Boyd v. State, 96-CA-00270-COA.
| Decision Date | 22 May 2001 |
| Docket Number | No. 96-CA-00270-COA.,96-CA-00270-COA. |
| Citation | 797 So.2d 356 |
| Parties | Cassell BOYD, Jr., Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
R. Jack Brantley Jr., Attorney for Appellant.
Office of the Attorney General by W. Glenn Watts, Jackson, Attorney for Appellee.
Before SOUTHWICK, P.J., BRIDGES, and LEE, JJ.
BRIDGES, J., for the Court:
¶ 1. Following indictments by the grand jury, Cassell Boyd, Jr. pled guilty to charges of two sales of cocaine and one possession of cocaine before the Circuit Court of Leake County, Mississippi, the Honorable Marcus Gordon presiding. After hearing Boyd's guilty plea and discussing with Boyd the consequences of such guilty plea, Judge Gordon accepted Boyd's plea as voluntary, knowing and intelligent. Boyd was thereafter sentenced to six years in prison for each of the two sales of cocaine, to be served concurrently, and two years in prison for the possession of cocaine charge, to be served consecutively with the six year sentence.
¶ 2. On November 17, 1995, Boyd filed his motion for post-conviction relief. That motion was denied by the trial court on February 7, 1996, and Boyd appealed to the Mississippi Supreme Court seeking reversal of such denial. Even though Boyd initially failed to adhere to proper appeals procedure, the court allowed Boyd the opportunity to perfect his appeal, whereby his case now comes before this Court raising the following issues:
FACTS
¶ 3. Boyd was indicted by the grand jury on May 3, 1995, on two counts for the sale of cocaine. The indictment arose as a result of Boyd's selling the substance to Stanley Wash on two separate occasions. Also, on May 3, 1995, Boyd was indicted on one count of possession of cocaine. On May 11, 1995, Boyd filled out and executed petitions to plead guilty on all three counts. In the petitions, Boyd acknowledged that he understood the maximum sentences he could receive for these crimes and that, by pleading guilty, he was waiving his constitutional right to a jury trial, his right to confront witnesses and his right against self-incrimination. Boyd indicated that he comprehended these things by writing "yes" next to each of these items on his petition to plead guilty. Also, Boyd wrote the word "no" next to questions on the petition asking whether anyone coerced or promised Boyd anything in exchange for his guilty plea. He further demonstrated on the petition that he was satisfied with the counsel and advice of Edward Blackmon, Jr., his attorney at that time, and that he believed Blackmon adequately represented him in this case.
¶ 4. Boyd admitted to each of the three counts on which he was indicted, stating the following: In the second petition, he wrote the following: "On April 2, 1994, I had in my possession cocaine in Leake County, Miss. I was acting alone on the aforesaid time." Further, in his petitions to plead guilty to these charges, Boyd acknowledged that he understood that the maximum penalty for two counts of the crime of the sale of cocaine is thirty years, and the maximum penalty for the possession of cocaine is three years. In addition, Boyd asserted in these petitions that he understood that the State had recommended that he serve two five year concurrent sentences for his sale offenses and two years for his possession offense, to be served consecutively with the five year sentence.
¶ 5. Boyd repeated all of these acknowledgments and admissions in open court before Judge Gordon, pleading guilty to all counts with Blackmon present. Judge Gordon, in an effort to determine whether Boyd's guilty pleas were voluntarily, knowingly and intelligently made, questioned Boyd on his understanding of the rights he was waiving by pleading guilty. Further, Judge Gordon also interrogated Boyd as to his counsel, Blackmon. Boyd assured the judge that he understood all of his rights, the waiver of those rights by pleading guilty, the maximum sentences that he could receive for his crimes and all other consequences a guilty plea would necessarily bring him. Boyd further confirmed to the judge that he was content with Blackmon as his attorney and that Blackmon had provided him with competent advice and counsel.
¶ 6. Based upon Boyd's petitions to plead guilty and his acknowledgments and confessions before the trial judge in open court at the plea acceptance hearing, the trial court found that Boyd's plea was voluntarily, knowingly and intelligently made. Despite the recommendations of the State, Judge Gordon sentenced Boyd to six years for each sale of cocaine charge, to be served concurrently, and two years on the possession charge, to be served consecutively with the six year sentence, for a total of eight years in prison.
¶ 7. In Boyd's motion for post-conviction relief, he contended that he was deprived of effective assistance of counsel, that he was held in custody unlawfully, that his guilty plea was not knowingly and voluntarily made and various other claims. No affidavits or other documents were filed with the court in support of Boyd's motion for post-conviction relief. The trial court denied Boyd's motion and on March 12, 1996, Boyd filed his notice of appeal. The Mississippi Supreme Court initially denied Boyd's appeal for failure to comply with Rule 4(a) of the Mississippi Rules of Appellate Procedure. However, in an order filed on May 12, 1999, the court suspended that denial and allowed Boyd's appeal to be perfected.
¶ 8. Along with his appellate brief before this Court, Boyd has filed an affidavit signed by himself attesting to facts which would support his motion for post-conviction relief. This is the first time that Boyd has presented this affidavit before any court, as it was not used as evidence before the lower court during the hearing on Boyd's motion. Neither has the State had occasion to see this affidavit before the filing of Boyd's appellate brief. The State contends that this affidavit should not be allowed because it was not presented to or discussed before the trial court. Attorneys for the State have filed a motion to strike Boyd's affidavit for failure to raise the issues within it before the trial court or for failure to file a motion to amend the record to reflect the presence of this affidavit. There were no further affidavits filed with either the lower court or this Court to support Boyd's claims. Boyd and his newly appointed attorney request that this Court add the affidavit signed by Boyd to the record of this case.
LEGAL ANALYSIS
¶ 9. Boyd submits to this Court that, despite the monumental evidence in the record indicating that he fully understood all of the consequences of his guilty plea, he actually did not plead guilty voluntarily, knowingly and intelligently because he was forced into his guilty plea by his own attorney as well as the lower court itself. The United States Supreme Court case of Boykin v. Alabama, 395 U.S. 238, 242, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), provides the standard for determining whether a guilty plea is knowingly, voluntarily and intelligently made by a defendant. See Vittitoe v. State, 556 So.2d 1062 (Miss.1990). The privileges and rights waived by a guilty plea are the right against compulsory self-incrimination, the right to a trial by jury and the right to cross-examine witnesses. Boykin, 395 U.S. at 243, 89 S.Ct. 1709. Where the record is silent as to evidence showing that these rights were known and understood by the defendant, there can be no presumption of a waiver of such rights by him. Id. at 242, 89 S.Ct. 1709.
¶ 10. The record must provide explicit evidence of such a waiver and the admissibility of the waiver must be "based on a reliable determination on the voluntariness" of the waiver. Id. This determination of voluntariness may be evaluated by looking to see whether the defendant was advised of the nature of the charges against him, the rights which he would be waiving by pleading guilty, the maximum sentences that he could receive for the crimes with which he was charged and whether he was satisfied with the advice and counsel of his attorney. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). See also Boykin, 395 U.S. at 243, 89 S.Ct. 1709; Wilson v. State, 577 So.2d 394, 396-97 (Miss.1991).
¶ 11. The burden of proving that a guilty plea was not made voluntarily is on the defendant. Gardner v. State, 531 So.2d 805, 810 (Miss.1988); Sanders v. State, 440 So.2d 278, 284 (Miss.1983); Baker v. State, 358 So.2d 401 (Miss.1978). If this burden is not met, the defendant's plea must be upheld as one that was made voluntarily, knowingly and intelligently. Gardner, 531 So.2d at 810. It should be noted that "[s]olemn declarations in open court [by a defendant] carry a strong presumption of verity." Id.; Baker, 358 So.2d at 403. See Blackledge v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Further, the record must reflect that the trial court thoroughly discussed with the defendant all of the consequences of a guilty plea, including the waiver of rights, satisfaction with one's attorney and advisement on the maximum and minimum penalties one can acquire for the crime committed. Alexander, 605 So.2d at 1172; Gardner, 531 So.2d at 809-10.
¶ 12. A guilty plea may not be accepted where the defendant did not plead of his own volition. Boykin, 395 U.S. at 243,89 S.Ct. 1709. As the United States...
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... ... See Boyd v. State, 797 So.2d 356, 363 ( 17) (Miss.Ct.App.2001) (citation omitted). We have held that a movant who employs this reasoning has been glaringly ... ...
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