Putnam v. State

• Decision Date: 25 October 2016
• Docket Number: NO. 2015-CP-00830-COA,2015-CP-00830-COA
• Citation: 212 So.3d 86
• Parties: James F. PUTNAM a/k/a James Franklin Putnam a/k/a James Putnam a/k/a J. Putnam, Appellant v. STATE of Mississippi, Appellee
• Court: Mississippi Court of Appeals

212 So.3d 86

James F. PUTNAM a/k/a James Franklin Putnam a/k/a James Putnam a/k/a J. Putnam, Appellant

v.STATE of Mississippi, Appellee

NO. 2015-CP-00830-COA

Court of Appeals of Mississippi.

October 25, 2016

Rehearing Denied February 28, 2017

JAMES F. PUTNAM (PRO SE), ATTORNEY FOR APPELLANT

OFFICE OF THE ATTORNEY GENERAL, BY: ABBIE EASON KOONCE, ATTORNEY FOR APPELLEE.

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

CARLTON, J., FOR THE COURT:

¶1. James F. Putnam appeals the Harrison County Circuit Court's order denying his motion for postconviction relief (PCR). Putnam argues that his claims for ineffective assistance of counsel and illegal sentence are meritorious claims and show that his fundamental constitutional rights were violated. Putnam thus asserts that since his assignments of error allege violations of his fundamental constitutional rights, the trial court erred in findings these claims procedurally barred. Putnam further claims that at the plea hearing, the State failed to offer facts in support of the trial court accepting Putnam's guilty plea. Finding no error, we affirm the trial court's denial of Putnam's PCR motion.

FACTS

¶2. On December 18, 1997, Putnam pleaded guilty to armed robbery, unlawful possession of a firearm, and embezzlement. The record reflects that at his guilty-plea hearing, Putnam admitted to entering an Eckerd Drugs in Gulfport, Mississippi, and walking to the back of the store. Once Putnam saw the pharmacist, Putnam pulled out a gun and "pointed it in [the pharmacist's] general direction." Putnam claimed that he then stated "Hello, sweetheart," put away the weapon, and walked back out of the store. When asked by the trial court if he took anything, Putnam responded, "No, your honor." Putnam admitted that when he first entered the store, "[his] intentions were to rob the store [,]" but then he changed his mind.

¶3. The trial court sentenced Putnam, as a habitual offender, to serve twenty years in the custody of the Mississippi Department of Corrections (MDOC) for the armed-robbery charge, one year in the custody of the MDOC for the unlawful-possession-of-a-firearm charge, and five years in the custody of the MDOC for the embezzlement charge. The trial court ordered these sentences to run concurrently, for a total of twenty years to be served. The trial court further ordered these sentences to run concurrently with a federal sentence Putnam was already serving at the time.

¶4. Putnam timely filed his first PCR motion in which he claimed that he received ineffective assistance of counsel and that his "indictment to the charge of armed robbery was invalid ... because he was initially charged with a lesser crime ... [and] because he never actually took and carried away the property of another." Putnam v. State , 877 So.2d 468, 470, 473 (¶¶6, 22) (Miss. Ct. App. 2003). After reviewing Putnam's PCR motion, the trial court "issued an order vacating the habitual offender enhancement with regards to the embezzlement and armed robbery charges" and "vacated the firearm charge altogether." Id. After an evidentiary hearing on the issue of whether Putnam's plea was involuntary, the trial court denied Putnam's PCR motion and found that his guilty plea was knowingly, intelligently, and voluntarily entered. Id . Putnam appealed the trial court's denial of his PCR motion. On appeal, this Court affirmed the trial court's denial and found that Putnam's indictment was valid. Id . at 474 (¶29). In so doing, this Court explained that, "[a]ccording to statute, a person can be convicted of armed robbery while attempting to complete the crime." Id . at 471 (¶10) ; see Miss. Code Ann. § 97–3–79 (Rev. 2014). This Court then determined that Putnam's indictment properly tracked the language of the armed-robbery statute. Id.

¶5. Regarding Putnam's ineffective-assistance-of-counsel claim, this Court found:

Putnam has failed to meet the requirements under Strickland [v. Washington , 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) ]. Of all of the alleged errors of counsel, Putnam only applies the Strickland test to his counsel's failure to inform him as to the requirement that a person must take and carry away the property of another in order to be convicted of armed robbery. As noted above, this requirement is unnecessary. The law in this state allows for a conviction of armed robbery in circumstances where the defendant has attempted the crime. Such was the situation in the present case. It is impossible for Putnam to prove that the absence of this advice from his attorney would have affected the outcome at trial.

Moreover, we find Putnam's claim that he received no assistance of counsel at the evidentiary hearing to be without merit. First, "[a] criminal defendant has neither a state nor a federal constitutional right to appointed counsel in post-conviction proceedings." Moore v. State , 587 So.2d 1193, 1195 (Miss. 1991) (citing Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987) ). The Mississippi [Uniform Postconviction] Collateral Relief Act [ (UPCCRA) ] states that a judge may appoint counsel for a qualified petitioner. Miss. Code Ann. § 99–39–23(1) (Rev. 2000) .... In other words, it is within the judge's discretion.

Second, the record indicates that the trial judge notified Putnam's attorney at the time regarding the hearing. As noted above, this hearing took place telephonically due to the fact that Putnam was detained in a federal prison in Pennsylvania....

The transcript from the hearing states that Putnam initiated the hearing two hours early because of time constraints at the federal prison along with a mistaken belief about the time zone differential between the two states. The trial judge notified Putnam of this mistake. The trial judge then specifically asked Putnam if he still wished to proceed despite the fact that he was two hours ahead of schedule. Putnam then proceeded to present his claims over the telephone. We find this issue to be without merit.

Id . at 473–74 (¶¶24–27).

¶6. The record reflects that since the denial of his first PCR motion, Putnam has challenged his conviction and sentence at least two additional times. See Putnam v. Epps , 63 So.3d 547 (Miss. 2011) ; Putnam v. Epps , 963 So.2d 1232 (Miss. Ct. App. 2007).

¶7. Putnam filed the current PCR motion on May 8, 2012, challenging only his armed-robbery conviction and sentence.¹ The record reflects that over the next three years, Putnam filed numerous additional amendments and motions regarding his May 8, 2012 PCR filing. On July 14, 2015, the trial court denied Putnam's PCR motion after finding the motion time-barred, a successive-writ, and without merit. Putnam now appeals, arguing that his claims for ineffective assistance of counsel and illegal sentence are meritorious claims showing that his fundamental constitutional rights were violated. Putnam thus asserts that since his assignments of error allege violations of his fundamental constitutional rights, the trial court erred in findings these claims procedurally barred.

STANDARD OF REVIEW

¶8. When reviewing a trial court's summary dismissal of a PCR motion, this Court employs a clearly-erroneous standard of review. Jones v. State , 174 So.3d 902, 905 (¶8) (Miss. Ct. App. 2015). However, when questions of law are raised, we employ a de novo standard of review. Id .

Mississippi Code Annotated section 99–39–11(2) (Rev. 2015) provides: "If 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, the judge may make an order for its dismissal and cause the petitioner to be notified."

¶9. "This Court will reverse the summary dismissal of a motion for PCR if the motion presents a claim procedurally alive substantially showing denial of a state or federal right." Fluker v. State , 170 So.3d 471, 473 (¶7) (Miss. 2015) (internal quotation marks omitted).

DISCUSSION

¶10. Putnam argues that at his plea hearing, the State failed to offer facts in support of his guilty plea to the charge of armed robbery. Putnam claims that without evidence of a request or demand for money, his conduct fails to show an overt act in furtherance of attempting the crime of armed robbery as required for a conviction for that offense. As a result, Putnam argues that the trial court erred in accepting his guilty plea without any factual basis in support of the conviction, and thus Putnam received an illegal sentence. Putnam also claims that he could have easily been charged with attempted aggravated assault or various other lesser offenses since he allegedly never made a request or demand for money. Putnam further argues that he was denied effective assistance of counsel.

¶11. Uniform Rule of Circuit and County Court 8.04(A)(3) provides that "[b]efore the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea." We recognize that "[a] sufficient factual basis requires an evidentiary foundation in the record which is sufficiently specific to allow the court to determine that the defendant's conduct was within the ambit of that defined as criminal." Smith v. State , 86 So.3d 276, 280 (¶11) (Miss. Ct. App. 2012) (citations and quotations omitted).

¶12. At the December 18, 1997 plea hearing, the record reflects that the prosecutor made no proffer of the facts of the crime. Instead, the trial court asked Putnam to "tell [the court] about the armed robbery[.]" Putnam then gave a recitation of the facts underlying the offense. As stated, the plea-hearing transcript reflects that at his plea hearing, Putnam admitted to entering an Eckerd Drugs in Gulfport and walking to the back of the store. Once Putnam saw the pharmacist, Putnam pulled out a gun and "pointed it in [the pharmacist's] general direction." Putnam claimed that he then stated, "Hello, sweetheart," put away the weapon, and walked out of...