Donald Myers v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CP-00218-COA
DONALD MYERS A/K/A DONALD M. MYERS
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
12/31/2002
HON. STEPHEN B. SIMPSON
HARRISON COUNTY CIRCUIT COURT
DONALD MYERS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: SCOTT STUART
CONO A. CARANNA, II
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION
COLLATERAL RELIEF DENIED.
AFFIRMED - 11/9/2004
BEFORE LEE, P.J., IRVING AND GRIFFIS, JJ.
LEE, P.J., FOR THE COURT:
PROCEDURAL FACTS AND HISTORY
¶1.
On January 21, 2000, Donald Myers pled guilty in the Harrison County Circuit Court to
sexual battery based upon a charge that Myers ordered his victim at knife point to perform oral sex
upon him. The trial court sentenced Myers to ten years, but suspended the sentence, instead
ordering Myers to be on post-release supervision for three years.
¶2.
The State requested Myers' probation be revoked on three separate occasions. After the third
request, the trial court, finding that Myers admitted to violating the terms of his post-release
supervision, revoked his probation and ordered him to serve the ten years in custody of the
Mississippi Department of Corrections.
¶3.
Myers then filed his petition for post-conviction relief on August 29, 2002. The trial court
denied his request for relief on January 8, 2003. Aggrieved, Myers now appeals to this Court
asserting the following issues: (1) he was denied effective assistance of counsel; (2) his guilty plea
was involuntary; (3) he was not competent to enter a plea of guilty; and (4) his guilty plea must be
vacated because he received an illegal sentence.
STANDARD OF REVIEW
¶4.
In reviewing a trial court's denial of post-conviction relief, our standard of review is well
settled. We will not disturb the trial court's factual findings unless they are found to be clearly
erroneous. However, where questions of law are raised the applicable standard of review is de novo.
Pace v. State, 770 So. 2d 1052 (¶4) (Miss. Ct. App. 2000).
DISCUSSION OF ISSUES
I. WAS MYERS DENIED EFFECTIVE ASSISTANCE OF COUNSEL?
¶5.
In his first issue, Myers argues that his attorney's assistance was ineffective. To prove a claim
of ineffective assistance of counsel, Myers must show (1) a deficiency of counsel's performance
which is (2) sufficient to constitute prejudice to the defense. Strickland v. Washington, 466 U.S. 668,
687 (1984). Myers claims that his trial counsel coerced him into pleading guilty. Myers also
contends that his trial counsel failed to interview witnesses, including the victim. However, Myers
filed a petition to enter a plea of guilty. Prior to entering his guilty plea, Myers stated that his trial
counsel had discussed the charge against him and all possible defenses. Myers also said that he was
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satisfied with his attorney's advice. Furthermore, Myers said he understood that his sentence could
range anywhere from zero to thirty years and that he entered a guilty plea because he had committed
the crime charged against him.
¶6.
Myers's trial counsel also filed a certificate stating that he had explained all the matters in the
indictment and the petition to Myers. Counsel said that he had informed Myers of possible
sentences. Counsel also stated that he believed Myers was not only competent to enter the guilty
plea but also did so voluntarily. Myers has failed to establish by any convincing evidence that his
attorney's performance was deficient in any way. Therefore, we find no merit to this issue.
II. WAS MYERS'S GUILTY PLEA INVOLUNTARY?
¶7.
In his second issue, Myers argues that his guilty plea was not entered into voluntarily.
Specifically, Myers argues that he did not have a full understanding of the consequences of his plea.
According to the Mississippi Supreme Court, if the defendant is advised regarding the nature of the
charge and the consequences of the plea, then the plea is considered voluntary and intelligent.
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992).
¶8.
In the present case, the record reflects that Myers was informed of the charges against him
and the possible sentence. The record also reveals that Myers admitted to committing the crimes
charged. In light of the fact that Myers signed the petition stating that he understood the
consequences of pleading guilty and that no one had made any representations to him regarding his
sentence, we find Myers's argument that his plea was not voluntary to be without merit.
III. WAS MYERS COMPETENT TO ENTER A PLEA OF GUILTY?
¶9.
In his third issue, Myers argues that he was incompetent to enter a plea of guilty. Myers
claims that he had a mental disorder that affected his ability to understand the consequences of
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entering a guilty plea. Myers states that he was nervous, depressed, and confused and, therefore, he
did not understand the proceedings against him.
¶10.
In his order denying post-conviction relief, the trial court found that Myers had provided no
substantive evidence regarding his alleged mental disorder or "that any such alleged disorder would
have affected his ability to understand the consequences of entering a guilty plea to the charge
against him." At Myers's sentencing hearing, his trial counsel stated that Myers's mental problem
did not have "anything to do with his coming in here and pleading guilty for what he did." After
noting that the trial judge had the benefit of a pre-sentence investigation, the trial court found this
issue to be without merit. We cannot conclude that the trial court was clearly erroneous in his
findings; thus, we find this issue to be without merit.
IV. DID MYERS RECEIVE AN ILLEGAL SENTENCE?
¶11.
In his last issue, Myers argues that, because he had prior felonies, the only legal sentence he
could have received was thirty years without parole. Therefore, Myers claims that his sentence was
unconstitutional and must be set aside. Myers argues that pursuant to Mississippi Code Annotated
Sections 99-19-81 (Rev. 2000) and 47-7-33 (Rev. 2000), the trial court should have sentenced him
to the maximum of thirty years. At the sentencing hearing, the trial court noted that according to the
presentence investigation Myers had two prior felony convictions. However, there is no other
evidence in the record pertaining to these prior felonies.
¶12.
We note that Section 99-19-81 only applies to habitual offenders. Since Myers was not
indicted as an habitual offender, this particular statute has no bearing in our determination.
Section 47-7-33 states, in pertinent part, the following:
(1) When it appears to the satisfaction of any circuit court or county court . . . that the
ends of justice and the best interest of the public, as well as the defendant, will be
served thereby, such court, . . . shall have the power, after conviction or a plea of
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guilty, except in a case where a death sentence or life imprisonment is the maximum
penalty which may be imposed or where the defendant has been convicted of a
felony on a previous occasion in any court or courts of the United States and of any
state or territories thereof, to suspend the imposition or execution of sentence, and
place the defendant on probation as herein provided . . . .
Myers specifically alleges that he was improperly induced into pleading guilty in return for a
suspended sentence. According to Graves v. State, 822 So. 2d 1089 (¶11) (Miss. Ct. App. 2002), a
defendant's fundamental right of freedom from an illegal sentence is violated when the sentence
imposes an undue burden on the defendant, such as when the offer induces a plea and the State later
seeks to rescind the suspension solely because it was statutorily barred. See also Weaver v. State,
785 So. 2d 1085 (Miss. Ct. App. 2001) (the guilty plea was induced at least in part by a
recommendation that some part of the sentence be suspended). In the case sub judice, Myers did
not plead guilty as a result of an offer of a suspended sentence. Myers clearly understood that he
could have received the maximum of thirty years. Myers benefitted from the illegal sentence since
it was more lenient than he was actually entitled to receive. We cannot find that he suffered any
fundamental unfairness from the illegal sentence, nor can we find his fundamental rights were
violated. Graves, 822 So. 2d at ¶8; McGleachie v. State, 800 So. 2d 561 (¶4) (Miss. Ct. App. 2001);
Chancellor v. State, 809 So. 2d 700 (¶8) (Miss. Ct. App. 2001). This issue is without merit.
¶13. THE JUDGMENT OF THE HARRISON COUNTY CIRCUIT COURT DENYING
POST-CONVICTION RELIEF IS AFFIRMED. COSTS OF THIS APPEAL ARE ASSESSED
TO HARRISON COUNTY.
KING, C.J., BRIDGES, P.J., MYERS, CHANDLER, GRIFFIS, BARNES AND ISHEE,
JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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