Massey v. State, 2012–CP–00121–COA.
| Decision Date | 13 February 2014 |
| Docket Number | No. 2012–CP–00121–COA.,2012–CP–00121–COA. |
| Citation | 131 So.3d 1213 |
| Court | Mississippi Court of Appeals |
| Parties | Lonnie MASSEY a/k/a Lonnie Gene Massey a/k/a Kenneth Ball, Appellant v. STATE of Mississippi, Appellee. |
OPINION TEXT STARTS HERE
Lonnie Massey, appellant, pro se.
Office of the Attorney General by W. Glenn Watts, attorney for appellee.
Before GRIFFIS, P.J., ROBERTS and CARLTON, JJ.
GRIFFIS, P.J., for the Court:
¶ 1. Lonnie Massey appeals the denial of his motion for post-conviction collateral relief (PCCR). Massey raises four issues: (1) his guilty plea was involuntary; (2) his counsel was ineffective; (3) there is newly discovered exonerating evidence; and (4) his sentence exceeds the statutory guidelines. We find no error and affirm.
FACTS
¶ 2. On December 6, 2010, Massey pled guilty in the Madison County Circuit Court to two counts of possession of a firearm by a previously convicted felon under Mississippi Code Annotated section 97–37–5 (Supp.2012) and one count of aggravated assault under Mississippi Code Annotated section 97–3–7 (Supp.2012).
¶ 3. On March 29, 2009, the Madison County Sheriff's Department dispatched deputies to a store on Ratliff Ferry Road in Madison County. A caller had reported two men were fighting, and at least one of the men had a firearm. Upon arrival, the deputies were informed that the men had left. The deputies went to a nearby house trailer and witnessed Massey holding a .410 shotgun inside the dwelling. As a result of this encounter, Massey was indicted for possession of a firearm by a previously convicted felon. He had been convicted in Louisiana of multiple felonies.
¶ 4. On or about August 29, 2009, law enforcement officers responded to a call that alleged Massey had fired a .22 rifle at his neighbors, Ande Daniel and Cynthia Pacquin. They executed reports and attested that Massey had in fact fired a gun at them.
¶ 5. As a result of these separate events, Massey was charged with possession of a firearm by a previously convicted felon and two counts of aggravated assault.
¶ 6. Lisa Ross was appointed as Massey's defense attorney during the summer of 2010. Ross recommended that Massey plead guilty to the charges. Ross filed a motion to compel discovery, but Massey believed that Ross did not diligently defend him. Massey raised his concerns with the trial court on December 6, 2010.
¶ 7. On December 6, 2010, the trial court appointed Massey a new defense attorney, Bentley Connor. Connor immediately negotiated a plea deal with the State, which he recommended to Massey. A plea hearing was conducted later that day, and Massey was sentenced consistent with the negotiated plea deal. The State agreed it would drop the charge of aggravated-assault of Pacquin, and Massey agreed to plead guilty to the remaining charges.
¶ 8. The trial court accepted Massey's guilty plea. On the two counts of possession of a firearm, Massey was sentenced to serve ten years in the custody of the Mississippi Department of Corrections on each count, with the sentences to run concurrently. On the count of aggravated assault of Daniel, Massey was sentenced to serve a term of twenty years, and the court ordered that this sentence run consecutively to the other sentences. The court ordered that Massey be released after he served one day of the aggravated-assault sentence and that he be placed on five years of post-release supervision. The remainder of the sentence was suspended. Massey was sentenced to serve a total of ten years and one day in prison, followed by five years of post-release supervision.
¶ 9. Massey filed his PCCR motion on October 17, 2011. On January 3, 2012, the trial court entered its order denying the motion without a hearing. It is from this judgment that Massey now appeals.
STANDARD OF REVIEW
¶ 10. We will not reverse a trial court's denial of a PCCR motion unless the trial court's decision was clearly erroneous. Madden v. State, 75 So.3d 1130, 1131 (¶ 6) (Miss.Ct.App.2011) (citation omitted). When reviewing questions of law, this Court's standard of review is de novo. Id. (citation omitted).
ANALYSIS
¶ 11. Massey argues that his guilty plea was not voluntary. He claims duress by counsel. Massey argues that his counsel coerced his plea by threats and stated Massey would be labeled a habitual offender if he did not take the deal. Massey also asserts that he told his counsel that he had no malicious intent towards Daniel when he discharged the firearm. Massey claimed that the altercation was with another individual, Kevin Pacquin. As such, Massey believed he was innocent of the aggravated-assault charge.
¶ 12. Massey's written plea petition states the factual basis for his guilty plea. It provides, in relevant part:
My lawyer advises me and I understand that the charge to which I am pleading guilty in cause/count number 2010–483/2 is aggravated assault. The elements of that crime are that I did willfully, unlawfully, feloniously, knowingly attempt to cause bodily injury to Ande Daniel by shooting at him with a deadly weapon a firearm.1
¶ 13. A guilty plea is enforceable only if entered voluntarily and intelligently. Myers v. State, 583 So.2d 174, 177 (Miss.1991). A plea is voluntary and intelligent when the defendant is advised of the elements of the charges against him and the consequences of a guilty plea. Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992).
¶ 14. In his plea colloquy, Massey testified:
¶ 15. Great weight is placed on a defendant's sworn testimony given at a plea hearing because “[s]olemn declarationsin open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S. 63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). A defendant faces a “high hurdle in recanting that testimony.” Pevey v. State, 914 So.2d 1287, 1290 (¶ 8) (Miss.Ct.App.2005).
¶ 16. Massey expressly acknowledged under oath that he understood the charges against him. He was advised of the rights, challenges, and triable claims he waived upon entering a guilty plea. Massey has only offered his own unsupported allegations as evidence of duress. This evidence alone is insufficient in light of the following testimony:
¶ 17. The law presumes that a defendant prepares the plea petition “with an appreciation of its fateful consequences.” Ward v. State, 879 So.2d 452, 455 (¶ 11) (Miss.Ct.App.2003). As such, Massey did not take the opportunity afforded to him to dispute the facts of the case against him and has not presented sufficient evidence to prove he was coerced by counsel into pleading guilty. Accordingly, we find no merit to this issue.
¶ 18. Next, Massey alleges his counsel was ineffective. He argues that one of the victims, Daniel, filed a false police report. That report led to Massey's second indictment. Massey alleges both of his attorneys neglected to effectively raise this falsity.
¶ 19. Massey's claims fail to meet the evidentiary burden necessary to establish a claim of ineffective assistance of counsel. We have held that a guilty plea requires the defendant to “prove, by a preponderance of the evidence, that but for the ineffective assistance of counsel, he would not have pled guilty and insisted on a trial.” Townes v. State, 88 So.3d 812, 815 (¶ 7) (Miss.Ct.App.2012) (citing Pleas v. State, 766 So.2d 41, 43 (¶ 7) (Miss.Ct.App.2000)). Massey argues both attorneys, Ross and Connor, were ineffective because both of them should have conducted their own independent investigation of the evidence and interviewed witnesses.
¶ 20. Massey claims that a letter he sent to Ross is evidence of her ineffectiveness. He explained in the letter that a witness, Patricia Sessums, would be able to file an affidavit to support his claim that Daniel's police report was not trustworthy. The record and briefs before us show Massey had concerns from initial contact that Ross would not work diligently on his case. As a result, Connor was promptly appointed to the case as soon as Massey raised the issue with the trial court.
¶ 21. Connor immediately met with Massey. They reviewed Massey's case and discussed Daniel's report. During the discussion, Massey informed Connor that he believed the report was not truthful. Massey claims in his briefs that Connor did not investigate the matter and recommended that Massey plead guilty. However, Massey conceded Connor's actions were not sufficiently egregious as to violate the standard for ineffective assistance of counsel established in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Massey stated: “It is very true that Mr. Conner, did not violate the Strickland test, a[n] attorney has got to make se[rio]us errors in order to violate that test.”
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