Ashby v. State

• Decision Date: 05 June 1997
• Docket Number: No. 95-KP-00592-SCT,95-KP-00592-SCT
• Citation: 695 So.2d 589
• Parties: Henry ASHBY a/k/a Henry Frankie Ashby v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 589

695 So.2d 589

Henry ASHBY a/k/a Henry Frankie Ashby v. STATE of Mississippi.

No. 95-KP-00592-SCT.

Supreme Court of Mississippi.

June 5, 1997.

Henry Ashby, Parchman, pro se.

Michael C. Moore, Atty. Gen., W. Glenn Watts, Special Asst. Atty. Gen., Jackson, for appellee.

Before SULLIVAN, P.J., and McRAE and MILLS, JJ.

SULLIVAN, Presiding Justice, for the Court:

STATEMENT OF THE CASE

Henry Ashby was arraigned and plead not guilty of the sale of cocaine on February 24, 1992 in Itawamba County Circuit Court. Ashby was charged with wilfully, unlawfully and feloniously selling and transferring a quantity of cocaine, a schedule two controlled substance in violation of the Uniform Controlled Substance Act of the State of Mississippi. On February 25, 1993, Ashby changed his plea to not guilty before Circuit Judge Frank A. Russell. After his plea he was sentenced to twenty-five years to run concurrently with his sentence in Itawamba County Cause No. CR-92-011.

It is in the record that Ashby had previously plead guilty on one charge and had been convicted by a jury on yet another charge. The judge advised Ashby of the 30 year maximum sentence the court could impose but failed to advise him of the minimum sentence. Per the plea bargain of February 25, 1993, Ashby agreed to dismiss his appeal to the Supreme Court of CR92-011, and the State agreed to retire four other cases against Ashby.

Ashby was asked whether he felt that his counsel properly advised him before entering his plea and whether he was satisfied with the legal services and advice by counsel, and Ashby replied affirmatively.

On September 15, 1994, Ashby filed a motion to vacate his guilty plea and sentence of conviction pursuant to the Mississippi Uniform Post-Conviction Relief Act, Miss.Code Ann. § 99-39-1, et seq. Ashby contends that his plea was not knowingly, intelligently, and voluntarily entered and that he was denied effective assistance of counsel when his attorney told him to plead guilty and dismiss his appeal in another conviction. Ashby requested an evidentiary hearing or any other relief deemed appropriate by the court.

On October 21, 1994, Jimmy Shelton, counsel for Ashby during his plea hearing, filed an affidavit with the court, in which he stated that he represented Ashby in Cause No. CR92-011 in Itawamba County for the sale of cocaine on October 18, 1991. The result of this representation was a conviction and sentence of twenty-five years. This conviction was appealed to the Supreme Court.

Shelton's affidavit states that on February 24, 1992, Ashby was indicted in three other cases, and that he had at least two charges pending in Lee County for the sale of a controlled substance. On February 25, 1993, according to Shelton, the State offered Ashby a plea bargain in which Ashby would plead guilty to one count of sale of cocaine and serve twenty-five years concurrently with the conviction in CR92-011, and the State would dismiss the other charges pending in Itawamba and Lee counties. Ashby further agreed to dismiss his appeal of 92-011. Shelton's affidavit says that the plea bargain was fully explained to Ashby and that Ashby fully agreed that it was the best way to dispose of all charges against him.

Ashby filed a response to Shelton's affidavit in November 1, 1994. In the response Ashby argued that a defendant may not dismiss an appeal already perfected and asserted that he was coerced into withdrawing his appeal.

Ashby contends that the plea was not voluntarily made, because he was not advised of the minimum sentence he could receive. Ashby further argues that he has only an eleventh grade education, and he did not fully understand the legal process of which he was involved. Therefore, Ashby contends that he was unable to knowingly and voluntarily waive his rights through a guilty plea. On January 24, 1995, Judge Russell denied all of Ashby's motions and this appeal followed.

I.

AS TO THE VOLUNTARINESS OF HIS PLEA ASHBY RAISED TWO POINTS.

1) He was not advised of the minimum sentence he could receive and 2) that he was unaware and ignorant of the principles of law and unable to comprehend the legal process.

Ashby was not informed of the minimum sentence for the charge against him. In a line of cases from this Court beginning with Vittitoe v. State, 556 So.2d 1062, 1063-65 (Miss.1990), we have vacated sentences where the minimum penalty was not explained at the guilty plea hearing. However, automatic invalidation of a guilty plea is no longer the rule in Mississippi. Gibson v. State, 641 So.2d 1163, 1166 (Miss.1994); Smith v. State, 636 So.2d 1220, 1226 (Miss.1994); Gaskin v. State, 618 So.2d 103, 108 (Miss.1993). Smith is similar to this case. Smith was not advised of the mandatory minimum sentence for burglary when entering a plea with a recommended sentence by the State. In concluding that the failure to tell Smith of the mandatory minimum sentence was harmless error, we stated:

There was no misrepresentation or misstatement as to a mandatory minimum sentence made to Smith by anyone, and he did not expect to receive the statutory mandatory minimum sentence. Instead, he knew and understood from the onset that the State would recommend a mandatory sentence of eight years if he plead guilty.

Smith, 636 So.2d at 1227. We held that the reliance and expectation elements were missing in Smith and we find that to be true here as well. Ashby knew that the State would recommend a twenty-five year sentence that would run concurrently with his prior conviction. Ashby also knew that the State agreed to drop four other charges on which he faced punishment. We cannot under these circumstances find that Ashby was misled as to his situation or the minimum sentence that he could receive, and therefore we must conclude that he voluntarily entered his plea of guilt.

Ashby argues that he did not understand the legal proceedings and, therefore, was unable to knowingly and voluntarily plead guilty. The law requires that a defendant possess understanding of law as well as the facts. Judge Russell questioned Ashby and noted his prior connections with the court, and Ashby's attorney filed an affidavit stating that Ashby fully understood the proceedings and agreed with the plea bargain. Ashby's formal education ended with the...