Kenneth Evans v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2002-CP-01119-COA
KENNETH EVANS
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
5/29/2002
HON. LEE J. HOWARD
LOWNDES COUNTY CIRCUIT COURT
KENNETH EVANS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
FORREST ALLGOOD
CRIMINAL - POST-CONVICTION RELIEF
TRIAL COURT DENIED MOTION FOR POSTCONVICTION COLLATERAL RELIEF
AFFIRMED: 5/20/2003
BEFORE KING, P.J., MYERS AND GRIFFIS, JJ.
KING, P.J., FOR THE COURT:
¶1.
The Lowndes County Circuit Court denied Kenneth Evans' motion to vacate sentence. Aggrieved,
Evans, pro se, perfected this appeal in which he lists certain issues in his brief, but argues others. This
Court has chosen to address the issues as argued which are as follows:
I. Did the trial court err in revoking Evans' probation?
II. Whether he was denied effective assistance of counsel.
FACTS
¶2.
On February 22, 1999, Evans pled guilty to two counts of sale of cocaine in cause number 97-
428-CR1. On May 10, 1999, circuit court Judge Lee Howard sentenced Evans to serve a term of seven
years on count one and a term of seven years consecutive to the first sentence on count two, all in the
custody of the Mississippi Department of Corrections, and ordered that he pay a fine on each count. Other
charges were retired to the file as a part of the plea bargain agreement at that time. Evans was on
probation for a prior felony in cause number 95-525. At the sentencing hearing, Evans' probation was
revoked.
¶3.
On May 3, 2002, Evans filed a "motion to vacate imposition of sentence via post-conviction relief"
alleging that the trial court lacked jurisdiction to revoke his probation and that he received ineffective
assistance of counsel. On May 29, 2002, Judge Howard determined that Evans' motion was without merit
and did not require a hearing, and executed an order to this effect. From that denial of relief, Evans filed
his notice of appeal.
ISSUES AND ANALYSIS
I.
Did the trial court err in revoking Evans' probation?
¶4.
Evans contends that his three year suspended sentence was unlawfully revoked. He maintains that
the trial court lacked jurisdiction to revoke his suspended sentence because Judge Howard was not the
original sentencing judge. Evans further alleges that his probation revocation "was without due process
because the court failed to determine whether Evans' plea of guilty was voluntarily and intelligently entered,"
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and he did not receive notice of the probation revocation. He maintains that there was no preliminary
hearing regarding his "alleged failure to comply" with his probation order.
¶5.
In its order denying relief, the trial court stated:
The Petitioner filed a Motion to Vacate Sentence alleging that his probation was illegally
revoked in Lowndes County Criminal Cause Number 1995-0525-CR1 because the judge
who revoked his probation was not the original sentencing judge. After reviewing the
record, the Court finds that Judge Lee J. Howard was the original sentencing judge in
Lowndes County Criminal Cause Number 1995-0525-CR1 for which the Petitioner
received a three-year suspended sentence, and Judge Howard was also the judge who
revoked said suspended sentence.
Furthermore, the Court finds that under the dictates of Mississippi Statute 47-7-37, the
revoking judge and the original sentencing judge do not have to be the same person. In
view of these facts, the Court finds the petitioner's motion to be without merit.
IT IS THEREFORE ORDERED, that this petition be, and the same is hereby dismissed
without the necessity of a hearing.
¶6.
When reviewing a trial court's decision to deny a petition for post-conviction relief, this Court will
not disturb the trial court's factual findings unless they are found to be clearly erroneous. Brown v. State,
731 So. 2d 595 (¶6) (Miss. 1999). However, where questions of law are raised the applicable standard
of review is de novo. Id. Under Miss. Code Ann. Section 47-7-37 (Supp. 1999),1 the trial court had
1
Miss. Code Ann. Section 47-7-37 (Supp. 1999) provides in part: The probation and parole
officer after making an arrest shall present to the detaining authorities a similar statement of the
circumstances of violation. The probation and parole officer shall at once notify the court of the arrest and
detention of the probationer and shall submit a report in writing showing in what manner the probationer
has violated the conditions of probation. Thereupon, or upon an arrest by warrant as herein provided,
the court, in termtime or vacation, shall cause the probationer to be brought before it and may
continue or revoke all or any part of the probation or the suspension of sentence, and may cause the
sentence imposed to be executed or may impose any part of the sentence which might have been
imposed at the time of conviction.
If the probationer is arrested in a circuit court district in the State of Mississippi other than that in
which he was convicted, the probation and parole officer, upon the written request of the sentencing judge,
shall furnish to the circuit court or the county court of the county in which the arrest is made, or to the judge
of such court, a report concerning the probationer, and such court or the judge in vacation shall have
authority, after a hearing, to continue or revoke all or any part of probation or all or any part of the
suspension of sentence, and may in case of revocation proceed to deal with the case as if there had been
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jurisdiction to revoke Evans' probation. The statute does not require that the original sentencing judge be
the person who revokes probation.
¶7.
Within this issue, Evans also raises questions about the voluntariness of his plea of guilty. Evans
bears the responsibility of placing before this Court a record sufficient to establish his claim.
Howard v. State, 785 So. 2d 297 (¶6) (Miss. Ct. App. 2001). He has not done so.
¶8.
The record before this Court does not contain the transcript of the plea hearing. Because he has
failed to place the necessary record before this Court, this portion of the issue is found to be meritless.
II.
Did Evans receive effective assistance of counsel?
¶9.
Evans contends that he did not receive effective assistance of counsel. He claims that his attorney
advised him to "go before a fabricated revocation committee and allowed [his] suspended sentence to be
unlawfully revoked," which violated his due process rights. To prevail on a claim of ineffective assistance
of counsel, Evans must establish that counsel's performance was deficient, and there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceedings would have been
different. McMillian v. State, 774 So. 2d 454 (¶8) (Miss. Ct. App. 2000). To do so, he must place
before this Court a record which evidences the claimed ineffective assistance of counsel.
no probation. In such case, the clerk of the court in which the order of revocation is issued shall forward
a transcript of such order to the clerk of the court of original jurisdiction, and the clerk of that court shall
proceed as if the order of revocation had been issued by the court of original jurisdiction. Upon the
revocation of probation or suspension of sentence of any offender, such offender shall be placed in the legal
custody of the State Department of Corrections and shall be subject to the requirements thereof.
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¶10.
That he has not done. The record does not contain affidavits or other proposed testimony in
support of Evans' claim of ineffective assistance of counsel. Vielee v. State, 653 So. 2d 920, 922 (Miss.
1995).
¶11.
Because he has not done so, this issue is determined to be without merit.
¶12. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT, DENYING
POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE
ASSESSED TO LOWNDES COUNTY.
McMILLIN, C.J., SOUTHWICK, P.J., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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