Magee v. State, 1998-CP-01800-COA.

• Decision Date: 07 March 2000
• Docket Number: No. 1998-CP-01800-COA.,1998-CP-01800-COA.
• Citation: 759 So.2d 464
• Parties: Curtis L. MAGEE a/k/a Curtis Lavon Magee, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

759 So.2d 464

Curtis L. MAGEE a/k/a Curtis Lavon Magee, Appellant, v. STATE of Mississippi, Appellee.

No. 1998-CP-01800-COA.

Court of Appeals of Mississippi.

March 7, 2000.

Appellant, pro se.

Office of the Attorney General by Jean Smith Vaughan, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., LEE, AND PAYNE, JJ.

PAYNE, J., for the Court:

PROCEDURAL POSTURE AND ISSUES PRESENTED

¶ 1. This matter is before the Court challenging the denial of Magee's pro se petition for post-conviction relief (PCR). Magee pled guilty, as an habitual offender, to one count of transfer of cocaine. Magee was sentenced to a term of thirty years in the custody of Mississippi Department of Corrections, with fifteen years suspended and five years of post-release supervision. Magee was also fined $5,000 and assessed court costs. His petition for PCR was denied by the Harrison County Circuit Court. Feeling aggrieved, Magee filed this appeal, raising the following eight issues for our consideration

I. WHETHER MAGEE WAS ENTITLED TO A POSITIVE RULING ON HIS RULE 52 MOTION.

II. WHETHER MAGEE'S PLEA WAS KNOWING, VOLUNTARY, AND INTELLIGENT.

III. WHETHER MAGEE WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

IV. WHETHER MAGEE WAS DENIED THE RIGHT TO A SPEEDY TRIAL UNDER STATE AND FEDERAL LAW.

V. WHETHER THE MISSISSIPPI HABITUAL OFFENDER LAW IS CONSTITUTIONAL.

VI. WHETHER THE LOWER COURT IMPROPERLY INVOLVED ITSELF IN THE PLEA BARGAINING PROCESS.

VII. WHETHER MAGEE'S GUILTY PLEA WAS THE RESULT OF THE CONSTRUCTIVE DENIAL OF COUNSEL.

VIII. WHETHER HIS SENTENCE WAS IN VIOLATION OF THE PLEA AGREEMENT.

On review of the record and supporting documentation submitted in this cause, we find Magee's assignments of error hold no merit. Accordingly, we affirm the circuit court's denial of post-conviction collateral relief.

FACTS

¶ 2. On the evening of May 19, 1995, Officer James Cuccia and other narcotics officers, including Detective Al Morales who was involved with the surveillance of the narcotics buy that is subject of this appeal, were involved in a larger undercover narcotics operation in Gulfport. Cuccia met a man later identified to be Magee. Cuccia asked Magee if Magee could help him secure a "twenty," drug lingo for a $20 amount of cocaine. Magee instructed Cuccia to circle the block, and on his return, Cuccia purchased one quarter gram of cocaine from Magee for $20. The evidence was returned to Gulfport Police headquarters and appropriately logged-in and secured.

¶ 3. Later that evening, Morales and Detective Fred Gaston were on "routine" patrol in the same area of the earlier drug purchase from Magee when they happened upon Magee. Morales stopped Magee and conducted a routine warrants check. This check uncovered that Magee was wanted on a probation violation warrant. Morales and Gaston took Magee into custody and transported him to the Gulfport Police Department. Morales recognized Magee as the individual who had sold crack cocaine to Cuccia earlier that evening. Magee was processed, and Cuccia later identified Magee as the person from whom he had purchased cocaine.

¶ 4. Magee was subsequently indicted, as an habitual offender, of one count of transfer of a controlled substance, specifically cocaine. Magee ultimately entered an open guilty plea to this charge.

ANALYSIS AND DISCUSSION

I. Whether Magee Was Entitled to a Positive Ruling on His Rule 52 Motion.

¶ 5. As his first assignment of error, Magee asserts that the trial court should have granted his motion filed pursuant to Rule 52 of the Mississippi Rules of Civil Procedure. Rule 52 provides:

(a) Effect. In all actions tried upon the facts without a jury the court may, and shall upon the request of any party to the suit or when required by these rules, find the facts specially and state separately its conclusions of law thereon and judgment shall be entered accordingly.

(b) Amendment. Upon motion of a party filed not later than ten days after entry of judgment or entry of findings and conclusions, or upon its own initiative during the same period, the court may amend its findings or make additional findings and may amend the judgment accordingly. The motion may accompany a motion for a new trial pursuant to Rule 59. When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised regardless of whether the party raising the question has made in court an objection to such findings or has filed a motion to amend them or a motion for judgment or a motion for a new trial.

Mississippi Rules of Civil Procedure 52 (1999). Magee maintains that the court below erred by not entering sufficient findings of fact and conclusions of law with regard to his petition for post-conviction relief. Magee's concern in this regard is valid, he contends, because the trial court did not reference Magee's exhibits attached to his petition for relief in the court's order overruling Magee's petition for relief. However, neither Rule 52, nor any Mississippi precedent that we find, require a trial court to specifically refer to a party's exhibits in a dispositive order of a petition for relief. Magee would have us assume that since no reference was made by the trial court to the exhibits attached to his petition then the trial court did not review these exhibits. This we decline to do.

¶ 6. Suffice it to say that on reviewing the trial court's denial of Magee's petition, as well as all of the pleadings presented to us in this matter, we find that the trial court was not in error. Each of Magee's claims set forth in his petition for relief were addressed by the court below. In its order, the trial court relied on both the plea transcript in this cause as well as valid Mississippi precedent in reaching the findings and conclusions on each issue raised by Magee in his petition. As we find the trial court did sufficiently set out the basis for the denial of Magee's petition for relief, we overrule Magee's suggestion of error in this regard.

II. Whether His Plea Was Knowing, Voluntary, and Intelligent.

¶ 7. Magee next alleges that his plea was not entered in a knowing, voluntary, and intelligent fashion. In determining whether the entry of plea of guilty is properly accepted by the trial court, we are bound by the well-seasoned rule that, to be valid, a plea of guilty must be entered voluntarily and intelligently. Goss v. State, 730 So.2d 568, 573 (Miss.1998) (quoting Banana v. State, 635 So.2d 851, 854 (Miss.1994)). "In order for a guilty plea to be voluntarily and intelligently entered, a defendant must be advised about the nature of the crime charged against him and the consequences of the guilty plea." Id. ¶ 8. Based on the transcript of the plea hearing and the petition to enter a plea of guilty, it is abundantly clear that Magee's entry of a guilty plea was done in a knowing, voluntary, and intelligent manner. First, in the petition to enter a plea of guilty, Magee acknowledges that he is represented by counsel and that he wished to plead guilty to the crime of transfer of a controlled substance. Magee further confirmed that he was aware of his constitutional rights, that he was aware of the range of punishment available for this particular crime, that he had not received any promises or suggestions of leniency in exchange for his petition to plead guilty, and that he was satisfied with the legal representation that had been afforded to him in this matter. Finally, Magee admitted in the petition to plead guilty that he did in fact sell the quantity of cocaine in question in an effort to raise money to buy more cocaine. The petition to plead guilty was signed by Magee and witnessed by his counsel of record on November 6, 1996.

¶ 9. Next, at the plea hearing, conducted on the same day as the petition to plead guilty was submitted, Magee verbalized in open court the contents of the petition to plead guilty. The trial court explained to Magee that his plea of guilty was only effective if he was aware of and understood his constitutional rights and that those rights would be surrendered if Magee chose to enter a guilty plea. After getting an affirmative acknowledgment from Magee in this regard, the trial court then proceeded to inquire of Magee specifically about his understanding of his constitutional rights, his decision to plead guilty, and the consequences of that decision. In this colloquy, Magee verified the following:

—He had been fully advised by his counsel about the charges against him and the penalties for those charges.

—He noted that he was "very satisfied" with the representation provided by his attorney in this matter.

—He stated his understanding of his right to a speedy and public trial by a jury and the right to confront his accusers.

—He understood his right against self-incrimination and that he would not have to testify if this matter went to trial.

—If he plead guilty, he would not have a trial and that the sentence would be the exclusive decision of the trial court within the statutory limits.

—He understood his rights as explained to him and that he had no questions for the trial court.

Magee then proceeded to enter his plea of guilty to the crime of unlawful transfer of a controlled substance.

¶ 10. Based on Magee's petition to plead guilty, which he signed, and the thorough dialogue engaged in by Magee with the trial court below at his plea hearing, we find no basis for a finding that Magee's plea of guilty in this matter was not knowingly, voluntarily, and intelligently given. Accordingly, this assignment of error is overruled.

III. Whether He Was Denied Effective Assistance of Counsel.

VII. Whether His Guilty Plea Was the Result of the Constructive Denial of Counsel.

¶ 11. We address Magee's Issue III and Issue VII together as they both relate to Magee's displeasure with his attorney in this matter. Magee maintains that not only was his counsel ineffective, but that ...