Holt v. State

• Decision Date: 15 December 1994
• Docket Number: No. 92-KP-0391,92-KP-0391
• Citation: 650 So.2d 1267
• Parties: Cedric HOLT v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1267

650 So.2d 1267

Cedric HOLT v. STATE of Mississippi.

No. 92-KP-0391.

Supreme Court of Mississippi.

Dec. 15, 1994.

Rehearing Denied March 30, 1995.

Cedric Holt, pro se.

Michael C. Moore, Atty. Gen., Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

Cedric Holt files this appeal from the denial of his petition for post conviction relief in the Circuit Court of Warren County, Mississippi. Holt was indicted in July 1990 on two counts of armed robbery, one count of burglary and one count of grand larceny. Following plea negotiations, the charges of armed robbery were reduced to robbery. On August 3, 1990, Holt filed a petition to enter pleas of guilty to all four charges.

The trial judge accepted Holt's guilty pleas and sentenced him to fifteen (15) years and thirteen (13) years on the two robbery counts, to run consecutively, and to ten (10) years on the burglary and grand larceny counts, to run concurrently with the robbery sentences. Thus, Holt was sentenced to a total of 28 years.

Thereafter, Holt filed his motion for post conviction collateral relief, to vacate and set aside plea of guilty, conviction and sentence. Following an evidentiary hearing on March 24, 1992, the trial court dismissed Holt's motion. We have examined the issues presented by Holt and determined only one issue warrants discussion:

WHETHER THE TRIAL COURT ERRED IN CONDUCTING THE EVIDENTIARY HEARING WITHOUT THE PRESENCE OF THE PROSECUTOR OR A DULY AUTHORIZED ASSISTANT PROSECUTOR WHERE SUCH ACTION CAUSED THE TRIAL COURT TO FUNCTION IN A PROSECUTORIAL ROLE AND AS THE JUDGE OF THE FACTS THEREBY DEFEATING THE COURT'S OBJECTIVITY WHICH THE COURT MUST MAINTAIN.

Holt asserts the failure of the trial judge to require the State to appear at the evidentiary hearing on his motion for post conviction relief or to otherwise respond "tainted" the hearing. Citing Miss.Code Ann. Sec. 99-39-11 (1972), Holt contends its provisions are mandatory and, not being adhered to, urges this Court to reverse and render or reverse and remand his case for further proceedings.

Section 99-39-11 (1972) provides:

(1) The original motion, together with all the files, records, transcripts and correspondence relating to the judgment under attack, shall be examined promptly by the judge to whom it is assigned.

(2) If it plainly appears from the face of the motion, any annexed exhibits and prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.

(3) If the motion is not dismissed under subsection 2 of this section, the judge shall order the state to file an answer or to take such other action as the judge deems appropriate. (emphasis added).

Upon a thorough review of the record in this cause, the mystery is why the trial judge determined that Holt was even entitled to an evidentiary hearing. An examination of the transcript and all attached documents clearly indicates that the trial court could have denied Holt's petition summarily. The transcript and supporting documents absolutely refute all three allegations raised by Holt in his motion for relief.

This Court in Jordan v. State, 577 So.2d 368, 369 (Miss.1990) stated:

The court upon examination of the application has the authority to dismiss it outright, if it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief.

Regardless, the trial court allowed Holt the opportunity to appear and present evidence in support of his petition. The record indicates Holt appeared pro se, and testified, along with his witnesses, while the State had no representative at the hearing. However, the court did receive an affidavit filed by Holt's trial attorney which refuted the issues raised by Holt. The trial judge explained the State's absence at the start of the proceedings:

THE COURT: Now, Mr. Bullard is not present here at the hearing today. He's involved in a murder trial downstairs at this time in the courtroom. He did file that affidavit. He was the attorney for Mr. Holt at the time of Mr. Holt's pleas on these three cases. He has since been appointed as Assistant District Attorney, so the District Attorney's office is not participating in this matter because he was the Defense Attorney, now Assistant District Attorney.

It should be obvious that this development presented a clear conflict of interest on behalf of the assistant district attorney and readily accounts for the court not requiring the State to be present at Holt's hearing. This situation obviously concerned the trial judge. Judge Vollar's concern about the appearance of a conflict of interest was sufficiently illustrated by his letter dated March 4, 1992 to county prosecutor, John Price. The judge directed Price, instead of the district attorney, to determine, as a result of these proceedings, whether perjury charges against Holt were appropriate. Judge Vollor's actions evidenced his conflict of interest concerns regarding Bullard a current assistant district attorney but who previously had represented Holt on the very charge under consideration at the PCR hearing. By not requiring the appearance and participation of the district attorney Judge Vollar was simply attempting to avoid any appearance of impropriety on the part of that office. It is also apparent applying Sec. 99-39-11(3), the trial court did not believe an answer by the State was at all necessary. The filing of the affidavit by Bullard on the day of the hearing was apparently the only other appropriate action that the trial judge deemed was necessary in this case. Judge Vollor was able to examine and compare the counter affidavits, the oral testimony and argument submitted by Holt, as well as the previous plea transcript and render his decision without the necessity of requiring the State's presence, or the filing of any additional response, other than Bullard's affidavit.

The trial court reviewed the previous transcript and obviously placed great emphasis upon Holt's prior declarations made under oath during his plea colloquy. This Court has stated that a trial court is entitled to rely on judicial records, which "import absolute verity and may not be impeached by parol evidence" in determining whether to grant an evidentiary hearing. Cole v. State, 608 So.2d 1313, 1321 (Miss.1992). Cole's petition alleged that he had no assistance of counsel at the plea; yet, the official court record showed that Cole was indeed represented by an attorney. This Court in Mowdy and Scrivner v. State, 638 So.2d 738, 743 (Miss.1994) stated:

The trial court is right to place great emphasis upon these statements under oath made by Mowdy and Scrivner in open court during the taking of their guilty pleas and sentencing. There should be a strong presumption of validity of anyone's statement under oath. However, we are now faced with one statement or the other not being the truth. The trial judge faced this same dilemma, obviously calling into question the appellants' credibility.

The Mowdy court further stated:

[N]ot all instances of conflicting affidavits will merit an evidentiary hearing. Where the petitioner's version is belied by previous sworn testimony, for example, as to render his affidavit a sham we will allow summary judgment to stand.

Id., citing Harris v. State, 578 So.2d 617, 620 (Miss.1991).

This Court in Harris addressed similar situations dealing with prior sworn testimony, wherein it was stated:

This is not to say that an evidentiary hearing is to be ordered every time there are contradictory affidavits. In order for a contested fact to require an evidentiary hearing it must be material. Moreover, where an affidavit is belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary, to the extent that the court can conclude that the affidavit is a sham, no hearing is required.

578 So.2d at 620.

Also, in Baker v. State, 358 So.2d 401, 403 (Miss.1978), this Court stated:

[W]e are mindful, as stated in Blackledge [v. Allison, 431 U.S. 63, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977) ], that "Solemn declarations in open court carry a strong presumption of verity." The state, the defendant, and the judicial system all have a significant interest in the plea. For the defendant, if guilty, he can begin serving his sentence without facing the delay and agony of a futile trial. Time is conserved for the state prosecutor and an already crowded court system is spared an unnecessary burden. Balanced against these administrative interests of course is the interest of protecting constitutional rights, particularly in the criminal law area.

Finally, in Turner v. State, 590 So.2d 871 (Miss.1991), where Turner claimed in his petition for post-conviction relief that he had been misinformed about his sentence, yet the transcript of the plea colloquy between Turner and the trial judge belied Turner's claim this Court upheld the trial court's summary denial of relief. Turner and the case at bar are different only in that the judge in this case granted Holt the opportunity to present evidence in spite of the fact that the transcript, on its face indicated that a hearing was unnecessary.

What is more important about this situation is even given this opportunity, Holt failed to meet the burden required of him under Miss.Code Ann. Sec. 99-39-23(7) which provides that "no relief shall be granted under this chapter unless the prisoner proves by a preponderance of the evidence that he is entitled to such." See also, McClendon v. State, 539 So.2d 1375 (Miss.1989); Schmitt v. State, 560 So.2d 148 (Miss.1990).

Holt insists Sec. 99-39-11(3), mandates a response to his petition, relying on the language, "the judge shall order the state to file an answer or other pleading within the period of...