Banana v. State

• Decision Date: 31 March 1994
• Docket Number: No. 91-KP-00237,91-KP-00237
• Citation: 635 So.2d 851
• Parties: James Gregory BANANA v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 851

635 So.2d 851

James Gregory BANANA v. STATE of Mississippi.

No. 91-KP-00237.

Supreme Court of Mississippi.

March 31, 1994.

James Gregory Banana, pro se.

Michael C. Moore, Atty. Gen., Deirdre McCrory, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and BANKS and McRAE, JJ.

McRAE, Justice, for the Court:

On October 12, 1989, James Gregory Banana appeared before the Honorable John M. Montgomery in the Circuit Court of Clay County and entered a plea of guilty to two crimes of forgery. Banana was sentenced to serve two (2) concurrent terms of fifteen (15) years each in custody of the Mississippi Department of Corrections. Feeling aggrieved, Banana appeals to this Court, assigning as error:

I. Appellant was denied due process of law as required by Article III, Section 14 of the Mississippi Constitution since the trial judge was the district attorney at the time he was indicted.

II. The trial court did not follow Rule 3.03(B) of the Mississippi Uniform Criminal Rules of Circuit Court Practice and, therefore, appellant's guilty plea was not knowingly, intelligently and voluntarily entered.

Finding that Banana was not denied due process of law, since he expressly waived his objection to the trial judge hearing his case, and that Banana's guilty plea was knowingly, intelligently and voluntarily entered in conformity with Rule 3.03(3)(B) of the Mississippi Uniform Criminal Rules of Circuit Court Practice, we affirm the lower court's denial of appellant's post-conviction relief.

DISCUSSION OF LAW

I.

DID THE TRIAL COURT JUDGE ERR IN NOT RECUSING HIMSELF FROM THE CASE?

John M. Montgomery, the district attorney when Banana was indicted for the crimes of forgery in the case sub judice, later became the circuit court judge who accepted his guilty pleas. Judge Montgomery later recused himself and appointed the Honorable Kenneth Coleman to consider Banana's post-conviction motions. Banana argues that he was denied due process of law since Judge Montgomery failed to recuse himself from Banana's arraignment. The State asserts that Banana expressly waived this issue during his plea hearing. The transcript of Banana's arraignment and guilty plea reflects Judge Montgomery and Banana's discussion relative to Judge Montgomery's being the district attorney at the time the indictments were returned, as follows:

                Judge          Do you understand that I was the District Attorney at the time
                  Montgomery:    that these cases were presented to the Grand Jury, in fact
                                 one of my assistants presented these cases
                Banana:        Yes, sir
                Judge          Do you understand that you have the right to object to me being
                  Montgomery:    the Judge in your case because I was the District Attorney
                Banana:        Yes, sir
                Judge          You understand that?  Knowing that, you can waive any objection
                  Montgomery:    that you might have for me sitting in judgment of your case,
                                 and you can do that if you want to.  Do you waive the objection
                                 to me judging your case, knowing that I was the District
                                 Attorney?
                Banana:        Uh--well, who'll be the--the next judge?
                Judge          We will get another Judge here.  Do you want to confer with [your
                  Montgomery:    attorney] on that?
                Banana:        Yes, your Honor.  (conference between Mr.  [Thad] Buck and Mr.
                                 Banana) We're ready your Honor.
                Judge          Do you waive, uh--any objection to me sitting in judgment of
                  Montgomery:    your case?
                Banana:        Yes, sir.
                ----------
                

Canon 3C of the Code of Judicial Conduct states:

(1) A judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned, including but not limited to instances where:

(a) he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding: [or]

(b) he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it[.]

This Court in Collins v. Dixie Transport, Inc., 543 So.2d 160 (Miss.1989), held that when examining the conduct of a judge, the canon enjoys the same status as that of law. Collins, 543 So.2d at 166.

In Frierson v. State, 606 So.2d 604 (Miss.1992), a similar situation existed where the trial judge had also been the district attorney at the time of the defendant's indictment. Frierson, 606 So.2d at 606. We held that the trial judge should have recused himself on his own motion according to Canon 3C of the Code of Judicial Conduct. Id. Frierson, however, is different from the case sub judice in that the trial judge refused to recuse himself after Frierson filed a motion for recusal. In the case at hand, Banana did not request a recusal but, in fact, waived any objections he had to Judge Montgomery sitting in judgment of his case. Judge Montgomery initiated the discussion.

Mississippi has an objective test in determining when a judge should recuse himself. Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). "A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality." Rutland v. Pridgen, 493 So.2d 952, 954 (Miss.1986).

The presumption is 'that a judge, sworn to administer impartial justice, is qualified and unbiased. To overcome the presumption, the evidence must produce a 'reasonable doubt' (about the validity of the presumption)[.]" Turner v. State, 573 So.2d 657, 678 (Miss.1990). When a judge is not disqualified under the constitutional or statutory provisions, 'the propriety of his or her sitting is a question to be decided by the judge and is subject to review only in case of manifest abuse of discretion.' Buchanan v. Buchanan, 587 So.2d 892 (Miss.1991); Turner, 573 So.2d at 677; Ruffin v. State, 481 So.2d 312 at 317 (1985) (quoting McLendon v. State, 187 Miss. 247, 191 So. 821, 823 (1939)).

Collins v. Joshi, 611 So.2d 898, 901 (Miss.1992).

Jenkins was another case wherein the trial judge had also been the prosecuting attorney at the time of the defendant's indictment. Jenkins, 570 So.2d at 1191. This Court held that Jenkins had been denied due process of law and reversed and remanded for a new trial. Id. at 1193. However, similar facts existed between Jenkins and Frierson that do not exist in the case sub judice. The defendant in Jenkins also objected at the beginning of trial to the judge sitting as the trial judge. Like Frierson and unlike the case at hand, the trial judge refused to recuse himself.

In Jenkins, this Court addressed the issue of waiving objections to judicial recusals:

In Mississippi, disqualification of a judge is both constitutional and statutory. Section 165 of the Mississippi Constitution of 1890 requires a judge to disqualify himself 'where the parties or either of them, shall be connected with him by affinity or consanguinity, or where he may be interested in the same, except by the consent of the judge and of the parties.' Mississippi Code, in addition to requiring disqualification for relation of the judge by affinity or consanguinity, requires disqualification where the judge may have been of counsel.

Jenkins v. State, 570 So.2d 1191, 1192 (Miss.1990). (emphasis added).

As indicated in the transcript, Banana was given the opportunity to object to Judge Montgomery sitting as his judge, but instead conferred with his defense counsel and specifically waived any objections. Banana also waived this issue by entering his voluntary plea of guilty. Banana has failed to advance any reasoning in support of the position that this issue cannot be waived.

Mississippi's law dictates only two exceptions in which a voluntary guilty plea does not waive a defect. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). If an indictment fails to charge a necessary element of a crime or if there exists no subject matter jurisdiction, then a guilty plea does not constitute a waiver. Id. Moreover, in Anderson v. State, 577 So.2d 390 (Miss.1991), this Court recognized "that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial." Anderson, 577 So.2d at 391. Banana has not been denied due process of law as required by Mississippi Constitution art. III, Sec. 14 (1890), since he waived this issue by his valid guilty plea and consented to the trial judge hearing his case.

II.

WAS BANANA'S GUILTY PLEA ENTERED IN VIOLATION OF RULE 3.03 OF THE MISSISSIPPI UNIFORM CRIMINAL RULES OF CIRCUIT COURT PRACTICE?

A guilty plea will only be binding upon a criminal defendant if it is voluntarily and intelligently entered. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Myers v. State, 583 So.2d 174, 177 (Miss.1991); Wilson v. State, 577 So.2d 394, 397 (Miss.1991). In order for a guilty plea to be voluntarily and intelligently entered, a defendant must be advised about the nature of the crime charged against him and the consequences of the guilty plea. Id. Specifically, Rule 3.03 of the Mississippi Uniform Criminal Rules of Circuit Court Practice states in part:

When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine:

* * * * * *

B. That the accused understands the nature and consequences of his plea, and the maximum and minimum penalties provided by law[.]

Rule 3.03(3)(B) Miss.Unif.Crim.R.Cir.Ct.Prac.

Banana argues that this rule was violated because the trial court failed to personally advise him of the minimum and maximum penalties provided by law for the crimes of forgery, and, as a result, his guilty pleas were involuntary as a matter of law.

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