Holifield v. State, 2001-CP-00315-COA.

• Decision Date: 11 February 2003
• Docket Number: No. 2001-CP-00315-COA.,2001-CP-00315-COA.
• Parties: Clifton Lewis HOLIFIELD, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

852 So.2d 653

Clifton Lewis HOLIFIELD, Appellant, v. STATE of Mississippi, Appellee.

No. 2001-CP-00315-COA.

Court of Appeals of Mississippi.

February 11, 2003.

Rehearing Denied April 15, 2003.

Certiorari Denied June 12, 2003.

Clifton Lewis Holifield, Pro Se, attorney for appellant.

Office of the Attorney General by Wayne Snuggs, attorney for appellee.

EN BANC.

KING, P.J., for the court.

¶ 1. Clifton Lewis Holifield perfected this appeal from an order denying postconviction collateral relief entered by the Circuit Court of the Second Judicial District of Harrison County, Mississippi.

On May 5, 2000, Holifield pled guilty to a felony charge of leaving the scene of an accident. He was sentenced as an habitual offender to serve five years in the custody of the Mississippi Department of Corrections.

¶ 2. Holifield, pro se, filed a petition for post-conviction collateral relief in December 2000. This petition was dismissed by the trial court on July 5, 2001. On appeal, Holifield raises the following issues:

I. Whether the indictment was defective.

II. Whether Holifield's plea was voluntary.

III. Whether Holifield received effective assistance of counsel.

IV. Whether Holifield's constitutional right against cruel and unusual punishment was violated.

V. Whether Holifield was denied full discovery.

VI. Whether there was prosecutorial misconduct.

VII. Whether Holifield was denied access to the courts.

VIII. Whether Holifield was denied the right to a speedy trial.

FACTS

¶ 3. In August 1999, Holifield was indicted, pursuant to Miss.Code Ann. Section 63-3-401(1) (Rev.1996) for the felony crime of leaving the scene of an accident. In Holifield's brief, he stated that the charge arose out of an accident where his wife, who had been drinking and arguing with him, was killed when she jumped out of the van being driven by Holifield at a speed of approximately fifty-five miles per hour.

¶ 4. On September 1,1999, Holifield filed a motion to dismiss the indictment.

¶ 5. On February 25, 2000, the trial court granted a motion from the State to include habitual offender language from Miss.Code Ann. Section 99-19-81 (Rev. 2000).

¶ 6. On May 5, 2000, Holifield filed a petition to enter a plea of guilty to the charge. Holifield was sentenced as an habitual offender to a term of five years in the custody of the Mississippi Department of Corrections. In December 2000, Holifield filed a motion for post-conviction collateral relief which was denied on July 5, 2001.

ISSUES AND ANALYSIS

I.

Whether the indictment was defective.

¶ 7. Holifield contends that the indictment was defective due to the lack of "an essential descriptive element of the offense charged." The indictment charged Holifield with the felony crime of leaving the scene of an accident pursuant to Miss. Code Ann. Section 63-3-401(1) and (4) (Rev.1996). The indictment stated that:

CLIFTON LEWIS HOLIFIELD in the Second Judicial District of Harrison County, Mississippi, on or about May 29, 1998, was the driver of a vehicle involved in an accident which resulted in the injury and permanent disability of another person, to-wit: Terry Diane Holifield; and following said accident, knowingly, wilfully, unlawfully and feloniously (1) did fail to stop his vehicle at the scene of said accident or as close thereto as possible, and then return forthwith to the scene of said accident, and (2) did fail to remain at the scene of said accident and provide information and render reasonable assistance in fulfillment of the requirements of Section 63-3-405, Miss. Code of 1972, as amended, contrary to the form of Section 63-3-401(1) and (4), Miss.Code of 1972, as amended, and contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Mississippi.

The amended indictment stated that:

Clifton Lewis Holifield, is a habitual criminal who is subject to being sentenced as such pursuant to Section 99-19-81, Miss.Code of 1972, as amended, in that he, the said Clifton Lewis Holifield, has been convicted at least twice previously of felonies or federal crimes upon charges separately brought and arising out of separate incidents at different times and has been sentenced thereon to separate terms of imprisonment of one year or more, to-wit:

(1) On October 23, 1989, he the said Clifton Lewis Holifield, was convicted in the Circuit Court of Escambia County, Florida in Cause numbers: 84-5111; 84-5151; 84-5159 and 84-5682, of the felony of Worthless Checks, and on October 23, 1989, in the said Court, was sentenced to a term one (1) year and one (1) month in the custody of the Florida Department of Corrections;

(2) On May 18, 1999, he the said Clifton Lewis Holifield, was convicted in the Circuit Court of Escambia County, Florida in Cause numbers: 99-0788 and 99-0789 of the felony of Worthless Checks, and on May 18, 1999, in the said Court, was sentenced to a term of one (1) year and one (1) month in the custody of the Florida Department of Corrections.

¶ 8. Whether an indictment is fatally defective is an issue of law and deserves a relatively broad standard of review by this Court. Porter v. State, 749 So.2d 250 (¶ 34) (Miss.Ct.App.1999). In undertaking this review, this Court observes that:

Mississippi's law dictates only two exceptions in which a voluntary guilty plea does not waive a defect. Jefferson v. State, 556 So.2d 1016, 1019 (Miss.1989). If an indictment fails to charge a necessary element of a crime or if there exists no subject matter jurisdiction, then a guilty plea does not constitute a waiver. Id. Moreover, in Anderson v. State, 577 So.2d 390 (Miss.1991), this Court recognized "that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial." Anderson, 577 So.2d at 391.

Banana v. State, 635 So.2d 851, 853-54 (Miss.1994).

¶ 9. The indictment clearly charges an offense cognizable under the laws of Mississippi. The general rule is that where an indictment tracks the language of a criminal statute it is sufficient to inform the accused of the charge against him. Ward v. State, 479 So.2d 713, 715 (Miss.1985). The indictment tracks the language of the statute¹ and is therefore sufficient. Accordingly, any defect in the indictment would have been waived by Holifield's guilty plea. Banana, 635 So.2d at 853-54. However, this Court finds no defect in the indictment.

II.

Whether Holifield's plea was voluntary.

¶ 10. Holifield contends that his guilty plea was involuntary. He claims that his plea was involuntary because his third attorney misrepresented the law and that he entered his plea of guilty on the reliance of counsel's information. In his brief, Holifield asserts that his attorney stated that the time he served in Florida would be credited in Mississippi because Mississippi had an outstanding detainer against him during this time period.

¶ 11. The trial court found Holifield's plea was voluntary. 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(¶ 7) (Miss.Ct.App.2001).

¶ 12. If a plea is to be considered voluntary, it is essential that an accused have knowledge of the critical elements of the charge against him, that he fully understand the charge, how it involves him, the effects of a guilty plea to the charge, and what might happen to him in the sentencing phase as a result of having entered the plea of guilty. Reeder v. State, 783 So.2d 711(¶ 20) (Miss.2001).

¶ 13. It was Holifield's responsibility to place before the trial court the proof needed to support his request for postconviction relief. Colenburg v. State, 735 So.2d 1099 (¶¶ 5-6) (Miss.Ct.App.1999). It is also Holifield's responsibility to ensure that the relevant information submitted to the trial court is placed before this Court. This includes the designation as a part of the appellate record all of those items which impact the claim for post-conviction relief. Id. at (¶ 6). He has not done so.

¶ 14. While this Court was not provided a copy of the plea transcript, the trial judge noted in his order denying postconviction collateral relief that "[t]he plea hearing clearly shows Holifield knew the elements of the crime with which he was charged, understood the consequences of pleading guilty and the rights he was waiving by doing so, and was fully advised as to the possible sentence." The trial judge further indicated that Holifield said that "his plea was not the result of any threat or promise of reward, and acknowledged he was guilty of leaving the scene."

¶ 15. Absent evidence to the contrary, we find that Holifield's plea was voluntary.

III.

Whether Holifield received effective assistance of counsel.

¶ 16. Holifield contends that he was denied effective assistance of counsel during all stages of the proceedings. Since his arrest arising from this incident, Holifield has been represented by three attorneys. Holifield claims that his first attorney failed to file a motion for speedy trial which caused him to file the motion on his own. However, the entry of a guilty plea waives the issue of whether a defendant received a speedy trial. Anderson v. State, 577 So.2d 390, 391-92 (Miss.1991). In order to succeed on a claim that counsel breached the minimum level of performance by failing to assert a speedy trial issue, a petitioner has the burden of showing such an issue could have merit. Ellis v. State, 773 So.2d 412(¶ 5) (Miss.Ct.App. 2000). Holifield asserts that his filing a motion for speedy trial in lieu of his attorney doing so is indicative of its merit.

¶ 17. Next, Holifield claims that his second attorney made a "firm representation" that upon Holifield's return from Florida back to the Harrison County Adult Detention Center, he would be released because his Mississippi time would run concurrently with his prior sentence. Additionally, Holifield claims that his attorney...