Brown v. State

• Citation: 187 So.3d 667
• Decision Date: 08 March 2016
• Docket Number: No. 2014–CA–01326–COA.,2014–CA–01326–COA.
• Parties: Kevin BROWN a/k/a Kevin Glen Brown, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

187 So.3d 667

Kevin BROWN a/k/a Kevin Glen Brown, Appellant

v.STATE of Mississippi, Appellee.

No. 2014–CA–01326–COA.

Court of Appeals of Mississippi.

March 8, 2016.

Kenneth Harold Coghlan, Stuart Sheffield Davis, Oxford, attorneys for appellant.

Office of the Attorney General by Laura Hogan Tedder, attorney for appellee.

Before LEE, C.J., BARNES and WILSON, JJ.

BARNES

, J., for the Court:

¶ 1. On March 6, 2014, Kevin Brown filed a motion for post-conviction relief (PCR) with the Pontotoc County Circuit Court, alleging several claims of error surrounding his entry of a guilty plea for fondling on July 22, 2008. The circuit court dismissed Brown's motion, finding that it was procedurally time-barred and without merit. Brown appeals the court's dismissal of his motion. Finding no error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2. On July 22, 2008, Brown pleaded guilty to fondling in Count I of Pontotoc Cause No. CR08–134. As part of a plea agreement, he was sentenced to serve ten years in the custody of the Mississippi Department of Corrections (MDOC).¹ At the same hearing, Brown also pleaded guilty to two drug charges in Pontotoc Cause No. CR07–213: Count I, possession of precursors to manufacture methamphetamine; and Count II, possession of methamphetamine, a Scheduled II controlled substance in an amount greater than 30 grams.² He was sentenced to thirty years in the custody of the MDOC for Count I, with the sentence to run concurrently with a sentence he was already serving in Lee County Cause No. 07–790³ and the ten-year sentence for fondling (Cause No. CR08–134). For Count II, he was sentenced to twenty years in the custody of the MDOC, with the sentence to be suspended and run consecutively to the thirty-year sentence imposed in Count I of the same cause (CR07–213).

¶ 3. On March 6, 2014, Brown filed a PCR motion, solely challenging his fondling conviction and sentence. In the motion, he alleged that "advice/inducement by [his] attorney constituted ineffective assistance of counsel," that his plea was not given knowingly or voluntarily, and that there was no factual basis for the plea. The circuit court dismissed Brown's PCR motion, finding that all but one issue was time-barred under Mississippi Code Annotated section 99–39–5 (Supp.2014)

, and each of the grounds raised by Brown were "without legal or factual basis."

STANDARD OF REVIEW

¶ 4. "When reviewing the dismissal of a PCR motion, an appellate court ‘will not disturb the circuit court's factual findings unless they are found to be clearly erroneous.’ " Rivers v. State, 136 So.3d 1089, 1090 (¶ 4) (Miss.Ct.App.2014)

(quoting Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008) ). Questions of law are reviewed de novo. Id. (citing Young v. State, 731 So.2d 1120, 1122 (¶ 9) (Miss.1999) ).

DISCUSSION

I. Whether Brown's counsel rendered ineffective assistance.

¶ 5. Brown asserts that his attorney at the plea hearing rendered ineffective assistance by: (1) inducing Brown to enter a guilty plea based on counsel's advice he would be parole-eligible for his two unrelated drug cases (Cause No. CR07–213) after serving his ten-year sentence (Cause No. CR08–134); (2) inducing Brown to plead guilty by advising him he would be eligible for trusty time, good time credits, earned release time, and other good time credits on the two drug sentences while serving his ten-year sentence; (3) failing to advise him that his ten-year sentence would be served "day for day" without possible of early release or parole; and (4) failing to conduct discovery, investigate the fondling charge, and object to the defective indictment.⁴

¶ 6. On its face, Brown's PCR motion, filed almost six years after the entry of his conviction on July 22, 2008, is time-barred. Section 99–39–5 of the Uniform Post–Conviction Collateral Relief Act (UPCCRA) provides that challenges to a guilty plea must be made within three years after the entry of the judgment of conviction. Excepted from this three-year statute of limitations are cases in which the petitioner can demonstrate either (1) "there has been an intervening decision of the Supreme Court of either the State of Mississippi or the United States which would have actually adversely affected the outcome of his conviction or sentence"; or (2) "that he has evidence, not reasonably discoverable at the time of trial, which is of such nature that it would be practically conclusive that had such been introduced at trial it would have caused a different result in the conviction or sentence[.]" Miss.Code Ann. § 99–39–5

.

¶ 7. The Mississippi Supreme Court has also held that "[e]rrors affecting fundamental constitutional rights are excepted from the procedural bars" of the UPCCRA. Rowland v. State, 42 So.3d 503, 506 (¶ 9) (Miss.2010)

. Prior to Rowland, the supreme court had noted that "[i]t is conceivable that under the facts of a particular case, ... a lawyer's performance [may be found] so deficient, and so prejudicial to the defendant, that the defendant's fundamental constitutional rights were violated." Bevill v. State, 669 So.2d 14, 17 (Miss.1996)

. Although the supreme court has not held under Rowland that all ineffective-assistance claims are exempt from procedural bars, the Court has recently concluded that under "extraordinary circumstances" (i.e., "lack of a direct appeal, lack of a court record, his attorney's alleged failure to obtain a transcript, lack of appellate review of the merits of his claims"), trial counsel's failure "to ensure [the] defendant c[ould] adequately appeal his conviction" excepted his PCR motion from the statutory time-bar. Chapman v. State, 167 So.3d 1170, 1173–74 (¶¶ 10–13) (Miss.2015).

¶ 8. Here, the circuit court examined the record and found Brown failed to establish a basis for his claims of ineffective assistance of counsel; thus, it concluded that Brown's claims were time-barred. We agree. To prevail on a claim of ineffective assistance of counsel, Brown must demonstrate (1) that "counsel's representation fell below an objective standard of reasonableness"; and (2) that but for his attorney's errors, there is a "reasonable probability" the outcome of the proceeding would have been different. Hannah v. State, 943 So.2d 20, 24 (¶ 6) (Miss.2006)

(quoting Strickland v. Washington, 466 U.S. 668, 687–94, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ). In the context of his guilty plea, he "must show that there is a reasonable probability that, but for counsel's errors, [he] would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different." Id. at (¶ 7). "[A] reasonable probability arises when the ineffectiveness is of such sufficient moment that the integrity of the proceeding or our confidence in the outcome has been shaken." Id. (citing Leatherwood v. State, 539 So.2d 1378, 1385 (Miss.1989) ).

¶ 9. Although Brown does not directly challenge his convictions for the two unrelated drug charges, Brown contends that he only pleaded guilty to the charge of fondling because his attorney told him he would be eligible for parole on those two sentences after serving his ten-year sentence for fondling. Brown also claims that he was informed by his counsel that he would be eligible for good time credit, trusty time, and earned release time. To support this claim, he submitted not only a personal affidavit, but affidavits from his mother and father, who said they were present when the attorney made these statements to Brown.

¶ 10. However, Mississippi Code Annotated section 47–7–3(1)(b)

(Supp.2008 & Rev.2015) states that "[a]ny person who shall have been convicted of a sex crime shall not be released on parole except for a person under the age of nineteen (19) who has been convicted under Section 97–3–67 [.]" Mississippi Code Annotated section 47–5–139(1)(d) (Supp.2008 & Rev.2015) provides that "[a]n inmate shall not be eligible for the earned time allowance if ... [t]he inmate was convicted of a sex crime[.]" Thus, Brown is not eligible for parole or earned time allowance.

¶ 11. Brown claims that he would not have entered his guilty plea for fondling if his attorney had not made these misrepresentations. Our supreme court has stated that a defendant entering a guilty plea cannot be promised parole, holding:

It will not be suggested by anybody that, before accepting a plea of guilty to an offense with respect to which parole is a possibility[,] the judge must determine whether the defendant understands the nature of parole, his eligibility therefor, and the circumstances in which it may thereafter be granted. The reason is, of course, that eligibility for parole is not a "consequence" of a plea of guilty, but a matter of legislative grace. It is equally true that noneligibility for parole is not a "consequence" of a plea of guilty.

Alexander v. State, 605 So.2d 1170, 1173–74 (Miss.1992)

(quoting Ware v. State, 379 So.2d 904, 907 (Miss.1980) ). But our Court has recognized that erroneous advice by counsel to a defendant that he would be eligible for parole "constitutes deficient performance." Garner v. State, 928 So.2d 911, 915 (¶ 14) (Miss.Ct.App.2006) (citing Thomas v. State, 881 So.2d 912, 917–18 (¶ 16) (Miss.Ct.App.2004) ). The defendant must further prove, however, that but for the incorrect advice, he would not have pleaded guilty. Id.

¶ 12. In Holliman v. State, 129 So.3d 937, 940 (¶¶ 4–6) (Miss.Ct.App.2013)

, Joshua Holliman, who was charged with six felony drug counts, entered a guilty plea to two of the charges through a negotiated plea agreement, and was sentenced to "essentially ten years, instead of fifty-seven as mandated by statute." In his PCR motion, he presented an ineffective-assistance-of-counsel claim based on his attorney's representation that he would only serve five years of the ten-year sentence. This Court held that Holliman's "incredibly lenient plea deal, which essentially resulted in a ten-year sentence, when [he] faced mandatory sentences of over fifty years, weighs heavily against...