Edge v. State
| Decision Date | 17 July 2007 |
| Docket Number | No. 2006-CP-00012-COA.,2006-CP-00012-COA. |
| Citation | 962 So.2d 81 |
| Parties | James Ray EDGE, Jr. a/k/a Buddy, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
James Ray Edge, Jr., Appellant, pro se.
Office of the Attorney General by Billy L. Gore, attorney for appellee.
Before MYERS, P.J., CHANDLER and GRIFFIS, JJ.
CHANDLER, J., for the Court.
¶ 1. James Ray "Buddy" Edge, Jr. pled guilty to burglary of an occupied dwelling pursuant to Mississippi Code Annotated section 97-7-23 (Rev.2006) and was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections, with ten years to serve and ten years suspended with five years on post-release supervision. He was also ordered to complete an alcohol, drug and anger management treatment program while incarcerated and to pay a fine of $725 and restitution of $1,035. The Circuit Court of Itawamba County summarily dismissed his motion for post-conviction (PCR) relief.
¶ 2. On appeal, Edge raises claims of ineffective assistance of counsel, that his guilty plea was involuntary, and that he is entitled to an evidentiary hearing.
¶ 3. Finding no error, we affirm.
FACTS
¶ 4. Edge was indicted during the October 2003 term of the Itawamba County Circuit Court on the charge of burglary of an occupied dwelling pursuant to section 99-17-23 of the Mississippi Code Annotated (Rev.2006). The charges stemmed from an altercation Edge had with his estranged wife, wherein Edge forcibly entered her home, threatened her, and swung a hammer over her head during an argument.
¶ 5. On December 12, 2003, Edge retained the services of an attorney ("first attorney") to handle Edge's divorce and also the criminal case involving the burglary charge. The first attorney filed several pre-trial motions on Edge's behalf and advised his client to plead not guilty to the criminal charge. Edge maintains that the attorney assured him that the criminal charges would "all go away" and, at the very least, the attorney would attempt to reduce the burglary charge to misdemeanor trespassing. Edge attached three affidavits to his PCR motion to support this claim.
¶ 6. A few months later, the first attorney left his law firm and began practicing with a new partner ("substitute counsel"). According to Edge, the first attorney, citing his lack of criminal defense experience, tendered the criminal case to the substitute counsel. Edge claims that the substitute counsel originally advised him to plead not guilty to the burglary charge, just as the first attorney had advised. However, on June 15, 2004, the day before trial, the substitute counsel changed course and advised Edge to plead guilty. Edge also claims that the substitute counsel reassured him that, as a first-time offender, Edge would be eligible for parole after serving only twenty-five percent of his sentence. Edge claims that, had he been aware that parole is not available for a burglary conviction in Mississippi, he would have chosen to plead not guilty and proceed to trial.
¶ 7. On June 16, 2004, Edge entered an open plea of guilt to the charge of burglary, thereby waiving his right to a jury trial. The court performed a plea qualification hearing. Satisfied that Edge was competent and had entered the plea knowingly and voluntarily, the court accepted the plea. During the hearing, Edge called several witnesses who testified in extenuation and mitigation of Edge's sentence. Edge also testified on his own behalf. After hearing the testimony, the court imposed sentence. The judge noted that Edge would be required to serve the full ten years of the sentence, to which Edge replied that he understood.
¶ 8. Thereafter, the substitute counsel then transferred Edge's case back to the first attorney, who handled some of Edge's post-trial motions. Edge then filed, pro se, a PCR motion and motion to vacate, set aside or correct his sentence on August 4, 2005, asserting that he was denied effective assistance of counsel and, therefore, his guilty plea was made involuntarily and unintelligently. He alleged that he did not learn until after he was incarcerated that he had received incorrect information regarding his ineligibility for parole. The trial court dismissed Edge's PCR petition. Edge also filed a direct appeal, challenging the length of his sentence. The lower court denied Edge's challenge and this Court upheld the lower court's decision. Edge v. State, 945 So.2d 1004, 1009 (¶ 23) (Miss.Ct.App.2007).
STANDARD OF REVIEW
¶ 9. This Court will not disturb the trial court's factual findings regarding a lower court's decision to deny a petition for post-conviction relief unless they are found to be clearly erroneous. Garner v. State, 928 So.2d 911, 913(¶ 4) (Miss.Ct.App.2006). However, questions of law are reviewed de novo. Id.
LAW AND ANALYSIS
¶ 10. Edge does not contest his guilt, but makes several claims of ineffective assistance of counsel against both his first attorney and his substitute counsel. Edge claims that, due to the deficient performance of his attorneys and the erroneous advice given, his guilty plea was involuntary.
¶ 11. When reviewing a claim of ineffective assistance of counsel, we look to Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), which articulated a two-prong test. Id. The defendant must demonstrate that counsel's performance was deficient and, but for the deficient performance, a different result would likely have occurred. Donnelly v. State, 841 So.2d 207, 211(¶ 8) (Miss.Ct.App.2003). Due to the nature of the claims made involving distinct issues, we will address the claims against each lawyer separately.
¶ 12. Edge makes several allegations as to his first attorney's faulty performance, namely that the attorney promised that the criminal charges would "all go away" and that the reason the first attorney deferred the case to substitute counsel was the first attorney's admission of a lack of experience with criminal matters. Edge originally hired the first attorney to handle the criminal case involved with this appeal and another case involving Edge's divorce when the first attorney was associated with his old firm. After filing pre-trial motions on Edge's behalf for the burglary charges, the first attorney left his old firm and joined another law firm. Upon moving to the new firm, the first attorney transferred the work to his new law partner approximately one month before the scheduled trial date.
¶ 13. Edge attached three affidavits to his PCR motion from witnesses present during the initial meetings with the first attorney to support his argument. Edge's father, James Ray Edge, Sr., stated that the attorney assured the family that the criminal charges would "all go away" and, at the very least, that the attorney would be able to have the charges reduced from "breaking and entering" to "misdemeanor trespassing." Diane Sanders, Edge's mother, also provided an affidavit in which she stated that the attorney assured them he could keep the charges at the municipal level and if Edge received any punishment at all, it would be in the form of probation. She also corroborated the assertions that the attorney said the criminal charges would "all go away." Another affidavit was provided by Jennifer Horton, who stated that the attorney told the group that the criminal charges would be reduced from burglary to trespassing and that Edge "would not have to worry about jail time." Horton also corroborated the attorney's statement that the criminal charges would "all go away."
¶ 14. Edge also claims that the first attorney deferred the case to substitute counsel because he "lacked criminal experience." Yet in his brief, Edge also asserts that the first attorney tendered the case to substitute counsel because the first attorney was a candidate for mayor in a nearby town. If the first attorney was unable to devote his full attention to Edge's case due to either personal reasons or lack of experience and, therefore, submitted the case to another qualified attorney within a reasonable amount of time before trial, we cannot find this to be deemed ineffective assistance of counsel. Nor can we say that conversations the first attorney may have had with Edge and his family during preliminary negotiations regarding the criminal case can be considered ineffective assistance of counsel. In Mississippi, there is a strong presumption that trial counsel's conduct is "within the wide range of reasonable conduct and that decisions made by counsel are strategic." Leatherwood v. State, 473 So.2d 964, 969 (Miss.1985). Throughout his proceedings with Edge, it is undisputed that the first attorney advised Edge to plead not guilty. On appeal, a not guilty plea is exactly what Edge claims he would have entered had it not been for certain advice given to him by the substitute counsel, not the first attorney.
¶ 15. The record before us contains no evidence to prove that the first attorney failed in his duties as Edge's counsel. On the contrary, the record shows that the pre-trial motions were timely filed and properly pled. Edge has not demonstrated that the first attorney was deficient in those duties or that any alleged deficiency prejudiced his criminal case. Therefore, Edge's allegations of ineffective assistance of counsel against the first attorney are without merit.
¶ 16. We next address Edge's allegations against his substitute counsel. Edge claims that his substitute counsel gave him erroneous advice about parole eligibility by assuring him that he would be eligible for parole after serving only twenty-five percent of his sentence. Edge claims that he did not learn until he entered prison that he would be ineligible for parole due to the nature of the crime. In Mississippi, a person convicted of burglary is not eligible for...
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