Brooks v. State

• Decision Date: 19 December 1990
• Docket Number: No. 89-KP-0395,89-KP-0395
• Court: Mississippi Supreme Court
• Parties: N.S. BROOKS v. STATE of Mississippi.

Page 1350

573 So.2d 1350

N.S. BROOKS v. STATE of Mississippi.

No. 89-KP-0395.

Supreme Court of Mississippi.

Dec. 19, 1990.

N.S. Brooks, Parchman, pro se.

Mike C. Moore, Atty. Gen., Jo Anne M. McLeod, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before DAN M. LEE, P.J., and ROBERTSON and ANDERSON, JJ.

DAN M. LEE, Presiding Justice, for the Court:

N.S. Brooks, an inmate incarcerated in the Mississippi State Penitentiary at Parchman, filed a direct appeal from an order summarily denying his "Motion To Vacate Judgment and Conviction" issued on the 2nd day of March, 1989. The specific targets of his post-conviction motion were guilty pleas entered in May of 1987.

STATEMENT OF THE FACTS

On May 15, 1987, Brooks entered pleas of guilty to the following offenses: burglary in cause number 9995; robbery in cause number 9996; burglary of a dwelling house in cause number 10,007; burglary of an occupied dwelling (Count 1), burglary of a dwelling house (Count 2), and burglary of a dwelling house (Count 3), all in cause number 10,008; robbery in cause number 10,009, and burglary of a dwelling house in cause number 10,010. According to the post-conviction papers filed by Brooks, he was sentenced to serve a term of fifteen (15) years in the Mississippi Department of Corrections.

On or about January 13, 1989, Brooks sought to vacate his pleas of guilty in a pleading styled "Motion To Vacate Judgment and Conviction." On the 2nd day of March, 1989, the circuit judge signed an order summarily denying post-conviction relief. The trial court specifically found

"[T]hat the issues raised by the defendant were waived upon his plea(s) of guilty with the exception of the claim of ineffective counsel. The Court further finds that the defendant has come no where near raising that issue as required by Washington v. Strickland and its progeny."

In his direct appeal to this Court, Brooks presents the following four issues for review:

(1) The indictments were defective because the record does not identify them as the ones returned by the Grand Jury of Lowndes County.

(2) The indictments were defective because they were not accompanied by the affidavit of the Grand Jury foreman.

(3) As a result of the facially defective indictments, the circuit court lacked jurisdiction to prosecute Brooks.

(4) Defense counsel was constitutionally ineffective for failing to object to the defective indictments, and counsel's advice was both deficient and erroneous.

DISCUSSION

THE LAW

Mississippi Code 1972 Annotated Sec. 99-39-11, (Supp.1990) reads, in part, as follows:

(1) The original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned.

(2) If it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified

* * * * * *

(emphasis supplied)

Likewise, Sec. 99-39-19 provides a procedural tool whereby one party or the other may seek and obtain summary judgment. We quote:

(1) If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require.

(2) The court may grant a motion by either party for summary judgment when it appears from the record that there is no genuine issue of material (emphasis supplied)

fact and the movant is entitled to judgment as a matter of law.

In Sanders v. State, 440 So.2d 278, 284 (Miss.1983), this Court spoke to the manifestly without merit standard contained in Rule 8.07 of the Uniform Criminal Rules of Circuit Court Practice (1979). We held that "... unless the (petitioner's) application is so lacking in merit as to justify summary dismissal under (that standard), the petitioner is entitled to an evidentiary hearing." 440 So.2d at 284.

In Womble v. State, 466 So.2d 910, 912 (Miss.1985), the Sanders decision was the target of further explication as follows:

The Sanders decision suggests, however, that an evidentiary hearing is not required in those cases which could be disposed of on a motion for summary judgment under Rule 56 of the Mississippi Rules of Civil Procedure, i.e., where "there is no genuine issue as to any material fact and where the moving party is entitled to judgment as a matter of law." Sanders, supra at 285, n. 4. * * * * * *

466 So.2d at 912.

See also Houston v. State, 461 So.2d 720, 723 (Miss.1984) ("The circuit court may dismiss a petition for writ of habeas corpus summarily, without an evidentiary hearing, if an examination of the petitioner's papers reveals that the claims are manifestly without merit."); Garlotte v. State, 530 So.2d 693, 694 (Miss.1988) ("This case presents an excellent example of the appropriate use of the summary disposition provision of Sec. 99-39-11(2), Miss.Code Ann."); Tiller v. State, 440 So.2d 1001 (Miss.1983) (A petitioner seeking to withdraw a plea of guilty is entitled to an evidentiary hearing unless the application submitted by him is so lacking in merit as to justify summary dismissal under Rule 8.07.)

The Mississippi Uniform Post-Conviction Collateral Relief Act, of course, superseded Rule 8.07 of the Mississippi Uniform Criminal Rules of Circuit Court Practice. Nevertheless, Sec. 99-39-11(2), supra, and Sec. 99-39-19(2), supra, of the post-conviction relief act contain appropriate and explicit provisions for the summary disposition of motions to vacate or set aside judgments or sentences.

Section 99-39-21(1) of the post-conviction relief act is also applicable to the present case. It provides that failure by the prisoner to raise objections, defenses, claims, questions, issues or errors of either fact or law which were capable of determination at trial and/or on direct appeal are considered waived and procedurally barred for purposes of post-conviction relief unless the prisoner can make a showing of cause for the default and actual prejudice to the defense.

The posture of Brooks' direct appeal is also controlled to a great extent by Rule 3.03(4) of the Uniform Criminal Rules of Circuit Court Practice (1979), as amended, which states that "[i]t is within the discretion of the court to permit or deny a motion for the withdrawal of a guilty plea." See also Brown v. State, 533 So.2d 1118, 1124 (Miss.1988); Thomas v. State, 472 So.2d 425, 427-28 (Miss.1985); Langston v. State, 245 So.2d 579, 582 (Miss.1971).

The circuit judge stated in his written order announcing summary dismissal that "... the issues raised by the defendant were waived upon his plea of guilty with the exception of the claim of ineffective counsel [and] the defendant has come no where near raising that issue as required by Washington v. Strickland and its progeny." Stated differently, the lower court found that Brooks' claims were manifestly without merit. We concur.

Brooks, in the wake of his guilty pleas, assails allegedly defective indictments. A valid guilty plea, however, admits all elements of a formal criminal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment against a defendant. See Houston v. State, 461 So.2d 720, 723 (Miss.1984); Sanders v. State, 440 So.2d 278, 283 (Miss.1983); Winters v. State, 244 So.2d 1, 2 (Miss.1971); United States v. Diaz, 733 F.2d 371, 376 (5th Cir.1984) (A valid guilty plea waives all non-jurisdictional defects in proceedings against a defendant); Barrientos "[I]ssues such as these respecting the indictment are essentially procedural and susceptible of waiver if not timely preserved and presented on direct appeal." Perkins v. State, 487 So.2d 791, 792 (Miss.1986); Jones v. State, 356 So.2d 1182, 1183 (Miss.1978); Wilcher v. State, 152 Miss. 13, 118 So. 356 (1928).

v. United States, 668 F.2d 838, 842 (5th Cir.1982). Put another way, all non-jurisdictional objections to the indictment are waived (forfeited, if you please) when an accused enters a voluntary plea of guilty.

The deficiencies allegedly appearing in the indictments complained about by Brooks are non-jurisdictional defects at best. In this posture, they must be timely asserted else they are waived. Clearly they may not be raised for the very first time in an application for post-conviction relief or, for that matter, on direct appeal, absent "... a showing of cause and actual prejudice." See Sec. 99-39-21(1), Miss.Code Ann. (Supp.1990), supra.

Brooks also claims his trial counsel was constitutionally ineffective because counsel failed to object to the allegedly defective indictments and because counsel erroneously advised Brooks to plead guilty. Of course, "[n]o post-conviction motion would be complete without this allegation of error." Cabello v. State, 524 So.2d 313, 315 (Miss.1988).

Trial counsel is presumed to be competent. The truthfulness of this observation is found in Johnson v. State, 476 So.2d 1195, 1204 (Miss.1985), where we said:

Counsel is presumed to be competent. If counsel is reasonably effective in the defense of an accused, he meets constitutional standards, irrespective of the client's evaluation of his performance. An indigent criminal defendant is not entitled to expert counsel, or to counsel of his own choosing, but only to reasonably effective assistance of counsel. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Morris v. Slappy, 461 U.S. 1, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983).

476 So.2d at 1204.

It is clear the two part test articulated in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) "applies to challenges to guilty pleas based on ineffective assistance of counsel...