Ellis v. State
| Decision Date | 22 February 2022 |
| Docket Number | 2020-CP-01026-COA |
| Parties | Troy ELLIS a/k/a Troy Vancurtis Ellis a/k/a Troy V. Ellis, Appellant v. STATE of Mississippi, Appellee |
| Court | Mississippi Court of Appeals |
ATTORNEY FOR APPELLANT: TROY ELLIS (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ASHLEY LAUREN SULSER
BEFORE BARNES, C.J., GREENLEE AND SMITH, JJ.
GREENLEE, J., FOR THE COURT:
¶1. Troy Ellis appeals from the Hinds County Circuit Court's order denying his motion for post-conviction collateral relief (PCR). Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2. In 2013, Troy Ellis pled guilty to armed robbery, armed carjacking, and the kidnapping of Robert Arnold in Cause Number 12-0-23. Ellis also entered an Alford1 plea, or a best-interest plea, in Cause Number 12-0-193 for two counts of the armed robbery of James Grimes. This appeal concerns only the crimes committed against Arnold in Cause Number 12-0-23.
¶3. In Cause Number 12-0-23, the circuit court found Ellis’ guilty plea was knowingly and voluntarily made, accepted his plea, and sentenced him to twenty-five years in the custody of the Mississippi Department of Corrections, with fifteen years suspended, ten years to serve, and three years of post-release supervision for each of the three convictions.
¶4. In January 2020, Ellis filed a PCR motion claiming (1) his sentence was illegal; (2) he received ineffective assistance of counsel; (3) the factual basis for his plea was insufficient; and (4) the court did not advise him of certain constitutional rights. Finding that Ellis’ PCR motion was procedurally barred and that there was no merit to Ellis’ arguments, the circuit court denied relief and dismissed his PCR motion. Aggrieved, Ellis appeals the circuit court's ruling on his PCR motion.
STANDARD OF REVIEW
¶5. Absent a finding that the circuit court's decision was clearly erroneous or an abuse of its discretion, we will not reverse a circuit court's denial or dismissal of a PCR motion. Lawrence v. State , 293 So. 3d 848, 851 (¶6) (Miss. Ct. App. 2019). When reviewing issues of law, the proper standard of review is de novo. Id.
DISCUSSION
¶6. Ellis argues that his PCR motion is not procedurally barred and that his due process rights were violated for several reasons. We will discuss each of his arguments in turn.
¶7. As a preliminary point, a PCR motion following a guilty plea is untimely unless it is filed within three years after the judgment of conviction is entered. Miss. Code Ann. § 99-39-5(2) (Rev. 2020). Ellis’ PCR motion was filed approximately seven years after the judgment of conviction was entered, well past the three-year statute of limitations. For this reason, the circuit court found Ellis’ motion procedurally time-barred. Ellis bears the burden of showing that a fundamental-rights exception applies to the time-bar. Creel v. State , 305 So. 3d 417, 421 (¶9) (Miss. Ct. App. 2020).
¶8. In an attempt to evade the procedural bar, Ellis asserts that his 2013 sentence was illegal because he was not advised of the possible minimum sentences for the crimes. We recognize that a "fundamental-rights exception expressly found to survive procedural bars includes the right to be free from an illegal sentence." Hunt v. State , 312 So. 3d 1233, 1235 (¶8) (Miss. Ct. App. 2021) (quoting Nichols v. State , 265 So. 3d 1239, 1242 (¶10) (Miss. Ct. App. 2018) ). We therefore address Ellis’ illegal-sentence claim on the merits.
¶9. As this Court has noted, our supreme court has held that "[a] defendant must be advised concerning the nature of the charge against [him] and the consequences of [his] plea including the minimum and maximum sentences that may be imposed." Johnson v. State , 39 So. 3d 14, 19 (¶7) (Miss. Ct. App. 2010) (quoting Hannah v. State , 943 So. 2d 20, 25 (¶12) (Miss. 2006) ), superseded on other grounds as stated in Chapell v. State , 107 So. 3d 1003, 1007 (¶12) (Miss. Ct. App. 2012). Furthermore, Uniform Rule of Circuit and County Court Practice 8.04(A)(4)(b) placed a duty on circuit judges to "inquire and determine ... [t]hat the accused understands ... the maximum and minimum penalties provided by law ...."2 Id . "[A] sentence and conviction based upon a guilty plea where a defendant was not made aware of a mandatory minimum sentence at the time of the plea can be reversed." Id . (quoting Washington v. State , 620 So. 2d 966, 968 (Miss. 1993) ).
¶10. Ellis is correct in his assertion that the circuit court did not advise him of the minimum sentence for armed robbery and kidnapping. However, the failure of the circuit court to advise the defendant of the minimum sentence may be harmless error if the defendant was correctly informed by another source or "if [it] appears beyond a reasonable doubt that the plea would have been entered anyway." Id . (quoting Dockens v. State , 879 So. 2d 1072, 1075 (¶6) (Miss. Ct. App. 2004) ); see also Courtney v. State , 704 So. 2d 1352, 1359 (¶29) (Miss. Ct. App. 1997). "Where no prejudice is found, the ‘harmless error rule’ applies." Burnett v. State , 831 So. 2d 1216, 1219 (¶12) (Miss. Ct. App. 2002).
¶11. We find that the harmless-error rule applies here. The crime of armed robbery carries a minimum sentence of three years if sentenced by the judge. Miss. Code Ann. § 97-3-79 (Rev. 2006).3 The crime of kidnapping carries a minimum sentence of one year if sentenced by the judge. Miss. Code Ann. § 97-3-53 (Supp. 2011).4 While it is true that Ellis was not informed of the minimum sentences at the time of his plea hearing, Ellis suffered no prejudice. Ellis was informed at the hearing that the State had recommended that he receive, in Cause Number 12-0-023, twenty-five years in custody, with ten years suspended and fifteen years to serve for Count I. Upon release, the State recommended he be placed on five years of post-release supervision. For Counts II and III in Cause Number 12-0-023, the State recommended a fifteen-year sentence with all sentences running concurrently. Ellis advised the court that he understood the State's recommendation. He knew in advance, expected, and received the sentence he bargained for.
¶12. Although Ellis argues that he was not informed of the minimum sentences, he does not argue that he was misled into believing that the sentences he received were the minimum. Nor does Ellis claim that he was under the impression that he would receive the minimum sentences for his crimes. It can also be said that the failure to advise Ellis of the mandatory minimum sentences did not affect his decision to plead guilty, given the fact that he had already admitted guilt and was willing to plead guilty in exchange for the State's recommending a sentence of fifteen years. Since Ellis was "not harmed because there can be no claim that the misinformation induced the plea," we find any error to be harmless. Nelson v. State , 626 So. 2d 121, 126 (Miss. 1993).
¶13. Next, Ellis claims that he received ineffective assistance of counsel. Specifically, he argues that his counsel failed to investigate his claim that he did not have a weapon during the commission of the crime and that his indictment did not explain the armed robbery statute.
¶14. The supreme court has held that "a claim of ineffective assistance of counsel may be excepted from the statute of limitations ... bar in ‘exceptional circumstances’ ... or ‘extraordinary circumstances[.]’ " McDonald v. State , 307 So. 3d 497, 500 (¶7) (Miss. Ct. App. 2020) (quoting Conley v. State , No. 2011-M-01006, ––– So.3d ––––, ––––, 2020 WL 949240, at *1 (Miss. Feb. 26, 2020) (order)); see also Chapman v. State , 167 So. 3d 1170, 1174 (¶12) (Miss. 2015). Therefore, "to obtain post-conviction relief a petitioner who pled guilty must prove that his attorney's ineffective performance proximately caused the plea—i.e., that but for counsel's errors, the petitioner would not have entered the plea." Worth v. State , 223 So. 3d 844, 849-50 (¶17) (Miss. Ct. App. 2017). However, Ellis must provide proof beyond his own conclusory assertions. Id . at 849-50 (¶17) ; see Hunt , 312 So. 3d at 1237 (¶17).
¶15. To prevail on an ineffective-assistance-of-counsel claim, Ellis must show "(1) that his counsel's performance was deficient, and (2) that this alleged deficiency prejudiced his defense." Thompson v. State , 119 So. 3d 1007, 1009 (¶5) (Miss. 2013) (quoting Goff v. State , 14 So. 3d 625, 655 (¶121) (Miss. 2009) ). "[A] rebuttable presumption [exists] that trial counsel is competent and his performance was not deficient." Id . "Additionally, [Ellis] must show that there is a reasonable probability that, but for the errors of his counsel, the judgment would have been different." Id. However, "[w]hen a defendant's assertions of ineffective assistance of counsel are substantially contradicted by the court record of the proceedings, the court may disregard such assertions." Neal v. State , 186 So. 3d 378, 384 (¶20) (Miss. Ct. App. 2016) (citing Elliott v. State , 41 So. 3d 701, 709 (¶25) (Miss. Ct. App. 2009) ).
¶16. Ellis offers nothing to support his ineffective-assistance claims, which are contradicted by his own sworn statements during the plea hearing. Under oath, Ellis stated that he believed his attorney had properly represented him and advised him. Ellis also confirmed that his attorney had reviewed the evidence with him. During the plea hearing, the circuit court asked Ellis the following questions:
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Norwood v. State
... ... " ... ¶32 ... To prove ineffective assistance of counsel, a movant must ... demonstrate "(1) that his counsel's performance was ... deficient, and (2) that this alleged deficiency prejudiced ... his defense." Ellis v. State, 334 So.3d 187, ... 192 (¶15) (Miss. Ct. App. 2022) (quoting Thompson v ... State, 119 So.3d 1007, 1009 (¶5) (Miss. 2013)). In ... establishing prejudice, the movant must show "a ... reasonable probability" exists "that, but for the ... errors of his ... ...
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Norwood v. State
... ... " ... ¶32 ... To prove ineffective assistance of counsel, a movant must ... demonstrate "(1) that his counsel's performance was ... deficient, and (2) that this alleged deficiency prejudiced ... his defense." Ellis v. State, 334 So.3d 187, ... 192 (¶15) (Miss. Ct. App. 2022) (quoting Thompson v ... State, 119 So.3d 1007, 1009 (¶5) (Miss. 2013)). In ... establishing prejudice, the movant must show "a ... reasonable probability" exists "that, but for the ... errors of his ... ...