took issue with
Goss's reasoning. Robinson, 836 So. 2d 752-53 (¶18). The dicta in Robinson can only be read to be
an aberration in view of the fact that within less than four months after its rendition our supreme court
denied certiorari on our decision in Graves.
¶15.
We now turn to the case at bar. Hargett filed his post-conviction relief motion well within the three
year statute of limitations. His argument below was that his plea was not knowingly, intelligently, freely and
voluntarily given and that he did not receive effective assistance of counsel. We have already discussed and
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dismissed those arguments. For the first time on appeal Hargett argues also that his sentence was illegal.
In view of our previous pronouncements and our discussion herein, we hold that Hargett is barred from
raising this issue here, and for that matter, in the trial court had it been properly pled.
¶16.
Ironically, defendants like Hargett place themselves in a precarious position by advancing illegal
sentence arguments such as this. Since the record in this case without doubt reveals that Hargett knew that
he was adjudicated a habitual offender, that he was explicitly advised that he could receive a thirty-year
day for day sentence with a million dollar fine, and that his plea was otherwise freely and voluntarily given
with adequate assistance of counsel. We could be disposed to simply remand this case for imposition of
the full maximum sentence. Fortunately for Hargett, we have chosen another path. One cannot help but
be reminded of that old adage to the effect that one should be careful of what they ask for, least they
receive it.
¶17. 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, CHANDLER AND GRIFFIS, JJ., CONCUR.
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