Seriehel Belton v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2006-CP-01299-COA
SERIEHEL BELTON
APPELLANT
v.
STATE OF MISSISSIPPI
APPELLEE
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:
7/17/2006
HON. LAMAR PICKARD
COPIAH COUNTY CIRCUIT COURT
SERIEHEL BELTON (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DESHUN TERRELL MARTIN
CIVIL - POST- CONVICTION RELIEF
PETITION FOR POST-CONVICTION RELIEF
DISMISSED.
AFFIRMED - 03/27/2007
BEFORE GRIFFIS, P.J., ROBERTS AND CARLTON, JJ.
ROBERTS, J., FOR THE COURT:
SUMMARY OF THE CASE
¶1.
On November 9, 2005, during a plea hearing before Judge Lamar Pickard, Seriehel Belton
pled guilty to sale of cocaine and conspiracy to commit capital murder. On February 15, 2006, the
Copiah County Circuit Court sentenced Belton to thirty years for the sale of cocaine charge and
twenty years for the conspiracy charge. The circuit court specified that Belton’s thirty-year sentence
for selling cocaine was to run concurrently with his twenty-year sentence for conspiracy to commit
capital murder.
¶2.
On June 28, 2006, Belton sought post-conviction relief by way of a document titled “motion
to vacate and set aside conviction and sentence.” By his motion, Belton only sought to have his
guilty plea on the cocaine sale indictment set aside based on what he considered ineffective
assistance of counsel during his guilty plea. On July 18, 2006, the circuit court found that Belton
was not entitled to relief and that no evidentiary hearing was necessary. Accordingly, the circuit
court overruled Belton’s petition for post-conviction relief. Aggrieved, Belton appeals pro se and
claims: (a) the circuit court erred when it accepted his guilty plea, (b) he had ineffective assistance
of counsel during his guilty plea, and (c) he pled guilty under a void indictment. We find no merit
to Belton’s allegations. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3.
On November 1, 2005, the Copiah County Grand Jury returned an indictment against
Seriehel Belton in Cause Number 2005-0178-CR. That indictment alleged that, on August 10, 2004,
Belton sold cocaine to a confidential informant within fifteen hundred feet of a church in violation
of Mississippi Code Annotated Sections 41-29-139 (Rev. 2005) and 41-29-142 (Rev. 2005) of the
Mississippi Code. The indictment also alleged that Belton was a habitual offender under Section
99-19-81 of the Mississippi Code. Belton had previously been indicted for capital murder in Cause
Number 2005-0119-CR.
¶4.
On November 9, 2005, Belton pled guilty to the cocaine sale charge. Belton also pled guilty
to a charge of conspiracy to commit capital murder. On February 15, 2006, the circuit court issued
its sentencing order. The circuit court sentenced Belton to thirty years in the custody of the
Mississippi Department of Corrections. The circuit court ordered that Belton’s sentence was to run
concurrently with his twenty-year sentence for conspiracy to commit capital murder.
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¶5.
On June 28, 2006, Belton filed what amounted to a petition for post-conviction collateral
relief, though it was titled as a “motion to vacate and set aside conviction and sentence.” Belton
claimed he experienced ineffective assistance of counsel during his guilty plea in that his attorney
coerced his plea.
¶6.
On July 18, 2006, the circuit court entered an order and denied Belton’s petition for post-
conviction relief. By that order, the circuit court found that Belton knowingly, intelligently, and
voluntarily pled guilty and that, based on portions of his guilty plea colloquy, Belton’s attorney did
not coerce his guilty plea. Belton appeals.
STANDARD OF REVIEW
¶7.
In reviewing a circuit court’s decision to deny a motion for post-conviction collateral relief,
we will not disturb the circuit court’s factual findings unless they are clearly erroneous. Boyd v.
State, 926 So.2d 233 (¶2) (Miss. Ct. App. 2005). However, we review questions of law de novo.
Id.
ANALYSIS
I.
DID BELTON PLEAD
INTELLIGENTLY?
GUILTY
KNOWINGLY,
VOLUNTARILY,
AND
¶8.
According to Belton, “there was no way knowingly [he] would plead guilty to the thirty
years maximum time of the charge/or 20 years to the other, voluntarily.” Belton claims his lawyer
“tricked, coerced and threatened [him] into pleading guilty.”
¶9.
A guilty plea is considered “voluntary and intelligent” if the defendant is advised about the
nature of the charge and the consequences of the entry of the plea. Necaise v. State, 916 So.2d 553
(¶4) (Miss. Ct. App. 2005). The defendant must be instructed that a guilty plea waives his or her
rights to a jury trial, to confront adverse witnesses, and to protection against self-incrimination. Id.
“A plea is voluntary if the defendant knows what the elements are in the charge against him,
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including an understanding of the charge and its relation to him, the effect of the plea, and the
possible sentence.” Id.
¶10.
It is important to note that Belton raises absolutely no issue with the voluntariness of his
guilty plea to conspiracy to commit capital murder, though he draws much attention to his attorney’s
advice that, had Belton rejected the prosecution’s plea offer, Belton would have gone to trial on the
charge of capital murder and, if convicted, he could have received the death penalty.1
¶11.
Belton’s claim is belied by the transcript of his guilty plea. During Belton’s guilty plea
colloquy, Belton swore that it was his decision to plead guilty, that no one influenced his decision,
that no one promised him anything in exchange for his plea, and that no one threatened him to
compel his plea. The following exchange is noteworthy:
Q.
All right. I want to make sure that you’re fully satisfied with your attorney.
I want to make sure that you’re satisfied with the advice, the help, the
assistance, the representation and so forth that your attorney has provided for
you?
A.
Yes, sir.
Q.
No problem with your lawyer; is that right?
A.
No, sir.
Q.
All right. After a full discussion of your case, Mr. Belton, whose decision was it to
plead guilty to these offenses?
A.
Mine.
Q.
All right. Has anyone influenced you or promised you anything, or is there
any reward or hope of reward to get you to plead guilty?
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Belton’s counsel was duty bound to fully advise Belton of the various options available
to him and the possible consequences involved. That advice necessarily included outlining the worst
case scenario of being convicted of capital murder and receiving the death penalty or, at best, life
without parole. Performing that portion of counsel’s responsibility, while it may have been
unsettling for Belton, did not amount to a coercive act on the part of defense counsel.
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A.
Q.
Have there been any threats made against you or any force or intimidation used
against you to compel you to plead guilty?
A.
No, sir.
Q.
I want to make sure, Mr. Belton. Sometimes after a person pleads guilty and after
they go to jail or whatever happens, they start writing these letters and telling that it
wasn’t free and voluntarily, that they weren’t ever explained the law. And it’s all
these types of things, or that somebody got them to do it, either their family
members, or their lawyer, or the police, or whoever it might be. I want to make sure
that’s not the case in your situation. This is your decision and yours alone; is that
right?
A.
¶12.
No, sir.
Yes, sir.
Where the record and prior sworn testimony belie such a claim, an evidentiary hearing is not
required. Templeton v. State, 725 So.2d 764 (¶11) (Miss. 1998). We apply a strong presumption
of validity to a statement made under oath. Id. When we compare Belton’s previous sworn
testimony during his guilty plea with his current claims, “the latter is practically rendered a ‘sham.’”
Id. Under the circumstances, the circuit court’s decision to summarily dismiss Belton’s petition will
stand. Additionally, when the present circumstances have arisen in the past, it has been said that
such a petitioner “has obviously committed perjury, which may warrant appropriate actions by a
grand jury.” Id. (citing Sanders v. State, 440 So.2d 278, 289 (Miss. 1983) (Roy Noble Lee, J.,
specially concurring)). We certainly do not find the circuit court’s decision to be clearly erroneous.
Suffice it to say, we find Belton’s contention meritless.
II.
DID BELTON RECEIVE INEFFECTIVE ASSISTANCE OF COUNSEL?
¶13.
Belton claims his attorney was ineffective in that he did not adequately investigate the
cocaine sale charge and that he “didn’t do anything he was suppose to do in representing” him. To
establish a claim of ineffective assistance of counsel, Belton must demonstrate (1) a deficiency of
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his counsel’s performance that is (2) sufficient to constitute prejudice to his defense. Swington v.
State, 742 So.2d 1106 (¶22) (Miss. 1999) (citing Strickland v. Washington, 466 U.S. 668, 687
(1984); Walker v. State, 703 So.2d 266, 268 (Miss. 1997)). In deciding whether Belton’s counsel
rendered ineffective assistance, this Court examines the totality of the circumstances surrounding
the case. Swington, 742 So.2d at (¶22). Belton faces a “strong but rebuttable presumption that his
counsel’s conduct falls within a broad range of reasonable professional assistance.” Id. at (¶23).
To overcome this presumption, Belton must show “that there is a reasonable probability that, but
for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. “A
reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id.
¶14.
We fail to see how Belton’s attorney rendered ineffective assistance of counsel. Though
Belton does not seek to invalidate his guilty plea to conspiracy to commit capital murder while
represented by the same hired attorney, our analysis requires that we discuss it. Belton repeatedly
states that his attorney told him that he could get the death penalty if he did not take the plea
agreement offered by the prosecution. That was correct advice. The logical interpretation of the
events is that the prosecution was willing to permit Belton to plead to the lesser charge of conspiracy
to commit capital murder and sale of cocaine, rather than go to trial on the capital murder charge.
Belton’s attorney negotiated a plea agreement by which Belton avoided a possible life or death
sentence and, instead, was sentenced to concurrent twenty and thirty year sentences. Additionally,
even if we found that Belton demonstrated the first prong under Strickland, which we do not find,
Belton does not allege that any imagined deficiency in his counsel’s performance caused him
prejudice. Accordingly, we find no error and affirm the circuit court’s decision to dismiss Belton’s
petition for post-conviction collateral relief.
III.
DID BELTON PLEAD GUILTY PURSUANT TO A VOID INDICTMENT?
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¶15.
Belton filed what amounted to his original petition for post-conviction relief on June 28,
2006. Belton did not raise an allegation regarding the sufficiency of the indictment under which he
pled guilty to sale of cocaine. However, on July 7, 2006, Belton filed a motion to amend his petition
for post-conviction relief. The record does not contain an order by which the circuit court granted
Belton’s motion to amend.
¶16.
In any event, within that motion to amend, Belton claimed the indictment against him was
void or insufficient as a matter of law for three reasons: (1) the indictment indicated that it was
returned during the July term, but the circuit clerk did not file the indictment until the November
term, (2) the indictment did not specify the quantity of cocaine allegedly sold, and (3) the indictment
did not verify, by crime lab report or expert witness, that it was actually cocaine that Belton sold.
On July 21, 2006, the circuit court entered an order and found that Belton was not entitled to any
relief. Though the circuit court noted Belton’s claims regarding the indictment, the circuit court did
not specifically address those claims and found that Belton was not entitled to relief. Regardless,
we find that Belton is not entitled to relief due to a deficiency in the indictment.
¶17.
There is no merit to Belton’s claim that the indictment was void because it was returned
during the July term, but filed during the November term. Pursuant to statutory law:
Unless otherwise directed by an order of the senior circuit judge, not more than two
(2) grand juries shall be drawn or impaneled during a calendar year at or for a term
or terms of the circuit court in any county or judicial district of a county; provided,
however, upon impanelment, a grand jury may be convened and reconvened in term
time and in vacation. It shall continue to serve from term to term until the next grand
jury is impaneled, and it may return indictments to any term of court,
notwithstanding that a term of court at which criminal business may be conducted
shall intervene between the time the grand jury is impaneled and the time an
indictment is returned.
Miss. Code Ann. § 13-5-39 (Rev. 2002) (emphasis added).
¶18.
Regarding Belton’s second claim – that the indictment was void because it failed to specify
the quantity of cocaine sold – failure to specify the amount of cocaine sold does not render an
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indictment void. “[W]ith the exception of trafficking, the penalty for the sale of cocaine is the same
regardless of the quantity that was sold.” Campbell v. State, 878 So.2d 227 (¶5) (Miss. Ct. App.
2004) (citing Miss. Code Ann. § 41-29-139(a)(1), (b)(1) (Rev. 2001)). “Therefore, the amount of
cocaine that [Belton] sold was not an essential element to the crime.” Campbell, 878 So.2d at 229
(¶5).
¶19.
Finally, Belton cites no authority for his argument that the indictment was void because it
did not verify, by crime lab report or expert witness, that it was actually cocaine that Belton sold.
Accordingly, this issue is procedurally barred. Robinson v. State, 806 So.2d 1170 (¶19) (Miss. Ct.
App. 2002).
¶20. THE JUDGMENT OF THE COPIAH COUNTY CIRCUIT COURT DISMISSING
THE APPELLANT’S PETITION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO COPIAH COUNTY.
KING, C.J., MYERS, P.J., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND
CARLTON, JJ., CONCUR. LEE, P.J., NOT PARTICIPATING.
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