George W. Martin v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2008-CP-00860-COA
GEORGE W. MARTIN
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
04/07/2008
HON. ANDREW C. BAKER
TATE COUNTY CIRCUIT COURT
GEORGE W. MARTIN (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED: 07/21/2009
BEFORE MYERS, P.J., IRVING AND ROBERTS, JJ.
MYERS, P.J., FOR THE COURT:
¶1.
George W. Martin appeals the Tate County Circuit Court’s dismissal of his motion
for post-conviction relief, asserting numerous errors. Finding no error, we affirm.
FACTS
¶2.
Martin was indicted along with another individual for conspiracy, burglary of an
occupied dwelling, and larceny in July 2005. Martin was noticed of the State’s intent to have
him sentenced as a habitual offender under Mississippi Code Annotated section 99-19-83
(Rev. 2007). He was also indicted for being a felon in possession of a firearm, likewise
subjecting him to sentencing as a habitual offender.
¶3.
The indictment was subsequently amended as part of a plea negotiation to provide for
sentencing without status as a habitual offender. On June 19, 2006, Martin entered an open
plea of guilty to a charge of burglary, but not as a habitual offender. The other charges were
retired to the file. On September 22, 2006, the circuit court held a sentencing hearing,
ultimately sentencing Martin to a term of twenty-five years’ imprisonment in the custody of
the Mississippi Department of Corrections (MDOC).
¶4.
During the course of the sentencing hearing, the State offered the circuit court a copy
of a victim impact statement. The prosecutor also stated that she had provided a copy to
Martin’s attorney, but she did not state when she did so. The State also provided the court
with documentation from the MDOC concerning Martin’s prior convictions. These included
kidnapping, attempted rape, and burglary of an automobile.
¶5.
Martin’s attorney asked for a lenient sentence. Martin then made a statement to the
court that: what he had done was “stupid”; he was ashamed and remorseful; and he had since
married and was raising two small children.
¶6.
The State argued that Martin had been released from the MDOC in October 2004, and
that by January 2005, he had committed the felony in the case at bar. The prosecutor also
related some of Martin’s actions and offered her belief that he deserved the maximum
sentence.
¶7.
Noting the emotional trauma suffered by the victim and Martin’s prior convictions,
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the circuit court imposed the maximum sentence of twenty-five years’ imprisonment.
¶8.
No appeal was taken from the judgment of sentence; however, on March 21, 2008,
Martin filed the instant motion for post-conviction relief, alleging numerous grounds for
relief. The circuit court dismissed Martin’s motion without an evidentiary hearing, and
Martin appeals to this Court.
STANDARD OF REVIEW
¶9.
This Court reviews the dismissal of a post-conviction relief motion for an abuse of
discretion. Willis v. State, 904 So. 2d 200, 201 (¶3) (Miss. Ct. App. 2005). Questions of law,
however, are reviewed de novo. Ruff v. State, 910 So. 2d 1160, 1161 (¶7) (Miss. Ct. App.
2005).
DISCUSSION
¶10.
Martin alleges ten distinct assignments of error, which we have condensed into the
following issues.
1.
¶11.
Sentencing; Victim Impact Statement
Martin argues that the circuit court committed numerous errors in sentencing,
particularly that the court erred in admitting and considering the victim impact statement,
which Martin alleges was both untimely and inaccurate. Martin also argues that the circuit
court erred in considering his prior felonies and in allowing the State to argue for the
maximum sentence after agreeing to an “open plea.”
¶12.
We find that these issues are not properly before the Court, as they could have been
raised on direct appeal. As we stated in Swindle v. State, 881 So. 2d 281, 284 (¶8) (Miss. Ct.
3
App. 2003), rev’d on other grounds, 881 So. 2d 174 (Miss. 2004):
The law is clear that, even when a defendant pleads guilty to the crime itself,
if he is aggrieved as to the sentence imposed by the trial court for any reason
cognizable under the law, the defendant is entitled to have the sentence
reviewed by a direct appeal. All of the complaints raised by [the petitioner]
directly relating to the manner in which he was sentenced existed immediately
at the conclusion of the sentencing hearing and were, thus, appropriate matters
for a direct appeal. The Mississippi Uniform Post-Conviction Collateral Relief
Act specifically provides that direct appeal shall be the principal means of
reviewing all criminal convictions and sentences, and the purpose of this
chapter is to provide prisoners with a procedure, limited in nature, to review
those objections, defenses, claims, questions, issues or errors which in
practical reality could not be or should not have been raised at trial or on direct
appeal.
(Internal citation omitted).
¶13.
Furthermore, the issues of the admission and use of the victim impact statement and
the State’s sentencing recommendation are subject to an additional procedural bar because
Martin’s attorney failed to make any contemporaneous objections during the sentencing
hearing.1 Also, notwithstanding the bar, Martin’s assertion that the circuit court erred in
considering his prior convictions is without merit. Martin has failed to produce any evidence
that the circuit court wrongly relied on his prior convictions, and his assertion that the circuit
court erroneously considered charges retired to the file as convictions is simply unsupported
by the record.2 This issue is without merit.
1
Notwithstanding the procedural bar, we find these issues without merit, as we shall
explain in our analysis of Martin’s assertion of ineffective assistance of counsel.
2
Martin cites to the circuit court’s statement at sentencing: “This is at least four
felonies we know of.” The circuit court then contrasted that with Martin’s co-defendant,
who the court observed “d[id not] have quite the track record that Mr. Martin [had].”
Although the document is not part of the record, at the sentencing hearing the State offered
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2.
¶14.
Ineffective Assistance of Counsel
Martin argues that his defense counsel rendered constitutionally ineffective assistance
in a number of respects. We shall address each.
¶15.
“In order to prevail on the issue of whether his defense counsel’s performance was
ineffective, [the petitioner] 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)).
“There 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)). Additionally, a petitioner is required to “allege both prongs of the above test
with specific detail.” Coleman v. State, 979 So. 2d 731, 735 (¶15) (Miss. Ct. App. 2008)
(citing Brooks v. State, 573 So. 2d 1350, 1354 (Miss. 1990)).
A.
¶16.
Investigation of Martin’s Background; Character Witnesses
Martin argues that his defense counsel failed to investigate his background or call
character witnesses at his sentencing hearing. While the record reflects that defense counsel
called no witnesses at the sentencing hearing other than Martin himself, Martin failed to
an exhibit detailing Martin’s criminal past. The prosecutor also stated, “Your Honor, I
believe you’ll find that Mr. Martin has been previously convicted of kidnaping, attempted
rape, and burglary of an automobile.” In his post-conviction relief motion, Martin does not
expressly deny these convictions, and he has produced no evidence that the prosecutor’s
statement was false. Martin simply asserts that the “four felonies” the circuit court
considered were the four felonies he was originally indicted on in the instant case, which
Martin argues the court mistook for convictions.
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include any supporting affidavits in his motion for post-conviction relief.3 The supreme court
has stated that, in cases involving post-conviction 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). Nothing in the record rebuts the presumption that
Martin’s attorney’s decision not to call witnesses was sound trial strategy. This issue is
without merit.
B.
¶17.
Failure to Object to Victim Impact Statement
Martin argues that his counsel was ineffective in failing to object to the trial court’s
consideration of a victim impact statement. Martin makes two arguments here; he asserts
that the statement was furnished untimely and that it inaccurately stated the facts of the
incident.
¶18.
On our review of the record, however, there is no evidence that the statement was not
furnished to Martin and his attorney in a timely fashion as required by Mississippi Code
Annotated section 99-19-159(1) (Rev. 2007). Martin simply asserts that it was not furnished;
he does not offer any evidence supporting his conclusion. The only reference in the record
to when the statement was furnished is a representation by the State that the prosecutor had
3
Martin did, however, include a list of persons he wished to subpoena for an
evidentiary hearing on his petition, but he did not state specifically what each person would
testify to. Additionally, Martin attached unsworn statements from his mother, father, and
a police officer to his brief on appeal. These statements represent that each person would
have testified at the sentencing hearing to Martin’s character, had they been called. In his
motion, Martin states that they would “verify that his character was upstanding and
productive” and testify that Martin “held steady employment, had married with two small
children, and had put himself in harms [sic] way” to assist police officers.
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provided a copy to Martin’s attorney.
¶19.
Furthermore, Martin has produced no evidence that, had the statement been provided
earlier, a different result would have been obtained. Likewise, he has presented no evidence
that the statement was inaccurate, other than his own assertions.4 This issue is without merit.
C.
¶20.
Failure to Object to State’s Argument for the Maximum
Sentence
Finally, Martin argues that his defense counsel was ineffective in failing to object to
the State’s argument at the sentencing hearing that he should receive the maximum sentence.
Martin asserts that the prosecutor had agreed to an “open plea,” where the State would offer
no recommendation as to Martin’s sentence. This, however, confuses the meaning; an open
plea is one where the State has not agreed to formally recommend a sentence. See Noel v.
State, 943 So. 2d 768, 771 (¶13) (Miss. Ct. App. 2006) (Roberts, J., concurring) (“[An open
plea] is simply an admission of guilt by the defendant without the promise of any binding
formal sentencing recommendation by the State.”). An open plea agreement does not
preclude the State from subsequently arguing for a strict sentence.
¶21.
Martin has presented no evidence that there was any agreement that the State would
not argue for the maximum sentence. Instead, it appears from the record that Martin’s
4
Martin argues that the typed victim impact statement conflicted with the victim’s
prior handwritten statement and the description of the incident in the police report. In his
motion in the circuit court, he did not state specifically what was the conflict between the
statements; on appeal, he argues that the victim was inconsistent in describing her itinerary
prior to returning home and encountering Martin and his co-defendant. He also argues that
the detail of the victim’s observations is inconsistent with her account that she ducked after
Martin trained a pistol on her as he fled.
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attorney negotiated an agreement whereby Martin, indicted for four felonies as a habitual
offender, would plead guilty to a single count, not as a habitual offender, and the sentence
would be submitted to the court without an agreed recommendation. This is exactly what
Martin received. This issue is without merit.
3.
¶22.
Prosecutorial Misconduct
Martin makes numerous arguments alleging prosecutorial misconduct, which he
asserts violated Rule 3.8 of the Mississippi Rules of Professional Conduct, as well as the due
process clauses of the United States and Mississippi constitutions.
¶23.
Martin argues that the prosecutor breached the open plea agreement by recommending
the maximum sentence and failed to timely disclose the victim impact statement. For the
reasons we have already stated, these arguments are without merit. He also argues that the
victim impact statement was signed, but not notarized; however, he cites no authority
requiring victim impact statements to be sworn to. This issue is without merit.
¶24. THE JUDGMENT OF THE CIRCUIT COURT OF TATE COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
KING, C.J., LEE, P.J., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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