Albert Garcia v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00262-COA
ALBERT GARCIA
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
12/10/2007
HON. ROBERT P. CHAMBERLIN
DESOTO COUNTY CIRCUIT COURT
ALBERT GARCIA (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: W. GLENN WATTS
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION
COLLATERAL RELIEF – DISMISSED
AFFIRMED: 01/27/2009
BEFORE LEE, P.J., GRIFFIS AND BARNES, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Albert Garcia appeals the circuit court’s dismissal of his motion for post-conviction
collateral relief. On appeal, Garcia claims that: (1) he did not waive his right to appeal an
evidentiary ruling when he pleaded guilty, and (2) he received ineffective assistance of
counsel. We find no error and affirm.
FACTS
¶2.
Garcia was indicted for possessing methamphetamine with the intent to distribute as
a habitual offender; he had two prior convictions for possession of methamphetamine in
Texas. Garcia was granted a hearing on his motion to suppress evidence, but the circuit court
denied his motion to suppress. He pleaded guilty on June 19, 2006, and he was sentenced
to eight years in the custody of the Mississippi Department of Corrections and to twenty-two
years of post-release supervision (five years reporting and seventeen years non-reporting).
¶3.
Garcia filed a motion for post-conviction collateral relief. The circuit court dismissed
Garcia’s motion for post-conviction collateral relief because: (1) he waived his claim alleging
an illegal search and seizure by pleading guilty, and (2) he offered only his bare assertions
in support of his ineffective assistance of counsel claim. It is from this order that Garcia
appeals.
STANDARD OF REVIEW
¶4.
A circuit court’s dismissal of a motion for post-conviction collateral relief will not be
reversed absent a finding that the circuit court’s decision was clearly erroneous. Williams
v. State, 872 So. 2d 711, 712 (¶2) (Miss. Ct. App. 2004). However, when reviewing issues
of law, this Court’s proper standard of review is de novo. Brown v. State, 731 So. 2d 595,
598 (¶6) (Miss. 1999).
ANALYSIS
1.
¶5.
Did Garcia waive his right to appeal an evidentiary ruling when he
pleaded guilty?
Garcia argues the search of his home was illegal, and the evidence seized should be
suppressed. The State contends that this issue was waived because a valid guilty plea waives
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all non-jurisdictional issues.
¶6.
A valid guilty plea constitutes a waiver of certain constitutional claims, including
illegal search and seizure. King v. State, 738 So. 2d 240, 241 (¶¶4-5) (Miss. 1999) (citing
Jefferson v. State, 556 So. 2d 1016, 1018-19 (Miss. 1989)). A plea is considered “voluntary
and intelligent” if the defendant is “advised regarding the nature of the charge and the
consequences of the plea.” Harris v. State, 806 So. 2d 1127, 1130 (¶9) (Miss. 2002) (citing
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992)).
¶7.
The record reflects that the circuit court advised Garcia of the nature of the charges
against him and the constitutional consequences of his plea. Although Garcia now claims
he has no formal education, is illiterate, and does not understand English, he previously
swore that he was sixty-seven years old, had completed twelve years of school, and was
literate. He did not have a problem understanding the English speaking attorneys or circuit
judge during his evidentiary hearing. The record indicates that Garcia’s plea was voluntary
and intelligent.
¶8.
Garcia’s valid guilty plea waived his right to challenge the circuit court’s denial of his
motion to suppress evidence. Therefore, we need not address it.
2.
¶9.
Did Garcia receive ineffective assistance of counsel?
Garcia claims his counsel was ineffective because he failed to call his son, Glenn
Garcia, or Southaven Police Sergeant Kyle Hodges to testify at his suppression hearing.
¶10.
To prove ineffective assistance of counsel, a defendant must show that: (1) his
counsel’s performance was deficient, and (2) this deficiency prejudiced his defense.
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Strickland v. Washington, 466 U.S. 668, 687 (1984). The burden of proof rests with the
defendant to demonstrate both prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss.
1990).
Under Strickland, there is a strong but rebuttable presumption that counsel’s
performance falls within the range of reasonable professional assistance. Strickland, 466
U.S. at 689. To overcome this presumption, “[t]he defendant must show that there is a
reasonable probability that, but for the counsel's unprofessional errors, the result of the
proceeding would have been different.” Id. at 694. In cases involving post-conviction
collateral relief, “where a party offers only his affidavit, then his ineffective assistance of
counsel claim is without merit.” Vielee v. State, 653 So. 2d 920, 922 (Miss. 1995).
¶11.
Garcia claims he received ineffective assistance of counsel because Glenn and
Sergeant Hodges were not called as witnesses to rebut the testimony of Lieutenant Steve
Stewart. Lieutenant Stewart testified that he knocked on Garcia’s door, and Glenn answered
the door. After Lieutenant Stewart explained that they wanted to come inside and talk, Glenn
said he did not have anything to do with this, but the officers could come inside.
¶12.
According to Garcia, Glenn would have testified that he did not give the officers
permission to enter the house. Garcia claims Sergeant Hodges would have shown that
Lieutenant Stewart was not truthful.
¶13.
Garcia presented no affidavits with his petition. Because he merely relies on the
assertions in his brief, Garcia does not meet the requirements of Vielee. Garcia also fails to
meet the requirements of Strickland. This issue has no merit.
¶14.
THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY
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DISMISSING THE MOTION FOR POST-CONVICTION COLLATERAL RELIEF
IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO
COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR.
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