Johnnie M. Davidson v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2001-CP-01964-COA
JOHNNIE M. DAVIDSON
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:
APPELLEE
12/4/2001
HON. HENRY L. LACKEY
CHICKASAW COUNTY CIRCUIT COURT
JOHNNIE M. DAVIDSON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
JAMES M. HOOD, III
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED.
AFFIRMED IN PART; REMANDED IN PART 06/03/2003
MOTION FOR REHEARING FILED:
CERTIORARI FILED:
MANDATE ISSUED:
BEFORE MCMILLIN, C.J., LEE AND IRVING, JJ.
MCMILLIN, C.J., FOR THE COURT:
¶1.
This is an appeal brought by Johnnie Davidson from the judgment of the Chickasaw County
Circuit Court denying any relief on Davidson’s post-conviction relief motion. Davidson had
previously pled guilty to four counts of uttering a forgery and two counts of grand larceny. In his
post-conviction relief motion, Davidson alleged that he had received ineffective assistance of counsel
and that he was denied his statutory right to be tried within 270 days of arraignment.
I.
Ineffective Assistance of Counsel
¶2.
One day prior to the scheduled trial date, Davidson’s court-appointed counsel asked to be
relieved of his duties. Counsel asserted that Davidson had filed written complaints regarding his
representation with state and federal authorities and that these actions served to undermine the
viability of the attorney-client relationship. Davidson agreed that a change in attorneys was
appropriate and claimed that his mother was in transit from Chicago for the purpose of providing
funds to retain other counsel. Davidson complained that he had told his attorney of a number of
witnesses favorable to the defense but that his counsel had not contacted these potential witnesses.
Upon further inquiry, it developed that most of these witnesses were Davidson’s fellow inmates in
the Chickasaw County jail who, he claimed, could provide information showing that someone other
than Davidson had committed the crimes.
¶3.
The trial court, finding itself unconvinced as to Davidson’s claim about his mother’s efforts
to obtain new representation for her son, refused to permit appointed counsel to withdraw from the
case. However, upon the attorney’s assertion that he was unprepared for trial to commence the
following day, the court ordered a postponement in order to permit appropriate process to issue to
insure the availability of Davidson’s witnesses. The court specifically advised Davidson that the
processes of the court were available to assist him in locating and procuring the attendance of his
witnesses.
¶4.
Shortly after these developments, Davidson elected to enter his plea of guilty to the various
charges. Now, in his post-conviction relief motion, Davidson renews his complaint that his counsel
failed to fully investigate the facts of his case and explore the possibility that these various purported
witnesses could have provided evidence tending to absolve him from guilt.
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¶5.
Nowhere in his motion, by third-party affidavit or by his own sworn assertions, does Davidson
reveal any details as to the full identity of these witnesses nor the particular evidence that any of them
could have presented that would have tended to exonerate Davidson from the various charges that
he faced. Neither does he assert that his counsel persisted in ignoring his requests for witnesses after
the inquiry on the motion to relieve counsel. By statute and under long-established precedent, the
movant in a post-conviction relief motion must make some reasonable demonstration of the actual
existence of evidence that, if shown satisfactorily at a hearing, would indicate an entitlement to relief.
Miss. Code Ann. § 99-39- 5(1)(e) (Rev. 2000); McClendon v. State, 539 So. 2d 1375, 1377 (Miss.
1989); Walker v. State, 791 So. 2d 885, 887 (¶ 2) (Miss. Ct. App. 2001). Mere unsupported
assertions contained in the motion may be disregarded by the trial court and the motion dismissed
without the necessity of a hearing. Miss. Code Ann. § 99-39-11(2) (Rev. 2000); Mosley v. State, 749
So. 2d 286, 288 (¶¶ 9-11) (Miss. Ct. App. 1999). In this case, the record shows that Davidson was
informed that, should he so desire, the witnesses he claimed were invaluable to his defense would be
made available for him at trial. His trial was postponed strictly to permit this to occur. There is
nothing in the record to suggest that his counsel continued to refuse to act on Davidson’s requests.
Rather, insofar as the record reveals, Davidson simply elected at that point to enter his plea of guilty.
In doing so, he informed the court that, despite any prior difficulties with his appointed counsel, he
was, at the time he offered his plea, entirely satisfied with the representation counsel had provided.
Thus, the record simply provides no support for the claim by Davidson that witnesses who could
exonerate him existed and that the unavailability of potentially favorable witnesses was due to defense
counsel's failure to adequately pursue this avenue of defense. We find this claim to be without merit.
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II.
Statutory Speedy Trial Claim
¶6.
Davidson sought dismissal of the indictments against him before entering his guilty plea on
the basis that more than 270 days had transpired since his arraignment and that this constituted a
violation of Miss. Code Ann. § 99-17-1 (Rev. 2000). The trial court denied the motion, finding that
a portion of the time after arraignment was attributable to Davidson when he sought to change
attorneys. No appeal from that ruling was taken. Instead, Davidson elected to plead guilty.
¶7.
The entry of that plea of guilty acted as a waiver of any speedy trial claim, whether based on
statutory or constitutional grounds. Anderson v. State, 577 So. 2d 390, 391-92 (Miss. 1991). For
that reason, such a claim cannot be the basis for post-conviction relief in these circumstances.
III.
Plain Error in Sentencing
¶8.
The indictment returned by the grand jury during the February term listed three counts of
uttering a forgery. At the plea hearing, the trial court erroneously indicated that it was accepting
Davidson’s guilty plea to four counts of uttering a forgery. The written sentencing order carried
forward the same error. However, the sentence for all four counts was the same and the court
ordered that the sentences be served concurrently. Davidson made no objection to this error during
sentencing, nor did he raise the error in his post-conviction relief motion filed in the circuit court.
Davidson raised this issue for the first time in his appeal when he mentioned the point briefly under
the section of his brief entitled “Summary of Argument.”
¶9.
Despite the untimely assertion of this issue, we find that a purported judgment of conviction
for a felony not charged in the indictment affects fundamental rights of the defendant that may not
be waived or subjected to a procedural bar. Sneed v. State, 722 So. 2d 1255, 1257 (¶ 11) (Miss.
1998).
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¶10.
On the state of the record before us, we cannot conclude that this error was a purely
ministerial mistake in the judgment of sentence that might be corrected in summary fashion since the
trial court made verbal reference to four counts when accepting the plea. Thus, there is the
possibility, at least, that the number of alleged felonies involved could have affected the subjective
determination by the trial court of an appropriate punishment. Despite this, we do not conclude that
the court’s misstatements regarding the number of forgery felonies involved legitimately affected the
voluntary nature of Davidson’s decision to plead guilty to the three forgery charges actually contained
in the indictment and there is, therefore, no basis to set aside his guilty plea on this score. However,
some relief is appropriate.
¶11.
We determine the appropriate relief to be the following. The judgment of sentence previously
entered in this cause is set aside and this matter is remanded to the Circuit Court of Chickasaw
County for a new sentencing hearing at which time the court may, upon such further inquiry as the
court deems appropriate, enter a judgment of sentence limited to suitable punishment for the three
counts of uttering a forgery charged in Chickasaw County Circuit Court Cause No. HK2000-45, the
court keeping in mind that constitutional considerations of double jeopardy prevent the assessment
of a harsher punishment than that already adjudicated as to each count under the Double Jeopardy
Clause of the Constitution of the United States. See Johnson v. State, 753 So. 2d 449, 454-55 (¶¶
13-15) (Miss. Ct. App. 1999), citing Leonard v. State, 271 So. 2d 445, 447 (Miss. 1973).
¶12. THE JUDGMENT OF SENTENCE IN CHICKASAW COUNTY CIRCUIT COURT
CAUSE NO. HK2000-45 IS VACATED AND THIS CAUSE IS REMANDED FOR THE
LIMITED PURPOSE OF RE-SENTENCING THE APPELLANT ON THREE COUNTS OF
UTTERING A FORGERY RATHER THAN THE FOUR COUNTS REFERENCED IN THE
PRESENT JUDGMENT OF SENTENCE. THE DENIAL OF POST-CONVICTION RELIEF
AS TO THE TWO COUNTS OF GRAND LARCENY IS AFFIRMED. COSTS OF APPEAL
ARE ASSESSED TO CHICKASAW COUNTY.
KING AND SOUTHWICK, P.JJ., BRIDGES, THOMAS, LEE, IRVING, MYERS,
CHANDLER AND GRIFFIS, JJ., CONCUR.
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