Dickey v. State, 92-KP-00143-SCT
| Decision Date | 26 October 1995 |
| Docket Number | No. 92-KP-00143-SCT,92-KP-00143-SCT |
| Parties | Edgar Ray DICKEY v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Edgar Ray Dickey, pro se.
Michael C. Moore, Attorney General, Deirdre McCrory, Sp. Asst. Attorney General, Jackson, for appellee.
En Banc.
I. INTRODUCTION
Appellant Edgar Ray Dickey (Dickey) was charged with murder but convicted of manslaughter and sentenced to twenty years in the custody of Mississippi Department of Corrections. Dickey's motion for Judgment Notwithstanding the Verdict (JNOV) or new trial was overruled. Dickey subsequently filed a petition for an out-of-time appeal, which the circuit court denied after a hearing on the matter. Dickey thereafter filed a motion for reconsideration of his petition, which was also denied. Dickey then filed with this Court a pleading which has been treated as a notice of appeal from the denial of post-conviction relief. The following issues are presented for review:
A. Whether the Circuit Court of Copiah County erred in denying Appellant's motion for an out-of-time appeal; and
B. Whether Appellant was denied effective assistance of counsel.
II. THE FACTS
At the hearing on Dickey's motion for an out-of-time appeal, Dickey claimed he had received ineffective assistance of counsel at trial, that the State's witnesses had perjured themselves, and that his attorney had prevented him from testifying. When informed by the trial judge that he had to show some basis why his appeal could not have been perfected in a timely manner, Dickey asserted he had asked his lawyer to appeal several times, to no avail. Dickey further claimed that his attorney had not put on witnesses who Dickey felt should have testified. The trial judge noted that he could not rule on matters which had transpired at trial and asked Dickey if he had been prevented from talking to his attorney. Dickey admitted that he had talked to his attorney and was under the impression that an appeal would be perfected.
The trial judge examined letters referred to by Dickey, which Dickey characterized as revealing his request for an appeal. According to the judge, the letters were from Dickey's attorney, to both Dickey and his family, urging the importance of perfecting an appeal. 1 The trial judge concluded that Dickey had failed to show grounds for an out-of-time appeal and overruled the motion.
III. THE LAW
Dickey contends: he requested that his attorney file an appeal; his attorney advised that costs of the appeal must be paid; his attorney failed to advise that the case could be appealed in forma pauperis; and his attorney never sought to withdraw from representation. The State responds that Dickey failed to present evidence that any agreement regarding an appeal had been reached between Dickey and his attorney. Additionally, the State argues that Dickey has failed to make even a perfunctory showing of a meritorious issue for appeal.
To prove his right to an out-of-time appeal, the movant must show by a preponderance of the evidence that he asked his attorney to appeal within the time allowed for giving notice of an appeal. Moreover, the movant must show that the attorney failed to perfect the appeal and that such failure was through no fault of the movant. Harris v. State, 624 So.2d 100, 101 (Miss.1993) (citing Miss.Code Ann. § 99-39-23(7) (Supp.1992); Minnifield v. State, 585 So.2d 723, 724 (Miss.1991)).
This Court has said that an evidentiary hearing is warranted on the question of whether an appeal was requested where affidavits of the appellant and the attorney are contradictory. Harris, 624 So.2d at 102 (citing Wright v. State, 577 So.2d 387 (Miss.1991)). In Harris, this Court reversed and remanded for an evidentiary hearing because the record before the Court was devoid of any response from the attorney involved. Harris, 624 So.2d at 102. However, this Court noted that an evidentiary hearing was not necessary in each case where contradictory affidavits are presented.
In order for a contested fact to require an evidentiary hearing it must be material. Moreover, where an affidavit is belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary, to the extent that the court can conclude that the affidavit is a sham, no hearing is required.
Id., 624 So.2d at 102 (quoting Harris v. State, 578 So.2d 617, 620 (Miss.1991)).
It appears that Dickey has failed to meet his burden of proof. Although the record contains an affidavit by Dickey claiming that he asked his attorney to appeal, the letters in the record authored by Dickey's attorney reveal otherwise. Dickey failed to show that he asked his attorney to appeal and, moreover, failed to show that the attorney failed to perfect an appeal through no fault of Dickey. Instead, it seems that the attorney urged Dickey and his family to agree to an appeal, but that no agreement regarding an appeal was ever reached.
Although there is no response from the attorney in the record before this Court, it does not seem that an evidentiary hearing is required in this case as the letters authored by Dickey's attorney provide documentary evidence sufficient for this Court to conclude that Dickey's affidavit is a sham. See Harris, 624 So.2d at 102 (quoting Harris v. State, 578 So.2d 617, 620 (Miss.1991)).
Dickey contends his attorney was ineffective because he failed to perfect an appeal within the time allowed. As the failure to perfect an appeal was sufficiently deficient performance to deny Dickey of actual or constructive assistance of counsel altogether, Dickey claims he is not required to show that he had some chance of success on appeal. The State responds that Dickey has failed to show that he requested an appeal, therefore he has failed to prove deficient performance on the part of his attorney.
To successfully claim ineffective assistance of counsel the defendant/Appellant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984), and adopted by this Court. Knight v. State, 577 So.2d 392, 394 (Miss.1991). This test requires a showing of (1) deficiency of counsel's performance (2) sufficient to constitute prejudice to the defense. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The burden to demonstrate both prongs is on the defendant and he faces a strong but rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable professional assistance. Id., 574 So.2d at 687. This Court must determine whether counsel's performance was both deficient and prejudicial based upon the totality of the circumstances. Carney v. State, 525 So.2d 776, 780 (Miss.1988). Only where there is a reasonable probability that without counsel's errors the outcome of the trial would have been different will this Court find ineffective representation. Reed v. State, 536 So.2d 1336, 1339 (Miss.1988) (citing Cabello v. State, 524 So.2d 313, 315 (Miss.1985)).
Dickey has failed to show deficiency of counsel's performance. The only fault Dickey finds with the performance of his attorney is his failure to perfect an appeal. However, as discussed previously, Dickey has failed to show that any agreement was ever reached regarding an appeal. It follows that counsel's failure to perfect an appeal can not be found deficient.
IV. CONCLUSION
The circuit court was correct in finding that the evidence did not support Dickey's motion for an out-of-time appeal. Dickey has presented no evidence, with the exception of his affidavit, that he and his attorney ever reached an agreement regarding an appeal. The letters in the record from Dickey's attorney show Dickey's affidavit to be a sham and reveal that no agreement regarding an appeal was reached. Despite the lack of a response from the attorney, it appears that no evidentiary hearing is necessary. This Court affirms.
Dickey's only claim of ineffective assistance of counsel is grounded on his attorney's failure to perfect an appeal. Dickey has failed to show any agreement to appeal, therefore his attorney's failure to perfect an appeal can not be considered deficient performance. Dickey has failed to meet the first prong of Strickland, therefore reversal is not warranted.
DENIAL OF OUT OF TIME APPEAL AFFIRMED.
In my view, Dickey should be granted leave to perfect his appeal out-of-time with a court-appointed lawyer. The trial court refused Dickey's request for out-of-time appeal based upon a review of letters from trial counsel and the previous order of the judge handling the case. A review of these documents should dictate the opposite...
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