Timothy Ward v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CP-00012-COA
TIMOTHY WARD
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
12/6/2002
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
TIMOTHY WARD (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JEFFREY A. KLINGFUSS
CONO A. CARANNA, II
CIVIL - POST-CONVICTION RELIEF
MOTION FOR TRANSCRIPT OF PLEA
HEARING AND MOTION FOR POSTCONVICTION RELIEF DENIED.
AFFIRMED - 12/16/2003
BEFORE SOUTHWICK, P.J., THOMAS AND GRIFFIS, JJ.
SOUTHWICK, P.J., FOR THE COURT:
¶1.
In September 1999, Timothy Wayne Ward pled guilty to abuse of a vulnerable adult in Harrison
County. The adult was his mother. Ward's petition for post-conviction relief was denied. We agree with
the trial judge that the petition to plead guilty and other evidence was sufficient to consider Ward's claims.
We affirm.
¶2.
Timothy Ward's mother was apparently suffering from advanced Alzheimer's disease. The charge
was that Ward wilfully inflicted physical pain upon her by binding, gagging, and leaving her physically
restrained. See Miss. Code Ann. § 43-47-19 (Rev. 2000). He received a fifteen year sentence. In March
2002, Ward filed for post-conviction relief claiming that he was not advised of the minimum and maximum
sentence for his crime, and that he was sentenced under the wrong statute. He also asserted that his
attorney provided ineffective assistance, including that the attorney advised him that he would not receive
more than a one year sentence.
¶3.
Ward requested but was denied a free copy of the transcript from the plea hearing. After a review
of the petition and attached documents, the circuit judge denied any relief.
DISCUSSION
1. Voluntariness of the guilty plea
¶4.
Ward first argues that his guilty plea was not voluntary. There is a procedure to be followed by
the trial judge in taking a guilty plea, which is outlined in a uniform court rule:
Before the trial court may accept a plea of guilty, the court must determine that the plea is
voluntarily and intelligently made and that there is a factual basis for the plea. A plea of
guilty is not voluntary if induced by fear, violence, deception, or improper inducements.
A showing that the plea of guilty was voluntarily and intelligently made must appear in the
record.
URCCC 8.04(3). Ward claims that his attorney advised him that he would receive a one year sentence.
He further claims that neither the court nor his attorney advised him of the sentence range of his crime,
which was from no incarceration up to twenty years. Ward was given a fifteen year sentence. He now
argues that if he had known that this was a possible sentence, he would have chosen to go to trial. Ward
asserts that the plea hearing transcript would verify this.
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¶5.
The trial judge did not order a transcript prepared from the plea hearing. Instead, relying on the
petition that Ward had submitted in 1999 informing the court that he wished to plead guilty, the judge found
that Ward's plea was knowingly and voluntarily made. The petition revealed that there was no sentencing
recommendation, and that Ward understood that the court could assess any sentence up to twenty years.
The judge concluded that Ward's claims that his lawyer induced him into entering a guilty plea based on
the fact that Ward would receive no more than a one year sentence were unsupportable based on the plea
petition.
¶6.
When a trial court has denied a petition for post-conviction relief, this Court will examine whether
the denial is clearly erroneous. Kirksey v. State, 728 So. 2d 565, 567 (Miss. 1999). The trial judge's
obligation is to review the "original motion, together with all the files, records, transcripts and
correspondence relating to the judgment under attack," in order to resolve the merits of the allegations.
Miss. Code Ann. § 99-39-11(1) (Rev. 2000). The judge here determined that the information in the guilty
plea petition was sufficient to determine the merits.
¶7.
Ward made no allegation of what a transcript would show except that it was necessary to support
the claims made in his motion for post-conviction relief. There is no automatic right to a transcript. There
must be "good cause." If a prisoner has filed a proper motion pursuant to the post-conviction relief act, and
if the "motion has withstood summary dismissal under 99-39-11(2), [he] may be entitled to trial transcripts
or other relevant documents under the discovery provisions of § 99-39-15, upon good cause shown and
in the discretion of the trial judge." Fleming v. State, 553 So. 2d 505, 506 (Miss. 1989). The trial judge
determined that summary dismissal was appropriate and no transcript would therefore be ordered.
¶8.
The post-conviction relief statutes, as just discussed, envision that a transcript will not be needed
in every instance in which a post-conviction petition claim is made of a defect in the guilty plea hearing. We
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have discovered numerous precedents in which the Supreme Court has relied at least in part on the guilty
plea petition to support the denial of a post-conviction relief petition. See, e.g., Harris v. State, 757 So.
2d 195, 200 (Miss. 2000) (Harris's guilty plea petition enumerated the rights which Harris was forfeiting;
the petition and the remainder of the record supported that the plea was intelligently and voluntarily given);
Jones v. State, 747 So. 2d 249, 251 (Miss. 1999) (Jones offers nothing to support his claim that he was
on medication when he pled; in his plea petition, Jones asserted that he was not under the influence of
drugs).
¶9.
Since a transcript may not be necessary, we examine the allegations and the record to resolve
whether a summary dismissal was appropriate. The claim is that Ward's plea was not knowing and
voluntary. 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). The petition fully enumerates the rights that Ward would waive upon signing
the plea. We find no defect in that explanation.
¶10.
Importantly, since Ward claims he was not informed of the minimum and maximum sentence, the
petition actually did explain the range: "I know that if I plead "GUILTY" to this charge (these charges), the
possible sentence is a minimum of -0- to a maximum of 20 years imprisonment and/or a fine of a
minimum of -0- to a maximum of $10,000." This petition was signed and sworn to by Ward.
¶11.
The petition contradicts what Ward now claims. "Great weight is given to statements made under
oath and in open court during sentencing." Gable v. State, 748 So. 2d 703, 706 (Miss. 1999). The plea
petition was not an oral statement in open court, but it was a sworn document presumptively prepared with
an appreciation of its fateful consequences. The plea petition, similarly to statements in open court, may
be used to discredit post-plea allegations.
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2. Ineffective assistance of counsel
¶12.
Ward pled guilty to abuse of a vulnerable adult. The statute has been revised since the date that
Ward was accused of committing abuse. See Miss. Code Ann. § 43-47-19 (Supp. 2003). The statute
as it applied to Ward provided a misdemeanor would have occurred if the accused "willfully commits an
act or omits the performance of any duty, which act or omission contributes to, tends to contribute to or
results in the abuse, neglect or exploitation of any vulnerable adult." Miss. Code Ann. § 43-47-19 (2)
(Rev. 2000), as enacted 1990 Miss. Laws ch. 493, § 6. However, a "person who willfully inflicts physical
pain or injury" upon the victim would be guilty of a felony. Miss. Code Ann. § 43-47-19 (3) (Rev. 2000),
as enacted 1990 Miss. Laws ch. 493, § 6.
¶13.
Ward argues that his victim suffered no injury and that he should have only been charged with a
misdemeanor. Ward relies on an investigator's report that is in the record, which reveals that after being
examined at a hospital, Ward's mother was found to be suffering no injuries. The statute does not require
that an injury occur for the felony to be committed. If Ward "willfully inflict[ed] physical pain" on his
mother, that would constitute felony abuse as well. This same investigator's report indicated that deputies
from the sheriff's department found that doors off a hallway at the Ward home had been tied shut with
bungee cords. When one door was finally opened, the investigators found Ward's mother "lying on her
back with feet bound together. Hands bound behind her back, a jacket which had been applied as a
straight jacket, and her mouth gagged."
¶14.
The investigator's report does not mention whether Mrs. Ward was in pain. However, the plea
petition contained an explanation of the crime to which Ward swore its accuracy. Ward said that his acts
did constitute "willfully inflicting pain and injury" upon his mother, "by binding and gagging" her and then
leaving her restrained in the house.
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¶15.
This statement in the plea petition is the equivalent of a statement in open court by Ward himself
or by someone else, to which Ward then indicates his agreement. Transcribing the reporter's notes from
the hearing would not have added to the trial court's knowledge of what Ward had agreed was the result
of his actions against his mother. That pain resulted from these acts certainly is a reasonable inference.
Ward's agreement that he caused pain is supported by the facts of the crime.
¶16.
Ward was properly found guilty of felony abuse of a vulnerable adult. Despite his protests now,
the guilty plea petition stated that he was pleading guilty to the felony, that he had willfully inflicted pain on
his mother, and that the possible sentence that would result from the acceptance of his plea could be as
much as twenty years imprisonment. That definitely was the felony and not the misdemeanor.
¶17.
Included with Ward's guilty plea petition was a statement signed by Ward's attorney. It revealed
that his attorney had explained to him the allegations of the indictment and the minimum and maximum
penalties. In the attorney's opinion, Ward was making the plea knowingly and voluntarily. Ward has not
shown that he was given ineffective assistance of counsel. Some of the claimed ineffectiveness concerns
the issues we have already discussed, such as he should have been convicted of the misdemeanor instead
of the felony. Ward also alleged ineffectiveness arising from his attorney's "failure to confer, or schedule
any pretrial conferences to keep appellant advised of any communications between counsel and prosecuting
authorities or any new developments concerning the case involved." Ward offers nothing in support of
these allegations and his guilty plea petition demonstrates otherwise. There was no error in denying postconviction relief.
¶18. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THE APPEAL ARE
ASSESSED TO HARRISON COUNTY.
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McMILLIN, C.J., KING, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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