Harris v. State

• Decision Date: 06 February 1997
• Docket Number: No. 92-CT-00297-SCT,92-CT-00297-SCT
• Citation: 704 So.2d 1286
• Parties: Leo HARRIS v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1286

704 So.2d 1286

Leo HARRIS v. STATE of Mississippi.

No. 92-CT-00297-SCT.

Supreme Court of Mississippi.

Feb. 6, 1997.

W. Richard Johnson, Prewitt, Johnson & Vance, Vicksburg, for Appellant.

Leo Harris, Pearl, pro se.

Michael C. Moore, Attorney General, Jeffrey A. Klingfuss, Sp. Asst. Attorney General, Jackson, for Appellee.

En Banc.

SMITH, Justice, for the Court:

Harris, on Petition for Writ of Certiorari, asks that this Court reverse a unanimous Court of Appeals decision by which that court affirmed his conviction and sentence of sixteen years for possession of cocaine with intent to distribute. His petition lacks any basis for review; we write today only in recognition of the need to develop guides and standards for this state's new appellate system.

The Court of Appeals initially issued an opinion which would have reversed Harris' conviction, but one day later, recalled that opinion sua sponte and issued another opinion affirming. The only issue raised by Harris is whether the Court of Appeals erred in recalling its initial opinion one day after it was handed down but prior to the issuance of the mandate. He cites no authority on that question, and this Court has held that it need not address issues submitted without supporting authority. Matter of Estate of Mason, 616 So.2d 322, 327 (Miss.1993). Thus, this Court should not and does not consider Harris's claim on this one asserted ground for certiorari.

As Mississippi's present appellate system is still in its infancy, we have had little opportunity through case law to develop the standards of certiorari review which were established in the statutes and in the Mississippi Rules of Appellate Procedure. It is hoped that today we will contribute to that development. Certiorari is not a matter of right, and is to be considered only after the petitioner has sought review of the Court of Appeals decision by way of a petition for rehearing in that court, filed within fourteen days of entry of its judgment, unless additional time is allowed. That petition is a jurisdictional prerequisite for certiorari review by this Court. To hold otherwise would be to deny finality to Court of Appeals decisions, contrary to the express declaration of finality in M.R.A.P. 17(a) and Miss.Code Ann. § 9-4-3(2)(Supp.1996).

While the jurisdiction of the Court of Appeals is limited solely to those cases assigned to it by this Court, once such an assignment is made, that court considers and disposes of each case not by way of a preliminary review but as a fully empowered appellate court. Except as to those cases which by statute must be retained by this Court, no litigant has a right to further review by certiorari. Although Rule 17(a) provides a list of issues as to which review will ordinarily be limited, this Court may grant or decline to grant certiorari solely in its discretion. Furthermore, it is the obligation of the petitioner to state in the petition for certiorari the precise basis on which review is sought. See M.R.A.P. 17(a), (b). One who seeks successive review from this Court must comply with the formal and temporal requirements of the rules.

Harris did not seek a timely rehearing, nor has he set forth any cognizable ground for certiorari. After recalling its first opinion, the Court of Appeals issued a subsequent opinion which was entered on May 16, 1995. Having become informed of that decision, Harris on June 22, 1995 filed a pro se motion with this Court seeking suspension of the Rules under M.R.A.P. 2(c). In that motion Harris stated that his attorney had failed to advise him of the later decision, which he learned of through the news media. That motion was assigned to the Court of Appeals upon finding that it was in the nature of a motion for leave to file a petition for rehearing out-of-time. Thereafter, on September 22, 1995, Harris filed with the Court of Appeals a pro se motion which he characterized as a motion to show cause, in which he asserted that his lawyer "appears to have relinquished his duty to represent Mr. Harris any further in this matter." The Court of Appeals, treating that motion too as one seeking leave for an out-of-time petition for rehearing, denied it. That order was entered on October 31, 1995. On December 8, 1995, Harris, pro se, filed his petition for certiorari.

Harris's case has received a full appellate review by the Court of Appeals on the record and briefs of counsel. He was entitled to and had appellate counsel before that court. That was his right. Miss.Code Ann. § 99-35-101 (Supp.1994), provides that any person convicted in circuit court has a right to appeal to the Supreme Court, except when the conviction is upon a plea of guilty. Harden v. State, 460 So.2d 1194, 1200 (Miss.1984). Under our present appellate scheme, all appeals are to this Court, but are subject to assignment to the Court of Appeals. Miss.Code Ann. §§ 9-4-1 to 17 (Supp 1996). (See discussion of the appellate structure in Marshall v. State, 662 So.2d 566 (Miss.1995)). Furthermore, where states have incorporated appellate review as an integral part of the system for final adjudication of guilt or innocence, that review is raised to the plane of federal due process and equal protection. Evitts v. Lucey, 469 U.S. 387, 392, 105 S.Ct. 830, 833-34, 83 L.Ed.2d 821 (1985); Griffin v. Illinois, 351 U.S. 12, 18, 76 S.Ct. 585, 590, 100 L.Ed. 891 (1956).

Harris urges that his failure to seek timely rehearing and certiorari was the result of his attorney's failure to notify him of the decision by the Court of Appeals. In effect, he argues that the rules should be suspended due to ineffectiveness of his counsel who he charges with failure to properly represent him after this case was reviewed by the Court of Appeals. In this, his underlying premise--that he is entitled to counsel in pursuing further discretionary review by this Court--is flawed. The right to appointed counsel in criminal proceedings is not without limits; it is in fact limited by the statute which defines that right, Miss.Code Ann. § 99-15-15 (Rev.1994). That section declares:

When any person shall be charged with a felony, misdemeanor punishable by confinement for ninety (90) days, or more, or commission of an act of delinquency, the court or the judge in vacation, being satisfied that such person is an indigent person and is unable to employ counsel, may, in the discretion of the court, appoint counsel to defend him.

Such appointed counsel shall have free access to the accused who shall have process to compel the attendance of witnesses in his favor.

The accused shall have such representation available at every critical stage of the proceeding against him where a substantial right may be affected.

(emphasis added).

The crucial portion of the statute, for present purposes, is the limitation of appointment of counsel to those stages where a substantial right of the defendant is involved. Neither the protection guaranteed by the United States Constitution nor the examples found in sister states which allow only discretionary appellate review mandate appointment of counsel for such further review, or for its perfection. After a careful examination of those authorities, we conclude that this Court should not require continued assistance of appointed defense counsel where the defendant in criminal proceedings seeks certiorari.

In Ross v. Moffitt, 417 U.S. 600, 94 S.Ct. 2437, 41 L.Ed.2d 341 (1974) (citing Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963)), the United States Supreme Court held that although the Fourteenth Amendment requires appointed counsel on the first appeal for indigent defendants, it does not require appointed counsel to indigent defendants seeking discretionary, second-tier, appellate review. See Wainwright v. Torna, 455 U.S. 586, 102 S.Ct. 1300, 71 L.Ed.2d 475 (1982) (holding that since, under Ross the appellant had no constitutional right to counsel on a discretionary appeal, he was not deprived of effective assistance of counsel by his retained counsel's failure to timely file an application for certiorari in the Supreme Court of Florida). In Ross, having found that the North Carolina appellate system provides for review by the Court of Appeals as a matter of right and further review by the Supreme Court as discretionary, the Court then looked to the state statute providing for appointment of counsel and found that, as interpreted, it did not go beyond the mandate of Douglas, requiring appointment only as to appeals which are matters of right. In Wainwright, it was urged that the appellant's retained counsel had promised to seek certiorari in the Supreme Court of Florida, that he failed to file the petition, and that it was Torna's reliance on that promise and the attorney's failure to fulfill it that prevented Torna from filing a timely pro se petition. The United States Supreme Court declared directly and clearly that because he had no absolute right to further appeal to the Supreme Court of Florida, he was not constitutionally entitled, constitutionally, to counsel and could not, therefore, be deprived of a constitutionally based right to effective counsel. Id. at 587-88, 102 S.Ct. at 1301-02. More recently, the United States Supreme Court, in Austin v. United States, 513 U.S. 5, 115 S.Ct. 380, 130 L.Ed.2d 219 (1994), held that appointed counsel is under no obligation to file a petition for certiorari if such petition would be frivolous, and in fact, that such filings are forbidden by the Supreme Court's own rules. The United States Supreme Court also stated in Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967) that an appellant's right to have a brief filed on his behalf by an attorney did not extend to forums for discretionary review. Austin, 513 U.S. at 6-8, 115 S.Ct. at 381. See also United States v Ferrell, 730 F.Supp. 1338 (E.D.Pa.1989) (alleged failure to notify appellant that Third Circuit had...