Davis v. State Of Miss.

• Decision Date: 25 May 2010
• Docket Number: No. 2007-CP-00578-COA.,2007-CP-00578-COA.
• Citation: 36 So.3d 456
• Parties: George DAVIS, Jr., Appellantv.STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

36 So.3d 456

George DAVIS, Jr., Appellantv.STATE of Mississippi, Appellee.

No. 2007-CP-00578-COA.

Court of Appeals of Mississippi.

May 25, 2010.

George Davis, Jr., Appellant, pro se.

Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appellee.

EN BANC.

BARNES, J., for the Court:

¶ 1. George Davis, Jr. appeals the Circuit Court of Tunica County's denial of his petition for an out-of-time appeal. Finding no error, we affirm the circuit court's judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. In February 2004, a Tunica County grand jury jointly indicted Davis and Charlie Thomas “individually or while aiding and abetting and/or acting in concert” for armed robbery of the Sheraton Casino in Tunica County, Mississippi, pursuant to Mississippi Code Annotated section 97-3-79 (Rev.2000). They were accused of taking approximately $66,780 from a cashier at the casino. The circuit court granted the co-defendants' motion for severance. Davis's trial commenced in April 2005, and a jury found Davis guilty as charged, but it was unable to fix the penalty of life imprisonment for armed robbery. Thus, pursuant to section 97-3-79, the circuit court sentenced Davis in open court on June 27, 2005, to fifteen years in the custody of the Mississippi Department of Corrections (MDOC), with three years suspended and three years of post-release supervision. The circuit court entered a judgment to this effect on July 12, 2005.

¶ 3. Also on June 27, 2005, Davis filed a notarized “Affidavit” which both he and his attorney had signed. The affidavit stated that, after conferring with his court-appointed trial attorney and “being advised of all his constitutional rights,” Davis did not desire to appeal his conviction. Davis also claimed that he understood his right to appeal, but he “voluntarily, knowingly, understandably and without duress” waived this right. Davis admitted that he had fully discussed this waiver with his attorney and that after “numerous discussions” with him he still desired to “knowingly and voluntarily” waive the right and release his attorney from any obligation to file an appeal. In the affidavit, Davis also waived the right to have his trial attorney file post-trial motions for a judgment notwithstanding the verdict or a new trial.

¶ 4. Several months later, on March 20, 2006, Davis filed a pro se “Petition For Out-of-Time Direct Appeal.” In the petition, Davis stated that “immediately after his armed robbery conviction and sentence” he advised his attorney that he “desired an appeal to the Mississippi Supreme Court.” Davis claimed, however, that his attorney erroneously informed him that he would “only” be required to serve approximately four years of his twelve-year sentence “for ‘aiding and abetting’ [an armed robbery] because the sentence wasn't mandatory,” and “[Davis] got a deal” because the jury could have sentenced him to life imprisonment. Davis contended he was manipulated by his trial counsel into signing the waiver of his right to appeal; thus, he was denied his right to due process and his right to effective assistance of counsel.

¶ 5. On January 10, 2007, the circuit court denied Davis's petition for an out-of-time appeal, noting that the time for perfecting a direct appeal had lapsed and that Davis had knowingly and voluntarily waived this right. Furthermore, the circuit court explained that while Davis claimed he executed the affidavit waiving this right because he was misled and coerced by his attorney, there was no evidentiary basis to support these contentions. On March 20, 2007, the circuit clerk entered Davis's pro se notice of appeal of the January 10 order. Davis, however, treated the appeal as a direct appeal of his conviction, raising issues related to a jury instruction and an alleged promise of leniency to one of the State's witnesses, as well as the waiver-of-appeal issue. He also raised ineffective assistance of counsel related to the failure of his trial attorney to file a notice of appeal in spite of his affidavit stating he wanted to waive this right.¹

ANALYSIS

¶ 6. First, we shall address Davis's contention that this appeal is a direct appeal of his conviction and sentence and not one for post-conviction relief. We shall also discuss the timeliness of Davis's appeal. Then, we shall address the propriety of his waiver of a direct appeal and his claim of ineffective assistance of counsel related to the waiver.

1. Nature of Appeal and Timeliness

¶ 7. Davis argues his current appeal is a direct appeal of his conviction and sentence and not one for post-conviction relief. Under the circumstances of this case, however, the circuit court would have had no authority under the Mississippi Rules of Appellate Procedure to allow the filing of an out-of-time direct appeal approximately nine months after his conviction and sentence were entered; thus, it ruled properly.

¶ 8. Appeals to the Mississippi Supreme Court are made by filing a notice of appeal with the clerk of the trial court within thirty days of the entry of judgment or order appealed from. M.R.A.P. 4(a). Here, Davis was sentenced in an order dated June 27, 2005, and a judgment was entered on July 12, 2005. For a timely direct appeal, Davis would have had to file his notice of appeal by August 11, 2005, at the latest, but he did not. His petition for an out-of-time appeal was filed in March 2006. Two circumstances in which the trial court can grant an extension of time are found in Mississippi Rules of Appellate Procedure 4(g) and 4(h), neither of which apply here. Rule 4(g) allows an extension for “good cause.” The motion for an extension of time must be filed within thirty days of the expiration of the time prescribed by this rule. M.R.A.P. 4(g). Here, Davis's petition was filed well outside of that time frame. Rule 4(h) allows the trial court to reopen the time for appeal if no notice was received by the party entitled to it. The motion for an extension of time must be filed within 180 days of entry of the judgment or order, or within seven days of the receipt of such notice, whichever is earlier. M.R.A.P. 4(h). Here, Rule 4(h) is not applicable as there is no question that Davis had notice of the circuit court's judgment. Additionally, Davis filed his petition well outside of the 180-day time frame.

¶ 9. Mississippi Rule of Appellate Procedure 2(c) allows the appellate court to suspend the thirty-day requirement of Rule 4(a) in criminal cases for “good cause shown” and “in the interest of expediting decision.” “[A]ppellate courts do have the authority to grant a criminal defendant such an appeal if failure to perfect the appeal was ‘through no fault of his own’ and if ‘justice demands.’ ” Parker v. State, 921 So.2d 397, 399 (¶ 5) (Miss.Ct.App.2006) (citing McGruder v. State, 886 So.2d 1, 2 (¶ 4) (Miss.2003)). Davis, however, has failed to provide any evidence of “good cause” for this Court to suspend the rules to allow a direct appeal. Because Davis waived his appeal, and then apparently changed his mind well after the thirty-day deadline, we cannot find that his failure to perfect his direct appeal was “through no fault of his own.” Thus, we find no authority under the Mississippi Rules of Appellate Procedure or case law to allow a direct appeal in this instance.

¶ 10. However, we can and do consider Davis's petition for filing an out-of-time appeal as a motion for post-conviction relief pursuant to Mississippi Code Annotated section 99-39-5(1)(h) (Rev.2000), which states whether a defendant is entitled to an out-of-time appeal is a ground for post-conviction relief. For our standard of reviewing a circuit court's decision to deny a petition for post-conviction relief, this Court will not disturb the circuit court's ruling unless it is found to be clearly erroneous. Questions of law are reviewed de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

¶ 11. Even though Davis's petition is one for post-conviction relief, his appeal is untimely. The circuit court denied Davis's motion for an out-of-time appeal on January 10, 2007, and it was entered on the circuit court's docket the next day. Davis filed his notice of appeal on March 20, 2007, over thirty days after the entry of judgment. In examining the record, however, it appears that Davis may not have been aware of the entry of the circuit court's judgment on January 11. The clerk of the Mississippi Supreme Court, in a letter dated March 5, 2007, explained to Davis that his motion to compel was not properly before the supreme court because the circuit court had denied his motion for an out-of-time appeal. This correspondence indicates Davis may not have been aware of the entry of the order. Davis's notice of appeal was entered only fifteen days after the date of the supreme court clerk's letter, on March 20, 2007. Accordingly, in the interest of justice, because Davis may not have had notice of the entry of the order denying his petition, and his notice of appeal was filed within thirty days of the date he certainly received notice of the denial, we shall suspend the thirty-day filing requirement for Davis's notice of appeal of the circuit court's January 2007 denial of his petition for out-of-time appeal pursuant to Rule 2(c). We now turn to the merits of Davis's waiver of his right to appeal and the related ineffective assistance of counsel claim as a matter for post-conviction relief.

2. Davis's Waiver of His Right to Appeal

¶ 12. While Davis raises four issues in his appeal, we need only address whether the circuit court erred in failing to grant Davis's out-of-time appeal because he waived his right to a direct appeal, and Davis's claim of ineffective assistance of counsel related to this issue.²

¶ 13. Regarding Davis's waiver of his right to a direct appeal, the circuit court found that he had knowingly and voluntarily waived this right, and we agree. It is well established that “[t]here is no constitutional right to an appeal; the...