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

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

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.

758 So.2d 1084

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...