Jeff Wayne Tucker v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2010-CP-00165-COA
JEFF WAYNE TUCKER
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
01/11/2010
HON. PAUL S. FUNDERBURK
LEE COUNTY CIRCUIT COURT
JEFF WAYNE TUCKER (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: JOHN R. HENRY JR.
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED: 04/19/2011
EN BANC.
GRIFFIS, P.J., FOR THE COURT:
¶1.
Jeff Wayne Tucker appeals the judgment of the Lee County Circuit Court denying his
motion for post-conviction collateral relief. He claims: (1) his guilty plea was entered
involuntarily; (2) his trial counsel was ineffective; and (3) he was entitled to an evidentiary
hearing. We find no error and affirm.
FACTS
¶2.
In cause number CR08-497, Tucker was indicted on Count I, gratification of lust
under Mississippi Code Annotated section 97-5-23 (Rev. 2006), and Count II, sexual battery
under Mississippi Code Annotated section 97-3-95 (Rev. 2006). By separate indictment in
cause number CR08-640, Tucker was also charged with the felonious failure to register as
a sex offender under Mississippi Code Annotated sections 45-33-25 & -27 (Supp. 2010). By
an agreed order with the State, Tucker’s status as a habitual offender was dropped from the
indictments.
¶3.
On September 24, 2008, Tucker appeared before the circuit court and entered guilty
pleas to all three charges. Tucker was sentenced to fifteen years and ordered to pay a $1,000
fine in Count I, and he was sentenced to thirty years with fifteen years suspended and ordered
to pay a $1,000 fine in Count II. He was ordered to serve the sentences in Counts I and II
concurrently. Tucker was further sentenced to five years for his failure to register as a sex
offender. That sentence was ordered to run consecutively to the sentences in Counts I and
II.
¶4.
On August 26, 2009, Tucker filed a motion for post-conviction relief. The motion
attacked his conviction and sentence for the felonious failure to register as a sex offender
under cause number CR08-640. He claimed that: (1) he had received ineffective assistance
of counsel; (2) his guilty plea was entered involuntarily; and (3) the 1997 conviction which
gave him the status of a sex offender was invalid. On September 15, 2009, Tucker filed a
second motion for post-conviction relief that challenged his convictions and sentences for
gratification of lust and sexual battery under cause number CR08-497. He again asserted
claims that his counsel was ineffective and that his guilty pleas were entered involuntarily.
¶5.
The circuit court found that Tucker’s claims had no merit. Therefore, the relief
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requested in both of Tucker’s motions for post-conviction relief was denied. Tucker now
appeals the circuit court’s judgment.
STANDARD OF REVIEW
¶6.
A circuit court's denial of post-conviction collateral relief will not be reversed absent
a finding that the trial court's decision was clearly erroneous. Smith v. State, 806 So. 2d
1148, 1150 (¶3) (Miss. Ct. App. 2002). 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.
¶7.
Ineffective Assistance of Counsel
Tucker’s primary contention on appeal is that his counsel was ineffective during the
plea proceedings. To prove ineffective assistance of counsel, Tucker must show that: (1) his
counsel's performance was deficient, and (2) this deficiency prejudiced his defense.
Strickland v. Washington, 466 U.S. 668, 687 (1984). The burden of proof rests with Tucker
to show both prongs. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Under
Strickland, there is a strong 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).
¶8.
Specifically, Tucker claims that his attorney exploited Tucker’s fear of returning to
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jail to force Tucker to plead guilty. He further claims that his attorney threatened to abandon
him if he did not plead guilty. Also, according to Tucker, his attorney told him not to tell the
circuit judge about his fear of the jail or the threats made by the attorney. However, Tucker
provided no proof of such allegations other than his own affidavit.
¶9.
Tucker argues that he can provide no other proof other than his own statement because
he was the only witness to his attorney’s conduct. The record, however, specifically refutes
Tucker’s current claims. At the plea hearing, Tucker testified that he was satisfied with the
legal advice and services of his attorney. The circuit judge asked: “Do you believe that Mr.
Farese has properly advised you before entering your pleas of guilty and properly represented
your best interest in your cases?” Tucker replied: “Yes, Your Honor.”
¶10.
The following testimony was also given at the plea hearing:
Q:
Mr. Tucker, has anyone forced you in any way, put any pressure on
you, or promised you anything in order to get you to enter these pleas
of guilty?
A:
No, Your Honor.
THE COURT:
[Counsel], during the time that you have represented Mr.
Tucker, have you told him anything, represented to him
or led him to believe or tried to convince him that he will
get any particular sentence, that is he will be given a
specific number of years or probation or some
insignificant number of years, days, weeks or months or
whatever because he is entering his pleas of guilty?
[COUNSEL]:
No, sir Your Honor. For the record I have received
discovery from the State in this matter. I have reviewed
that discovery with Mr. Tucker. We had a revocation
hearing set this morning in another cause, and that is to
be withdrawn. I have reviewed all of this not only with
Mr. Tucker, but in the presence of his brother, Mr.
Danny Tucker, who is present in this courtroom, and I
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have additionally advised the defendant that I would not
stand with him for a guilty plea if he maintained he did
not commit these offences, nor would the Court accept
any guilty pleas if he did not admit his guilt. That was
reviewed not only in the presence of the defendant
privately, but also in the presence separately with the
defendant and his brother, Danny Tucker, and also
officer Herb Wells of the courtroom staff, Lee County
Sheriff’s Department.
So it is my belief the defendant certainly knows what he
is doing here this morning offering these pleas, and I
specifically advised him that even though this plea
recommendation was made by the district attorney’s
office, that it did not bind the Court, and the Court
certainly could sentence him to the maximum of these
three charges.
Q:
A:
¶11.
All right. Mr. Tucker, you have heard the statements made by your
attorney standing there next to you. Is everything he just stated to the
Court true and correct?
Yes, Your Honor.
This Court is entitled to rely on Tucker’s sworn statement made to the circuit judge.
See Green v. State, 880 So. 2d 377, 382 (¶21) (Miss. Ct. App. 2004). Tucker’s claims on
appeal are in direct conflict with his sworn testimony given at the plea hearing.
¶12.
Tucker also claims that his attorney was ineffective in his failure to investigate. First,
he claims that he had properly registered as a sex offender. In an attempt to prove his
compliance, he presented affidavits from neighbors stating that he lived in Blue Springs,
Mississippi, in Union County, not Lee County. However, those affidavits state that he lived
at the address in Union County until April 10, 2008. The indictment alleges that he failed
to registered in Lee County on April 11, 2008. It was at that time that Tucker began to spend
the night at his business located in Lee County. Thus, the proof offered by Tucker does not
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provide a defense to this charge. Certainly, it does not prove a deficiency on the part of his
attorney’s investigation of this matter.
¶13.
Second, Tucker attempts to attack his conviction for failure to register as a sex
offender by disputing his 1997 conviction for sexual battery. He offered affidavits of
witnesses who state that the victim of the 1997 sexual battery had fabricated his testimony
against Tucker. There is nothing in the record to show that Tucker’s attorney should have
investigated the validity of the prior conviction. In fact, Tucker testified under oath at the
plea hearing that he was guilty of failure to register as a sex offender.
¶14.
Because Tucker offers no proof of his claims of ineffective assistance of counsel, and
because those claims are wholly refuted by Tucker’s testimony under oath, Tucker has failed
to prove any deficiencies of his attorney. Accordingly, this issue has no merit.
2.
¶15.
Voluntariness of Tucker’s Guilty Pleas
In a related argument, Tucker asserts that his guilty pleas were entered involuntarily
due to the threats made by his attorney. Tucker states that he had been assaulted at the jail
prior to his plea hearing. He claims that his fear of returning to jail and the threats by his
attorney made pleading guilty his only option.
¶16.
A plea of guilty is binding only if it is entered voluntarily and intelligently. Myers v.
State, 583 So. 2d 174, 177 (Miss. 1991). Such a plea is voluntary and intelligently made
when the defendant is informed of the charges against him and the consequences of his plea.
Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992).
¶17.
Again, as discussed above, the record clearly refutes this claim. Tucker testified that
he had not been forced or pressured in any way to plead guilty. The record of the plea
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hearing is clear that Tucker was informed of the charges against him and that he was aware
of the consequences of entering his guilty pleas. Therefore, this issue has no merit.
¶18. THE JUDGMENT OF THE LEE COUNTY CIRCUIT COURT DENYING THE
MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF
THIS APPEAL ARE ASSESSED TO LEE COUNTY.
LEE, C.J., IRVING, P.J., MYERS, BARNES, ISHEE, ROBERTS, CARLTON
AND MAXWELL, JJ., CONCUR.
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