Douglas Miller v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-01907-COA
DOUGLAS MILLER
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
06/25/2009
HON. LEE J. HOWARD
OKTIBBEHA COUNTY CIRCUIT COURT
DOUGLAS MILLER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: STEPHANIE BRELAND WOOD
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DISMISSED
AFFIRMED - 02/15/2011
BEFORE KING, C.J., BARNES AND CARLTON, JJ.
BARNES, J., FOR THE COURT:
¶1.
Douglas Miller, appearing pro se, appeals the Circuit Court of Oktibbeha County’s
dismissal of his motion for post-conviction relief. Finding no error, we affirm.
STATEMENT OF THE FACTS AND PROCEDURAL HISTORY
¶2.
In January 2008, an Oktibbeha County grand jury returned a two-count indictment
against Miller for the sale of marijuana (less than thirty grams) and possession of marijuana
(more than thirty grams but less than 250 grams). As part of Miller’s plea agreement, Count
II of the indictment was amended to exclude charging Miller under Mississippi Code
Annotated section 41-29-147 (Rev. 2009) as a prior violator of the Uniform Controlled
Substances Act and to exclude the language in Count II reading “with intent to distribute said
marijuana to another person or persons to the Grand Jury unknown.” In August 2008, Miller
entered a guilty plea to both counts as amended.
¶3.
For Count I, the trial court found that Miller was a habitual offender under Mississippi
Code Annotated section 99-19-81 (Rev. 2007) and a prior violator of the Uniform Controlled
Substances Act, thereby sentencing him to serve a term of six years in the custody of the
Mississippi Department of Corrections (MDOC). The trial court also ordered Miller to pay
a fine of $6,000 and all court costs. For Count II, the trial court sentenced Miller to three
years in the custody of the MDOC as a habitual offender under section 99-19-81, imposing
a fine of $6,000, and all court costs. Neither of Miller’s sentences was to be reduced nor
suspended, nor was he eligible for parole, probation, early release, or any good time credit.
The trial court ordered the sentences to run consecutively.
¶4.
In March 2009, Miller filed a pro se “Notice of Appeal” of his August 2008
sentencing order. The trial court entered an order stating Miller was improperly attempting
to appeal his guilty plea and suggested Miller file a motion for post-conviction relief. Miller
did so in June 2009, raising the following issues: the trial court erred in sentencing Miller
as a habitual offender as his two prior felonies were over ten years old; the sentence in Count
I was improper; he received ineffective assistance of counsel; the search and seizure was
illegal; and the charge in Count II of possession of marijuana was improper. Miller also filed
a motion to expunge his record of two prior felonies of aggravated assault and sale of
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cocaine.
¶5.
On June 26, 2009, the trial court dismissed Miller’s motion for post-conviction relief
and found his offenses could not be expunged as a matter of law. Miller now appeals,
challenging the legality of his sentence for Count I, and claiming ineffective assistance of
counsel and a defective indictment.
STANDARD OF REVIEW
¶6.
The trial court’s dismissal of a motion for post-conviction relief will not be disturbed
unless the decision is found to be clearly erroneous. Williams v. State, 872 So. 2d 711, 712
(¶2) (Miss. Ct. App. 2004). Questions of law are reviewed de novo. Id.
ANALYSIS
¶7.
Miller raises three specific issues, which we shall discuss in turn. Miller also claims
that the trial court never actually ruled on his motion for post-conviction relief, but only on
the motion to expunge his prior felonies. While we find that the court’s order could have
been clearer, it does state that the trial court reviewed the record of proceedings, sentencing
order, and pleadings for the post-conviction matter. The order stated that Miller’s prior
felony convictions cannot be expunged as a matter of law, and then the trial court dismissed
the “petition” without the need for a hearing. We take “petition” to mean the motion for
post-conviction relief; thus, we find the trial court ruled on Miller’s motion for postconviction relief.
1.
¶8.
Sentence
Generally, Miller contends that an illegal sentence is appealable despite a guilty plea,
citing Berry v. State, 722 So. 2d 706, 707 (¶5) (Miss. 1998). However, we note this is no
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longer the law. Mississippi Code Annotated section 99-35-101 (Supp. 2009) was amended
and became effective July 1, 2008, one month prior to Miller’s guilty plea. The statute was
amended to prohibit any direct appeal upon entry of a guilty plea. Prior to the amendment,
a defendant who entered a guilty plea and was sentenced could challenge the validity of his
sentence on direct appeal. Burrough v. State, 9 So. 3d 368, 374 (¶19) (Miss. 2009); Trotter
v. State, 554 So. 2d 313, 315 (Miss. 1989); Berry, 722 So. 2d at 707 (¶5). Since Miller raises
the validity of his sentence in a post-conviction relief motion, however, we may consider his
argument if he meets the requirements of Mississippi Code Annotated section 99-39-5 (Supp.
2010).
¶9.
Specifically, Miller argues that his sentence is illegal for Count I. Miller received six
years in the custody of the MDOC and a fine of $6,000 for the sale of marijuana in an
amount less than thirty grams, pursuant to Mississippi Code Annotated section 41-29-139
(Rev. 2009) in Count I. He was sentenced as a habitual offender under section 99-19-81,
which states that if a person has been convicted of a felony twice previously “arising out of
separate incidents at different times” and who was sentenced to separate terms of one year
or more, he “shall be sentenced to the maximum term of imprisonment” for that felony, “and
such sentence shall not be reduced or suspended nor shall such person be eligible for parole
or probation.” Miller’s sentence was also enhanced under section 41-29-147 due to a prior
drug conviction. This statute provides in pertinent part: “any person convicted of a second
or subsequent offense under this article may be imprisoned for a term up to twice the term
otherwise authorized, fined an amount up to twice that otherwise authorized, or both.” Miss.
Code Ann. § 41-29-147.
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¶10.
“Sentencing is within the complete discretion of the trial court and not subject to
appellate review if it is within the limits prescribed by statute.” Gibson v. State, 731 So. 2d
1087, 1097 (¶28) (Miss. 1998) (quoting Hoops v. State, 681 So. 2d 521, 537 (Miss. 1996)).
Here, however, the trial court had no discretion due to the effect of section 99-19-81.
Accordingly, Miller received the maximum sentence and fine for the offense without
eligibility for parole or probation under section 99-19-81, and the sentence was doubled
under section 41-29-147. Miller’s sentence and fine for Count I does not violate the statutory
maximum and is not illegal.
2.
¶11.
Indictment
Miller claims his indictment for Count I was defective because in the body of the
document the word “cocaine” was crossed out and the word “marijuana” was written above
it, and the indictment was never properly amended or presented to the grand jury. We note
that Miller did not raise this issue before the trial court.
¶12.
The Mississippi Supreme Court has held that the entry of a guilty plea does not waive
such jurisdictional defects as the failure of an indictment to charge an essential element of
an offense. Kincaid v. State, 711 So. 2d 873, 877 (¶20) (Miss. 1998) (citing Jefferson v.
State, 556 So. 2d 1016, 1019 (Miss. 1989)). Therefore, Miller is correct that he makes a
jurisdictional challenge to the indictment which cannot be waived even though he pleaded
guilty. However, Miller’s argument lacks merit.
¶13.
We note the indictment only has an internal inconsistency and does not contain the
wrong controlled substance throughout. At the top of the indictment is typed the correct
controlled substance of marijuana for both offenses; it is in the body of the indictment that
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the incorrect substance of cocaine is crossed out and replaced with marijuana. The record
is unclear as to when this correction was made. It is well established that “[a]ny amendment
not approved by the grand jury must be of form only and must not affect the substance of the
charge pending.” McLarty v. State, 842 So. 2d 590, 593 (¶11) (Miss. Ct. App. 2003) (citing
Rhymes v. State, 638 So. 2d 1270, 1275 (Miss. 1994)). However, it is Miller’s burden to
prove by a preponderance of evidence that he is entitled to post-conviction relief. Miss.
Code Ann. § 99-39-23(7) (Supp. 2010). Therefore, in order to prove his indictment is
defective, Miller must show that the internal correction was made after the grand jury
approved the indictment, and the two offenses at the top of the indictment with the correct
controlled substance of marijuana were typed in after the grand jury’s approval. Miller,
however, offers no such proof. Therefore, this issue is without merit.
3.
¶14.
Ineffective Assistance of Counsel
Miller argues that his counsel was ineffective. Specifically, he claims his guilty plea
was deceptively induced by his defense counsel; defense counsel should have known and
informed Miller that his indictment was defective; and his attorney should have alleged an
illegal search and seizure of the drugs. Miller concludes that the outcome of the plea would
have been different but for these errors.
¶15.
In order to prove ineffective assistance of counsel, the defendant must show: (1)
counsel’s performance was deficient, and (2) this deficiency prejudiced the defense. Liddell
v. State, 7 So. 3d 217, 219 (¶6) (Miss. 2009) (quoting Strickland v. Washington, 466 U.S.
668, 687 (1984)). “[A] court must indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance. . . .” Id. (quoting Strickland, 466
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U.S. at 689.) In the context of guilty pleas, the defendant must show “unprofessional errors
of substantial gravity” and show “that the deficient conduct proximately resulted in his guilty
plea, and but for counsel’s errors, he would not have entered the plea.” Cole v. State, 918
So. 2d 890, 894 (¶10) (Miss. Ct. App. 2006) (citing Reynolds v. State, 521 So. 2d 914, 918
(Miss. 1988)). The defendant must allege facts of ineffective assistance with “specificity and
detail.” Kinney v. State, 737 So. 2d 1038, 1041 (¶8) (Miss. Ct. App. 1999) (citing Cole, 666
So. 2d at 777). Moreover, “the trial court may dismiss a motion for post-conviction relief if
the petitioner fails to submit affidavits in support of his allegations” of ineffective assistance;
petitioner’s bare assertions are insufficient. Mayhan v. State, 26 So. 3d 1072, 1076 (¶10)
(Miss. Ct. App. 2009).
¶16.
Miller fails to show how his counsel was deficient and how this prejudiced his
defense. The record does not support any of his allegations of incompetence. The guilty plea
petition and transcript of the plea hearing show counsel was competent and gave “reasonable
professional assistance” during all stages of the proceedings. Further, Miller did not submit
affidavits supporting his allegations, but only offered bare assertions of ineffectiveness,
which is insufficient. At the plea hearing, Miller testified that he had discussed his case with
his lawyer and was satisfied with his advice. He admitted guilt on both counts. Miller also
signed a sworn oath – his petition to enter a plea of guilty – which stated his lawyer had fully
informed him on all matters of his case (including the nature of the charges and possible
defenses; counsel did not threaten or induce him to enter a plea; and he was satisfied with his
counsel’s advice). “Great weight is given to statements made under oath and in open court
during sentencing.” Ward v. State, 879 So. 2d 452, 455 (¶11) (Miss. Ct. App. 2003) (quoting
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Gable v. State, 748 So. 2d 703, 706 (¶11) (Miss. 1999)). We find no merit to this argument.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF OKTIBBEHA COUNTY
DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED.
ALL COSTS OF THIS APPEAL ARE ASSESSED TO OKTIBBEHA COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, GRIFFIS, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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