McCuiston v. State, 1999-CP-00793-COA.

• Decision Date: 11 April 2000
• Docket Number: No. 1999-CP-00793-COA.,1999-CP-00793-COA.
• Citation: 758 So.2d 1082
• Parties: Ronnie Earl McCUISTON a/k/a Ronnie Earl McChristian, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

758 So.2d 1082

Ronnie Earl McCUISTON a/k/a Ronnie Earl McChristian, Appellant, v. STATE of Mississippi, Appellee.

No. 1999-CP-00793-COA.

Court of Appeals of Mississippi.

April 11, 2000.

Ronnie Earl McCuiston, Appellant, pro se.

Office of the Attorney General by Pat S. Flynn, Attorney for Appellee.

BEFORE McMILLIN, C.J., BRIDGES, AND PAYNE, JJ.

McMILLIN, C.J., for the Court:

¶ 1. Ronnie Earl McCuiston has appealed from an order of the Circuit Court of Grenada County denying him relief on a post-conviction relief petition filed approximately three years after McCuiston entered a plea of guilty to two drug-related charges. McCuiston's appeal suggests that the trial court erred when it found no merit in his claim of ineffective assistance of counsel. Alternatively, McCuiston urges that, at a minimum, he alleged the existence of sufficient facts to entitle him to an evidentiary hearing on his claim. We find McCuiston's arguments to be without merit and, therefore, affirm the decision of the trial court.

¶ 2. McCuiston's claim of ineffective assistance of counsel relies on the notion that his attorney demonstrated his incompetence by failing to seek a severance as to the charges against McCuiston arising out of an alleged drug transaction in which McCuiston and two co-defendants were jointly indicted. McCuiston's attorney represented all three of the co-indictees, and all three entered pleas of guilty on the day set for their trial. McCuiston attempted to fire his attorney the morning of trial and was told by the trial court that he could fire the attorney but that he would not be granted a continuance to obtain other counsel. It was at that point that McCuiston agreed to enter a guilty plea in exchange for a sentencing recommendation from the State.

¶ 3. McCuiston points to no evidence in the record, supplied by affidavit or otherwise, to indicate that any of the recognized grounds for severance existed. He does not show that the evidence pointed more toward the guilt of one of the other co-indictees than to him. See Stevens v. State, 717 So.2d 311, 312-13 (Miss.1998). Further, there is no evidence that any of the co-defendants were attempting to establish their innocence by shifting responsibility for the crime to McCuiston. Id. At the plea hearing, the State's recital of its available evidence implicated all defendants essentially equally and was said to include a videotape of the transaction.

¶ 4. The right of a criminal defendant to challenge the effectiveness of his attorney arises out of the notion that the Sixth Amendment right to counsel necessarily means a competent, professionally proficient counsel. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Nevertheless, the United States Supreme Court has said that, in such post judgment challenges, there is a strong presumption that an attorney's services were performed at a level that meets the basic requirements of professional competency. Id. at 688, 104 S.Ct. 2052. In order to overcome that presumption, the convicted defendant must show that (a) counsel's performance was deficient by making errors so serious that counsel was not functioning as "counsel" guaranteed by the Sixth Amendment, and (b) but for the deficient performance, there was a reasonable likelihood of a more favorable outcome of the case. Id. at 687, 694, 104 S.Ct. 2052.

¶ 5. McCuiston's attorney's failure to seek a severance when, insofar as the record reveals, there was no reasoned basis to pursue one, fails to satisfy either prong of the Strickland test.

¶ 6. McCuiston's real argument seems to be that seeking a severance was a tactic having some potential to obtain for him a more favorable recommended sentence during plea bargaining, rather than as a tactic to ensure that he obtained a fundamentally fair determination of his guilt or innocence. This is a somewhat different twist on an attorney's duty, which is to pursue a course of action having little real chance for direct success in the hope that it will, nonetheless, have some nuisance value in the negotiating process leading up to an agreed plea recommendation. Absent some indication of special circumstances peculiar to the case—which McCuiston does not provide in this instance —this Court is unpersuaded that such a trial tactic was one likely to have resulted in a significantly more lenient sentence recommendation from the State to avoid having to (a) resist McCuiston's motion and (b) try him separately even were he successful in the motion. Thus, from this angle, McCuiston's claims of ineffective assistance fail to show with any certainty that a more favorable result would have been obtained, which is the second prong of Strickland.

¶ 7. McCuiston made additional allegations before the circuit court of incompetence in regard to his attorney's performance regarding the attorney's failure to raise perceived defects in the affidavits used to procure his arrest warrant and defects in the indictment itself. However, McCuiston does not specifically argue those points before this Court on appeal, except to the extent that they may relate to the claim that the trial court erred in dismissing his petition without a hearing. Assuming, for sake of argument, that those issues are preserved for appellate review, we are satisfied that they were without...