Malone v. State
| Docket Number | 2022-CP-00958-COA |
| Decision Date | 28 November 2023 |
| Parties | MARCUS D. MALONE A/K/A MARCUS MALONE APPELLANT v. STATE OF MISSISSIPPI APPELLEE |
| Court | Mississippi Court of Appeals |
1
MARCUS D. MALONE A/K/A MARCUS MALONE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
No. 2022-CP-00958-COA
Court of Appeals of Mississippi
November 28, 2023
DATE OF JUDGMENT: 09/01/2022
ATTALA COUNTY CIRCUIT COURT TRIAL JUDGE: HON. JOSEPH H. LOPER JR.
ATTORNEY FOR APPELLANT: MARCUS D. MALONE (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART
BEFORE WILSON, P.J., McDONALD AND LAWRENCE, JJ.
LAWRENCE, J.
¶1. On September 12, 2018, Marcus Malone pled guilty to two counts of second-degree murder and one count of aggravated assault. On August 31, 2021, Malone filed a motion for post-conviction collateral relief (PCR) arguing that his guilty pleas were involuntary, that he was denied a formal competency hearing, and that he received ineffective assistance of counsel during the guilty-plea proceedings. The circuit court denied Malone's PCR motion. Malone appeals the circuit court's denial. Finding no error, we affirm.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
¶2. On November 12, 2016, Malone shot and killed Zachary Flanagan and Labrandice Harvey. He also shot and caused serious bodily injury to a bystander, named Stephanie
Snow. On August 8, 2017, Malone was indicted by an Attala County grand jury for two counts of first- degree murder and one count of aggravated assault.[1]
¶3. On August 27, 2018, Malone's counsel filed a "Petition for Psychiatric Examination." On August 30, 2018, the circuit court ordered that Malone undergo a mental evaluation. On September 1, 2018, Malone was examined by Dr. Criss Lott, a clinical and forensic psychologist.
¶4. On September 10, 2018, Dr. Lott provided a written report to the court, concluding that Malone had "sufficient present ability to confer with his attorney with a reasonable degree of rational understanding and he has a factual and rational understanding of the nature and object of the legal proceedings against him." Dr. Lott further opined that Malone understood the charges against him and appreciated "the possible penalty he could receive if convicted" and that he understood "his right to a trial and to testify, and he appeared to have an adequate understanding of the plea process."
¶5. On September 12, 2018, Malone filed a petition to enter pleas of guilty to two counts of second-degree murder and one count of aggravated assault. In the plea petition, Malone asserted his lawyer had "advised [him] as to the probabilities of [his] conviction on the charges with which [he was] charged and thoroughly discussed all aspects of [his] case with [him]." Malone stated further that his attorney had "made no threats or promises of any type or kind to induce [him] to enter this plea of guilty, and the decision to seek the entry of this
plea was [his] own and [his] alone, based on [his] own reasons and free from any outside coercive influences." The petition further addressed Malone's possible sentencing and provided the following:
I know that if I plead Guilty to this charge, the possible sentence on Counts I and II with which I am charged is Life in prison and one (minimum) to twenty (maximum) years on Count III. The maximum sentence on Second Degree Murder is a minimum of twenty years and a maximum of forty years in custody and a $10,000.00 fine
The petition further provided that Malone understood that "the sentence is up to the [c]ourt" and "that the [c]ourt is not required to follow the recommendation of the District Attorney, if any." The petition further provided:
On or about November 12, 2016, in Attala County, MS, while acting in a manner eminently dangerous to others, but without premeditated design, and while acting with a depraved heart, I shot and killed Zachary Flanagan and Labrandice Harvey, and further while committing these acts, I also shot and caused serious bodily injury to a bystander, Stephanie Snow.
¶6. The petition then listed the Constitutional guarantees waived by the entry of a guilty plea. Malone stated he "hereby waive[d] them and renew[ed] [his] desire to enter a plea of Guilty." The petition further indicated that Malone believed his lawyer had done "all that anyone could do to counsel and assist [him,]" and he was "SATISFIED WITH THE ADVICE AND HELP" he was given.[2] The petition also included the following typed statement:
I OFFER MY PLEA OF GUILTY FREELY AND VOLUNTARILY AND OF MY OWN ACCORD AND WITH FULL UNDERSTANDING OF ALL THE MATTERS SET FORTH IN THE INDICTMENT AND IN THIS PETITION
AND IN THE CERTIFICATE OF MY LAWYER WHICH FOLLOWS.
¶7. The circuit court held a plea hearing on the same day the plea petition was signed. At that hearing, the circuit court first conducted a competency hearing. Malone's counsel reminded the court that Dr. Lott had examined Malone and found him competent. Defense counsel then introduced a copy of Dr. Lott's report as an exhibit and asked to stipulate that Malone was competent to proceed. Defense counsel stated that Dr. Lott's presence at the hearing was not required.[3] The circuit judge found that "[b]ased upon the report of Dr. Lott, . . . the [c]ourt does hereby find at this time, after evaluating the written report as submitted to this [c]ourt and also having observed Mr. Malone as an individual here in my court, I find that the competency of Mr. Malone to proceed is hereby granted and sustained."
¶8. During the plea colloquy, when the circuit judge asked if Malone had any problems comprehending information that was stated or given to him, he stated, "No, sir." When asked if he was then under the influence of drugs or alcohol, Malone stated he was taking "psychological medication" prescribed to him but that he was not under the influence of any other drugs or alcohol. The circuit judge then asked Malone about his guilty-plea petition, and the following exchange occurred:
THE COURT: Okay. Mr. Malone, now, you've tendered the [c]ourt a petition to change your plea of one of not guilty to one of guilty. Have you read over that petition?
THE DEFENDANT: Yes, sir.
THE COURT: Did your attorney go over the petition with you?
THE DEFENDANT: Yes, sir.
THE COURT: Did you and he take time to discuss every aspect of it?
THE DEFENDANT: Yes, sir.
THE COURT: Now, do you have any questions of the [c]ourt or questions about the contents of that petition?
THE DEFENDANT: No, sir.
The judge then went over each of Malone's constitutional rights, and when asked if he understood that he would be waiving those rights, Malone stated, "Yes, sir." When asked if anyone offered Malone "any reward or hope of reward in order to get him to enter this plea of guilty," Malone stated, "No, sir." Furthermore, when asked if "anyone threatened [him] or coerced [him] in any way in order to get [him] to enter a plea of guilty," Malone replied, "No, sir." Malone's attorney then interrupted and stated, "I would also state that Mr. Malone has been advised that under the current law . . . this is a day-for-day crime, meaning a 40-year sentence minus what he had served previously awaiting trials in this matter, he would have to serve every day of that sentence." (Emphasis added). When asked if Malone understood this, he stated, "Yes, sir."
¶9. The circuit judge then asked Malone if he was "totally and completely satisfied with the services of [his attorney]," to which Malone responded, "Yes, sir." Finally, the circuit judge asked Malone, "Are you pleading guilty here this afternoon because you are, in fact, guilty of the charges as related?" Malone responded, "Yes, sir." The court then made an on-
the-record finding that Malone's pleas were "freely, knowingly, voluntarily, [and] intellectually made." The circuit court sentenced him to serve forty years in the custody of the Mississippi Department of Corrections for each second-degree murder conviction and to serve twenty years for the aggravated assault conviction, set to run concurrently.
¶10. On August 31, 2021, Malone filed a PCR motion seeking to vacate his guilty pleas to the second-degree murder counts and aggravated assault. Malone claimed that his pleas were involuntary, that the trial court failed to conduct a formal competency hearing, and that he received ineffective assistance of counsel. Malone's motion was supported by his own sworn affidavit. The affidavit provided that on Malone's second or third visit with his attorney, his attorney told him:
[T]here wasn't much he could do besides get me a plea, which at that time was two (2) life sentences for the murders and twenty (20) years for the Aggravated Assault charge. He said if I took it they would be together (meaning concurrent) and I would maybe or maybe not get parole, but that I had a chance of living to get out of prison. On that occasion, I asked about pleading to manslaughter and [my attorney] replied, he would try. On our next visit, [my attorney] stated to me that the District Attorney would accept a plea deal for manslaughter, twenty years each count and twenty years for Aggravated Assault (if both victim's families agreed).
The affidavit further provided:
[O]ur next occasion was at the courthouse for a motion to suppress some evidence but ended up with a request for a psychiatric evaluation that was granted by the judge. Our next encounter was in court for a mental competency hearing supposedly, but that hearing was waived by [my attorney]. And when I asked why? He told me that it wasn't necessary since I was pleading guilty. Anyway, I ended up entering guilty pleas to two counts of Second Degree Murder and one count of Aggravated Assault (on the advice of counsel).
¶11. Malone's PCR motion also included an affidavit signed by Malone's mother, Lula
Malone. Lula stated that Malone's attorney told her that the families of the victims were "pushing for more of a life sentence and that it would be best...
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