Horton v. State, 90-KP-0412
| Citation | 584 So.2d 764 |
| Decision Date | 31 July 1991 |
| Docket Number | No. 90-KP-0412,90-KP-0412 |
| Parties | Bobby Daniel HORTON, Jr. v. STATE of Mississippi. |
| Court | United States State Supreme Court of Mississippi |
Bobby D. Horton Jr., pro se.
Mike C. Moore, Atty. Gen., W. Glenn Watts, Sp. Asst. Atty. Gen., Jackson, for appellee.
Before ROY NOBLE LEE, C.J., and SULLIVAN and BANKS, JJ.
Bobby Daniel Horton's petition for post-conviction collateral relief was summarily dismissed by the Circuit Court of DeSoto County, Mississippi. The allegations of Horton's petition, when considered with the exhibits, including a copy of the plea transcript, meet the pleading requirements of the Post-Conviction Collateral Relief Act and present a claim that is procedurally alive, substantially alleging a denial of a state and federal right. Therefore, we reverse and remand for an evidentiary hearing.
On April 6, 1986, Horton pled guilty in the DeSoto County Circuit Court to the crime of receiving stolen property and was sentenced to serve five (5) years in the Mississippi Department of Corrections with four (4) years suspended.
On February 17, 1989, the suspended portion of his sentence was revoked because Horton committed the crimes of aggravated assault, kidnapping, and grand larceny in August, 1988.
On July 24, 1989, Horton filed his petition for post-conviction collateral relief asserting:
(a) His guilty plea was involuntary and unintelligently made because the trial judge failed to advise him of his right against self-incrimination; and
(b) He was denied effective assistance of counsel because his attorney had advised him to plead guilty prior to investigating potential defenses.
As stated, this petition was dismissed without a hearing by the trial court. Aggrieved, Horton appeals.
Horton's 1986 guilty plea was initiated by his filing a petition which stated:
1. That the Defendant has been completely advised and now fully understands that he has a right to a speedy trial by jury with the aid of counsel.
2. That if this plea is accepted by the Court, I hereby waive the right of speedy trial by jury with the aid of counsel.
3. That I fully understand that I am charged in this cause with the commission of the crime of receiving stolen property, and that I am pleading guilty to same.
4. That I did commit the offense as set forth and contained in the Affidavit or Indictment charging this crime: receiving stolen property.
5. That my plea of guilty has not been induced by any promises as to what sentence will be imposed by the Court, no one has threatened or coerced me into entering this plea; no promises of any kind have been made to induce this plea and I further fully understand the consequences of entering such a plea.
6. That I have been advised of the maximum sentence the Court can impose upon this charge and plea. This plea is entered voluntarily and of my own free will because I am guilty and for no other reason. That the matter has been fully discussed with my attorney or attorneys, and I am satisfied with the service of my counsel.
7. I further represent unto the Court that I am mentally competent and fully understand this plea and further represent unto the Court there is no Constitutional right or reason why this Court should not accept this plea and enter sentence thereon.
8. I further represent unto the Court that I have read this Petition and understand the subject matter thereof.
9. I further understand that my counsel will be with me and render such aid as needed at the time of imposition of sentence.
Horton subsequently appeared for a plea hearing with his counsel. The transcript of the hearing reveals the following colloquy between Horton and the court:
EXAMINATION BY THE COURT:
Q. Can you read?
A. Yes, sir.
Q. Have you read and do you understand that the request has been handed to me to offer a plea of guilty to the charge of receiving stolen property?
A. Yes, sir.
Q. Has Mr. Jones also explained it to you? 1
A. Yes, sir.
Q. Did you sign it?
A. Yes, sir.
Q. Are you under the influence of any medicine, drugs, alcohol, anything that would affect your ability to think clearly and understand where you are and what you are doing?
A. No, sir.
Q. You realize you are before the Circuit Court in DeSoto County offering a plea of guilty to a felony charge?
A. Yes, sir.
Q. Have you ever been treated for any type of mental or emotional sickness?
A. No, sir.
Q. You are thinking clearly and you know where you are?
A Yes, sir.
Q. Do you know what a felony charge is Mr. Horton?
A. Yes, sir.
Q. High crime that carries penitentiary sentence. Do you understand that?
A. Yes, sir.
Q. Do you know that you have an absolute right to a trial by a jury on this charge?
A. Yes, sir.
Q. The jury would be made up of people who live here in DeSoto County.
A. Yes, sir.
Q. You have the right to the assistance of Mr. Jones to help you conduct a jury trial.
A. Yes, sir.
Q. Do you understand that if I accept your offer of a plea of guilty, you are giving up your right to a trial by a jury?
A. Yes, sir.
Q. Has anyone threatened you, mistreated you, or used any form of trickery to get you to plead guilty?
A. No, sir.
Q. Has anyone suggested leniency, or mercy, or no action on my part to get you to plead guilty?
A. No, sir.
Q. Tell me in your own words, what you think a plea of guilty is.
A. Admitting that I did what I was charged with, what they dropped the charges to.
Q. Admitting to the amended charge of receiving stolen property?
A. Yes, sir.
Q. Did anyone force you to come in here and say that?
A. No, sir.
Q. Are you the type person to plead guilty to something that you are not guilty of?
A. No, sir.
Q. If you were wrongfully accused, would you demand your right to a jury trial and make that lawyer prove you guilty to the satisfaction of a jury?
A. Yes, sir.
Q. Do you understand what a jury's function would be in this case?
A. Yes, sir.
Q. Listen to the evidence presented against you, listen to the evidence presented in our behalf, follow my instructions of the law and make that determination.
A. Yes, sir.
Q. You understand that if I accept your plea of guilty you not only give up your right to a jury trial, you give up your right to appeal any action that I take to the Supreme Court.
A. Yes, sir.
Q. You give up your right to appear in Open Court and look the people in the eye and confront those people who accused you of these charges.
A. Yes, sir.
Q. Are you satisfied with the work and advise [sic] and assistance furnished you by Mr. Jones?
A. Yes, sir.
Q Ya'll haven't had any disagreement or misunderstanding?
A. No, sir.
Q. You understand that a plea of guilty becomes final?
A. Yes, sir.
COURT: The Court will accept his plea of guilty. He appears to be alert and responsive to my questions, and I see no reason not to do so....
Under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss.Code Ann. Sec. 99-39-1 et seq. (Supp.1990), we consider on appeal from summary denial and dismissal of petitioner's claim whether the application presents "a claim procedurally alive 'substantial[ly] showing denial of a state or federal right.' " If so, the petitioner is entitled to an in-court opportunity to prove his claims. Neal v. State, 525 So.2d 1279, 1281 (Miss.1987). Our procedural posture is analogous to that when a defendant in a civil action moves to dismiss for failure to state a claim. See Miss.R.Civ.P. Rule 12(b)(6); Billiot v. State, 515 So.2d 1234, 1236 (Miss.1987). We examined the application, exhibits, and appellate record for the purpose of determining whether they suffice to warrant an evidentiary hearing on the issues presented.
Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), admonishes us that a defendant must be informed of his constitutional right to trial by jury, to the right of confrontation, and to protection against self-incrimination prior to court adjudication that a guilty plea was intelligent and voluntary. In Boykin, the United States Supreme Court stated:
Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First, is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the States by reason of the Fourteenth. Malloy v. Hogan, 378 U.S. 1, 12 L.Ed.2d 653, 84 S.Ct. 1489 [1964]. Second, is the right to trial by jury. Duncan v. Louisiana, 391 U.S. 145, 20 L.Ed.2d 491, 88 S.Ct. 1444 [1968]. Third, is the right to confront one's accusers. Pointer v. Texas, 380 U.S. 400, 13 L.Ed.2d 923, 85 S.Ct. 1065 [1965]. We cannot presume a waiver of these three important federal rights from a silent record.
Careful scrutiny of the plea transcript fails to reveal an affirmative expression by the trial court informing Horton that by pleading guilty he waived his constitutional right against self-incrimination.
Although Horton's petition to the court to accept his plea of guilty recites that there is "no constitutional right or reason why this court should not accept this plea and enter sentence thereon," this will not suffice to show that he was advised or informed of his constitutional right against self-incrimination. The constitutional rights discussed in Boykin were firmly inserted in Unif.Crim.R.Cir.Ct.P. Rule 3.03(3) which provides in part (3) Advice to the Defendant. When the defendant is arraigned and wishes to plead guilty...
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