Christopher Jerome McDonald v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-01744-COA
CHRISTOPHER JEROME MCDONALD
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
9/6/2002
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
CHRISTOPHER JEROME MCDONALD (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
FORREST ALLGOOD
CIVIL - POST-CONVICTION RELIEF
PETITION FOR POST-CONVICTION RELIEF
DISMISSED.
AFFIRMED - 06/03/2003
BEFORE SOUTHWICK, P.J., LEE AND GRIFFIS, JJ.
LEE, J., FOR THE COURT:
¶1.
In August 2001, a Lowndes County Circuit Court jury indicted Christopher Jerome McDonald on
two counts of possession of precursor chemicals with intent to manufacture methamphetamine in violation
of Miss. Code Ann. § 41-29-313 (Rev. 2001). In November 2001, McDonald pled guilty to Count II,
with Count I being retired, and he was sentenced to serve twelve years' imprisonment. In August 2002,
McDonald filed a motion for post-conviction relief, which was dismissed, and he now appeals to this court
arguing double jeopardy and ineffective assistance of counsel. We review these arguments and find no
merit; thus, we affirm.
DISCUSSION OF THE ISSUES
I. WERE THE APPELLANT'S RIGHTS AGAINST DOUBLE JEOPARDY
VIOLATED?
¶2.
At the time of McDonald's arrest, he had in his possession boxes of sinus tablets containing
ephedrine, which were packaged in boxes of forty-eight pills. With this first issue, McDonald argues that
he was subjected to double jeopardy since both counts of his indictment used the same possession of
ephedrine. "In reviewing a trial court's decision to deny a motion for post-conviction relief the standard of
review is clear. The trial court's denial will not be reversed absent a finding that the trial court's decision was
clearly erroneous." Chancellor v. State, 809 So. 2d 700 (¶5) (Miss. Ct. App. 2001).
¶3.
Count I of McDonald's indictment charged him with possessing "a Methamphetamine precursor
chemical, to wit: ephedrine, in an amount in excess of Two Hundred Fifty (250) dosage units, under
circumstances where one reasonably should know that the said chemicals or drugs would be used to
unlawfully manufacture Methamphetamine, a controlled substance, in violation of MCA § 41-29-313 . .
. . " (emphasis added). Count II of McDonald's indictment charged him with possessing "at least two
Methamphetamine precursor chemicals, to wit: ephedrine, liquid heat, and ethyl alcohol, under
circumstances where one reasonably should know that the said chemicals or drugs would be used to
unlawfully manufacture Methamphetamine, a controlled substance, in violation of MCA § 41-29-313 . .
. ." (emphasis added).
The Double Jeopardy Clause of the Fifth Amendment reads as follows, "nor shall any
person be subject for the same offence to be twice put in jeopardy of life or limb." This
proscription "has been applied to the states through the Due Process Clause of the
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Fourteenth Amendment." Double jeopardy protection applies to successive prosecutions
for the same criminal offense.
Thomas v. State, 711 So. 2d 867 (¶15) (Miss. 1998) (citations omitted). In dismissing McDonald's
petition for post-conviction relief, the trial court noted with regard to McDonald's double jeopardy
argument, "[t]he Court finds this claim to be without merit since the Petitioner was only sentenced on one
count of his indictment and one count was retired." Here, though both counts of McDonald's indictment
may concern the same ephedrine, he was not prosecuted, tried nor convicted on both counts. Accordingly,
we find his rights against double jeopardy were not violated.
II. WAS APPELLANT'S COUNSEL INEFFECTIVE?
¶4.
McDonald also argues that his counsel was ineffective for failing to object to his faulty indictment.
The standard of review for ineffective assistance of counsel is set out in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The test to be
applied is (1) whether counsel's overall performance was deficient and (2) whether or not
the deficient performance, if any, prejudiced the defense. The defendant has the burden
of proving both prongs. The adequacy of counsel's performance, as to its deficiency and
prejudicial effect, should be measured by a "totality of the circumstances." However, there
is a strong, yet rebuttable, presumption that the actions by the defense counsel were
reasonable and strategic. In short, defense counsel is presumed competent.
Ratliff v. State, 752 So. 2d 416 (¶6) (Miss. Ct. App. 1999) (citations omitted).
¶5.
McDonald argues that his counsel failed to comprehend the double jeopardy issue and failed to file
a motion to dismiss for faulty indictment, which he claims was in order. However, we find no evidence that
his attorney's actions in any way undermined confidence in the outcome of his guilty plea. The sole ground
on which McDonald claims his counsel's performance was inadequate was without merit, as discussed in
the first issue of this opinion; thus, the first prong of Strickland and subsequently the second prong are not
satisfied. McDonald has the burden of proving his counsel failed to effectively represent him, or that he
suffered any prejudice, and he has failed to do so; thus, we find this issue without merit.
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¶6.
THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT DISMISSING
APPELLANT'S PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF
THIS APPEAL ARE ASSESSED TO LOWNDES COUNTY.
McMILLIN, C.J., KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, IRVING,
MYERS, CHANDLER AND GRIFFIS, JJ., CONCUR.
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