Brasington v. State, 96-KA-01132-COA.
| Decision Date | 12 October 1999 |
| Docket Number | No. 96-KA-01132-COA.,96-KA-01132-COA. |
| Citation | 760 So.2d 18 |
| Parties | Stephen BRASINGTON a/k/a Stephen H. Brasington, Jr., Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
William Ross Capps, Albert Lionel Necaise, Gulfport, Attorneys for Appellant.
Office of the Attorney General by Jeffrey Klingfuss, Attorney for Appellee.
BEFORE KING, P.J., IRVING, AND LEE, JJ.
LEE, J., for the Court:
¶ 1. After a previous indictment for the subject incident that occurred on October 16, 1994 had been nol prossed, a Jackson County grand jury indicted Stephen Brasington for Count I, burglary of an inhabited dwelling; Count II, armed robbery; and Count III, kidnaping, on October 6, 1995. Count I was reduced to burglary of a dwelling, and Brasington entered guilty pleas to these charges on January 30, 1996, in Jackson County Circuit Court. Subsequently, Brasington filed a motion to withdraw his guilty plea which was overruled by the circuit court. Brasington appeals that court's denial of his motion to withdraw his pleas and presents three issues, which we quote verbatim, for review: (1) whether the guilty plea of Stephen Brasington was involuntary, (2) whether the portion of the indictment charging Stephen Brasington as a habitual offender is fatally defective, (3) whether the district attorney violated the terms of the plea by making a recommendation that Stephen Brasington be sentenced to one year less than his natural life. We affirm the decision of the circuit court.
¶ 2. Stephen Brasington was arrested in Louisiana in December of 1994 and extradited to Jackson County, Mississippi on December 29, 1994. After officers advised him of his rights, Brasington admitted that he had perpetrated the crimes with which he was charged in this case. He related that he broke into Christina Abbot's house and held Ms. Abbot and her two children at gunpoint when they arrived. He closed them in a closet and drove away in Ms. Abbot's automobile. His confession was recorded on videotape, and Ms. Abbot identified Brasington from a photographic lineup.
¶ 3. Brasington was initially indicted for armed robbery. Mr. Brice Kerr was counsel for Brasington prior to and during his guilty plea hearing. Once Mr. Kerr became counsel for Brasington, plea negotiations ensued between the State and Mr. Kerr.
¶ 4. The district attorney offered a plea bargain which would require Brasington to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC). The district attorney informed Mr. Kerr that if the plea offer was not accepted by Brasington he would re-indict him as a habitual offender, and add the additional charge of burglary of an inhabited dwelling pursuant to Mississippi Code Section 97-17-21. Brasington refused the plea offer. After the initial indictment was nol prossed, the grand jury indicted Brasington for burglary of an inhabited dwelling, armed robbery, and kidnaping as a habitual offender. The trial was set for January 30, 1996.
¶ 5. In the interim, due to the possible maximum sentence Brasington could receive if a jury found him guilty, Mr. Kerr, counsel for Brasington, advised him not to pursue a trial and encouraged Brasington's mother and sister to convince Brasington to plead guilty. Brasington did enter a plea of guilty to the charges.
¶ 6. Subsequently, Brasington filed a motion pro se to withdraw his guilty plea. He asserted that Mr. Kerr was incapable, uncooperative, and dishonest in coercing him to plead guilty; that the judge intended to require him to go to trial on the day he pleaded even if he had no lawyer; that he did not know his trial date and believed he was going to court only to fire his attorney; and that he would have "suffered extreme prejudice and possibly severe punishment in asserting [his] rights." Brasington insisted that these conditions resulted in his involuntary guilty plea.
¶ 7. On August 30, 1996, Brasington appeared for the above referenced hearing with new counsel. At this hearing, Brasington called the following individuals in an attempt to substantiate his claim that his pleas were involuntary: (1) District Attorney Dale Harkey, (2) Brasington's sister, Teresa Special, (3) his mother, Elizabeth Brasington, and (4) himself.
¶ 8. Brasington's first witness was the district attorney, Dale Harkey. Mr. Harkey testified that a plea bargain was offered to Brasington. The written offer included an explanation that, if Brasington did not accept it, the district attorney would re-indict Brasington as a habitual offender with "more thorough" charges that were overlooked in the first indictment. Mr. Harkey also cited authority allowing for prosecutorial discretion in plea bargaining.
¶ 9. Teresa Special, Brasington's sister, testified that Mr. Kerr told her and her mother that they needed to convince Brasington to plead guilty. She said that she and her mother tried to find another lawyer for her brother, and she detailed the conversations between Brasington and his family. Special asserted that Mr. Kerr mentioned plea bargaining only one time, early in the representation.
¶ 10. After affirming that Brasington did not want to go to court without a lawyer, Special testified that she and her mother "convinced him to plead guilty, but he did not want to." She alleged that Mr. Kerr threw papers on the table and told Brasington that he had to sign them, without explaining anything. She also recalled that, when the judge asked if he was happy with his representation, he shook his head and finally said, "I guess so."
¶ 11. On cross-examination, Special testified that Brasington indicated to her that his defense was that he was not guilty of forcibly kidnaping anyone. She also asserted that he only confessed to the crimes under duress.
¶ 12. Brasington's mother, Elizabeth Brasington, testified that Mr. Kerr told her that her son would be sentenced to life in prison if he went to trial. She said that the district attorney told her that there would be no "deal," and she noted that Brasington was surprised to see his family in the courthouse that morning. Mrs. Brasington corroborated Mrs. Special's testimony that Brasington was forced to sign papers without any explanation, that he looked haggard and hopeless, and that he paused before responding, "I guess," when asked whether he was satisfied with his attorney. She acknowledged that she never threatened her son to make him plead guilty, that she never heard Mr. Kerr, the district attorney's office, or the court threaten her son, and that she never heard her son speak of any threats.
¶ 13. Finally, Stephen Brasington testified. He described being arrested in Louisiana while he was riding with a co-worker in a stolen vehicle. He signed extradition papers to return to Pascagoula, Mississippi. Brasington alleged that Mr. Kerr very rarely came to the jail to discuss his case and that he would not come to the jail at all unless a court hearing was eminent. He testified that Mr. Kerr had informed him that there was a plea offer of fifteen years mandatory imprisonment; however, he had not seen any offer in writing. He told Mr. Kerr that he would not plead guilty to any violent crime and that he had an alibi because he was in Georgia on October 16. Brasington claimed that Mr. Kerr only spoke to him about the plea offer one time. He then said that Mr. Kerr spoke to him about the offer a few days later and instructed him that, if he did not plead guilty to the charges in the first indictment, he would be re-indicted as a habitual offender with additional charges including kidnaping.
¶ 14. Brasington testified that Mr. Kerr led him to believe that the district attorney was just using his threats of a new indictment in order to get him to plead guilty. Brasington further claimed that Mr. Kerr would not discuss his case with him, would not pursue his alibi defense, and would not instigate an internal affairs investigation of the police officers Brasington claims perjured themselves in a suppression hearing. He said that Mr. Kerr prevented him from being present at hearings and refused to file motions for a lineup so that the victim would have to identify him again. According to Brasington, Mr. Kerr prohibited him from testifying. Brasington claimed that he lost all faith in Mr. Kerr's abilities when Mr. Kerr told the court that Brasington was guilty.
¶ 15. Brasington further testified that on January 29, 1996, one day before the scheduled trial, he had told Mr. Kerr that he wanted a new attorney. Brasington said that Mr. Kerr met with the judge and was told Brasington would go to trial the next day, with or without an attorney. Disregarding that information, Brasington said that he was surprised to see his family in the courtroom because he thought that he was just going before the judge to explain that he wanted a new lawyer. He said that no preparations had been made for trial, no witnesses were there, and he was not dressed for trial. He claimed, However, he also admitted that he knew it was "supposedly" the date for trial. Brasington acknowledged that he told the judge that he was satisfied with his attorney. He noted that he did not want to represent himself and that he was forced to enter a guilty plea to avoid going to trial without a lawyer. In response to questions by the prosecutor, Brasington testified that he had pled guilty to other crimes in other courts.
¶ 16. Brasington testified that he had informed only Mr. Kerr that he wanted to fire him, and he reasoned that Mr. Kerr was court-appointed so he could not fire him. Brasington contradicted his mother's and his sister's testimony by acknowledging that Mr. Kerr did discuss the plea petition as he filled in the blanks. He said that he never read the...
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