Drennan v. State

• Citation: 695 So.2d 581
• Decision Date: 05 June 1997
• Docket Number: No. 96-KP-00021-SCT,96-KP-00021-SCT
• Parties: Martin Monroe DRENNAN v. STATE of Mississippi.
• Court: United States State Supreme Court of Mississippi

Page 581

695 So.2d 581

Martin Monroe DRENNAN v. STATE of Mississippi.

No. 96-KP-00021-SCT.

Supreme Court of Mississippi.

June 5, 1997.

Martin Monroe Drennan, Sumrall, pro se.

Michael C. Moore, Atty. Gen., Jolene M. Lowry, Special Asst. Atty. Gen., Jackson, for appellee.

Before PRATHER, P.J., and BANKS and SMITH, JJ.

SMITH, Justice, for the Court:

On February 23, 1995, Martin Drennan pled guilty to felony DUI in violation of Miss.Code Ann. § 63-11-30. After entry of his guilty plea, Drennan was sentenced to On October 17, 1995, Drennan filed a Motion to Vacate Conviction and Sentence alleging that his guilty plea was not knowing, intelligent, or voluntary because the indictment returned by the grand jury was flawed in that it failed to allege that Drennan had been previously convicted of a second offense. Drennan also argues that defense counsel was ineffective due to the failure to advise him of the defect. Drennan asks this Court to reverse and remand for sentencing or alternatively to vacate the guilty plea and order a new trial. After thorough review, we find no error in the proceedings below and therefore affirm.

serve three years in the custody of the Mississippi Department of Corrections and to pay a fine of $ 2, 000.00 and all court costs.

STATEMENT OF FACTS

On November 1, 1994, Martin Drennan was arrested by Officer Kevin Crawford of the Hattiesburg Police Department for driving under the influence. Drennan's blood alcohol level was .116%. Because Drennan had two prior convictions for driving under the influence within the past five years, he was charged with a felony.

On February 14, 1995, Drennan was indicted by the Forrest County Grand Jury for felony DUI in violation of Miss.Code Ann. § 63-11-30. The indictment specifically alleged that Drennan had been previously convicted of two separate and distinct counts of driving under the influence within a five year period.

On February 23, 1995, Drennan pled guilty to felony DUI before Circuit Court Judge Richard W. McKenzie. Drennan, represented by counsel, affirmatively stated that he understood the nature of the charges against him and admitted guilt. The trial judge accepted the guilty plea and sentenced Drennan to serve three years in the custody of the Mississippi Department of Corrections, to pay a $ 2,000.00 fine and all court costs.

On October 17, 1995, Drennan filed a post-conviction Motion to Vacate Conviction and Sentence alleging that the indictment returned by the grand jury was fatally defective in that it failed to allege that Drennan had been convicted of a second offense. Drennan therefore argued that the indictment was insufficient to charge the crime of felony DUI and his guilty plea was involuntary. Drennan also argued that his counsel was ineffective for failing to advise him of the defects and for advising Drennan to plead guilty. Judge McKenzie denied the motion, specifically finding:

The Court finds, beyond a reasonable doubt, that the defendant had previously been convicted of two (2) separate and distinct crimes of D.U.I. within the past five (5) years, and the defendant in fact acknowledged the same during his entry of guilty plea and judgment of court, even though the convictions as alleged in the indictment did not reflect D.U.I. First Offense and D.U.I. Second Offense, but reflected D.U.I. First Offense and D.U.I. Third Offense, and the offense for which [he is] presently incarcerated would numerically be a D.U.I. Fourth within the period of five (5) years; however, there is sufficient basis in law and in fact as reviewed by this record, for the conviction to stand.

From the denial of the post-conviction motion, Drennan appeals to this Court, raising the following issues:

I. WHETHER THE GUILTY PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY.

II. WHETHER DRENNAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

DISCUSSION OF LAW

I. WHETHER THE GUILTY PLEA WAS KNOWING, INTELLIGENT, AND VOLUNTARY.

Drennan first argues that his guilty plea was not knowing, intelligent, or voluntary because he was not advised by his counsel or the trial court that the indictment was insufficient to charge the offense of felony DUI. Specifically, Drennan argues that the indictment failed to allege that Drennan had been convicted of a second offense.

In Banana v. State, 635 So.2d 851, 854 (Miss.1994), this Court held A guilty plea will only be binding upon a criminal defendant if it is voluntarily and intelligently entered. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). See Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); Myers v. State, 583 So.2d 174, 177 (Miss.1991); Wilson v. State, 577 So.2d 394, 397 (Miss.1991). In order to be voluntarily and intelligently entered, a defendant must be advised about the nature of the crime charged against him and the consequences of the guilty plea.

Id.

Moreover, "a valid guilty plea ... admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment [or information] against a defendant." Conerly v. State, 607 So.2d 1153, 1155 (Miss.1992) (quoting Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990)). Specifically, this Court held:

Outside the constitutional realm, the law is well-settled that with only two exceptions, the entry of a knowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). A plea of guilty does not waive (1) the failure of the indictment to charge a criminal offense or, more specifically, to charge an essential element of a criminal offense, and a plea of guilty does not waive (2) subject matter jurisdiction.

Conerly, 607 So.2d at 1155.

Drennan argues that he was not advised about the nature of the crime charged because the trial court and his attorney failed to advise him that the indictment was insufficient. Therefore, Drennan argues that if he had been advised that the indictment failed to properly charge felony DUI he would have proceeded to trial.

In arguing that the indictment was defective, Drennan relies on Page v. State, 607 So.2d 1163 (Miss.1992) and Ashcraft v. City of Richland, 620 So.2d 1210 (1993). In Page, this Court held that an indictment charging the defendant with a fourth offense felony DUI was insufficient because it failed to charge a felony offense. This Court held that "each subparagraph of § 63-11-30(2) represents a separate crime with separate penalties." Id. at 1168. Therefore, "each prior conviction is an element of the felony offense, and each must be specifically charged." Id. An indictment must allege that the defendant "has been previously convicted of a first offense violation of § 63-11-30(1) as provided in § 63-11-30(2)(a), and thereafter of a second offense violation under § 63-11-30(1), after having been convicted for a first offense, as provided in § 63-11-30(2)(b), and thereafter of a third offense violation of § 63-11-30(1), after having been convicted of a second offense, as provided in § 63-11-30(2)(c) of conviction of first, second and third offense." Id.

This Court held that the Implied Consent Law "increases the penalty for each succeeding conviction under that particular statute so that the third conviction is punishable as a felony." Id. Therefore, failure to allege each specific offense, "is insufficient to charge anything other than a repeat misdemeanor, and not a fourth felony offense." Id. at 1169.

In Ashcraft v. City of Richland, 620 So.2d 1210 (Miss.1993), this Court, relying on Page v. State, 607 So.2d 1163 (Miss.1992), held that the "Uniform Traffic Ticket which served as the charging affidavit, while alleging the defendant had been previously convicted two times of a violation of § 63-11-30(1) and that he was being charged as a third offender, failed to allege he was ever tried for and convicted of a second offense of driving under the influence of intoxicants." Ashcraft, 620 So.2d at 1211. Therefore, "Ashcraft's status as a convicted second offender was not alleged." Id. This Court held "... if enhanced punishment is sought, the indictment or affidavit must include both the principal charge and a charge of previous convictions and both charges proved before punishment may be enhanced." Id. at 1212 (quoting Lay v. State, 310 So.2d 908, 910 (Miss.1975)). Because the charging affidavit was insufficient, this Court remanded the case to the trial court for Ashcraft to be sentenced as a first offender. Id.

Drennan now argues that the charging affidavit and the indictment were insufficient On or about: November 1, 1994 did willfully, unlawfully, feloniously, after having been convicted two (2) prior times of driving under the influence, under Section 63-11-30, drive or otherwise operate a motor vehicle within the State of Mississippi and the City of Hattiesburg, or upon a public street or highway while under the influence of intoxicating liquor or beverage, alcohol, to wit: .116%....

to charge a third offense felony DUI. The charging affidavit stated that Martin Monroe Drennan,

The indictment (in pertinent part) contained the following language:

... MARTIN MONROE DRENNAN, on November 1, 1994, in Forrest County aforesaid: Did unlawfully, wilfully, and feloniously drive or otherwise operate a motor vehicle within the State of Mississippi, when he, the said MARTIN MONROE DRENNAN, was under the influence of intoxicating liquor, ... when he ... had been previously convicted of two (2) separate and distinct counts of driving under the influence of intoxicating liquors within a period of five (5) years, to wit: ... having been convicted of the crime of driving under the influence of intoxicating liquor, first offense, on the 9 th day of August, 1994, in the Municipal Court of Hattiesburg, Mississippi, and sentenced to pay a fine of $ 768.50, plus assessments of $ 162.50, as appearing in case # T133043, of record in said court, and ... having been...