Gibson v. State, 92-KP-0295
| Decision Date | 04 August 1994 |
| Docket Number | No. 92-KP-0295,92-KP-0295 |
| Parties | Aaron James GIBSON v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Aaron James Gibson, pro se.
Michael C. Moore, Atty. Gen., Charles W. Maris, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.
Before PRATHER, P.J., and BANKS and SMITH, JJ.
BANKS, Justice, for the Court:
Here we once again confront an attack on a guilty plea where the record fails to reflect that the defendant was informed of the maximum and minimum penalties for the offense. Based on the allegations in the petition, however, we are able to determine that the error was harmless beyond a reasonable doubt.
On January 10, 1990, Aaron James Gibson was convicted of armed robbery and sentenced to a term of fifteen years imprisonment. Two days later he came before the court on an unrelated armed robbery charge to enter a plea. Gibson's attorney was present at the proceeding. In exchange for Gibson's guilty plea, the prosecutor recommended that Gibson be allowed to serve his sentence on the armed robbery charge concurrently with his 15-year sentence for the January 10 armed robbery conviction and agreed to drop a forgery charge against Gibson. In addition to the plea, Gibson agreed to waive his right to appeal his January 10 armed robbery conviction.
During the plea colloquy, the trial judge informed Gibson as to his procedural rights and told Gibson that he would be required to serve the first ten years of the armed robbery conviction, day for day, without earning good time or the possibility of parole, before he would become eligible for parole and/or earn good time. While the trial judge was explaining the terms of Gibson's sentence, Gibson interrupted him and asked whether he would have to serve ten years without the possibility of parole, if the judge ordered him to serve the sentences concurrently. He was informed that that was the case:
Q. All right, as counsel has just advised, on an armed robbery charge you are required to serve the first ten years of any sentence as he indicated, day for day. In other words, you are not eligible for good time, or parole, or anything else. And after the ten years, you then begin earning good time and become eligible for parole after serving whatever portion of the remaining sentence is required to be served to earn eligibility for parole.
Do you understand what I'm saying?
A. Yes, sir.
Q. In other words, on the sentence I've already imposed, you will be required to serve ten years. After serving ten years, on the remaining five years of your sentence you begin after that ten years earning good time on that five years that remained and may become eligible for parole after serving whatever portion of that five years as required by law.
A. Even on this concurrent sentence it still would just be that ten years mandatory requirement, right?
Q. If I sentence you to a concurrent sentence, then you would be serving both at the same time, that's correct.
Later, the judge asked Gibson:
Q. Do you also understand that if you are convicted on this second armed robbery charge, the Court could give you a lengthy sentence to run consecutive to or after you serve the sentence you already had.
The trial judge informed Gibson of his right to a trial by jury, his right to call and cross-examine witnesses, his right to testify on his own behalf and of his right to appeal, should he be convicted. Simultaneously, the trial judge informed Gibson of his right to appeal his armed robbery conviction. The prosecutor then stated a factual basis for the charge. Following a summary of the charge, Gibson informed the trial judge that he wanted to plead guilty as charged to avoid the risk of consecutive sentences. The court accepted Gibson's plea as "knowingly, and freely and voluntarily entered" and sentenced him to 15 years to be served concurrently with a sentence that had already been imposed. However no mention was ever made by the trial court of the maximum and mandatory minimum sentence that it could impose against Gibson.
On January 13, 1992, Gibson filed his motion for post-conviction relief, seeking to set aside his guilty plea and sentence. He alleged that he had not been informed of the minimum and maximum sentences and that his attorney told him that the minimum was ten years and that "if he appealed his first conviction and the first sentence would be vacate (sic), he would still have 10 years to serve on the 2nd sentence and there was therefore no reason to appeal the first conviction, timewise." The trial court, ruling summarily, termed the failure to inform Gibson of the maximum and minimum sentences available as "immaterial" because Gibson was informed that he could get a "lengthy" sentence and he acknowledged that the plea was knowing and voluntary in return for a concurrent sentence and for dropping the forgery charge.
Gibson appeals from that disposition, asserting the following as error:
1. WHETHER THE PLEA OF GUILTY ENTERED IN THIS CASE ON JANUARY 12, 1990, WAS INVOLUNTARY, AS A MATTER OF LAW, SINCE THE TRIAL COURT DID NOT ADVISE APPELLANT OF THE MAXIMUM OR THE MANDATORY MINIMUM PENALTY AUTHORIZED BY THE ARMED ROBBERY STATUTE?
2. WHETHER THE TRIAL COURT ERRED IN FAILING TO CONDUCT AN EVIDENTIARY HEARING ON THE POST CONVICTION RELIEF MOTION BEFORE SUMMARILY DISMISSING SUCH MOTION?
Gibson argues that his guilty plea was involuntary as a matter of law, because the trial judge failed to inform him of the mandatory minimum or maximum sentence which could be imposed. Gibson cites Vittitoe v. State, 556 So.2d 1062 (Miss.1990), Mallett v. State, 592 So.2d 524 (Miss.1991) and Miss.Unif.Crim. Rule of Cir.Ct. Practice 3.03 to support his contention. Additionally, Gibson contends that his plea did not comply with Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969).
Gibson's argument has merit. In Vittitoe, this Court held that "the Circuit Court's failure to observe the rule's mandate at the plea hearing renders Vittitoe's plea involuntary as a matter of law." Vittitoe, 556 So.2d at 1065. We reversed and restored Vittitoe's plea of not guilty to the indictment for armed robbery.
Following our holding in Vittitoe, we reversed the trial court's denial of post-conviction relief in Mallett because the record failed to show that Mallett was informed of both the minimum and maximum sentences which the court could impose. 592 So.2d at 525. Under such circumstances, we were "obliged to reverse the judgment below, vacate Mallet's...
To continue reading
Request your trial
-
Coleman v. State, 2006-CP-01089-COA.
...it appears beyond a reasonable doubt that the plea would have been entered even if the minimum sentence were known." Gibson v. State, 641 So.2d 1163, 1166 (Miss.1994) (citing Smith v. State, 636 So.2d 1220, 1226 ¶ 11. Mississippi Code Annotated section 99-19-33 (Rev.2000) provides as follow......
-
Brasington v. State, 96-KA-01132-COA.
...informed by another source or if it appears beyond a reasonable doubt that the plea would have been entered anyway. Gibson v. State, 641 So.2d 1163, 1166 (Miss.1994) (citing Smith v. State, 636 So.2d 1220 (Miss.1994); Sykes v. State, 624 So.2d 500 (Miss.1993); Gaskin v. State, 618 So.2d 103......
-
Mosley v. State
...not automatically create an invalid plea.” Burnett v. State, 831 So.2d 1216, 1219 ( ¶ 10) (Miss.Ct.App.2002) (citing Gibson v. State, 641 So.2d 1163, 1166 (Miss.1994) ). The Mississippi Supreme Court has established the “harmless [-]error rule,” which provides that where “the failure to adv......
-
State v. Pittman, 92-KA-00575-SCT
...informed by another source or if it appears beyond a reasonable doubt that the plea would have been entered anyway. Gibson v. State, 641 So.2d 1163, 1166 (Miss.1994) (citing Smith v. State, 636 So.2d 1220 (Miss.1994); Sykes v. State, 624 So.2d 500 (Miss.1993); Gaskin v. State, 618 So.2d 103......