Gaston v. State, 2001-CP-00369-COA.

• Decision Date: 14 May 2002
• Docket Number: No. 2001-CP-00369-COA.,2001-CP-00369-COA.
• Citation: 817 So.2d 613
• Parties: Elliot L. GASTON, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

817 So.2d 613

Elliot L. GASTON, Appellant v. STATE of Mississippi, Appellee.

No. 2001-CP-00369-COA.

Court of Appeals of Mississippi.

May 14, 2002.

Elliot L. Gaston, appellant pro se.

Office of the Attorney General by Jeffrey A. Klingfuss, for appellee.

Before McMILLIN, C.J., BRIDGES, and IRVING, JJ.

BRIDGES, J., for the Court.

¶ 1. Elliot Lance Gaston pled guilty to attempted strong-arm robbery in 1999, and the court sentenced him to fifteen years in prison with five years of post-release supervision, credit for time served, and the remainder of the sentence suspended. Gaston violated the terms of his post-release supervision, and the court sentenced him to fifteen years in prison, ten years suspended and three years of post-release supervision, with the remainder to be served. Gaston filed a motion for post-conviction relief on December 12, 2000, which the trial court dismissed on January 16, 2001, and he now appeals that dismissal, on the following four issues:

I. DID GASTON FILE HIS NOTICE OF APPEAL IN A TIMELY FASHION?

II. DID GASTON RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

III. WAS GASTON'S PLEA VOLUNTARY AND INTELLIGENT?

IV. DID THE COURT IMPROPERLY SENTENCE GASTON BY EXCEEDING THE MAXIMUM SENTENCE OR SUSPENDING HIS SENTENCE?

STANDARD OF REVIEW

¶ 2. "When reviewing a lower court's decision to deny a petition for post conviction relief this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999).

ANALYSIS

I. DID GASTON FILE HIS NOTICE OF APPEAL IN A TIMELY FASHION?

¶ 3. The first issue before the Court is the threshold issue of subject matter jurisdiction. Notice of appeal must be filed with the trial court within thirty days of the order or judgment appealed. M.R.A.P. 4(a). All untimely filed appeals must be dismissed, unless in the interests of justice they should be granted. M.R.A.P. 2. On the face of the record, Gaston's appeal fails as untimely, as it was filed on February 26, 2001, after the expiration of the thirty day period which began on January 16. In his brief, Gaston fails to address the timeliness of his appeal. He does address it in his reply brief, asking the court to consider that his efforts to file are subject to the whims of the Parchman mail service.

¶ 4. Gaston also asks that in the interests of justice the Court treat his appeal as filed on the date of notarization at Parchman, February 13, which falls within the thirty day period for appeal. There is a question of whether the prison mailbox rule should apply to appeals. Accordingly,

[W]e hold that a pro se prisoner's motion for post-conviction relief is delivered for filing under the UPCCRA and the Mississippi Rules of Civil Procedure when the prisoner delivers the papers to prison authorities for mailing. Prison authorities may initiate such procedures as are necessary to document reliably the date of such delivery, by means of a prison mail log of legal mail or other expeditious means. Henceforth, an inmate's certificate of service will not suffice as proof.

Sykes v. State, 757 So.2d 997, 1000-1 (¶ 14) (Miss.2000).

¶ 5. However, the prison mailbox rule in Mississippi applies only to cases brought under the Uniform Post Conviction Collateral Relief Act (UPCCRA). Id. It is unclear whether in Mississippi the prison mailbox rule would apply to an appeal of a denial of a PCR motion. Gaston alleges that he sent his motion to proceed in forma pauperis into the prison mail system on the day it was notarized. If so, and if the prison mailbox rule extends to appeals from PCR denials, then he properly brought his case before the jurisdiction of this Court.

¶ 6. A more serious question arises because the only evidence of the date of mailing comes from Gaston's non-evidentiary assertion in his reply brief that the date on which he had his appeal notarized corresponds with the date that he presented the appeal to prison officials for deposit in the mails. This evidence is by the rule of Sykes essentially useless to this Court, as it is of lesser veracity than the "inmate's certificate of service" that Sykes rejects. Id. No record of the date of mailing, such as the prison's official mail log, was provided to this Court, as Sykes envisions. The State is the movant in the request of dismissal for failure of timeliness; it bears the burden of proof. Since the State provides no evidence of the sort required by Sykes, their motion must fail.

¶ 7. Of the other states that have adopted a version of the federal prison mailbox rule found in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), Georgia favorably cites Sykes in declaring that all state civil post-conviction remedies are subject to the prison mailbox rule for pro se prisoners. Massaline v. Williams, 274 Ga. 552, 554 S.E.2d 720, 722 (2001). Massaline applies the rule to appeals from failed post-conviction relief petitions, including habeas corpus. Id. Massachusetts was, prior to 1993, the only state of eight that had considered the newly-minted prison mailbox rule to adopt it. Commonwealth v. Hartsgrove, 407 Mass. 441, 553 N.E.2d 1299, 1302 (1990). Massachusetts applied the rule in Houston to direct appeals, as well as civil post-conviction relief. Id. Mississippi considered adopting the rule in 1993, but ruled on a narrow point of law instead. Benbow v. State, 614 So.2d 398, 401-02 (Miss.1993).

¶ 8. We hold that in Mississippi the prison mailbox rule extends to all actions under the UPCCRA, and appeals in those actions. This merely clarifies the ruling in Sykes and brings Mississippi law into conformity with those jurisdictions that have adopted the prison mailbox rule after Houston.

II. DID GASTON RECEIVE EFFECTIVE ASSISTANCE OF COUNSEL?

¶ 9. "To successfully claim ineffective assistance of counsel the Defendant must meet the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)." Moody v. State, 644 Sc.2d 451, 456 (Miss.1994). The Strickland test requires the defendant demonstrate first the deficiency of the counsel's performance, and second that the deficiency was sufficient to prejudice the defense. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. He faces a strong yet rebuttable presumption that counsel performed adequately, and the defendant must show a reasonable probability that but for counsel's errors, defendant would have received a different result. Moody, 644 So.2d at 456. The court must look at the totality of the circumstances, with deference towards counsel's actions, to determine a factual basis for the claim. Id. If the defendant raises questions of fact regarding either deficiency of counsel or prejudice, he is entitled to an evidentiary hearing. Id. If the court finds counsel was ineffective, the appropriate remedy is remand for a new trial. Id.

¶ 10. Gaston in his reply brief alleges coercion and misrepresentation by attorney John Weddle to secure Gaston's guilty plea before the court. Gaston initially hesitated before eventually pleading guilty to charges of attempted robbery. The court questioned Gaston thoroughly about his plea, and noted his initial hesitation. The court also queried Gaston about his reticence, ultimately finding that he did voluntarily and intelligently plead his guilt.

¶ 11. Beyond assertions of coercion and misrepresentation by counsel, Gaston offers no evidence that he was misled. At no time under the direct questioning of the court did he express that he felt coercive force from counsel, or that he had any doubts about his sentencing options. "Th[e] [Mississippi Supreme] Court has implicitly recognized in the post-conviction relief context that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit." Vielee v. State, 653 So.2d 920, 922 (Miss. 1995) (citing Brooks v. State, 573 So.2d 1350, 1354 (Miss.1990)). Gaston's claim lacks merit.

III. WAS GASTON'S PLEA VOLUNTARY AND INTELLIGENT?

¶ 12. This Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous. Stevenson v. State, 798 So.2d 599, 602(¶ 7) (Miss.Ct.App.2001). The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence. Id.

¶ 13. Gaston admitted under oath to the allegations of the State. This vitiated the need for the State to provide any further evidence of his guilt:

None of this is to say that the defendant's admission, standing alone, may not suffice, nor that we may not take the testimony of the accused in conjunction with all else in deciding that there is an adequate factual basis for the plea. In the end there must be enough that the court may with confidence find the prosecution could prove the accused guilty of the crime charged, "that the defendant's conduct was within the ambit of that defined as criminal."

Corley v. State, 585 So.2d 765, 767 (Miss. 1991) (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)).

¶ 14. Mississippi requires that all defendants who wish to enter a guilty plea answer a laundry-list of questions designed to test their soundness of mind and awareness of the charges against them:

A hearing was held that same day prior to the court's accepting Brown's guilty plea. ... The judge very clearly explained to Brown and his attorneys the consequences of Brown's guilty plea. Not only was there a factual basis for the guilty plea, but there was sufficient evidence adduced to support the judge's finding that the guilty plea was made intelligently and voluntarily.

Brown v. State, 533 So.2d 1118, 1124 (Miss. 1988).

¶ 15. Gaston appeared before the court, and answered in a laundry-list fashion a series of questions posed to him and others appearing before the court prefatory to his plea. The judge first swore all eight defendants, advised...