Johnson v. State, 98-CP-00663-COA.

• Decision Date: 16 November 1999
• Docket Number: No. 98-CP-00663-COA.,98-CP-00663-COA.
• Citation: Johnson v. State, 753 So.2d 449 (Miss. App. 1999)
• Parties: Oliver JOHNSON, III, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

753 So.2d 449

Oliver JOHNSON, III, Appellant, v.STATE of Mississippi, Appellee.

No. 98-CP-00663-COA.

Court of Appeals of Mississippi.

November 16, 1999.

Oliver Johnson, III, Appellant, pro se.

Office of the Attorney General by Billy L. Gore, Attorney for Appellee.

BEFORE KING, P.J., BRIDGES, DIAZ, AND IRVING, JJ.

BRIDGES, J., for the Court:

¶ 1.In 1996, Oliver Johnson pled guilty to the possession of cocaine with the intent to distribute within 1,000 feet of a school.He was sentenced to a term of twenty years with five years suspended and fifteen to serve with the Mississippi Department of Corrections.After failing to comply with his plea-bargaining agreement, the trial court re-sentenced Johnson to serve a term of thirty years.In 1997, he filed a motion to vacate and set aside the conviction and the sentence.The Leake County Circuit Court denied this motion.Aggrieved with this decision, Johnson appeals to this Court arguing (1) that he received ineffective assistance of counsel; (2) that his indictment was McNeal defective; (3) that he was re-sentenced in violation of Miss.Code Ann. § 47-7-33 and in violation of the law against double jeopardy; (4) that the circuit judge erred in denying his pretrial motion for severance; and (5) that there was insufficient evidence of his possession of the cocaine to support an indictment.After thorough review, we find that the circuit court was in error when it re-sentenced Johnson to a greater sentence.Therefore, we affirm in part and reverse and render in part.

FACTS

¶ 2.On August 28, 1996, Oliver Johnson, a/k/a "Bodacious," and Rashaad Hayes were jointly indicted for possession of cocaine with the intent to distribute with said possession being within 1,000 feet of Carthage High School.Hayes had previously given a statement to local authorities in which he described the facts surrounding the offense.Apparently, there were several men involved in the manufacturing and distribution of rock cocaine.A heated dispute arose over the selling price of the rock cocaine, and some of these men drew guns and began firing at one another.At this point, Johnson was struck by a bullet and injured.

¶ 3.On September 3, 1996, both Johnson and Hayes pled guilty to the possession of cocaine with the intent to distribute within 1,000 feet of a school, and Johnson was sentenced to a term of twenty years in the Mississippi Department of Corrections with five years suspended and fifteen to serve.This sentence was part of a plea bargain agreement and conditioned on the fact that both men would give "truthful testimony against any unindicted person in this case."In May of 1997, both men were subpoenaed and brought before the Leake County Grand Jury to give testimony as per their plea bargain agreement, but both men refused to testify.The State then filed a motion for re-sentencing, and Johnson was re-sentenced to serve a term of thirty years with the Mississippi Department of Corrections.On December 9, 1997, Johnson filed a motion to vacate his guilty plea and to set aside his conviction and sentence.The trial judge dismissed Johnson's motion for post-conviction relief on the ground that it failed to state a cause for which relief can be granted.Johnson has now perfected his appeal to this Court.

ARGUMENT AND DISCUSSION OF LAW

I.WHETHER JOHNSON RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 4.Johnson is arguing on appeal that he was denied effective assistance of counsel.Johnson contends that his attorney failed to pursue discovery, failed to object to a defective indictment, and failed to step down from the case of Johnson's co-defendant, Hayes.Johnson is proceeding pro se, and as this Court has previously stated, "we have the discretion to address the substance of what appears to be a petitioner's complaint even if inartfully phrased."McCaleb v. State,743 So.2d 409 (¶ 6)(Miss.Ct.App. 1999).

Standard of Review

¶ 5.The Mississippi Supreme Court adopted the Strickland v. Washington,466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984), standard for evaluating ineffective assistance of counsel claims.Eakes v. State,665 So.2d 852, 872(Miss.1995).A defendant has to show that his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial.Id.We require that the defendant prove both elements.Brown v. State,626 So.2d 114, 115(Miss.1993);Wilcher v. State,479 So.2d 710, 713(Miss.1985).In any case presenting an ineffective assistance of counsel claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances.Foster v. State,687 So.2d 1124, 1129(Miss.1996).This is measured by a totality of the circumstances, and thus, the Court must look at counsel's over-all performance.Taylor v. State,682 So.2d 359, 363(Miss.1996).There is no constitutional right to errorless counsel.Foster,687 So.2d at 1130."Judicial scrutiny of counsel's performance must be highly deferential."Strickland,466 U.S. at 689, 104 S.Ct. 2052.

[T]here is a strong presumption that counsel's performance falls within the range of reasonable professional assistance.To overcome this presumption, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.A reasonable probability is a probability sufficient to undermine confidence in the outcome."

Schmitt v. State,560 So.2d 148, 154(Miss.1990)(quotingStrickland,466 U.S. at 694, 104 S.Ct. 2052).

Issue 1: Was Johnson denied effective assistance of counsel by his attorney's failure to pursue discovery?

¶ 6.In his submitted brief, Johnson specifically argues that his attorney did not pursue discovery and never told Johnson the amount of cocaine that he supposedly possessed.He further maintains that this "discovery" would have changed his mind about pleading guilty and also would have produced a different result at a trial.The State contends that Johnson's claim was waived by his plea of guilty.Even without the waiver, the State argues that Johnson's claim was not specific and failed to show that his counsel's performance was deficient or that it prejudiced him in any way.We agree.

¶ 7.The Mississippi Supreme Court has stated:

[W]e have recognized that a valid guilty plea operates as a waiver of all non-jurisdictional rights or defects which are incident to trial.We have generally included in this class "those [rights] secured by the Fifth, Sixth, and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14and26, Article 3, of the Mississippi Constitution of 1890."

Anderson v. State,577 So.2d 390, 391(Miss.1991)(quotingSanders v. State,440 So.2d 278, 283(Miss.1983)).

¶ 8.Moreover, even if Johnson's argument was not waived, we find it to be without merit.Johnson has failed to demonstrate that there is reasonable probability that had counsel pursued discovery the result would have been different.Johnson's brief implies that the "amount" of cocaine might have made a difference in his choice to plead guilty.However, this does not show a deficiency in his counsel's representation.The trial transcript shows that Johnson understood the guilty plea petition and that by pleading guilty he would be waiving certain rights.In Wilson v. State,577 So.2d 394, 396(Miss.1991), the supreme court held that "a guilty plea must be made voluntarily in order to satisfy the defendant's constitutional rights."A plea is considered voluntary if the defendant knows the elements in the charge against him, including an understanding of the charge, the effect of the plea, and the possible sentence.Taylor v. State,682 So.2d 359, 362(Miss.1996).Furthermore, there should be a complete record of the plea to ensure that the defendant's plea was voluntary.Id.

¶ 9.In the casesub judice, there is ample evidence in the transcript of the guilty plea proceeding that the judge's remarks thoroughly explained the charges and consequences to Johnson.Further, the trial transcript shows that Johnson was pleased with his attorney's services and had no complaints about his performance.Based on the foregoing discussion, Johnson's guilty plea was voluntary, and there is no proof that Johnson's counsel was deficient in his representation, much less that Johnson was prejudiced as a result.Accordingly, this claim is without merit.

Issue 2: Was Johnson denied effective assistance of counsel by his attorney's failure to object to the defective indictment?

¶ 10.Johnson next alleges that his attorney should have objected to the indictment because it was defective under Rule 7.06 of the Uniform Rules of Circuit and County Court Practice and under article 6, § 169 of the state constitution.He is arguing that the signature of the grand jury foreman appears after the phrase "against the peace and dignity of the state."This Court has recently recognized that the case law in Mississippi, "holding that this phrase as required in the constitution is a formal matter that must conclude an indictment, does not mean that the grand jury foreman's signature is to come before that phrase."Stephens v. State,739 So.2d 413 (¶ 9)(Miss. Ct.App.1999).As the Mississippi Supreme Court found in McNeal,"the last required item on the indictment document is the signature, while the `peace and dignity' language is the last phrase in the text of the indictment following the charging language and before the signature."Id.(citingMcNeal v. State,658 So.2d 1345(Miss.1995)).Johnson does not cite any case law that holds otherwise.As this Court held in Stephens,"[f]or that language to `conclude' the indictment does not mean it appears by itself at the bottom of the page on which the charging language is typed and signed.It is incorporated into the charging language...