Joiner v. State , 2009–CA–00222–COA.

• Decision Date: 31 August 2010
• Docket Number: No. 2009–CA–00222–COA.,2009–CA–00222–COA.
• Citation: 61 So.3d 171
• Parties: Albert JOINER, Jr., Appellantv.STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

61 So.3d 171

Albert JOINER, Jr., Appellant

v.STATE of Mississippi, Appellee.

No. 2009–CA–00222–COA.

Court of Appeals of Mississippi.

April 20, 2010.Rehearing Denied Aug. 31, 2010.

James D. Minor, Oxford, attorney for appellant.Office of the Attorney General by Lisa Lynn Blount, attorney for appellee.Before LEE, P.J., IRVING and ISHEE, JJ.LEE, P.J., for the Court:

PROCEDURAL HISTORY

¶ 1. Albert Joiner, Jr., pleaded guilty in the Lafayette County Circuit Court to felony fleeing from a law enforcement officer and strong armed robbery. He was sentenced as a habitual offender pursuant to Mississippi Code Annotated section 99–19–81 (Rev.2007) to four years for felony fleeing and fifteen years for strong armed robbery. The sentences were ordered to be served consecutively in the custody of the Mississippi Department of Corrections. Joiner filed a motion for post-conviction relief, which was denied by the trial court.

¶ 2. Joiner now appeals the denial of his motion for post-conviction relief, asserting the following issues: (1) he was improperly charged as a habitual offender; (2) he was improperly sentenced as a habitual offender; and (3) he was denied effective assistance of counsel. For judicial economy, issues one and two will be discussed together. Finding no error, we affirm the denial of Joiner's motion for post-conviction relief.

STANDARD OF REVIEW

¶ 3. A trial court's denial of a motion for post-conviction relief will not be reversed absent a finding that the trial court's decision was clearly erroneous. Smith v. State, 806 So.2d 1148, 1150 (¶ 3) (Miss.Ct.App.2002). However, when issues of law are raised, the proper standard of review is de novo. Brown v. State, 731 So.2d 595, 598 (¶ 6) (Miss.1999).

DISCUSSION

I. HABITUAL–OFFENDER STATUS

¶ 4. Joiner argues that the indictment failed to notify him that he was being charged as a habitual offender. As part of Joiner's plea bargain, Count II of the indictment, possession of a weapon by a convicted felon, was dismissed. Count II lists five felonies with which Joiner had been previously convicted. Joiner asserts that since Count II was dismissed, the indictment no longer contained the necessary information to charge him as a habitual offender pursuant to Mississippi Code Annotated section 99–19–81.

¶ 5. Section 99–19–81 states:

Every person convicted in this state of a felony who shall have been convicted twice previously of any felony or federal crime upon charges separately brought and arising out of separate incidents at different times and who shall have been sentenced to separate terms of one (1) year or more in any state and/or federal penal institution, whether in this state or elsewhere, shall be sentenced to the maximum term of imprisonment prescribed for such felony, and such sentence shall not be reduced or suspended nor shall such person be eligible for parole or probation.

¶ 6. Joiner is correct that the plea petition does not list his prior felony convictions. However, Joiner voluntarily pleaded guilty to a reduced charge of “felony fleeing lesser habitual.” He was originally charged as a habitual offender under Mississippi Code Annotated section 99–19–83 (Rev.2007). During the plea colloquy, the trial judge explained to Joiner that he would be sentenced as a lesser-habitual offender, which meant that Joiner would serve his nineteen-year sentence “day-for-day” without eligibility for parole or probation rather than life without eligibility for parole or probation under section 99–19–83. Joiner does not deny that he has five prior felonies. Because the reduced sentence was part of Joiner's plea bargain, we find that the record shows that Joiner was aware of his eligibility for sentencing as a habitual offender. This issue is without merit.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

¶ 7. Joiner argues his counsel was ineffective for allowing him to enter his guilty pleas as a habitual offender without supporting proof of his prior felony convictions.

¶ 8. To prevail on a claim of ineffective assistance of couns...