Jones v. State

• Decision Date: 04 March 2008
• Docket Number: No. 2007-CA-00133-COA.,2007-CA-00133-COA.
• Parties: Patrick JONES, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

976 So.2d 407 Patrick JONES, Appellant
v.
STATE of Mississippi, Appellee. No. 2007-CA-00133-COA. Court of Appeals of Mississippi. March 4, 2008.

[976 So.2d 410]

Charles E. Miller, McComb, attorney for appellant.

Office of the Attorney General by Ladonna C. Holland, attorney for appellee.

Before MYERS, P.J., IRVING and ISHEE, JJ.

MYERS, P.J., for the Court.

¶ 1. Patrick Jones pleaded guilty to one count of simple assault on a police officer and was sentenced to serve five years in the Mississippi Department of Corrections. However, he was given credit for time served with the balance suspended in lieu of serving four years of post-release supervision. Jones violated the terms of his post-release supervision and was ordered to serve the remainder of his sentence.

¶ 2. Jones appeals the revocation of his suspended sentence, arguing: (1) that the trial court erred in revoking his post-release supervision, (2) that the original sentence was excessive and unconstitutional, and (3) that he received ineffective assistance of counsel.

FACTS AND PROCEDURAL HISTORY

¶ 3. Jones pleaded guilty on February 25, 2004, to one count of simple assault on a police officer. He was ordered to serve five years in the custody of the Mississippi Department of Corrections. However, he was given credit for time served with the balance suspended, provided he successfully complete four years of post-release supervision.

¶ 4. While serving his post-release supervision, Jones tested positive for drugs and was found to be in possession of both alcohol and drugs in violation of the terms of his supervision. At a revocation hearing, the trial court found that Jones was in violation of his post-release supervision and ordered him to serve the remainder of his five-year sentence. Jones sought post-conviction relief, which the trial court dismissed, and Jones now appeals.

STANDARD OF REVIEW

¶ 5. A trial court's finding of fact in post-conviction relief cases will not be overturned by an appellate court unless found to be clearly erroneous. Hill v. State, 940 So.2d 972, 973(¶ 3) (Miss.Ct.App. 2006) (citing Boyd v. State, 926 So.2d 233, 235(¶ 2) (Miss.Ct.App.2005)). However, questions of law are reviewed de novo. Id.

DISCUSSION

I. WHETHER JONES RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

¶ 6. Jones first asserts that he received ineffective assistance of counsel in the trial court because his attorney allegedly did not address his available defenses and the issues of change of venue and probable cause. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) provides a two-part test to determine whether claims of ineffective assistance of counsel have merit. See Adams v. State, 950 So.2d 259, 261(¶ 7) (Miss.Ct.App. 2007) (applying Strickland's two-part test). In order to prove Jones's ineffective assistance of counsel claim, he must show by a preponderance of the evidence "(1) that

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counsel's performance was deficient, and (2) but for the deficiencies, the trial court outcome would have been different." Ward v. State, 914 So.2d 332, 336(¶ 12) (Miss.Ct.App.2005) (citing Gatewood v. State, 909 So.2d 754, 756(¶ 5) (Miss.Ct.App. 2005)). Additionally, an appellate court must recognize on review that "[trial] counsel is strongly presumed to have rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment." Strickland, 466 U.S. at 690, 104 S.Ct. 2052. We are to look at the totality of the circumstances when making that determination. Id. at 699, 104 S.Ct. 2052.

¶ 7. In this case, Jones has failed to meet his burden of proof on either prong of the Strickland test. Jones has produced no evidence which would show that, but for his attorney's errors, the outcome of his trial would have been different. Jones, in a bare statement, alleged ineffective assistance of counsel. Ultimately, Jones has failed to elaborate sufficiently, with supporting evidence, to overcome the strong presumption in favor of the previous trial counsel.

¶ 8. Additionally, this Court notes that Jones failed to include a sworn affidavit to support his claims of ineffective assistance of counsel or explain why it was not included with his post-conviction relief motion as required by Mississippi Code Annotated section 99-39-9(1) (Rev.2007). See Hill v. State, 940 So.2d 972, 974(¶ 10) (Miss.Ct. App.2006) (finding no error in trial court's denial of post-conviction relief motion when defendant failed to include an affidavit to support his claims of ineffective assistance of counsel and failed to provide a reason why an affidavit was not included with his motion); see also Young v. State, 877 So.2d 552, 554(¶ 9) (Miss.Ct.App.2004) (found that under Mississippi Code Annotated section 99-39-9(1)(d) and (e) (Supp. 2003), post-conviction relief motions should include either an affidavit swearing the facts needed for relief or showing how those allegations will be proven). In light of the failure to prove all these factors, we find that this issue lacks merit.

II. WHETHER THE TRIAL COURT ERRED IN ACCEPTING A GUILTY PLEA AND WHETHER JONES MAY ESTABLISH ACTUAL INNOCENCE ON APPEAL FROM DENIAL OF POST-CONVICTION RELIEF.

¶ 9. Jones argues on appeal that there was no factual basis for his guilty plea. Jones also asserts that he was actually innocent because he had a severe chemical dependency, and the trial court should have held a hearing to address the issue of his chemical dependency. "[A] criminal defendant who has entered a guilty plea cannot litigate his actual guilt on appeal from a denial of post-conviction relief, unless the defendant can show that the guilty plea was not knowingly, voluntarily, or intelligently entered." Jones v. State, 948 So.2d 499, 505(¶ 17) (Miss.Ct. App.2007) (citing Graham v. State, 914 So.2d 1256, 1259(¶ 8) (Miss.Ct.App.2005)). "In reviewing a defendant's claim that his guilty plea was not entered knowingly and voluntarily, [an appellate court] must determine if the trial court's finding was clearly erroneous." Hall v. State, 906 So.2d 34, 36(¶ 5) (Miss.Ct.App.2004) (citing Swindoll v. State, 859 So.2d 1063, 1065(¶ 9) (Miss.Ct.App.2003)).

¶ 10. Here, from a simple reading of the record, this Court notes that Jones admitted committing simple assault on a police officer, and pleaded guilty. The State argues, and we agree, that a "factual basis for a plea may be established by the admission of the defendant." Templeton v. State, 725 So.2d 764, 766(¶ 2) (Miss.

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1998). The trial court in this case found that there was a factual basis for the entry of Jones's guilty plea and that his plea of guilty was intelligently, knowingly, understandingly, freely, and voluntarily given. Our review of the record finds that the trial court thoroughly examined Jones during the proceedings to ascertain whether he was competent to enter the guilty plea. Jones bears the burden to show that his guilty plea was not voluntarily and intelligently given. However, Jones has...