Arturo Aquirre Moreno v. State of Mississippi
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2009-CP-01001-COA
ARTURO AQUIRRE MORENO
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:
APPELLEE
11/10/2009
HON. PRENTISS GREENE HARRELL
LAMAR COUNTY CIRCUIT COURT
ARTURO AQUIRRE MORENO (PRO SE)
OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
CIVIL - POST-CONVICTION RELIEF
MOTION FOR POST-CONVICTION RELIEF
DENIED
AFFIRMED: 03/01/2011
BEFORE KING, C.J., GRIFFIS AND ISHEE, JJ.
KING, C.J., FOR THE COURT:
¶1.
Arturo Moreno was indicted by Lamar County Circuit Court for one count of DUI
manslaughter and two counts of DUI mayhem.
Moreno pled guilty to all charges.
Subsequently, Moreno filed two motions for post-conviction relief; both were denied. After
Moreno's trial counsel was reprimanded by the Mississippi Commission on Judicial
Performance, Moreno petitioned the Mississippi Supreme Court for leave to proceed in the
trial court on a claim of ineffective assistance of counsel. The supreme court granted the
motion and ordered an evidentiary hearing. At the conclusion of the evidentiary hearing, the
trial court ruled that Moreno had received effective assistance of counsel and denied his third
motion for post-conviction relief. Moreno appealed that denial of relief raising three issues:
(1) whether the trial court lacked jurisdiction over Moreno's case, (2) whether Moreno's
sentence was in violation of the double-jeopardy clause, and (3) whether the trial court erred
in finding that Moreno had received effective assistance of counsel.
¶2.
Finding no error, we affirm.
FACTS
¶3.
On July 11, 2004, Moreno was driving while under the influence of alcohol and
collided with a vehicle in the intersection of Westover Drive and Hardy Street in Hattiesburg,
Mississippi. Moreno was apprehended by officers with the Hattiesburg Police Department.
Moreno was taken to the Forrest County Regional Jail and given a Breathalyser. The
passengers of the other vehicle involved in the collision, Benjamin Berry, Kattilla
Hakimzakeh, and Brandon Marshall, were taken to Forrest General Hospital to be treated for
injuries resulting from the accident. As a result of the accident, Berry and Hakimzakeh
suffered serious injuries, and Berry later died.
¶4.
On July 12, 2004, Moreno appeared before Judge Edwin Pittman Jr. in the Hattiesburg
Municipal Court and pled guilty to traffic citations for driving under the influence, driving
without a license, driving without proof of insurance, and leaving the scene of an accident.
After Moreno’s municipal court appearance, Moreno was transported to the Lamar County
Jail. On July 16, 2004, Judge Pittman issued an arrest warrant in Forrest County for Moreno
on the charge of DUI manslaughter.
¶5.
On March 3, 2005, Moreno was indicted in Lamar County for one count of DUI
manslaughter and two counts of DUI mayhem. On August 5, 2005, Moreno entered a guilty
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plea to all counts and was sentenced to serve twenty-five years in the custody of the
Mississippi Department of Corrections. Moreno was represented by Edwin Pittman Jr.
during the plea hearing and sentencing.
¶6.
On September 20, 2006, Moreno filed a motion for post-conviction relief alleging
ineffective assistance of counsel and double jeopardy. The trial court addressed and
dismissed the issues, and this Court affirmed the decision. Moreno v. State, 967 So. 2d 701
(Miss. Ct. App. 2007).
¶7.
On August 1, 2008, Moreno filed a second petition for post-conviction relief alleging
lack of subject-matter jurisdiction and double jeopardy. The trial court addressed and denied
the motion. Moreno never appealed the denial of the second motion for post-conviction
relief.
¶8.
On October 2, 2008, the Mississippi Supreme Court adopted the Mississippi
Commission on Judicial Performance's recommendation that Pittman be reprimanded for
representing Moreno after having signed an arrest warrant and order setting bond in the same
matter in his capacity as municipal court judge. Miss. Comm. On Judicial Performance v.
Pittman, 993 So. 2d 816 (Miss. 2008).
¶9.
On March 16, 2009, Moreno requested that the Mississippi Supreme Court grant his
motion for leave to proceed in the trial court. The supreme court granted the motion and
ordered an evidentiary hearing to determine whether Moreno had received effective
assistance.
¶10.
The evidentiary hearing was held on September 4, 2009. The trial court found that
Moreno had entered his plea against the advice of counsel, and Moreno had failed to produce
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evidence to support that his counsel was deficient or that any such deficiency resulted in
prejudice to him. Therefore, Moreno's third motion for post-conviction relief was denied by
the trial court. Moreno appeals.
ANALYSIS
¶11.
“In reviewing a trial court's decision to deny a motion for post-conviction relief, the
standard of review is clear. The trial court's denial will not be reversed absent a finding that
the trial court's decision was clearly erroneous. However, when reviewing issues of law, this
Court's proper standard of review is de novo.” Heafner v. State, 947 So. 2d 354, 356 (¶2)
(Miss. Ct. App. 2007) (internal citations omitted).
I. Jurisdiction
¶12.
Moreno argues that the indictments were issued in violation of Mississippi Code
Annotated section 99-11-3 (Rev. 2007), which states local jurisdiction of all offenses is in
the county where they were committed. Moreno argues that Lamar County is an improper
venue because the automobile accident, and a passenger's subsequent death, occurred in
Forrest County. The State's sole argument is that Moreno's claim of improper venue is not
properly before this Court; therefore, the merits should not be addressed. The State is
mistaken in its argument. In a criminal case, venue is jurisdictional, must be proven, and
may be raised for the first time on appeal. McBride v. State, 934 So. 2d 1033, 1035 (¶10)
(Miss. Ct. App. 2006) (citing Hensley v. State, 912 So. 2d 1083, 1086 (¶12) (Miss. Ct. App.
2005)). Accordingly, we find it proper to address the merits.
¶13.
This Court has recently held that a petitioner’s claim of improper venue will fail
unless supported by sufficient evidence within the record. See Williams v. State, 31 So. 3d
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69, 80 (¶34) (Miss. Ct. App. 2010). Moreno points to the traffic citations issued as a result
of the accident as proof that Lamar County is an improper venue. The traffic citations
Moreno references in support of his argument were issued by the Hattiesburg Police
Department. The City of Hattiesburg lies within both Forrest and Lamar Counties. On the
citations issued to Moreno, both counties are listed, but “Forrest” is circled to identify the
county in which the specific violations occurred.
¶14.
Moreno also argues that he was taken into custody and held at the Forrest County
Regional Jail until Lamar County prosecuted him. However, Moreno was never indicted in
Forrest County and was transported to the Lamar County Jail on the day after the accident.
Moreno was indicted by a grand jury in Lamar County on two counts of DUI mayhem and
one count of DUI manslaughter.
¶15.
Moreno simply makes a blanket assertion that the trial court failed to make a
determination that it had proper jurisdiction and venue in this matter. Moreno fails to point
to any evidence in the record that might support the claim that the intersection in which the
accident occurred lies within Forrest County, Mississippi. Accordingly, this issue is without
merit.
II. Double Jeopardy
¶16.
Moreno argues that the indictments under Mississippi Code Annotated section
63-11-30 (Supp. 2010) for DUI manslaughter and two counts of DUI mayhem subject him
to double jeopardy because his driving while intoxicated only constituted one offense.
Moreno raised this argument in his first motion for post-conviction relief; the trial court
addressed and disposed of the issue; and this Court affirmed the decision, stating:
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"[D]ouble jeopardy applies to prevent three errors it protects against: (1) a
second prosecution for the same offense after acquittal; (2) a second
prosecution for the same offense after conviction[;] and (3) multiple
punishments for the same offense.” Brawner v. State, 947 So. 2d 254, 266
(¶33) (Miss. 2006) (citing Schiro v. Farley, 510 U.S. 222, 229, 114 S. Ct. 783,
127 L. Ed. 2d 47 (1994)). The [L]egislature, in 2004, amended and made clear
that one may be charged under Mississippi Code Annotated section 63-11-30
for multiple felonies arising from the same act of driving under the influence.
See Miss. Code Ann. section 63-11-30(5) (effective May 4, 2004) (stating
"[e]very person who operates any motor vehicle in violation of the provisions
of subsection (1) of this section and who in a negligent manner causes the
death of another or mutilates, disfigures, permanently disables or destroys the
tongue, eye, lip, nose or any other limb, organ or member of another shall,
upon conviction, be guilty of a separate felony for each such death, mutilation,
disfigurement or other injury." ([E]mphasis added)). Each of the indictment's
counts were predicated upon separate felonies, one instance of manslaughter
and two instances of mutilation or mayhem, in which Moreno committed as a
result of his drunk driving. Therefore, no violations of double jeopardy have
occurred here. Moreno's argument has no merit[,] and we deny relief,
accordingly.
Moreno, 967 So. 2d at 703 (¶3).
¶17.
All issues, both factual and legal, that have been previously decided at trial and/or on
direct appeal are barred from review as res judicata. Miss. Code Ann. § 99-39-21(3) (Rev.
2007). Accordingly, this Court finds that Moreno's claim to relief under the double-jeopardy
clause is barred from review as res judicata. This issue is without merit.
III. Ineffective Assistance of Counsel
¶18.
Moreno argues that he had received ineffective assistance of counsel because Pittman
failed to communicate the difference between consecutive and concurrent sentences, failed
to appear in court, failed to present certain evidence regarding Moreno's theory of defense
in court, and failed to explain the consequences of a guilty plea. Moreno further claims that
Pittman told him that if he was found guilty, Moreno would be deported to Mexico. Moreno
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wished to return to Mexico, and he claims he entered a guilty plea under the assumption he
would be deported.
¶19.
In order to prevail on a claim of ineffective assistance of counsel, Moreno must show
that his defense counsel rendered deficient performance which resulted in prejudice.
Strickland v. Washington, 466 U.S. 668, 687 (1984). A petitioner who has entered a guilty
plea and claims ineffective assistance of counsel must show that trial counsel committed
“unprofessional errors of substantial gravity,” without which he would not have pled guilty.
Cole v. State, 918 So. 2d 890, 894 (¶10) (Miss. Ct. App. 2006).
¶20.
After conducting the evidentiary hearing, the trial court held that Moreno failed to
present any evidence to overcome the rebuttable presumption that the performance of his
counsel fell within the spectrum of competent assistance. Strickland, 466 U.S. at 687.
¶21.
During the plea hearing, Moreno, through his translator, stated under oath that he had
confidence in his attorney, and his attorney had explained the details of the charges against
him and the consequences associated with entering a guilty plea. Great weight is given to
statements made under oath and in open court during sentencing. Mowdy v. State, 638 So.
2d 738, 743 (Miss. 1994). The record is not clear as to when Pittman allegedly failed to
appear in court, because Moreno testified in his evidentiary hearing that his counsel was
present at both the plea hearing and sentencing hearing. Karen Austin, Moreno's courtappointed translator during the plea hearing and sentencing hearing, testified during the
evidentiary hearing that Moreno had entered a guilty plea against the advice of counsel.
Austin stated that Moreno was encouraged by his counsel to go to trial. Because Moreno
failed to demonstrate any deficiency on the part of Pittman, which resulted in prejudice, this
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issue is without merit.
¶22. THE JUDGMENT OF THE LAMAR COUNTY CIRCUIT COURT DENYING
THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS
OF THIS APPEAL ARE ASSESSED TO THE APPELLANT.
LEE AND MYERS, P.JJ., IRVING, GRIFFIS, BARNES, ISHEE, ROBERTS
AND CARLTON, JJ., CONCUR. MAXWELL, J., CONCURS IN PART AND IN THE
RESULT WITHOUT SEPARATE WRITTEN OPINION.
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