ELLIOTT v. State of Miss.

• Decision Date: 12 August 2010
• Docket Number: No. 2008-CA-00948-COA.,2008-CA-00948-COA.
• Citation: 41 So.3d 701
• Parties: Christopher Wade ELLIOTT, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

41 So.3d 701

Christopher Wade ELLIOTT, Appellant, v. STATE of Mississippi, Appellee.

No. 2008-CA-00948-COA.

Court of Appeals of Mississippi.

November 3, 2009.

Rehearing Denied June 8, 2010.

Certiorari Denied August 12, 2010.

COPYRIGHT MATERIAL OMITTED.

COPYRIGHT MATERIAL OMITTED.

A. Randall Harris, Canton, attorney for appellant.

Office of The Attorney General by Billy L. Gore, attorney for appellee.

Before MYERS, P.J., IRVING and BARNES, JJ.

BARNES, J., for the Court.

¶ 1. Christopher Elliott appeals the Circuit Court of Marion County's dismissal of his motion for post-conviction relief. Finding no error, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

¶ 2. On August 10, 2004, Elliott pleaded guilty in the Marion County Circuit Court to the crime of sexual battery. On September 3, 2004, the circuit court sentenced him to twenty years in the custody of the Mississippi Department of Corrections.

¶ 3. The crime relates to an incident that occurred on January 19, 2003. Elliott claims he had known the victim since high school and had had consensual sex with her. He stated she invited him into her home, and while high on marijuana and methamphetamine, engaged in oral sex with him while he was on the telephone with another woman whom he was also planning to see that evening. He claims the victim bit his penis in jealousy, whereupon he nearly blacked out, hit her in self-defense, and fled the premises. Later that evening, the victim was treated at a local hospital's emergency room for minor injuries sustained during the incident.

¶ 4. On September 4, 2007, Elliott filed a motion for post-conviction relief in circuit court, claiming that his guilty plea was invalid and that he had received ineffective assistance of counsel. Therefore, he contended his plea must be set aside and a jury trial granted. He attached affidavits to his motion from himself and his aunt, Martha Miller. In his affidavit, Elliott denied committing sexual battery and related his lawyer's alleged deficiencies. Regarding his plea, he claimed it was invalid because his court-appointed attorney told him he would only receive a suspended sentence and "would not have to go to jail.... [he] could go home that day." Also, Elliott explained he was involved in an automobile accident in October 2003; therefore, he had been prescribed, and was taking, Lorcet, Soma, and Zanax at the time of the plea hearing, which caused him confusion and memory impairment. Also, Elliott claimed he had no knowledge when he pleaded guilty that he would be required to register as a sex offender pursuant to Mississippi Code Annotated section 45-33-39(1) (Rev.2004). Miller's affidavit only claimed Elliott told her he was assured by his attorney he would only receive a suspended sentence if he pleaded guilty, and that he told her he was not guilty.

¶ 5. On March 26, 2008, the circuit court dismissed Elliott's motion as untimely filed because it was filed one day after expiration of the three-year statute of limitations. Alternatively, the circuit court denied the motion on the merits. On April 7, 2008, Elliott filed a motion to reconsider, claiming that his post-conviction relief motion was not time-barred as the motion was filed the day after Labor Day, a legal holiday.¹ Although Elliott's motion to reconsider was filed beyond ten days from the entry of judgment required by Mississippi Rule of Civil Procedure 59, Elliott argued preemptively that his motion to reconsider was not untimely because, as of April 2, 2008, Elliott had not received the order of dismissal by mail.²

¶ 6. On April 18, 2008, the circuit court entered an "Amended Order of Dismissal." The court did not specifically state Elliott's motion to reconsider was time-barred and deleted the portion of the opinion pertaining to the motion for post-conviction relief's untimeliness. Making no substantive changes to its initial order, the circuit court again found no merit to Elliott's claims.³ On May 9, 2008, Elliott appealed the amended order's dismissal, making the same arguments as raised in his initial motion for post-conviction relief. He also claims the circuit court erred in denying him an evidentiary hearing.

STANDARD OF REVIEW

¶ 7. The trial court's dismissal of a motion for post-conviction relief will not be disturbed unless the decision is clearly erroneous. Williams v. State, 872 So.2d 711, 712(¶ 2) (Miss.Ct.App.2004). Questions of law are reviewed de novo. Id.

ANALYSIS OF THE ISSUES

1. Jurisdiction

¶ 8. We note that Elliott's motion to reconsider, filed April 7, 2008, was not filed within ten days of the circuit court's entry of judgment on March 26, 2008, as required by Mississippi Rule of Civil Procedure 59(e). Elliott represented to the circuit court that he had not received the order of dismissal until April 2, when he contacted the clerk's office. The comment to Rule 59, however, expressly states that "the court is not permitted to extend" the time for filing a motion to alter or amend judgment. M.R.C.P. 59 cmt. Accordingly, it is questionable whether the circuit court had authority to enter an amended order more than ten days after the order of judgment.⁴See Knight v. State, 959 So.2d 598, 603(¶ 12) (Miss.Ct.App.2007) (when a judge seeks to alter or amend the judgment sua sponte, he is also bound by the ten-day period of Rule 59(e), and failure to meet this requirement voids the amended judgment). Elliott filed his notice of appeal on May 9, 2008, within thirty days of the amended order of dismissal, but not of the original order.

¶ 9. Whether Elliott's motion to reconsider was timely filed and whether the amended order was valid relates to the possible untimeliness of Elliott's notice of appeal and, thus, this Court's jurisdiction. The notice of appeal must be "filed with the clerk of the trial court within 30 days of the entry of the judgment or order appealed from." M.R.A.P. 4(a). The appeal shall be dismissed unless the notice is timely filed pursuant to Mississippi Rule of Appellate Procedure 4 or 5. M.R.A.P. 2(a)(1). However, an appeal of post-conviction relief petitions are governed by Mississippi Rule of Appellate Procedure 2(c), which allows this Court to suspend the requirements of the appellate rules in the interest of justice. Accordingly, this Court may suspend Rule 4(a) to allow an out-of-time appeal in criminal cases and "civil" actions for post-conviction relief. See M.R.A.P. 4 cmt. To the extent Elliott's notice of appeal may not be timely filed, we suspend the requirements of Rule 4(a) under the unique circumstances of this case and proceed to the merits of Elliott's appeal.

2. Elliott's Guilty Plea

a. Voluntary and Intelligent

¶ 10. Elliott argues that his plea was not voluntary or intelligent. First, he contends he was "induced by deception" by his attorney at the time, who promised that if Elliott pleaded guilty, he would only receive a suspended sentence. Second, Elliott claims he was under the influence of prescribed pain medications, which caused him confusion during the plea hearing. Elliott attached two affidavits-one from himself and one from Miller, as proof of his claims.

¶ 11. A plea of guilty is only binding if it is entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). In order to determine whether a plea is voluntary, the appellate court examines whether "the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea." Wilson v. State, 577 So.2d 394, 397 (Miss.1991). Further, "[s]olemn declarations in open court carry a strong presumption of verity." Baker v. State, 358 So.2d 401, 403 (Miss.1978) (quoting Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977)).

¶ 12. The transcript of Elliott's plea hearing contains the following colloquy, made under oath:

The Court: Now Christopher, what happened that got you indicted for sexual battery?

Elliott: I was talking on the phone, fixing to leave and she started, you know, she started messing with me. And the next thing I know she bit me and I blanked out and I hit her.

....

The Court: All right. Now, let me ask you think, Christopher: I presume she's going to come over here and testify you forced her to allow you to insert your penis in her mouth and she didn't want to do that. Is that the truth?

Elliott: Not according to me it's not.

The Court: All right. Well, you understand that's what trials are all about?

Elliott: Yes, sir. I reckon I'd say that's the truth, yeah.

The Court: Huh?

Elliott: I'm going to say that's the truth.

The Court: Well, I don't want you just saying something. Now, is it the truth?

Elliott: No, sir. It's not the truth, but—

The Court: All right. Do you want to go on to trial on this?

Elliott: Well, I was advised to go ahead and plead guilty to it.

The Court: Well, I understand that, Christopher, but I mean though I don't want you pleading guilty unless you're satisfied that if we went to trial the jury would most likely believe her because, you know, you don't have to testify. That's your decision. You can testify if you wanted to. And what's going to happen is she's going to get up here and testify, I presume that whatever happened between the two of you she wasn't willfully engaging in that activity. And then you forced it on her. And then the jury has got to determine who they believe. If they believe that she's lying they are going to find you not guilty. It's going to take twelve of them found in the trial court's failing to advise the defendant of sex offender registration, we find this argument without merit.

¶ 19. Thus, we conclude the circuit court did not err in finding that Elliott entered a voluntary and intelligent guilty plea.

3. Ineffective Assistance of Counsel

¶ 20. Elliott...