Nance v. State

• Decision Date: 30 June 2020
• Docket Number: NO. 2018-CP-01652-COA,2018-CP-01652-COA
• Citation: 309 So.3d 1097
• Parties: Charles NANCE, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

309 So.3d 1097

Charles NANCE, Appellant

v.STATE of Mississippi, Appellee

NO. 2018-CP-01652-COA

Court of Appeals of Mississippi.

June 30, 2020

Rehearing Denied November 3, 2020

ATTORNEY FOR APPELLANT: CHARLES NANCE (PRO SE)

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART

BEFORE CARLTON, P.J., GREENLEE AND McCARTY, JJ.

McCARTY, J., FOR THE COURT:

¶1. Facing trial as a habitual offender on three felony charges for the sale of methamphetamine, a defendant plead guilty. A year later, he sought to undo his guilty plea. We affirm the trial court's denial of relief.

BACKGROUND AND PROCEDURAL HISTORY

¶2. Charles Nance was indicted in 2014 for four counts of selling methamphetamine to "an undercover individual." In 2016, he was subsequently indicted for four more counts, this time for the sale of methamphetamine, the sale of cocaine, possessing a rifle despite being a felon, plus having a handful of Adderall.

¶3. So by the time Nance was going to trial for the 2014 counts, he had eight separate felony charges hanging over his head. On the day of trial, the State informed the trial court it was proceeding on just two of the four counts of selling methamphetamine.

¶4. At the outset of what would become a guilty plea hearing, because there had been a dispute between the two, Mr. Nance affirmed to the trial court he wanted his attorney to continue representation. When asked, "[Y]ou want him to represent you?" Nance replied, "Yes, sir."

¶5. The trial court then informed Nance of the risks of conviction. "You understand, if you get convicted on these charges, I have to give you 8 years in prison without parole on each, you understand that, right?" The defendant replied, "Yes, sir." The State interjected that, because the defendant was indicted as a habitual, the risks would actually "be enhanced to double those if he is convicted." The trial court told Nance that "if you get convicted, the State is moving to have you sentenced to 16 years without parole on each count."

¶6. During this sequence, the trial court also asked Nance why he had missed court the day before. Nance replied that he had gone to pick up his medicine from his doctor because "I got congestive heart failure

, I got diabetes," and that he "was really sick and I'm sick now[.]"

¶7. The trial court inquired if the State had offered a plea bargain, which it had—and which the defendant had previously rejected, along with other offers. The State related that an offer was still on the table.

¶8. The trial court then asked Nance, "Are you ready to proceed to trial?" He replied, "Ah, I guess I got to be." Defense counsel then asked for a brief recess to discuss the still-pending plea bargain.

¶9. After the recess, Nance returned and indicated he wanted to plead guilty on counts 1 and 3. When asked, "How do you plead to the charge of [s]ale of methamphetamine in Count 1 as a habitual offender?" Nance replied, "Guilty." He was then asked, "[H]ow do you plead in Count 3, [s]ale of [m]ethamphetamine, not as a habitual offender?" The defendant replied, "Guilty."

¶10. Nance was then sworn and placed on the stand. The trial court inquired if he "want[ed] to plead guilty in Count 1 as a habitual offender" and "to plead guilty in Count 3 as a non-habitual offender, is that right?" Under oath, Nance answered, "Right."

¶11. The trial court then proceeded to inquire if Nance understood his rights during a guilty plea. He was specifically asked if he understood he would have to plead guilty by admitting under oath he had committed the crimes. He replied that he understood. The trial court then went into a detailed analysis of what the risks were if Nance were convicted before a jury. Nance was also informed about the burden of proof and the elements of the charged crimes.

¶12. Under oath, Nance was then asked "are you pleading guilty because you are, in fact, guilty of Count 1 and Count 3?" The defendant replied, "Yes, sir." Nance also affirmed he wasn't under duress to plead guilty.

¶13. Importantly, the trial court also asked him if he was "under the influence of any illegal drugs or alcohol or undergoing any kind of medical treatment that would keep you from understanding what I have talked to you about?" Nance replied, "No, sir."

¶14. The State then presented a detailed version of how it expected to put on proof Mr. Nance had sold methamphetamine to a confidential informant, on three separate occasions, and how these events were all recorded on video. The State had also confirmed through the Crime Lab that the substance sold was methamphetamine.

¶15. After this recitation, the trial court inquired, "Is that what happened, Mr. Nance?" The defendant responded, "I guess." The trial court pressed for clarification, and Nance equivocated, saying the allegations were "about five years ago," and he was "56 years old." When further asked how he "plead to Count 1 and Count 3," Nance again affirmed, "I plead guilty."

¶16. The trial court then went through the sentencing, including reviewing the prior convictions and sentences Nance had served. When asked about one of the records, and whether it was his, Nance replied, "I don't know. Probably so." He then admitted that a 1990 conviction was his.

¶17. At this point in sentencing, the defendant began to struggle. He told the court that his "sugar doing something" and that he was "about to fall out." Counsel for the defendant asked the trial court if he could sit down, which the trial court allowed. The ADA offered him a piece of candy, which Nance accepted.

¶18. Sentencing continued, and the trial court found Nance was habitual. He was then "sentenced to serve a term of 8 years in prison without the possibility of parole ... day for day," on Count 1, and for Count 3 to serve a consecutive term for 8 years, plus fines and costs. The State then motioned for Counts 2 and 4 of the indictment to be retired to the file, which the trial court granted. The entirety of the 2016 indictment was also retired to the file pursuant to the guilty plea.

¶19. After sentencing, the trial court asked, "Mr. Nance, was that the sentence you expected, that you agreed to?" The defendant responded, "Ah, yeah."

¶20. The trial court then stated on the record that Nance was "to be immediately transported because he has a medical situation that is life threatening, I'm given to understand," and ordered an immediate transfer for treatment.

¶21. The trial court entered the sentencing orders the same day of the guilty plea, including the immediate transport order. Likewise, pursuant to the plea, the trial court "retired to the files" the other counts.

¶22. Just a shade over a year after his guilty plea, Nance sought post-conviction relief. He asserted four issues. First, that his indictment did not properly charge him as a habitual offender. Second, that he was subject to double jeopardy because there were two hearings to prove his habitual status. Third, that his plea was involuntary because there was no factual basis for it, he was legally incompetent at the time he made it, he was coerced by his lawyer into making it, and he was not fully advised as to the effects of the plea. Last, Nance claimed that his counsel was ineffective because his lawyer did not determine if he could intelligently enter a plea, that he was not fully advised of the consequences of his plea, and that his counsel did not challenge the habitual offender enhancement.

¶23. Since a petition for post-conviction relief (PCR) is a new civil filing, the trial court ordered supplementation of the file with Nance's guilty plea transcript from the criminal case, along with other relevant material. Armed with this comprehensive view of the claims, the trial court denied the PCR petition without the need for a hearing. The order found specifically that the indictments were not flawed, and that Nance was not subject to double jeopardy and found the other claims to be without merit. Nance then sought appellate review.

STANDARD OF REVIEW

¶24. "When reviewing a trial court's denial or dismissal of a PCR [petition], we will only disturb the trial court's factual findings if they are clearly erroneous; however, we review the trial court's legal conclusions under a de novo standard of review." Bass v. State , 237 So. 3d 172, 173 (¶4) (Miss. Ct. App. 2017). "Whether an indictment is fatally defective is a question of law that we review de novo." Bryant v. State , 238 So. 3d 1213, 1216 (¶7) (Miss. Ct. App. 2018).

DISCUSSION

I. The indictment properly charged Nance as a habitual offender.

¶25. The petitioner claims that the indictment did not put him on notice that he was being charged as a habitual offender. His pleading from the trial court argued that "the indictment failed to state with particularity a coherent allegation of habitual offender status." While admitting the indictment had "HABITUAL OFFENDER" typed at the top of it, Nance further argues the omission of the pertinent statute from the indictment renders it void.

¶26. "An indictment is meant to furnish the defendants notice and a reasonable description of the charges against them so that they may prepare their defense." Jordan v. State , 995 So. 2d 94, 109 (¶47) (Miss. 2008). "It follows that an indictment is only required to have a clear and concise statement of the elements of the crime the defendant is charged with" in order to be sufficient. Id . Under our precedent, an indictment "does not require a citation to the specific statute, but merely enough facts so that the defendant is put on notice as to the statute that is alleged to have been violated." Dartez v. State , 271 So. 3d 733, 742 (¶33) (Miss. Ct. App. 2018).

¶27. First of all, Nance's argument fails because he specifically plead guilty as a habitual offender. When a defendant pleads guilty, they waive any argument against habitual offender status if they fail to challenge the sufficiency or validity of prior felony convictions and sentences. See Keyes v. State , No. 2018-CP-01660-COA, –––...