Nelson v. State

• Decision Date: 28 October 1993
• Docket Number: No. 91-KP-526,91-KP-526
• Citation: 626 So.2d 121
• Parties: Albert NELSON v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 121

626 So.2d 121

Albert NELSON v. STATE of Mississippi.

No. 91-KP-526.

Supreme Court of Mississippi.

Oct. 28, 1993.

Albert Nelson, pro se.

Michael C. Moore, Atty. Gen., Ellen Y. Dale, Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

We are once again called upon to determine whether the trial court properly responded to a post conviction challenge of plea proceedings. We hold that Nelson was entitled to an evidentiary hearing to determine the extent to which he received and the effect of misinformation concerning whether the offense in question was punishable by a possible fine, as well as incarceration and whether there were processes available to secure the testimony of out-of-state witnesses. We also discuss with disapproval the manner in which a substitute judge was appointed in this case.

I

Nelson was indicted by an Oktibbeha County Grand Jury, on January 27, 1983, for the August 11, 1982, armed robbery of Presley Harrell. The indictment charged that Nelson pulled a knife on Harrell and escaped with $1,800 in cash. A second indictment for armed robbery bearing a consecutive number was entered, presumably on the same day. ¹ Nelson, who alleges that he is a resident of Chicago, Illinois, was not served until 1988. There was a further delay in proceedings due to a bond forfeiture when Nelson returned to Chicago after having been served.

On January 26, 1990, Nelson entered a plea of guilty to two charges of simple robbery pursuant to a plea bargain agreement. He was sentenced to serve terms of ten years for each charge, the sentences to run consecutively. During the plea colloquy Nelson acknowledged that he had signed a petition to enter a guilty plea and that he had gone over that petition with his lawyer. He professed to understand what was in the petition. Nelson's ability to read was not inquired into, nor was he asked whether he read the petition. The record discloses that he is thirty-nine years old and completed the eighth grade.

The petition, a standardized form, contains an enumeration of rights waived by a plea of guilty including "the right to use the power and process of the Court to compel the production of any evidence, including the attendance of any witnesses in my favor...." The form was filled in to reflect that the offense carried a possible penalty of a minimum of three (3) years and a maximum of life imprisonment and a maximum fine $10,000 and that the district attorney would recommend a sentence of ten years on each charge, reduced to simple robbery, to run consecutively. In the space provided for the petitioner to state his involvement in the crime was stated, "I robbed several individuals."

Judge John Montgomery, presiding at this matter, asked Nelson if he understood he had signed a petition saying that he understood his "constitutional rights; that is, the right to a trial by jury, the right to testify, the right to remain silent, the right to appeal, etc." Nelson responded affirmatively.

Judge Montgomery then informed Nelson that he was employed by the Oktibbeha County district attorney's office and secured the indictments against Nelson in the instant case. He asked Nelson if Nelson had discussed this issue with his attorney and whether he wanted the judge to recuse himself in this matter. Nelson responded affirmatively to the question whether he had discussed the matter with his attorney and in the negative as to recusal. Montgomery then found that Nelson waived any objection to his failure to recuse.

Nelson informed the court that he was 39 years old and that he had an eighth-grade education. He stated he understood the plea arrangement he had signed and that his attorney had gone over the document in detail with him. No person threatened him to sign the arrangements or to enter a plea of guilty. Nelson said he was pleading guilty because he was guilty and that the plea was of his own free will. The court then sentenced Nelson to ten years, consecutive, on each count.

II

Nelson filed a motion to vacate his conviction and sentence in the Oktibbeha County Circuit Court on April 25, 1991. He alleged that he told his attorney, Mark Williams, that he could not have committed the August 11, 1982, robbery of Harrell as he was in Chicago at the time. According to the allegations in the petition, Williams told him that out-of-state witnesses "would not do any good" and that Nelson stood the chance of a life sentence and a fine of $10,000, if convicted of armed robbery.

Nelson claimed that, because he was not properly informed of the minimum and maximum sentences he could receive for entering pleas of guilt on the robbery charges, he is entitled to have his conviction vacated. Vittitoe v. State, 556 So.2d 1062, 1065 (Miss.1990). Nelson also claimed that because the trial court failed to advise him of his right to call witnesses, to testify on his own behalf and to confront and cross-examine witnesses of the State, his rights under Boykin v. Alabama, 395 U.S. 238, 243, 89 S.Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969), were violated.

Nelson also claimed his attorney was ineffective as he (1) failed to object to Montgomery's presiding over the case; (2) failed to move for the indictment to be quashed; (3) lied to Nelson that conviction of armed robbery carried a $10,000 fine; and (4) lied to Nelson that he could not call witnesses from out-of-State. Nelson asserted that if he had known armed robbery did not carry a fine of $10,000 and that he could call witnesses from outside the State, he would have exercised his right to trial by jury.

Nelson sought an evidentiary hearing on this motion and, ultimately, a vacation of his conviction and sentence. On May 10, 1991, Judge Robert Evans denied the petition. Evans was appointed to hear the case following an order of recusal signed by Judge Lee J. Howard, wherein Howard recused himself and Montgomery as both judges had been members of the Oktibbeha County District Attorney's Office at the time that the indictments were rendered. That order was also entered on May 10, 1991.

In his order denying relief, Evans found the following: (1) paragraph 8 of the plea arrangement signed by Nelson stated he could receive as little as three years and as much as life imprisonment for an armed robbery conviction and that he could be fined up $10,000 for a conviction and that, because he was not fined, the issue of the fine was moot; (2) Nelson was informed by Judge Montgomery of his right to have Montgomery recuse himself and waived that right; (3) the information regarding Nelson's constitutional rights as required by Boykin was found in paragraph 6 of the signed plea agreement; and (4) that the indictment and amended indictment sufficiently stated a charge against Nelson. The order does not specifically address Nelson's ineffective assistance assignment.

Nelson filed a motion with the circuit court to vacate the order pursuant to Miss.R.Civ.P. 60(b) asserting that Judge Evans was not properly appointed and citing Miss.Code Ann. Sec. 9-1-3 (Supp.1992). This motion was denied by Judge Evans on June 14, 1991, by an order reciting that his appointment was made pursuant to the provisions of Miss.Code Ann. Sec. 9-1-105(5).

Notice of appeal to this Court was filed on June 3, 1991, and again on July 1, 1991. The second notice incorporated the ruling of the trial court with regard to the Rule 60(b) motion. Nelson has perfected his appeal in a timely manner and he raises the following issues:

1. Whether "the Court (Judge Robert Evans)" lacked jurisdiction because his appointment did not comply with Miss.Code Ann. Sec. 9-1-105(5), because notice of the order was not sent to the Chief Justice as there prescribed;

2. Whether Nelson's plea was infirm under Boykin v. Alabama and Miss.R.Crim.Pro. 3.03; and

3. Whether Nelson suffered from ineffective assistance of counsel.

III

a.

The question of substitute judges for cases or periods of time when the judge or judges in a particular district cannot serve is governed by the provision of Miss.Code Ann. Sec. 9-1-105. The subsection at issue here is one which provides that the trial judges of an affected district may agree with a trial judge of a different district that the latter judge will handle the matter. Miss.Code Ann. Sec. 9-1-105(5) (1972). In the event of such an agreement, the trial judges of the affected district are required to give notice of such an appointment to the Chief Justice of this court. Id. If, after seven days, the Chief Justice has failed to appoint another person, the person designated by the judges of the affected district shall be deemed appointed. Id.

In the instant case, no notice was given to the Chief Justice. Indeed, the record reflects that the appointed judge entered a dispositive order on the same day that the order appointing him was filed, which was barely fifteen (15) days after the filing of the motion to which it was addressed. Nelson contends that this defect is fatal to the attempted appointment and that Judge Evans therefore had no power to act. He urges that the order denying his motion to vacate his plea and sentence be vacated and the matter remanded for consideration by another judge.

The State asserts that the case of Herring v. Herring, 571 So.2d 239, 241 (Miss.1990), controls this issue. In Herring, this Court held that an order of recusal which is filed after the judge who replaces the recused judge has made rulings does not, in itself, vitiate the rulings of the appointed judge. Id. at 243. Rather, "(h)aving assumed his duties as special chancellor under this order and issued a fiat and writ, and subsequently entered an order rescheduling the hearing for a later date, he was a de facto judge whose orders were not subject to collateral challenge." Id. at 243-44.

The facts of Herring are a bit complicated with two judges attempting to act at the same time. Nelson seeks...