Johnson v. State Of Miss.

• Decision Date: 22 June 2010
• Docket Number: No. 2008-CA-01359-COA.,2008-CA-01359-COA.
• Citation: 39 So.3d 14
• Parties: John Henry JOHNSON, Appellantv.STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

39 So.3d 14

John Henry JOHNSON, Appellantv.STATE of Mississippi, Appellee.

No. 2008-CA-01359-COA.

Court of Appeals of Mississippi.

June 22, 2010.

COPYRIGHT MATERIAL OMITTED

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Joseph Patrick Frascogna, attorney for appellant.

Office of the Attorney General by W. Glenn Watts, Jackson, attorney for appellee.

EN BANC.

MYERS, P.J., for the Court:

¶ 1. On November 21, 2005, John Johnson pleaded guilty in the Circuit Court of Hinds County to three counts of statutory rape stemming from a three-year sexual relationship with his stepdaughter, “Jane.” ¹ The first two counts alleged that Johnson had raped Jane when she was under fourteen years of age, but at the time of the final count, Jane was fifteen years old.² Johnson, born in 1970, was therefore indicted under two different subsections of Mississippi Code Annotated section 97-3-65 (Rev.2006). The third count was under subsection (1)(a), for rape of a child under sixteen; for Johnson, it carried a maximum sentence of thirty years without a statutory minimum. The first two counts were under subsection (1)(b), for the rape of a child under fourteen years of age; those counts carried a statutory maximum of life imprisonment and a statutory minimum of twenty years.

¶ 2. Johnson entered an “open” plea of guilty, and the circuit court sentenced him to three concurrent twenty-five-year sentences. Johnson then filed a timely motion for post-conviction relief alleging, among other things, that his attorney had misled him to believe he would receive a suspended sentence because he was a first-time offender. The circuit court dismissed Johnson's motion without an evidentiary hearing. On appeal, Johnson presents a somewhat different argument: he alleges that his guilty plea was involuntary because he was never informed of the statutory minimum term of imprisonment for the rape of a child under fourteen years of age. After a thorough review of the record, we find that the circuit court erred in dismissing Johnson's petition, and we remand the case to that court for an evidentiary hearing to determine whether Johnson was misinformed regarding the statutory minimum and whether he acted upon that misinformation in pleading guilty. We find Johnson's remaining allegations without merit.

STANDARD OF REVIEW

¶ 3. A circuit court may summarily dismiss a motion for post-conviction relief “[i]f 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.” Miss.Code Ann. § 99-39-11(2) (Supp.2009). “On appeal, this Court will affirm the summary dismissal of a PCR petition if the petitioner has failed to demonstrate a claim procedurally alive substantially showing the denial of a state or federal right.” Robinson v. State, 19 So.3d 140, 142 (¶ 6) (Miss.Ct.App.2009). This Court reviews the dismissal of a post-conviction relief motion for an abuse of discretion. Willis v. State, 904 So.2d 200, 201 (¶ 3) (Miss.Ct.App.2005). But we will reverse and remand for a hearing if the movant has “alleged facts which require further inquiry in the expanded setting of an evidentiary hearing.” Mitchener v. State, 964 So.2d 1188, 1192-93 (¶ 10) (Miss.Ct.App.2007) (quoting Jones v. State, 949 So.2d 872, 873 (¶ 3)(Miss.Ct.App.2007)).

DISCUSSION

1. Statutory Minimum Sentence

¶ 4. In Johnson's motion for post-conviction relief, he stated:

[P]lea counsel mislead [sic] the petitioner by stating that by pleading open to the selected charges, the trial court would more than likely deliver a suspended sentence. Petitioner's justifiable reliance on plea counsel's misrepresentations caused him undue prejudice and evidenced deficient performance on counsel's part.

In his affidavit attached to the motion, Johnson added:

My attorney told me that I needed to plead guilty because as a first offender Judge Tomie Green would be very lenient on me.

....

[I] was shocked when I received a sentence of twenty-five (25) years to serve. Had I not been led to believe otherwise, I would not have agreed to an open plea of guilty. My open plea of guilty was not knowingly and intelligently made as it was based on misinformation from my attorney....

¶ 5. In his brief on appeal, Johnson's argument has evolved. He now argues that his guilty plea was involuntary because the circuit court and his defense counsel failed to advise him of the statutory minimum sentence on two of the counts he faced. Johnson also now specifically alleges that he would not have pleaded guilty if his counsel had not misrepresented the minimum sentences he could receive.

¶ 6. Generally, “[a] trial judge cannot be put in error on a matter which was not presented to him for decision.” Ponder v. State, 335 So.2d 885, 886 (Miss.1976). Nonetheless, a review of the record indicates that any procedural bar should be waived in this case. Although Johnson's argument on appeal is not the same as the one he presented to the circuit court in his motion for post-conviction relief, it is at least implied by his allegation in the original motion that his attorney had told him he would “likely” receive a suspended sentence. Moreover, Johnson now points-albeit also for the first time on appeal-to his petition to enter a plea of guilty, which is found in the record and was before the circuit judge on Johnson's motion for post-conviction relief. The form plea petition is typed, but it has blanks to be completed by hand for the “maximum” and “minimum” punishments the court may impose for each count of the indictment. The hand-completed portion of the plea petition accurately reflects that the maximum punishment for counts one and two of the indictment was “life” and that the maximum punishment for count three was “30 years.” However, the plea petition erroneously states that the minimum punishment was “0” for each of the three counts, when, in fact, the statute mandates a minimum of twenty years imprisonment for both counts one and two. Finally, Johnson also notes, again for the first time on appeal, that the circuit court did not advise him of the statutory minimums during the plea colloquy. Although Johnson also failed to make this argument in his motion for post-conviction relief, the transcript of the hearing was again before the circuit court on that motion.

¶ 7. “A guilty plea is not binding on a criminal defendant unless it is entered voluntarily and intelligently.” Spry v. State, 796 So.2d 229, 231 (¶ 6) (Miss.2001) (citing Myers v. State, 583 So.2d 174, 177 (Miss.1991)). In determining whether a plea is voluntary, the court will examine whether “the defendant knows what the elements are of the charge against him including an understanding of the charge and its relation to him, what effect the plea will have, and what the possible sentence might be because of his plea.” Id. (quoting Wilson v. State, 577 So.2d 394, 397 (Miss.1991)). The Mississippi Supreme Court has repeatedly held that “[a] defendant must be advised concerning the nature of the charge against [him] and the consequences of [his] plea including the minimum and maximum sentences that may be imposed.” Hannah v. State, 943 So.2d 20, 25 (¶ 12) (Miss.2006) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)); Drennan v. State, 695 So.2d 581, 586 (Miss.1997) (citing Nelson v. State, 626 So.2d 121, 126 (1993)). Moreover, Uniform Rule of Circuit and County Court 8.04(A)(4)(b) imposes upon trial judges of this state a duty to “inquire and determine ... [t]hat the accused understands ... the maximum and minimum penalties provided by law....” “[A] sentence and conviction based upon a guilty plea where a defendant was not made aware of a mandatory minimum sentence at the time of the plea can be reversed.” Washington v. State, 620 So.2d 966, 968 (Miss.1993) (citing Alexander, 605 So.2d at 1172). However, that failure may be harmless error if the defendant was correctly informed by another source or “if appears beyond a reasonable doubt that the plea would have been entered anyway.” Dockens v. State, 879 So.2d 1072, 1075 (¶ 6) (Miss.Ct.App.2004) (quoting State v. Pittman, 671 So.2d 62, 65 (Miss.1996)). The burden of proving that the guilty plea was not voluntarily is on the defendant and must be proven by a preponderance of the evidence. Stevenson v. State, 798 So.2d 599, 602 (¶ 7) (Miss.Ct.App.2001).

¶ 8. We conclude that the record contains sufficient evidence to require an evidentiary hearing on Johnson's allegation that he was uninformed or misinformed regarding the mandatory minimum sentence of twenty years for the two counts of statutory rape under section 97-3-65(1)(b). Johnson “is entitled [to] a full hearing to determine whether he, in fact, received and acted upon inaccurate information” in entering his guilty plea. Nelson, 626 So.2d at 126.

2. Ineffective Assistance of Counsel

¶ 9. In addition to the allegations regarding what sentence Johnson was told he could receive, which we have discussed above, Johnson's motion for post-conviction relief also alleges ineffective assistance of counsel in other respects. Specifically, Johnson alleges that his trial counsel failed to offer mitigating evidence at his sentencing hearing and failed to ensure that the circuit court considered a presentence investigation (PSI) report prior to sentencing. We find these remaining allegations without merit.

¶ 10. “In order to prevail on the issue of whether his defense counsel's performance was ineffective, [the petitioner] must prove that his counsel's performance was deficient and that he was prejudiced by counsel's mistakes.” Kinney v. State, 737 So.2d 1038, 1041 (¶ 8) (Miss.Ct.App.1999) (citing Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The burden of proof on both prongs rests with the defendant. McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). “There is a strong but rebuttable presumption that counsel's conduct fell within the wide range of reasonable...