Richardson v. State, No. 1998-CP-01654-COA.
| Decision Date | 10 October 2000 |
| Docket Number | No. 1998-CP-01654-COA. |
| Parties | Taurus DeWayne RICHARDSON, Appellant, v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Taurus DeWayne Richardson, Appellant, pro se.
Office of the Attorney General by Billy L. Gore, Attorney for Appellee.
BEFORE KING, P.J., BRIDGES, AND MOORE, JJ.
MOORE, J., for the Court:
¶ 1. Taurus DeWayne Richardson pled guilty to armed robbery. Thereafter, Richardson filed a motion for post-conviction relief requesting the circuit court to vacate his conviction and sentence. The Circuit Court of Lee County entered an order denying Richardson's motion for post-conviction relief. Richardson filed a timely pro se appeal and argues that the trial court erred when it denied his motion for post-conviction relief. As summarized by the Court, Richardson cites the following issues on appeal:
Finding no error, we affirm.
I. FACTS
¶ 2. On February 28, 1996, Taurus Richardson pled guilty to armed robbery in the Circuit Court of Lee County. Richardson was sentenced to twenty years with twelve years suspended and eight years to serve. On October 1, 1998, Richardson filed a petition for post-conviction collateral relief with the Circuit Court of Lee County. In a convoluted manner, Richardson alleges that his conviction and sentence should be overturned for several reasons.
¶ 3. First, Richardson argues that the indictment charging him with armed robbery is fatally flawed in that his first name was spelled "Tauraus" instead of Taurus and that the indictment did not include the fact that he would not be eligible for parole for the entire eight years he was sentenced to serve because of the mandatory sentence requirement for armed robbery by display of a firearm pursuant to Mississippi Code Section 47-7-3 (Supp.1999). Second, Richardson contends that his guilty plea was not made knowingly and voluntarily because neither the State nor Richardson's attorney informed him that there was a minimum mandatory sentence for armed robbery with a display of a firearm. Third, Richardson alleges he had ineffective assistance of counsel in that his attorney failed to object to the flaws in the indictment and that his attorney improperly induced Richardson into entering the guilty plea by telling him that he would only have to serve one fourth of the twenty year sentence. Finally, Richardson argues that the trial court erred in denying him an evidentiary hearing on the issues cited in his petition for post-conviction collateral relief. Any additional facts will be discussed as necessary to resolve the issues presented on appeal by Richardson.
LAW AND ANALYSIS
¶ 4. Richardson argues that the indictment was fatally flawed because his first name was misspelled and the indictment failed to state the fact that he would not be eligible for parole for all eight years. Richardson further finds error in the fact that the trial court did not address these defects on its own motion. The purpose of an indictment is to put the defendant on notice of the nature and cause of the charges against him. URCCC 7.06. Defects in the indictment that are non-jurisdictional are waiveable by a valid guilty plea. Brooks v. State, 573 So.2d 1350, 1352 (Miss.1990). However, the failure to charge an essential element of a criminal offense is not waiveable. Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989). Furthermore, defects in the indictment that do not go to the merits or elements of a charge are amendable. Miss.Code Ann. § 99-17-13 (Rev.1994). If the defendant fails to plead that his name is not shown in the indictment before pleading guilty, he waives his right to claim that he was not the person named in the indictment. The trial court is not required to amend the indictment on its own motion. Anselmo v. State, 312 So.2d 712, 715 (Miss.1975).
¶ 5. By failing to address the misspelling of his name in the indictment before pleading guilty, Richardson has waived his right to challenge the indictment based on the misnomer. Also, the trial court did not err by not objecting to the misspelling on its own motion. There is nothing in the record to indicate that Richardson was misled by the misspelling. If the situation had been addressed, the prosecution would simply have had the indictment amended. There was no adverse effect on Richardson to warrant the misspelling of his first name in the indictment being a reversible error. Richardson's argument that the indictment is flawed because the no parole provision of Miss.Code Ann. § 47-7-3(1)(d)(i) (Rev. 1993) was not included is untenable. The only deficiency that survives waiver by a guilty plea is not including the essential elements of the crime or lack of jurisdiction. Whether a person convicted of the crime charged will be eligible for parole is not an essential element of the crime of armed robbery and has no effect on jurisdiction. Therefore, Richardson's argument that the indictment was flawed is without merit.
¶ 6. Richardson also argues that his plea of guilty was not voluntary due to his attorney's misrepresentation that he would only have to serve one-fourth of the twenty year sentence. This contention is without merit. If the defendant is advised regarding the nature of the charge and the consequences of the plea, it is considered "voluntary and intelligent." Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992). Furthermore, "Solemn declarations in open court carry a strong presumption of verity." Baker v. State, 358 So.2d 401, 403 (Miss.1978). In Houston v. State, 461 So.2d 720, 722 (Miss.1984), the court held that when the record shows that the trial court fully informed the defendant of a mandatory sentence and the defendant acknowledged the sentence, the defendant's claimed expectation of a more lenient sentence is rebutted. Id. In Roland v. State, 666 So.2d 747, 750 (Miss.1995), the court held that when the trial court questions the defendant and explains his rights and the effects and consequences of the plea on the record, the plea is rendered voluntary despite advice given to the defendant by his attorney. Id. See Smith v. State, 636 So.2d 1220, 1225 (Miss.1994).
¶ 7. The record discloses that the trial judge sufficiently questioned Richardson about his understanding of the effect of his guilty plea and the no parole provision of his sentence. The trial judge stated as follows:
¶ 8. In light of the fact that Richardson stated under oath that he understood that he would have to serve eight years and still wished to plead guilty and that no one had made any representations to him regarding his sentence, we find that Richardson's argument that his plea was not voluntary to be without merit.
¶ 9. Richardson contends that he received ineffective assistance of counsel in pleading guilty to armed robbery based on his attorney's failure to object to the indictment and the misrepresentation about the length of his sentence. In his petition for post-conviction collateral relief, Richardson included a letter from his attorney stating that Richardson would only have to serve one-fourth of his twenty year sentence which is contrary to the no parole provision found in Miss.Code Ann. § 47-7-3 (Rev.1993).
¶ 10. Claims of ineffective assistance of counsel are judged by the standard in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The two-part test set out in Strickland is whether counsel's performance was deficient and, if so, whether the deficiency prejudiced the defendant to the point that "our confidence in the correctness of the outcome is undermined." Neal v. State, 525 So.2d 1279, 1281 (Miss.1987). This standard is also applicable to a guilty plea. Schmitt v. State, 560 So.2d 148, 154 (Miss.1990). A strong but rebuttable presumption exists that "counsel's conduct falls within a broad range of reasonable professional assistance." McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). To overcome this presumption, the defendant must show that "but for" the deficiency a different result would have occurred. Strickland, 466 U.S. at 694, 104 S.Ct. 2052.
¶ 11. Richardson's attorney cannot be found deficient in not objecting to the indictment. As stated previously, the indictment does not have to include the no parole provision of the sentence. An attorney cannot be expected to object to a valid indictment. Also, Richardson cannot show that the outcome of his case would have been any different if his first name had been spelled "Taurus" instead of "Tauraus" in the indictment.
¶ 12. Richardson's contention that his attorney falsely told him that he would only have to serve one-fourth...
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