Kamal Karriem, Jr. v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CA-01583-COA
KAMAL KARRIEM, JR.
APPELLANT
v.
STATE OF MISSISSIPPI
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEYS FOR APPELLANT:
ATTORNEY FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
08/31/2009
HON. JAMES T. KITCHENS JR.
LOWNDES COUNTY CIRCUIT COURT
T.K. MOFFETT
W. BRENT MCBRIDE
OFFICE OF THE ATTORNEY GENERAL
BY: LAURA H. TEDDER
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED - 03/15/2011
EN BANC.
ISHEE, J., FOR THE COURT:
¶1.
In November 2005, Kamal Karriem Jr. was sentenced by the Circuit Court of
Lowndes County to ten years in the custody of the Mississippi Department of Corrections
(MDOC) with ten years suspended and five years of probation following his entrance of a
guilty plea to the charge of embezzlement by a public official. Several years later, the circuit
court revoked his probation and ordered that he serve his original ten-year sentence due to
his violation of the terms and conditions of his probation. Karriem contested the sentence
in a motion for post-conviction relief (PCR), which the circuit court denied in August 2009.
Aggrieved, Karriem now appeals the circuit court’s decision. Finding no error, we affirm.
STATEMENT OF FACTS
¶2.
On November 21, 2005, Karriem pleaded guilty to the charge of embezzlement by a
public official for loaning a city-issued cell phone to another person, who made
approximately $500 in telephone calls. The circuit court sentenced Karriem to ten years in
the custody of the MDOC with ten years suspended and five years of probation and ordered
that he pay restitution in the amount of $106.03, which was the balance of the cell-phone bill.
¶3.
In September 2007, the circuit court held a hearing on a petition filed by the State to
revoke Karriem’s suspended sentence. After finding that Karriem had violated the terms and
conditions of his probation by testing positive for cocaine, the court ordered him into a oneyear drug-treatment program. In April 2008, the State again requested that the court revoke
Karriem’s suspended sentence, as he had failed another drug test and had not successfully
completed the drug-treatment program.
The court then revoked Karriem’s previously
suspended sentence after finding that he had tested positive for cocaine once again and had
failed to complete the drug-treatment program. He was subsequently ordered to serve the
original ten-year sentence. Karriem filed a PCR motion shortly thereafter, which was denied
on August 31, 2009.
¶4.
Karriem now appeals and asserts the following: the circuit court erred in finding his
guilty plea was knowingly, voluntarily and intelligently made; the circuit court erred in
finding that he received effective assistance of counsel; and, his sentence is inconsistent with
other sentences given for the same crime and constitutes cruel and unusual punishment.
Finding no error, we affirm.
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DISCUSSION
I.
¶5.
Whether the circuit court erred in ruling that Karriem’s guilty plea was
knowingly, voluntarily and intelligently made.
It is well settled that when reviewing the voluntariness of guilty pleas, an appellate
court “will not set aside findings of a trial court sitting without a jury unless such findings
are clearly erroneous.” Walton v. State, 16 So. 3d 66, 70 (¶8) (Miss. Ct. App. 2009) (quoting
House v. State, 754 So. 2d 1147, 1152 (¶24) (Miss. 1999)). Furthermore, “[t]he burden of
proving that a guilty plea was involuntary is on the defendant and must be proven by a
preponderance of the evidence.” Id. at 70 (¶8) (citation omitted).
¶6.
In this case, Karriem argues that he only agreed to plead guilty to the offense of
embezzlement by a public official because he was informed that he would be sentenced
under the non-adjudication statute, Mississippi Code Annotation section 99-15-26 (Supp.
2010). Application of the statute would have allowed for Karriem’s arrest and felony
conviction to be erased from his record.
¶7.
The record shows that Karriem received a letter from his counsel which indicated that
the State would not oppose application of the statute and would affirmatively recommend
probation. The letter went on to explain that if Karriem successfully completed his probation
and the statute were applied, then there would be no record of Karriem’s arrest or felony
conviction. Nonetheless, the record also demonstrates that prior to his guilty plea, Karriem
was aware that the State’s sentence recommendation to the circuit court was ten years
suspended with five years of probation and that it was the court’s ultimate decision whether
or not to enforce the State’s recommendation and to apply the statute. Furthermore, Karriem
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testified in open court that he understood that by pleading guilty, he was giving up his rights
to a public trial by jury, to cross-examine the State’s witnesses, and to call his own witnesses.
Finally, Karriem testified he understood that if he went to trial and were found guilty, he
could be sentenced to a maximum of ten years in the custody of the MDOC, but he could
appeal the jury’s verdict.
¶8.
While it is indisputable that the court had sole discretion as to Karriem’s sentence, the
record also supports the State’s contention that it never agreed to ask the court to apply the
statute. When Karriem’s counsel broached the subject of the statute with the court, the State
responded that such a recommendation was not an explicit part of their plea agreement.
Karriem’s counsel failed to contest the State’s remarks regarding the plea agreement and
further stated that she had advised her client that application of the statute was entirely at the
discretion of the court. Accordingly, we find this issue is without merit.
II.
¶9.
Whether the circuit court erred in finding that Karriem had received
effective assistance of counsel.
It has long been held that in order for a defendant to prevail on an ineffective-
assistance-of-counsel claim, he or she must “show by a preponderance of the evidence (1)
that counsel’s performance was deficient, and (2) but for the deficiencies, the trial court
outcome would have been different.” Jones v. State, 976 So. 2d 407, 410-11 (¶6) (Miss. Ct.
App. 2008) (quoting Ward v. State, 914 So. 2d 332, 336 (¶12) (Miss. Ct. App. 2005)).
Furthermore, under Strickland v. Washington, 466 U.S. 668, 687 (1984), a defendant must
show “that counsel’s errors were so serious as to deprive the defendant of a fair trial.”
Finally, “[a] presumption exists that the attorney’s conduct was adequate.” Hull v. State, 983
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So. 2d 331, 333-34 (¶11) (Miss. Ct. App. 2007) (citing Burns v. State, 813 So. 2d 668, 673
(¶14) (Miss. 2001)).
¶10.
The record shows that Karriem’s counsel wrote him a letter advising him of the
proposed plea agreement. Within the letter, she told Karriem that she would ask for the
statute to be applied to his case and that the State had agreed not to oppose the
recommendation. However, the letter also showed that the State did not agree to recommend
application of the statute. The letter indicates that the State only agreed to recommend that
Karriem be given ten years suspended with five years of probation. Indeed, Karriem’s plea
petition reflects the State’s recommendation of probation, but it fails to mention application
of the statute at all.
¶11.
Karriem’s counsel failed to petition the court strongly or contest the State’s remarks
regarding application of the statute. However, application of the statute could not be
guaranteed by Karriem’s counsel, as that decision rested firmly with the circuit court.
Karriem stated that he understood the petition. Karriem acknowledged in open court that he
understood application of the statute was within sole discretion of the circuit court. While
Karriem’s counsel offered an overly optimistic prediction that the court may decide to apply
the statute and, if applied, the court “would defer accepting [Karriem’s] plea” and would
erase Karriem’s record of the arrest and conviction upon completion of probation, these
actions by his attorney do not rise to the level of constitutional deprivation of counsel. As
stated by the Fifth Circuit Court of Appeals regarding ineffective-assistance-of-counsel
claims: “[a] prediction, prognosis, or statement of probabilities . . . fail[s] to surmount the
‘formidable barrier’ presented by [a defendant’s] open court assertions that there [are] ‘no
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promises’ about his sentence.” Harmason v. Smith, 888 F.2d 1527, 1531 (5th Cir. 1989)
(citing Self v. Blackburn, 751 F.2d 789, 793 (5th Cir. 1985)). This issue is meritless.
III.
¶12.
Whether Karriem’s sentence constitutes cruel and unusual punishment
and is inconsistent with other sentences given for the same crime.
This Court has stated that: “the three factors to look at when determining whether a
sentence is proportional are: ‘(1) the gravity of the offense and the harshness of the penalty;
(2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences
imposed for commission of the same crime in other jurisdictions.’” Gray v. State, 926 So.
2d 961, 979 (¶63) (Miss. Ct. App. 2006) (quoting Wilks v. State, 911 So. 2d 947, 951 (¶17)
(Miss. 2005)). Furthermore, “when sentences are within the limits of the statute, the
imposition of such sentences is within the sound discretion of the trial court, and [an
appellate court] will not reverse them.” Presley v. State, 474 So. 2d 612, 620 (Miss. 1985).
¶13.
Karriem argues that the ten-year sentence imposed was disproportionate to the crime
committed, especially in light of the minimal amount of the embezzlement – approximately
$500. However, the original sentence afforded Karriem suspended jail time with only
probation to serve. After testing positive for cocaine during his probation, the circuit court
offered him yet another alternative to jail time by ordering him into a one-year drugtreatment program as part of his probation. Thereafter, Karriem violated the terms and
conditions of his probation once more by testing positive for cocaine again and by failing to
complete the drug-treatment program.
¶14.
Although a ten-year sentence falls within the sentencing guidelines for the crime of
embezzlement by a public official, the circuit court gave Karriem the opportunity to avoid
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jail time through various types of probation. As noted by the circuit court in its order
denying Karriem’s motion for PCR, Karriem was forced to serve actual time in prison on his
conviction only after he had violated the terms of his probation on two separate occasions.
Accordingly, we cannot find that the circuit court erred in its sentencing of Karriem. This
issue is meritless.
¶15. THE JUDGMENT OF THE LOWNDES COUNTY CIRCUIT COURT
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., MYERS, BARNES, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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