McMillian v. State, 1999-CA-01336-COA.

• Court: Court of Appeals of Mississippi
• Citation: 774 So.2d 454
• Docket Number: No. 1999-CA-01336-COA.,1999-CA-01336-COA.
• Parties: Willie C. McMILLIAN, Appellant, v. STATE of Mississippi, Appellee.
• Decision Date: 27 June 2000

774 So.2d 454

Willie C. McMILLIAN, Appellant,
v.
STATE of Mississippi, Appellee

No. 1999-CA-01336-COA.

Court of Appeals of Mississippi.

June 27, 2000.

Rehearing Denied September 5, 2000.

Certiorari Denied December 29, 2000.

774 So.2d 455

John David Weddle, Tupelo, Attorney for Appellant

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

BEFORE McMILLIN, C.J., LEE, AND THOMAS, JJ.

THOMAS, J., for the Court:

¶ 1. This case is before the Court on appeal from the judgment of the Lee County Circuit Court denying Willie C. McMillian's petition for post-conviction relief. Aggrieved, McMillian perfected this appeal, raising the following issues

WHETHER THE COURT ERRED IN DENYING THE APPELLANT'S MOTION TO VACATE AND SET ASIDE CONVICTION AND SENTENCE WITHOUT GIVING THE APPELLANT THE BENEFIT OF AN EVIDENTIARY HEARING ON THE GROUNDS UPON WHICH HIS MOTION WAS BASED TO WIT:

GROUND I. APPELLANT ASSERTED THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE HE WAS COERCED INTO ENTERING A GUILTY PLEA TO THE CHARGES AGAINST HIM AND THAT HIS PLEA WAS NOT VOLUNTARILY, INTELLIGENTLY, AND WILLINGLY GIVEN.

GROUND II. APPELLANT ASSERTED THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE COUNSEL FAILED TO MAKE ANY PRE-TRIAL PREPARATIONS TO GO TO TRIAL ON THIS CASE, COUNSEL FAILED TO MAKE PRE-TRIAL MOTIONS TO DEMURRER THE DEFECTIVE INDICTMENT OR ATTACK THE INDICTMENT IN ANY WAY.

GROUND III. APPELLANT ASSERTED THAT HE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL, BECAUSE COUNSEL FAILED TO FILE PRE-TRIAL MOTIONS CONCERNING THE ILLEGAL SEARCH AND SEIZURES OF HIS HOME, AND SAFE-DEPOSIT BOX THAT WERE IN VIOLATION OF THE FOURTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

GROUND IV. APPELLANT ASSERTED THAT THE COURT ERRED IN SENTENCING HIM TO SEVENTEEN YEARS WHEN HE HAD MADE A PRIOR AGREEMENT WITH THE STATE UPON GETTING HIS PLEA OF GUILTY IN RETURN FOR EIGHT YEARS TO SERVE.

GROUND V. APPELLANT ASSERTED THAT THE TRIAL COURT ERRED IN SENTENCING THE APPELLANT TO A CRIMINAL SENTENCE TO SERVE AND ALLOWING THE SEIZURE OF THE APPELLANT'S PROPERTY AS PUNISHMENT FOR THE ALLEGED OFFENSE, IN TOTAL CONFLICT WITH THE DOUBLE JEOPARDY CLAUSE OF THE FIFTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

¶ 2. Finding no error, we affirm.

FACTS

¶ 3. Willie C. McMillian was arrested on June 7, 1997 for the sale and transfer of cocaine. McMillian was indicted for selling cocaine to Agent Jason Stanford. A criminal information for the sale and transfer of cocaine to agent Henry Brown within 1500 feet of a church was brought against McMillian. On July 2, 1997, McMillian pled guilty to both the indictment and the information against him. No recommendation by the State was made at that time. At the end of the entry of the plea, the court allowed McMillian to remain

774 So.2d 456

free on bond pending sentencing. However, the court instructed McMillian that if he got into any trouble while out on bond pending sentencing, the court would not accept the recommendation from the State. Sentencing was deferred until November 19, 1997. On November 14, 1997, McMillian was arrested for the sale and transfer of cocaine to Agent Henry Brown. At that time the State made a recommendation that McMillian receive a sentence of thirty years on each charge with ten years suspended, and for the two sentences to run concurrently. During the sentencing hearing McMillian brought forth Agent James Brown, an agent for the Mississippi Bureau of Narcotics, who testified that McMillian acted as a confidential informant and assisted him in making several drug related arrests. On cross-examination Agent Brown testified that the State's recommendation was twenty years regardless of whether McMillian acted as an informant or not. The court sentenced McMillian to serve thirty years on each sentence, with thirteen years suspended on each, the two sentences to run concurrently and pay a $5000 fine and court costs

¶ 4. On August 20, 1998, McMillian filed a "motion to vacate and set-aside conviction and sentence pursuant to the Uniform Post-Conviction Relief Act" in the Circuit Court of Lee County. On May 6, 1999, McMillian's motion was denied. McMillian filed his notice of appeal to this court on August 11, 1999, claiming that he should have been granted and evidentiary hearing.

ANALYSIS

WHETHER THE COURT ERRED IN DENYING THE APPELLANT'S MOTION TO VACATE AND SET ASIDE CONVICTION AND SENTENCE WITHOUT GIVING THE APPELLANT THE BENEFIT OF AN EVIDENTIARY HEARING ON THE GROUNDS UPON WHICH HIS MOTION WAS BASED TO WIT:

¶ 5. Initially, we must discuss the standard of review. In reviewing a trial court's decision to deny a motion for post-conviction relief the standard of review is clear. We will not reverse such a denial absent a finding that the trial court's decision was clearly erroneous. Kirksey v. State, 728 So.2d 565, 567 (Miss.1999).

¶ 6. Secondly, we must address the issue of when an evidentiary hearing is required. McMillian argues that the trial court erred in denying his request for an evidentiary hearing. In regards to evidentiary hearings, the Post Conviction Collateral Relief Act reads:

(1) If the motion is not dismissed at a previous stage of the proceeding, the judge, after the answer is filed and discovery, if any, is completed, shall, upon a review of the record, determine whether an evidentiary hearing is required. If it appears that an evidentiary hearing is not required, the judge shall make such disposition of the motion as justice shall require.

Miss.Code Ann. § 99-39-19(1) (Rev.1994). Clearly, the trial court is not required to grant an...