Thomas Glen Garner v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CP-00600-COA
THOMAS GLEN GARNER
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
3/22/2007
HON. ROBERT B. HELFRICH
FORREST COUNTY CIRCUIT COURT
THOMAS GLEN GARNER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: DEIRDRE MCCRORY
CIVIL - POST-CONVICTION RELIEF
POST-CONVICTION RELIEF - DISMISSED
AFFIRMED - 10/14/2008
BEFORE MYERS, P.J., GRIFFIS AND ISHEE, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
Thomas Glen Garner pleaded guilty in the Circuit Court of Forrest County to the
charge of aggravated assault. Garner was sentenced to serve a term of ten years in the
custody of the Mississippi Department of Corrections and ordered to pay a fine of $1,500,
a $100 assessment to the Mississippi Crime Victims’ Compensation Program, restitution to
the victim in the amount of $1,263, and all costs of court. The execution of the sentence was
suspended for a three-year period of post-release supervision pursuant to Mississippi Code
Annotated section 47-7-34 (Rev. 2004).
On December 20, 2005, the circuit court
determined that Garner violated the terms of his post-release supervision by testing positive
for crystal methamphetamine. The post-release supervision was revoked, and Garner was
ordered to serve the full ten-year sentence.
¶2.
Garner then filed a motion for post-conviction relief, seeking clarification of his
sentence. Garner argued that the sentence was improper and illegal because it did not contain
a valid term for post-release supervision. Garner also contended that he was denied effective
assistance of counsel. The circuit court summarily dismissed Garner’s motion, and this
appeal followed.
STANDARD OF REVIEW
¶3.
A trial court’s dismissal of a post-conviction relief petition will not be reversed absent
a finding that the trial court’s decision was clearly erroneous. Williams v. State, 872 So. 2d
711, 712 (¶2) (Miss. Ct. App. 2004). We “employ[] the clearly erroneous standard in
determining whether an appellant’s plea was voluntarily given.” Wilcher v. State, 921 So.
2d 400, 401 (¶3) (Miss. Ct. App. 2006) (citing Stevenson v. State, 798 So. 2d 599, 602 (¶7)
(Miss. Ct. App. 2001)). “The burden of proving that a guilty plea was involuntary is on the
defendant and must be proven by a preponderance of the evidence.” Id. (quoting Stevenson,
798 So. 2d at 602 (¶7)).
DISCUSSION
I.
¶4.
WHETHER GARNER’S SENTENCE WAS IMPROPER OR
ILLEGAL.
First, Garner contends that his sentence was improper because it did not contain a
valid term of post-release supervision. Garner argues that he was not eligible for a suspended
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sentence under Mississippi Code Annotated section 47-7-33 (Rev. 2004) because he was a
previously convicted felon. Garner also alleges that he was improperly sentenced to both
probation and post-release supervision simultaneously.
¶5.
The State cites to Jefferson v. State, 958 So. 2d 1276, 1279 (¶11) (Miss. Ct. App.
2007), arguing that “because [Garner] benefitted from the allegedly illegal sentence imposed
by the trial court . . . any error committed by the trial court in imposing such illegal sentence
[was] harmless.” The State argues that because Garner benefitted from this alleged error, he
cannot now complain of prejudice on appeal.
¶6.
In this case, Garner pleaded guilty to the charge of aggravated assault and received
his ten-year sentence. The circuit court suspended the execution of the sentence for a period
of three years on post-release supervision. Garner received the post-release supervision
based upon meeting and maintaining a set of conditions, which Garner violated. As a result,
the circuit court revoked the suspension and ordered him to serve the ten-year sentence.
Garner’s sentence was suspended pursuant to Mississippi Code Annotated section 47-7-34
(Rev. 2004), under the post-release supervision program, not pursuant to Mississippi Code
Annotated section 47-7-33.
¶7.
The Mississippi Supreme Court noted the difference between section 47-7-33 and
section 47-7-34, stating:
Miss. Code Ann. § 47-7-33 provides for supervised probation, while Miss.
Code Ann. § 47-7-34 provides for post-release supervision. At least two
major differences in these two statutes are (1) supervised probation may not
be imposed on a convicted felon while post-release supervision may be
imposed on a convicted felon; and, (2) supervised probation is limited to five
years while post-release supervision is not.
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Johnson v. State, 925 So. 2d 86, 101 (¶27) (Miss. 2006) (quoting Miller v. State, 875 So. 2d
194, 199 (¶10) (Miss. 2004)). The supreme court further explained the differences between
probation and suspension of a sentence, stating:
[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).
¶8.
“By definition, a ‘suspended sentence’ is a unique mechanism by which the court may
postpone the imposition of a sentence altogether or delay the execution of a sentence once
it has been pronounced.” Id. at (¶10) (citing 21A Am. Jur. 2d, Criminal Law § 895).
“Simply stated, ‘suspension’ is the restriction placed upon the power of the State to act
during that (the suspended portion of a sentence) period.” Id. (quoting Wilson v. State, 735
So. 2d 290, 292 (¶5) (Miss. 1999)). However, the circuit court still retains authority to
revoke the suspended sentence if the terms are violated. Id. at (¶12).
¶9.
This Court addressed a similar issue in Johnson v. State, 883 So. 2d 607, 608 (¶2)
(Miss. Ct. App. 2004), where Johnson was sentenced to two consecutive ten-year prison
sentences, with five years’ post-release supervision. Johnson filed a motion for postconviction relief, claiming that his sentence was illegal because, in light of his prior felonies,
he was legally unable to receive probation. Id. at 608 (¶4). However, this Court held:
What Johnson received was a period of post-release supervision under
Mississippi Code Annotated Section 47-7-34 (Supp. 2003). The fact that
Johnson had prior convictions is not relevant in considering this type of
sentence. Johnson will not serve probation, rather he will undergo
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post-release supervision, an alternative to probation designed specifically for
felons. Accordingly, Mississippi Code Annotated Section 47-7-33 (Rev.
2000) does not govern his sentence; rather, his sentence falls under Mississippi
Code Annotated Section 47-7-34 (Supp. 2003) and comports fully with that
statute. There was no error on the part of the court in its sentencing.
Id. at 609 (¶8) (internal citations omitted). In Sweat v. State, 912 So. 2d 458, 461 (¶9) (Miss.
2005), the Mississippi Supreme Court stated:
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.
¶10.
From our review of the record, this Court finds no error in the circuit court’s dismissal
of Garner’s motion for post-conviction relief. Garner’s sentence was suspended under
Mississippi Code Annotated section 47-7-34, and he was given post-release supervision for
a three-year period. Garner was required to meet certain terms under the post-releasesupervision agreement, but subsequently failed two drug tests and failed to pay his fine,
assessment, restitution, and court costs during the supervision period. As a result, his postrelease supervision was revoked, and the suspended sentence of ten years was imposed on
Garner for his guilty plea to aggravated assault under Mississippi Code Annotated section
97-3-7 (Rev. 2004). We cannot find that the circuit court’s dismissal of the post-conviction
relief motion was clearly erroneous. This issue is without merit.
II.
WHETHER GARNER RECEIVED INEFFECTIVE
ASSISTANCE OF COUNSEL AND WHETHER HIS GUILTY
PLEA WAS VOLUNTARY.
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¶11.
Garner argues that he received ineffective assistance of counsel when his attorney
failed to object to the terms of his sentence. Garner alleges that the recommendation should
have been for three years’ imprisonment suspended for three years’ post-release supervision.
Garner argues that his plea was not knowingly, voluntarily, and intelligently made because
it was based on the incorrect information provided by his defense counsel S that his sentence
would be only three years suspended for time served, and that he would be placed on three
years of post-release supervision. Garner argues that the transcript of the plea proceedings
demonstrates that his attorney failed to object to the sentence and failed to ensure that he was
afforded a speedy trial.
¶12.
The State argues that the challenge to Garner’s counsel is only supported by an
affidavit from Garner. Further, the State notes that Garner’s sworn testimony during his plea
colloquy contradicts his present assertions. Therefore, the State contends that the postconviction relief motion was without merit and was properly dismissed.
¶13.
In order to establish an ineffective assistance of counsel claim, Garner must show
“that his counsel’s performance was deficient and that this deficiency prejudiced [Garner’s]
defense.” Thornhill v. State, 919 So. 2d 238, 240 (¶4) (Miss. Ct. App. 2005) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). Garner carries the burden of proof to
demonstrate ineffective assistance of counsel, and an appellate court “will measure the
alleged deficiency within the totality of circumstances.” Id. (citing Hiter v. State, 660 So.
2d 961, 965 (Miss. 1995)). “However, a presumption exists that the attorney’s conduct was
adequate.” Id. (citing Burns v. State, 813 So. 2d 668, 673 (¶14) (Miss. 2001)).
¶14.
From a review of the record before us, this Court cannot find that Garner’s counsel
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was deficient and that this deficiency prejudiced Garner’s defense. Garner has simply failed
to meet his burden of proof in demonstrating that his counsel’s performance was deficient.
Further, this Court cannot say that the circuit court’s determination on the record that
Garner’s plea was voluntarily, intelligently, and knowingly given was clearly erroneous from
the record before us. Therefore, this issue is without merit.
III.
¶15.
WHETHER GARNER PROPERLY RAISED ADDITIONAL
ERRORS ALLEGED FOR THE FIRST TIME ON APPEAL.
In addition, the State points out that in Garner’s original motion for post-conviction
relief filed in the circuit court, he only raised two basic errors: (1) that the suspension of his
sentence was illegal because of his prior-felony conviction and (2) that he received
ineffective assistance of counsel. Therefore, the State argues that these are the only issues
that are appealable, citing Rivers v. State, 807 So. 2d 1280, 1281 (¶5) (Miss. Ct. App. 2001)
(holding in part that “[i]f a prisoner fails to raise all of his claims in his original petition for
post-conviction relief, those claims will be procedurally barred if the petitioner seeks to bring
them for the first time on appeal to this Court.” (citing Williams v. State, 752 So. 2d 477, 479
(¶7) (Miss. Ct. App. 1999))).
¶16.
This Court previously held in Haley v. State, 864 So. 2d 1022, 1024 (¶8) (Miss. Ct.
App. 2004), that:
[A]n appellate court will not consider or review issues that were not raised in
the trial court. Crenshaw v. State, 520 So. 2d 131, 134 (Miss. 1988). A
defendant is procedurally barred from raising an objection on appeal that is
different than that raised at trial. Jones v. State, 606 So. 2d 1051, 1058 (Miss.
1992). A trial judge cannot be put in error on a matter which was not
presented to him for decision. Logan v. State, 773 So. 2d 338, 346 (¶29)
(Miss. 2000).
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As such, we decline to address Garner’s additional issues raised for the first time on appeal.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF FORREST COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO FORREST COUNTY.
KING, C.J., LEE, P.J., CHANDLER, GRIFFIS, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. IRVING, J., CONCURS IN RESULT ONLY.
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