Donnelly v. State
| Decision Date | 01 April 2003 |
| Docket Number | No. 2002-CP-00496-COA.,2002-CP-00496-COA. |
| Citation | 841 So.2d 207 |
| Parties | Lonnie DONNELLY, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Lonnie Donnelly, pro se appellant.
Office of the Attorney General by Jean Smith Vaughan, for appellee.
Before McMILLIN, C.J., BRIDGES AND GRIFFIS, JJ.
McMILLIN, C.J., FOR THE COURT:
¶ 1. Lonnie Donnelly has appealed pro se from an order of the Circuit Court of Grenada County denying his motion for post-conviction relief without a hearing. In his motion before the circuit court, Donnelly sought to attack a previous plea of guilty to two counts of armed robbery. He alleged that (a) the two counts of robbery were based on a single event causing him to be punished twice for the same offense, (b) the trial court failed to inform him of the mandatory minimum sentence for the crime of robbery, casting into doubt the informed nature of his plea, (c) he received ineffective assistance of counsel when he was incorrectly advised that, if he pled guilty and accepted a recommendation of a twenty year sentence, he would be eligible for release after serving eighty-five percent of the sentence. The trial court denied Donnelly's motion without a hearing based on the conclusion that the motion was without merit on its face. We agree and affirm.
I.
Facts
¶ 2. Donnelly was originally indicted on three separate counts; one for conspiracy to commit armed robbery, one for armed robbery, and one for capital murder in the commission of an armed robbery. As a part of a plea agreement, the conspiracy charge was dropped. Donnelly pled guilty to the armed robbery count. The capital murder count was reduced to the underlying felony of armed robbery. Donnelly pled guilty to that modified count, also. The trial court accepted the prosecution's recommendation and Donnelly was sentenced to serve twenty years on each armed robbery count, with the sentences to run concurrently.
II.
Issues On Appeal
¶ 3. In this appeal, Donnelly urges that the trial court erred by failing to conduct an evidentiary hearing that would have allowed him to present proof of the assertions in his motion. However, the underlying assertions in Donnelly's appellate brief supporting his claim of entitlement to a hearing do not correspond precisely with those in his motion before the circuit court. Based on a lenient reading of Donnelly's brief, we conclude that the issues appear to be (a) a renewal of the claim that he was incorrectly informed that he could be eligible for early release after serving eighty-five percent of his sentence, (b) that he thought he was only being required to plead to one count of robbery rather than two, (c) that he was deceived or improperly induced by defense counsel to enter his plea, and (d) that new evidence tending to demonstrate his innocence has been discovered since his original motion for post-conviction relief was filed.
¶ 4. We begin our analysis of the issues presented in this appeal by noting the applicable standard of review. Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999). We further observe the well-established principle that our duty is to determine whether reversible error occurred at the trial level and that, as a result, we generally do not consider matters that are attempted to be raised for the first time on appeal. Crenshaw v. State, 520 So.2d 131, 134-35 (Miss.1988).
III.
Ineffective Assistance of Counsel
¶ 5. Donnelly asserted in his motion that his attorney informed him that he would be eligible to participate in the earned time release program under which he had the prospect, based on his good behavior, of being released after serving eighty-five percent of his sentence of twenty years. However, Section 47-5-139(1)(e) prohibits a prisoner sentenced for armed robbery from participation in the earned time program if he "has not served the mandatory time required for parole eligibility...." Miss.Code Ann. § 47-5-139(1)(e) (Rev.2000). Under prior provisions of a separate statute governing parole eligibility, this provision had the effect of denying an armed robber an opportunity to participate in the earned time release program until he had served at least ten years of his sentence. Miss.Code Ann. § 47-7-3(1)(d)(i); Cooper v. State, 439 So.2d 1277, 1278 (Miss.1983). However, a subsequent addition to the parole eligibility statute that was in effect at all times relevant to this case provided that an armed robber would never be eligible for parole. Miss.Code Ann. § 47-7-3(1)(d)(ii). What effect this subsequent amendment to Section 47-7-3 has on an affected prisoner's eligibility to ever participate in the earned time release program has not been answered in any subsequent decisions by the Mississippi Supreme Court or this Court. Certainly, the "worst case" interpretation for Donnelly would be that the Legislature, intending to make the penalties for armed robbery more severe by depriving such a convict of any possibility for parole, fully intended to also permanently deprive him of any prospect of obtaining an early release based on earned time credits. Whether or not this is a correct interpretation of the Legislature's intentions is not the issue in the case now before us. Donnelly and the State both proceed on the assumption that Donnelly will, during the entire term of his confinement, remain ineligible for participation in the earned time early release program. The issue we face, rather, is whether defense counsel's advice offered prior to the plea hearing that Donnelly could work toward early release under the earned time program from the commencement of his sentence served to make his subsequent plea invalid.
¶ 6. Plainly, whether Donnelly is permanently barred from the earned time release program or is ineligible only for the first ten years of his sentence, defense counsel's original advice was incorrect. This Court has said that a plea based on a defendant's incorrect understanding of his eligibility for the earned time release program is not intelligently and knowingly made. Hall v. State, 800 So.2d 1202, 1206 (¶ 12) (Miss.Ct.App.2001).
¶ 7. However, case law further demonstrates that, even in the situation where defense counsel has offered erroneous advice on matters of this sort, if the defendant's resulting misconception is subsequently corrected by the trial court in the course of exploring the voluntariness of the defendant's plea, then any harm arising from defense counsel's misapprehension of the law is effectively counteracted and can no longer form the basis for post-conviction relief. Roland v. State, 666 So.2d 747, 750 (Miss.1995).
¶ 8. Our review of the plea hearing reveals that the circuit court explored in some depth the matter of Donnelly's right to participate in the earned time early release program and, in plain language, informed him that he should be prepared to serve his sentence "day for day" without any prospect of early release. It was during the course of discussion that defense counsel's earlier incorrect advice came to light. This revelation appears to have been the impetus for a careful inquiry by the trial court, at the conclusion of which the court extracted from Donnelly an affirmative statement that he was entering a plea on the assumption that he was ineligible to participate in the earned release program. After affirming his understanding that he would have to serve the entire twenty year sentence, there was further discussion as to whether, in light of that information, he still desired to enter a plea of guilty. Donnelly responded affirmatively and there is nothing in the record to suggest that he was coerced, rushed, or pressured to so decide. A claim of ineffective assistance of counsel, in order to entitle the defendant to relief, requires both a showing of deficient performance and a showing that, but for the deficient performance, a different result would likely have resulted. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Because defense counsel's incorrect advice was discovered and corrected before Donnelly entered his plea, his claim fails to satisfy the second prong of the test.
¶ 9. The circuit court may properly deny a hearing where, upon review of the existing record including the plea hearing transcript, it is plain on the face of the motion that no relief is proper. Miss.Code Ann. § 99-39-11(2) (Rev.2000); Mosley v. State, 749 So.2d 286, 288 (¶ 11) (Miss.Ct.App. 1999). There was no error in denying Donnelly relief on this claim without the necessity of a hearing.
IV.
Plea to Two Counts
¶ 10. Nowhere in the record at ...
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