Carl Dewayne Watts v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-00708-COA
CARL DEWAYNE WATTS
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
4/12/2007
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
CARL DEWAYNE WATTS (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
CIVIL - POST-CONVICTION RELIEF
DISMISSED MOTION FOR POSTCONVICTION RELIEF
AFFIRMED - 07/01/2008
BEFORE MYERS, P.J., GRIFFIS, ROBERTS AND CARLTON, JJ.
CARLTON, J., FOR THE COURT:
¶1.
Carl Dewayne Watts appeals the Forrest County Circuit Court’s dismissal of his motion for
post-conviction relief. Watts was indicted as a habitual offender for the sale of cocaine. After
pleading guilty, he received a thirty-year sentence. Watts’s sentence was suspended, provided that
he comply with several conditions. Watts did not comply, and his suspended sentence was revoked.
Aggrieved, he now appeals, asserting five separate alleged errors by the circuit court.
FACTS
¶2.
In September 2005, a Forrest County grand jury indicted Watts as a habitual offender for
selling cocaine to a confidential informant. His indictment listed four previous felony convictions.
He pleaded guilty on November 29, 2005, and was sentenced to a term of thirty years in the custody
of the Mississippi Department of Corrections. His entire sentence was suspended, and several
conditions were attached to the suspended sentence. At issue here is Watts’s banishment from the
Hattiesburg area. The circuit judge ordered Watts to depart from Hattiesburg, Mississippi within
forty-eight hours and to remain outside a radius of one hundred miles from the Forrest County
Courthouse in Hattiesburg for the entire period of his suspended sentence.
¶3.
On December 30, 2005, only one month after his guilty plea, Watts violated the terms of his
suspended sentence by being in Hattiesburg. The State filed a petition to revoke his suspended
sentence on January 3, 2006. Watts waived a formal hearing on his revocation. On January 6, 2006,
the circuit court found that he had violated the terms of his suspended sentence and ordered him to
serve the thirty-year sentence originally imposed.
¶4.
On September 13, 2006, Watts filed his pro se motion to vacate his conviction and sentence,
which he amended on January 11, 2007. The circuit court treated both his motions as a petition for
post-conviction relief and summarily dismissed the petition. This appeal followed.
¶5.
On appeal, Watts asserts the following assignments of error: (1) the circuit court committed
plain error, in violation of his constitutional right to due process, when it imposed conditions on his
thirty-year suspended sentence without placing him on probation under the supervision of the
Mississippi Department of Corrections; (2) the thirty-year banishment provision imposed by the
circuit court was statutorily unenforceable and illegal; (3) the thirty-year banishment provision
violated his First, Fifth, and Fourteenth Amendment rights; (4) the circuit court violated his First,
Fifth, and Fourteenth Amendment rights by imposing the thirty-year banishment provision without
articulating on the record the reasons for and benefits of the banishment; and (5) the circuit judge
violated the Mississippi Constitution, the Code of Judicial Conduct, and Watts’s constitutional
rights; therefore, the circuit judge had no judicial authority to alter or amend his original sentence.
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Essentially, each of Watts’s arguments alleges that his sentence was illegal and acted as the
incentive for his guilty plea. Further, Watts argued in his original post-conviction relief motion that
he received ineffective assistance of counsel.
DISCUSSION
Standard of Review
¶6.
We review the dismissal of a post-conviction relief petition for an abuse of discretion. Willis
v. State, 904 So. 2d 200, 201 (¶3) (Miss. Ct. App. 2005). For this Court to reverse the findings of
the trial court, they must be clearly erroneous. Id. We review questions of law de novo. Ruff v.
State, 910 So. 2d 1160, 1161 (¶17) (Miss. Ct. App. 2005).
I.
¶7.
Whether Watts’s sentence was illegal.
Watts makes numerous arguments that the thirty-year suspended sentence he received was
illegal. Watts argues that the promise of a suspended sentence was the inducement for him to plead
guilty to the charge against him and that if he had known that the suspended sentence was illegal,
he would not have pleaded guilty. Watts claims that his plea, therefore, was involuntary. Watts
claims that under Mississippi Code Annotated section 47-7-33 (Rev. 2004), he was ineligible for a
suspended sentence and probation due to his prior felony convictions. The statute states, in part:
When it appears to the satisfaction of any circuit court or county court in the State
of Mississippi, having original jurisdiction over criminal actions, or to the judge
thereof, that the ends of justice and the best interests of the public, as well as the
defendant, will be served thereby, such court . . . shall have the power, after
conviction or a plea of 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 . . . .
Miss. Code Ann. § 47-7-33(1) (emphasis added). The statute does prohibit convicted felons from
receiving suspension and then being placed on probation. However, the statute does not prevent
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convicted felons from receiving a flat suspended sentence, “so long as the sentence does not involve
a period of supervised probation and does not exceed the maximum penalty statutorily prescribed
for the felony offense committed.” Johnson v. State, 925 So. 2d 86, 105 (¶39) (Miss. 2006). The
conditions placed on Watts’s suspended sentence did not equate to Watts being placed on probation.
Our supreme court explained the differences between probation and suspended sentences:
[W]hile both probation and the suspension of sentence involve the trial court's
discretionary and conditional release of a convict from the service of a sentence
within the penal system, a probationary sentence is served under the supervision of
probation officers, whereas a suspended sentence is served without such supervision,
but on such legal terms and conditions as are required by the sentencing judge.
Id. at 92 (¶12) (emphasis added). Further, “a suspension of a sentence does not automatically mean
that the defendant will be on probation and under a duty to report to a probation officer. It simply
means that part of his entire sentence has been postponed pending the defendant’s good behavior
or such other conditions as the court may see fit to establish.” Id. at 93 (¶12) (emphasis added)
(quoting Carter v. State, 754 So. 2d 1207, 1210-11 (Miss. 2000) (Mills, J., dissenting)). “[A] trial
court may impose a suspended sentence for a term up to the maximum sentence allowed by law.”
Id. The trial court retains the power to revoke the suspended sentence and impose the original prison
term. Id. Thus, in Watts’s case, the suspended sentence of thirty years was not an illegal sentence,
and his assertion that he was not eligible to receive a suspended sentence is without merit.
¶8.
Moreover, the State argues in its brief that Watts should not be allowed to argue the legality
of the sentence he requested only after he is unable to satisfy the conditions attached to the sentence,
specifically the banishment provision. We agree. Because the suspended sentence did not prejudice
Watts, he cannot now attack it. In Sweat v. State, 912 So. 2d 458, 461 (¶9) (Miss. 2005), the
supreme court stated:
We have held that generally, where a convicted defendant receives an illegal
sentence, the sentence must be vacated and the case remanded to the trial court for
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resentencing because the defendant suffered prejudice. See Robinson v. State, 836
So. 2d 747 (Miss. 2002). The Court of Appeals has recently held that there is no
prejudice suffered when a defendant receives an illegally lenient sentence. Edwards
v. State, 839 So. 2d 578, 580-81 (Miss. Ct. App. 2003). Further, when the error
benefits the defendant in the form of a more lenient sentence, it is harmless error.
Chancellor v. State, 809 So. 2d 700, 702 (Miss. Ct. App. 2001). The law which
relieves defendants from the burden of an illegal sentence applies to situations where
the defendant is forced to suffer a greater sentence rather than the luxury of a lesser
sentence. Id.
¶9.
Had he been convicted at trial, Watts would have faced a maximum sentence of thirty years.
See Miss. Code Ann. § 41-29-139(b)(1) (Rev. 2005). Because he was indicted as a habitual
offender, Watts would have received the maximum sentence. Mississippi Code Annotated section
99-19-81 (Rev. 2007) states:
Every person convicted in this state of a felony who shall have been convicted twice
previously of any felony or federal crime upon charges separately brought and
arising out of separate incidents at different times and who shall have been sentenced
to separate terms of one (1) year or more in any state and/or federal penal institution,
whether in this state or elsewhere, shall be sentenced to the maximum term of
imprisonment prescribed for such felony, and such sentence shall not be reduced or
suspended nor shall such person be eligible for parole or probation.
¶10.
Because he suffered no injury or prejudice from receiving a lawful, yet lenient, sentence, he
is not entitled to any relief. Even if Watts’s sentence were considered unlawful, it would not have
prejudiced him. This Court has held that “[a] defendant should not be allowed to reap the benefits
of an illegal sentence, which is lighter than what the legal sentence would have been, and then turn
around and attack the legality of the illegal, lighter sentence when it serves his interest to do so.”
Brooks v. State, 919 So. 2d 179, 181 (¶7) (Miss. Ct. App. 2005) (quoting Graves v. State, 822 So.
2d 1089, 1092 (¶11) (Miss. Ct. App. 2002)). This assignment of error is without merit.
II.
¶11.
Whether Watts received ineffective assistance of counsel.
Watts asserted in his original motion for post-conviction relief that he received ineffective
assistance of counsel. He claims that his attorney failed to advise him properly regarding the
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legality of the suspended sentence and the banishment.
¶12.
“In order to prevail on the issue of whether his defense counsel’s performance was
ineffective, [Watts] must prove that his counsel’s performance was deficient and that he was
prejudiced by counsel’s mistakes.” Kinney v. State, 737 So. 2d 1038, 1041 (¶8) (Miss. Ct. App.
1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96 (1984)). The test set forth in
Strickland to determine whether the defendant has received ineffective assistance of counsel applies
to challenges to guilty pleas as well. Id. (quoting Hill v. Lockhart, 474 U.S. 52, 58 (1985)).
Furthermore, “[t]here is a strong but rebuttable presumption that counsel’s conduct fell within the
wide range of reasonable professional assistance.” Id. (citing Moody v. State, 644 So. 2d 451, 456
(Miss. 1994)).
¶13.
Watts initialed the paragraph on his petition to enter a guilty plea that he was satisfied with
the advice and help his attorney had provided. He acknowledged that his attorney advised him of
the charges against him and the possible defenses, as well as the rights he waived by pleading guilty.
We find no deficiency in Watts’s attorney bargaining for and obtaining a lenient sentence for Watts.
¶14.
Even if Watts’s claims that his counsel’s performance was deficient were supported by the
evidence, he still has not presented any evidence that he was prejudiced by what he perceives as his
counsel’s deficiencies. Watts received a suspended sentence rather than the thirty-year sentence,
which would have been imposed if he had been found guilty after trial. We find Watts’s claim of
ineffective assistance of counsel to be without merit.
¶15. THE JUDGMENT OF THE FORREST COUNTY CIRCUIT COURT DISMISSING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS
APPEAL ARE ASSESSED TO FORREST COUNTY.
LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS,
JJ., CONCUR. KING, C.J., AND IRVING, J., CONCUR IN RESULT ONLY WITHOUT
SEPARATE WRITTEN OPINION.
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