Smith v. State

• Decision Date: 03 February 1994
• Docket Number: No. 91-KP-1054,91-KP-1054
• Parties: Ricky Lee SMITH, a/k/a Rickey Lee Smith v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 1220

636 So.2d 1220

Ricky Lee SMITH, a/k/a Rickey Lee Smith v. STATE of Mississippi.

No. 91-KP-1054.

Supreme Court of Mississippi.

Feb. 3, 1994.

Rehearing Denied May 19, 1994.

Ricky Lee Smith, pro se.

Michael C. Moore, Atty. Gen., Mary Margaret Bowers, Sp. Asst. Atty. Gen., Jackson, for appellee.

En Banc.

SMITH, Justice, for the Court:

Ricky Lee Smith entered a guilty plea to the crime of armed robbery in the Circuit Court of DeSoto County, Mississippi, and was sentenced to serve a term of eight years in the custody of the Mississippi Department of Corrections. Smith filed a motion for post-conviction collateral relief claiming his plea was involuntary and that he should have been advised of the minimum mandatory sentence. The lower court, without conducting an evidentiary hearing, denied Smith's motion to set aside and vacate the plea and conviction. Aggrieved, Smith appeals to this Court, asking that we once again confront the question of voluntariness of a plea and the effect of the failure to advise a defendant of the minimum sentence when accepting a guilty plea. We conclude that the trial court was well within its right not to conduct an evidentiary hearing. The facts from the entirety of the record before this Court show beyond a reasonable doubt that the failure to advise this accused of the minimum mandatory sentence played no role in his decision to plead guilty. Smith was not prejudiced, but was sentenced according to his expectations.

THE FACTS

On February 6, 1989, Ricky Lee Smith was indicted in DeSoto County Circuit Court for the crime of armed robbery. Specifically, Smith was charged with taking "from the presence or person of C.D. Tharrington certain personal property, to-wit: One (1) wallet containing cash money in the amount of $165.00 and credit cards, the personal property of C.D. Tharrington, against the will of C.D. Tharrington, by putting C.D. Tharrington in fear of immediate injury to his person by the exhibition of a deadly weapon, to-wit: a concrete block...."

After appointment of counsel and apparent plea negotiations, Smith, on May 24, 1989, filed his sworn petition for the court to accept his guilty plea to the armed robbery and three other charges not involved in this appeal. Paragraph 6 of Smith's petition stated that "I have been advised of the maximum sentence the court can impose on this charge and plea."

On June 5, 1989, Smith personally appeared with counsel before the circuit court judge for a plea hearing. An extensive and lengthy hearing was conducted. The State recited the following factual allegations it could prove, if the cause here in question were tried:

[T]he State could prove by admissible and credible evidence and beyond a reasonable doubt that Ricky Lee Smith, did on January 29, 1989, commit the crime of robbery through the exhibition and use of a deadly weapon. The victim was C.D. Tharrington. This occurred outside the post office in Hernando, Mississippi. The defendant saw the victim inside the post office. The defendant saw that the victim had money. The defendant waited until the victim came out of the post office. The defendant struck the victim with a concrete block, causing serious head injury. The defendant then took cash money from the person of the victim.

Smith told the court he understood and recalled the events related to the charge. He then petitioned the court to accept his plea of guilty.

Although the plea hearing record embraces ten legal size pages of questions and advisory statements by the circuit court judge directed to Smith, as well as Smith's elicited answers acknowledging an understanding of the effects of his offered plea, ¹ the record does not show that Smith was advised by the court, his attorney or any responsible party concerning the mandatory minimum sentence for armed robbery.

After determining that the plea was voluntarily and intelligently made, the circuit court judge accepted Smith's guilty pleas and sentenced him to serve eight years with the Mississippi Department of Corrections on the armed robbery charges and a total of seventeen years suspended sentence on the other charges. As to the armed robbery charge the court's judgment also provides:

This sentence is imposed pursuant to the provision of Sec. 47-7-3, Miss.Code Ann.1972, as amended, and defendant shall not be eligible for parole, earned time, good time, or any other administrative reduction of time.

On February 11, 1991, Smith filed his motion for post-conviction collateral relief in the DeSoto County Circuit Court. He sought to set aside and vacate the pleas and convictions, asserting that he was denied effective assistance of counsel, that the entry of his guilty plea was involuntary, made without a full and complete understanding of the consequences thereof, and that he was coerced by intentional misinformation from his counsel. He alleged under oath that defense counsel failed to inform him of the minimum mandatory sentence for armed robbery and led him to believe that he would receive a sentence that could be served in the county jail. According to Smith, his lawyer told him falsely that Smith's mother had advised the guilty plea and that he, Smith, was to respond in the affirmative to all of the court's questions in order to get the court to accept the plea. The circuit court judge considered Smith's petition and entered an order summarily denying and dismissing it. Smith appeals presenting the following issues:

I. WHETHER APPELLANT WAS RENDERED INEFFECTIVE ASSISTANCE OF COUNSEL IN VIOLATION OF APPELLANT'S CONSTITUTIONAL RIGHT UNDER THE 6TH AND 14TH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND THE CONSTITUTION OF THE STATE OF MISSISSIPPI.

II. WHETHER APPELLANT'S PLEA OF GUILTY WAS INVOLUNTARY

AS A MATTER OF LAW WHERE THE APPELLANT WAS NOT INFORMED OF THE MANDATORY MINIMUM SENTENCE WHICH COULD BE IMPOSED, BY THE TRIAL JUDGE, PRIOR TO THE PLEA OF GUILTY BEING ACCEPTED AND IN ACCORD WITH RULE 3.03(3), MISS.UNIF.CRIM.RULES OF CIR. COURT PRACTICE.

III. WHETHER APPELLANT'S PLEA OF GUILTY IS NULL AND VOID WHERE IT WAS NOT VOLUNTARILY MADE IN ACCORD WITH RULE 3.03(2), WHERE THE PLEA WAS INDUCED BY DECEPTION BY COUNSEL ADVISING APPELLANT THAT HIS MOTHER HAD CALLED AND ADVISED APPELLANT, THROUGH COUNSEL, TO PLEAD GUILTY.

DISCUSSION OF LAW

I. INEFFECTIVE ASSISTANCE OF COUNSEL

Smith alleges ineffective assistance of counsel. Examining the facts as contained within the record now before this Court and applying the two-pronged test as set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), it is obvious Smith failed to sustain his claim of ineffective assistance of counsel. This Court has adopted and adhered to this two-pronged test as set forth in Strickland. Schmitt v. State, 560 So.2d 148 (Miss.1990); See also Gilliard v. State, 462 So.2d 710, 713-14 (Miss.1985).

In Schmitt, this Court, applying the Strickland criteria stated: "Before counsel can be deemed to have been ineffective, it must be shown (1) that counsel's performance was deficient, and (2) that the defendant was prejudiced by counsel's mistakes." 560 So.2d at 154. Smith must overcome the presumption that "counsel's performance falls within the range of reasonable professional assistance." Id. To meet this burden, Smith must show that "there is a reasonable probability that, but for his counsel's errors, the result of the proceeding would have been different." Smith's claim that "his counsel's deficient conduct caused him to plead guilty to an armed robbery, where if he had went [sic] to trial he could have been found guilty of nothing more then [sic] simple robbery or simple assault" is contrary to the law and facts. His confession alone is sufficient to withstand this frivolous claim.

Smith claims he was not advised by counsel of basic information or the consequences of his plea. This allegation is not supported by the record. The record clearly reflects, at the hearing, prior to the lower court's acceptance of his plea, that Ricky Smith was absolutely aware of the nature and consequences of the plea he was about to enter into. He fully understood that his plea of guilty was an admission to committing the crime and that the plea would result in mandatory prison time. Smith heard his attorney tell the judge that counsel had told Smith what the State's recommendation would be in advance of the hearing. Smith advised the court that he understood the recommendation of the State. He knew in advance, fully expected, and received the sentence given him by the lower court.

Smith knew full well that the trial court was relying on the State's recommendation. Although Smith argues he was not informed of the minimum sentence, he does not argue that he was misled into believing that the eight year sentence, which he was told he would receive, was the minimum sentence. Neither does Smith claim that he was under the impression that he would receive the minimum sentence for his crime.

Smith has simply failed to overcome the burden placed upon him by Strickland to show (1) that his counsel was deficient, and (2) that he was prejudiced by his counsel's mistakes.

In addressing the remaining two issues raised by Smith, it becomes necessary to restate some of the facts of the case sub judice which warrant highlighting. These statements set out below show that the failure of the judge to advise Smith that the judge was obligated to sentence him to at least three years imprisonment ² had no effect upon Smith's decision to plead guilty:

1. Smith's attorney stated that he advised Smith, prior to entry of the guilty plea that the State would recommend a punishment to the court.

2. Smith's attorney also stated that the punishment to be recommended by the State was discussed with Smith several times, and Smith understood it.

3. Smith stated that he understood that the State would make a recommendation of punishment to the court. Smith also stated that he...