Partain v. State

• Decision Date: 26 January 2012
• Docket Number: No. 2010–CP–00896–COA.,2010–CP–00896–COA.
• Citation: 78 So.3d 350
• Parties: Richard PARTAIN, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

78 So.3d 350

Richard PARTAIN, Appellant

v.STATE of Mississippi, Appellee.

No. 2010–CP–00896–COA.

Court of Appeals of Mississippi.

Aug. 23, 2011.Rehearing Denied Nov. 8, 2011.Certiorari Denied Jan. 26, 2012.

Richard Partain, appellant, pro se.

Office of the Attorney General By W. Glenn Watts, attorney for appellee.

Before IRVING, P.J., ISHEE and CARLTON, JJ.

IRVING, P.J., for the Court.

¶ 1. On August 12, 2008, Richard Partain pleaded guilty to manslaughter by culpable negligence. Following his plea, the DeSoto County Circuit Court sentenced Partain to twenty years in the custody of the Mississippi Department of Corrections, with fifteen years to serve, five years suspended, and five years of post-release supervision. The circuit court also ordered Partain to pay $48,713.36 in restitution. On September 11, 2009, Partain filed a motion for post-conviction relief (PCR), which the circuit court dismissed. Feeling aggrieved, Partain appeals and argues that: (1) his guilty plea was involuntary; (2) he received ineffective assistance of counsel; and (3) the circuit court's factual findings were clearly erroneous.

¶ 2. Finding no reversible error, we affirm.

FACTS

¶ 3. On January 15, 2008, a DeSoto County grand jury returned a two-count indictment against Partain. Count one charged Partain, pursuant to Mississippi Code Annotated section 63–11–30(5) (Supp.2010), with negligently causing the death of Lillian Esrey while operating a vehicle under the influence of intoxicating liquor that impaired his ability to operate the vehicle. Count two charged him with possession of Oxycodone. On August 12, 2008, the circuit court entered an order remanding both counts of the indictment to the files, and the State filed a bill of information charging Partain, pursuant to Mississippi Code Annotated section 97–3–47 (Rev.2006), with manslaughter by culpable negligence. On the same day, Partain signed a waiver of indictment and consented to proceed on the bill of information for the charge of manslaughter by culpable negligence.

¶ 4. Additional facts, as necessary, will be related during our analysis and discussion of the issues.

ANALYSIS AND DISCUSSION OF THE ISSUES

¶ 5. A circuit court may dismiss a PCR motion without an evidentiary hearing where “it plainly appears from the face of the motion, any annexed exhibits[,] and the prior proceedings in the case that the movant is not entitled to any relief....” Miss.Code Ann. § 99–39–11(2) (Supp.2010). An appellate court will not reverse a circuit court's dismissal of a PCR motion unless the circuit court's decision was clearly erroneous. Means v. State, 43 So.3d 438, 441 (¶ 6) (Miss.2010). However, questions of law are reviewed de novo. Id.

1. Involuntary Guilty Plea

¶ 6. Partain argues that his guilty plea is invalid because it was involuntary. Specifically, Partain alleges that he was not informed of the elements of the charge against him or the consequences of his guilty plea. He also alleges that his attorney coerced him into pleading guilty.

¶ 7. “A valid guilty plea must represent a voluntary and intelligent choice by the defendant among the alternative courses of action available.” Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006) (citing Hill v. Lockhart, 474 U.S. 52, 56, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985)). When determining whether a plea is voluntary, an appellate court considers whether “the trial court [advised] the defendant of his rights, the nature of the charge against him, as well as the consequences of the plea.” Burrough v. State, 9 So.3d 368, 373 (¶ 11) (Miss.2009) (citing Harris v. State, 806 So.2d 1127, 1130 (¶ 9) (Miss.2002)).

a. Elements of Charge

¶ 8. During his plea hearing, the circuit court explained to Partain that he had been charged with manslaughter by culpable negligence. The circuit court asked Partain if he understood the charge that he was pleading guilty to, and Partain stated under oath that he did. We note that the circuit court did not recite the elements of manslaughter by culpable negligence. However, when the circuit court asked the State to summarize its proof at the plea hearing, the State offered the following:

[BY THE PROSECUTOR]: If this matter were to go to trial, the State would be prepared to prove beyond a reasonable doubt[,] with credible and admissible evidence[,] that on or about October 28th of 2007, this Defendant, Richard Partain, did willfully, unlawfully, feloniously-willfully and feloniously kill one Lillian Esrey, a human being, by culpable negligence and without authority of law.

¶ 9. This Court has previously held that a prosecutor's on-the-record statement of the elements of the crime charged sufficiently informs a defendant of the elements of the crime. Williams v. State, 31 So.3d 69, 79 (¶ 28) (Miss.Ct.App.2010). In Williams, the circuit court failed to advise Jason Williams of the elements of the crimes that he had pleaded guilty to, and it failed to “ask defense counsel whether they had advised Williams of the elements.” Id. at 77 (¶ 22). Additionally, Williams's plea petitions “did not set forth the elements of the crimes.” Id. However, at the plea hearing, the prosecutor made an on-the-record recitation of the essential elements of the crimes charged. Id. at 79 (¶¶ 29–30). This Court stated that “we see no constitutional infirmity with the elements of the crime to which a defendant wishes to plead guilty having being explained to the defendant by the prosecutor rather than the judge at a plea hearing.” Id. at 79 (¶ 28).

¶ 10. We see no reason to hold differently here. The prosecutor's on-the-record statement at the plea hearing, which was made in front of both Partain and his attorney, contained all of the statutory elements of manslaughter by culpable negligence, which are “an unlawful killing by the culpable negligence of another.” Id. at (¶ 30) (quoting Ramage v. State, 914 So.2d 274, 276 (¶ 5) (Miss.Ct.App.2005)). Accordingly, we find that the prosecutor's statements made in open court sufficiently informed Partain of the charge against him. This issue is without merit.

b. Consequences of Plea

¶ 11. Partain also alleges that the circuit court failed to inform him of the consequences of his guilty plea. However, Partain's allegation is not supported by the record. During the plea hearing, the circuit court explained to Partain that by pleading guilty, he would waive his right to a trial by jury, right to confront adverse witnesses, and right to protection against self-incrimination. The circuit court asked Partain whether he understood that he was waiving these rights by pleading guilty, and he indicated that he did. The circuit court also explained the maximum and minimum sentences associated with manslaughter by culpable negligence, and Partain stated that he understood the possible sentences. Based on our review of the transcript from the plea hearing, we find that Partain understood the consequences of his guilty plea. This issue is without merit.

c. Coercion

¶ 12. Finally, Partain argues that his attorney coerced him into pleading guilty. However, other than the assertions in his brief, Partain has presented no evidence that his plea was coerced. Furthermore, during his plea hearing, Partain stated under oath that he had not been threatened or coerced into pleading guilty. Additionally, in his plea petition, Partain declared that he had freely and voluntarily entered his guilty plea. Based on his sworn answers during his plea hearing and within his plea petition, Partain entered his plea voluntarily, knowingly, and intelligently. This issue is without merit.

2. Ineffective Assistance of Counsel

¶ 13. Partain argues that he received ineffective assistance of counsel because his attorneys failed to secure a preliminary hearing, to schedule a hearing on his motion to suppress evidence, and to investigate his case adequately.¹

¶ 14. To succeed in a challenge to the effectiveness of counsel, Partain must satisfy the two-prong test announced in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The first prong requires that the defendant show that “counsel's representation fell below an objective standard of reasonableness.” Hannah, 943 So.2d at 24 (¶ 6) (citing Strickland, 466 U.S. at 687–88, 104 S.Ct. 2052). Under the second prong, “the defendant must show [that] there is reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (citing Strickland, 466 U.S. at 694, 104 S.Ct. 2052). In the context of guilty-plea proceedings, the second prong requires a showing “that there is a reasonable probability that, but for counsel's errors, [the defendant] would not have pleaded guilty, would have insisted on going to trial, and the outcome would have been different.” Id. at (¶ 7).

a. Preliminary Hearing

¶ 15. Partain contends that he received ineffective assistance of counsel because his attorneys failed to secure a preliminary hearing. Based on the record, there is no evidence that William Travis, Partain's court-appointed counsel, attempted to secure a preliminary hearing. Partain's retained attorney, Jefferson Gilder, requested a preliminary hearing in conjunction with a writ of habeas corpus. However, at the time Gilder filed the writ, Partain had already been indicted by a grand jury. Under Rule 6.05 of the Uniform Rules of Circuit and County Court, “[a] defendant who has been indicted by a grand jury shall not be entitled to a preliminary hearing.”

¶ 16. Partain contends that Travis's and Gilder's failure to secure a preliminary hearing prior to his indictment constitutes ineffectiveness. However, Partain fails to provide evidence of how counsels' alleged ineffectiveness prejudiced him. Furthermore, Partain's valid guilty plea operates as a waiver of “all non-jurisdictional rights or defects which are incident to trial,” including a preliminary hearing. Cummings v. State, 827 So.2d 14, 16–17 ...