Carlos D. Thomas v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2003-CP-01940-COA
CARLOS D. THOMAS A/K/A CARLOS THOMAS
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
8/5/2003
HON. FORREST A. JOHNSON, JR.
ADAMS COUNTY CIRCUIT COURT
CARLOS D. THOMAS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. DANIEL HINCHCLIFF
RONNIE HARPER, DISTRICT ATTORNEY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED: 12/06/2005
EN BANC.
GRIFFIS, J., FOR THE COURT:
¶1.
On October 29, 2001, Carlos Thomas plead guilty to the charges of armed robbery and
aggravated assault. The charge of possession of a firearm by a convicted felon was “retired.” Thomas was
sentenced to serve twenty years on the aggravated assault charge and thirty years on the armed robbery
charge, with the sentences to run concurrently.
¶2.
Thomas filed his motion for post-conviction relief on July 22, 2002. On August 8, 2002 Thomas
filed a motion to amend his petition, together with his amendments. The trial court found that the defendant
set forth three claims in his petition for post-conviction collateral relief, and disregarded the issues in his
amended petition, Thomas’ motion for post-conviction relief was denied.
¶3.
On appeal, Thomas asserts the following errors: (1) whether his conviction violates his Fifth
Amendment right to be free from double jeopardy, (2) whether his guilty plea was entered voluntarily (3)
whether he was denied effective assistance of counsel, and (4) whether his sentence improperly amounts
to a life sentence. We find no error and affirm.
STANDARD OF REVIEW
¶4.
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. Smith v. State, 806 So. 2d 1148, 1150 (¶ 3) (Miss. Ct. App. 2002). However,
when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So. 2d 595,
598 (¶ 6) (Miss. 1999).
ANALYSIS
I.
¶5.
Whether Thomas’ Fifth Amendment right to be free from double jeopardy
was violated.
The protection from double jeopardy prevents a second prosecution for the same offense after
acquittal, against a second prosecution for the same offense after conviction, and against multiple
punishments for the same offense. Greenwood v. State, 744 So. 2d 767, 770 (¶14) (Miss. 1999).
Thomas argues the charges of armed robbery and aggravated assault, based on a single set of events,
constitutes double jeopardy. This argument is without merit.
¶6.
Blockburger v. United States,284 U.S. 299 (1932), established the test to determine whether
the double jeopardy bar applies. The Blockburger test states that “[a] single act may be an offense against
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two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal
or conviction under either statute does not exempt the defendant from prosecution and punishment under
the other.” Id at 304.
¶7.
Thomas was indicted for aggravated assault and armed robbery. The crime of aggravated assault
is defined in Mississippi Code Annotated Section 97-3-7(2) (Rev. 2000):
as attempting to cause serious bodily injury to another, or causing such injury purposely,
knowingly or recklessly under circumstances manifesting extreme indifference to the value
of human life; or attempting to cause or purposely or knowingly causes bodily injury to
another with a deadly weapon or other means likely to produce death or seriously bodily
harm.
The crime of armed robbery is defined in Mississippi Code Annotated Section 97-3-79 (Rev. 2000):
as the felonious taking or attempt to take from the person or from the presence the
personal property of another and against his will by violence to his person or by putting
such person in fear of immediate injury to his person by the exhibition of a deadly weapon.
¶8.
A criminal defendant may be prosecuted for more than one offense that arises from a single set of
facts where each offense requires proof of a different element. Davis v. State, 750 So. 2d 552, 563 (¶44)
(Miss. Ct. App. 1999). In Davis, as here, the defendant was charged with both armed robbery and
aggravated assault. Id. Davis argued that the counts should have “merged,” since they arose from the same
set of facts. Id. This Court held that the two separate offenses do not embrace the same elements, and one
is not a lesser-included offense of the other. Id. Although the charges arise from the same set of facts, the
two offenses are legally separate and distinct crimes. Id.
¶9.
Aggravated assault does not require the taking or attempt to take property. Armed robbery does
not require an attempt to cause bodily injury. As in Davis, Thomas could have been found guilty of armed
robbery with out actually shooting the victim. Similarly, Thomas could have been found guilty of aggravated
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assault without actually taking any property. These two crimes require different elements of proof. Based
on Davis, this issue is without merit.
II.
¶10.
Whether Thomas’ guilty plea was knowingly, voluntarily, and intelligently
entered?
Thomas next claims that he was not informed that his sentence was mandatory, and therefore, he
would not be eligible for parole. Because he was not informed that he was ineligible for parole, he argues
that he was not fully informed of the effect of his plea.
¶11.
A plea of guilty is not binding upon a criminal defendant unless it is entered voluntarily and
intelligently. Myers v. State, 583 So. 2d 174, 177 (Miss. 1991). A plea is viewed as voluntary and
intelligent when the defendant is informed of the charges against him and the consequences of his plea.
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992). In Boykin v. Alabama, 395 U.S. 238 (1969),
the United States Supreme Court held that a defendant must be told that a guilty plea involves a waiver of
the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self
incrimination.
¶12.
This Court has repeatedly held that a sentencing judge is not required to explain the parole
possibilities with a defendant who is pleading guilty. Stewart v. State, 845 So. 2d 744, 747 (¶9) (Miss.
Ct. App. 2003); White v. State, 751 So. 2d 481, 485 (¶16) (Miss. Ct. App. 1999); Shanks v. State, 672
So. 2d 1207, 1208 (Miss. 1996); Ware v. State, 379 So. 2d 904, 907 (Miss. 1980). The rationale is that
whether or not a defendant is eligible for parole is not a consequence of a guilty plea, but a matter of
legislative grace. Id. This issue is without merit.
III.
Did Thomas receive effective assistance of counsel?
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¶13.
To prove ineffective assistance of counsel, Thomas must demonstrate that his counsel's
performance was deficient and that this deficiency prejudiced his defense. Strickland v. Washington, 466
U.S. 668, 687 (1984). The burden of proof rests with Thomas. McQuarter v. State, 574 So. 2d 685,
687 (Miss. 1990). Under Strickland, there is a strong presumption that counsel’s performance falls within
the range of reasonable professional assistance. Strickland, 466 U.S. at 694. To overcome this
presumption, “the defendant must show that there is a reasonable probability that, but for the counsel’s
unprofessional errors, the result would have been different.” Id.
¶14.
Thomas alleges that he told his court appointed counsel of a psychological disorder and asked her
to explore this as a possible defense. He also maintains that he was discharged from the United States
Army for reasons related to his mental health and requested that his counsel obtain those records. Thomas
claims his counsels failure to pursue an insanity defense, to have him evaluated or to obtain his records from
the United States Army constitutes ineffective assistance of counsel. ¶15.
Thomas offers no
evidentiary support for his ineffective assistance claims other than unsubstantiated allegations. In cases
involving post-conviction relief, "where a party offers only his affidavit, then his ineffective assistance claim
is without merit." Lindsay v. State 720 So. 2d 182, 184 (¶6) (Miss. 1998), Covington v. State, 909 So.
2d 160, 162 (¶9) (Miss. Ct. App. 2005). This issue is without merit.
IV.
¶16.
Whether the trial court erred by sentencing Thomas to thirty (30) years on the charge
of armed robbery?
Thomas argues that a sentence of thirty years amounts to a life sentence. Thomas cites statistics
that a black man who was twenty years old in 1996 had a life expectancy of 46.7 years. He does not,
however, provide a copy of this mortality table for review. Absent proof in support of a motion, the trial
court's decision is presumed correct. Gordon v. State, 349 So.2d 554, 555 (Miss. 1977). It is
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reasonable to assume that Thomas is misinterpreting this mortality table. It is Thomas’ burden to
demonstrate some reversible error to this Court. Clark v. State, 503 So. 2d 277, 280 (Miss. 1987).
¶17.
At the time of sentencing, Thomas was twenty-five years old. Upon completion of his thirty year
sentence he will be fifty-five years old, a relatively young man. We find that this issue is without merit.
¶18. THE JUDGMENT OF THE CIRCUIT COURT OF ADAMS COUNTY DENYING
PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO ADAMS COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., BRIDGES, IRVING, CHANDLER, BARNES
AND ISHEE, JJ., CONCUR.
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