McCaleb v. State, 98-CP-00177-COA.

• Decision Date: 18 May 1999
• Docket Number: No. 98-CP-00177-COA.,98-CP-00177-COA.
• Citation: McCaleb v. State, 743 So.2d 409 (Miss. App. 1999)
• Parties: David Earl McCALEB, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

743 So.2d 409

David Earl McCALEB, Appellant, v.STATE of Mississippi, Appellee.

No. 98-CP-00177-COA.

Court of Appeals of Mississippi.

May 18, 1999.

David Earl McCaleb, Appellant, pro se.

Office of the Attorney General by Scott Stuart, Attorney for Appellee.

BEFORE SOUTHWICK, P.J., COLEMAN, AND THOMAS, JJ.

SOUTHWICK, P.J., for the Court:

¶ 1.In 1994David Earl McCaleb pled guilty to two counts of the unlawful sale of a controlled substance.In 1998he filed a petition for relief under the Uniform Post Conviction Collateral Relief Act.The grounds alleged were that he was denied effective assistance of counsel due to his attorney's failure to disclose a conflict of interest and his failure to object to the indictment on double jeopardy grounds.McCaleb further alleged that he entered his guilty plea involuntarily because he did not give his informed consent to proceed with the representation despite the alleged conflict.The trial court, after an evidentiary hearing, denied relief.We affirm.

FACTS

¶ 2.David Earl McCaleb was indicted as an habitual offender on August 26, 1994, on two counts of the sale of a controlled substance.The indictment alleged that on January 4, 1994, McCaleb twice sold cocaine to Maurice Turner.McCaleb entered a guilty plea on September 30, 1994, in the Sunflower County Circuit Court and was sentenced to forty years for each count.

¶ 3.On September 29, 1997, McCaleb filed a motion to vacate and set aside his conviction and sentence, alleging that he was denied effective assistance of counsel because of the conflict of interest and because of his attorney's failure to quash one of the two counts in the indictment on double jeopardy grounds.McCaleb also argued that his guilty plea was involuntary because it was made without knowledge of his attorney's conflict of interest.

¶ 4.An evidentiary hearing was conducted on December 7, 1997.The judge denied McCaleb's motion to vacate, finding that even if the allegations were true, they were "insufficient to prove that Petitioner received ineffective assistance of counsel demanding that his guilty plea and sentence be vacated."

¶ 5.On December 23, 1997, McCaleb filed a motion under M.R.C.P. 52(a), requesting the court to "set forth factual findings of his claim made under ground number one of the Motion to vacate and set aside sentence and conviction."The circuit judge denied McCaleb's motion, finding that it was not timely filed and that the December 8th order sufficiently addressed the facts and applicable law in the case.McCaleb appealed.

DISCUSSION

¶ 6.McCaleb contends that he was denied effective assistance of counsel and that he entered into his guilty plea involuntarily.He is proceeding pro se, and thus we have discretion to address the substance of what appears to be a petitioner's complaint even if inartfully phrased.

¶ 7.McCaleb's complaint arises from the fact that he pled guilty to a drug offense in March 1994, and then in September 1994he pled guilty to the offense from which he is now seeking relief.At the time of the March guilty plea, attorney Cleve McDowell represented a codefendant named Jamie Davis.The transcript of the March guilty plea indicates that McCaleb and Davis sought a severance so that, in the words of the prosecutor, "each could point their finger at the other."After McCaleb pled guilty, McDowell (representing the other defendant Davis who had not pled) tried to get permission to ask him some questions on the record in open court.After some skirmishing between McDowell and McCaleb's then-counsel, no testimony was taken.Thus it is evident that McCaleb knew of attorney McDowell's representation of his March codefendant.Whether McCaleb later made any statements does not appear.

¶ 8.Seven months later when different drug charges were being pursued, McCaleb was represented by McDowell.It is difficult to determine exactly what McCaleb is arguing.Some of his allegations seem premised on attorney McDowell's failure in September to inform McCaleb that he had represented Jamie Davis in the prior drug transaction.That cannot be important, as the transcript of the March hearing shows that McCaleb and McDowell were face to face in the courtroom, after having earlier conversed in a side room regarding the questions that McDowell wished to ask.

¶ 9.According to McCaleb, McDowell's involvement in the prior case constituted an actual conflict of interest which he failed to disclose, constituting ineffective assistance of counsel and rendering McCaleb's guilty plea in the present case involuntary.The Sixth Amendment right to counsel encompasses a right to effective assistance from an attorney who is conflict-free.Sykes v. State,624 So.2d 500, 503(Miss.1993).To prevail on his ineffective assistance of counsel claim, McCaleb must demonstrate "that his counsel's performance was deficient, and that the deficiency prejudiced the defense of the case."Strickland v. Washington,466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674(1984).In the absence of an actual conflict of interest, prejudice will not be presumed.Perry v. State,682 So.2d 1027, 1031(Miss.1996).

¶ 10.At the 1997 evidentiary hearing McCaleb tried to explain the argument of a conflict of interest.He said that attorney McDowell "tried to get me to make a statement clearing Jamie Davis"; when asked how that created a later conflict, McCaleb said it was because his lawyer failed to inform him fully of the possible sentence.That was a factual matter, and the transcript of the September 1994 guilty plea hearing indicates that the trial court properly informed McCaleb of the sentence.

¶ 11.We simply are at a loss to discern a conflict.Dual representation creates no per se conflict of interest.Littlejohn v. State,593 So.2d 20, 26(Miss.1992).If Davis and McCaleb's interests were actually antagonistic in the previous guilty plea, McDowell would have had a conflict to represent both of them in that earlier prosecution; of course, he did not represent both.But that possible conflict does not continue to bar the attorney from representing McCaleb in a later and unrelated case.At the time of the entry of McCaleb's guilty plea in September, McDowell no longer represented Davis.There is no evidence that Davis had a role in the second transaction.

¶ 12.We do not overlook the significance of the March guilty plea.The sentence received in March was used to enhance the sentence received in September.To give McCaleb the benefit of an argument he did not make, perhaps if there were facts to show that attorney McDowell successfully but coercively got McCaleb to exonerate Davis and implicate himself in the March prosecutions, there might have been a basis to attack the...