Sykes v. State
| Decision Date | 22 February 2005 |
| Docket Number | No. 2003-CP-02119-COA.,2003-CP-02119-COA. |
| Parties | Mark SYKES, Appellant v. STATE of Mississippi, Appellee. |
| Court | Mississippi Court of Appeals |
Mark Sykes, appellant, pro se.
Office of the Attorney General by Deirdre McCrory, attorney for appellee.
Before LEE, P.J., MYERS and CHANDLER, JJ.
MYERS, J., for the Court.
STATEMENT OF FACTS
¶ 1. Mark Sykes and three other individuals were indicted in Amite County for the crimes of armed robbery and attempted kidnaping. The crimes for which Sykes was indicted occurred on February 17, 2000, at the C-Store in Amite County. On October 1, 2000, Sykes pled guilty to the charge of armed robbery, with the State agreeing to retire the charge of attempted kidnaping. Sykes had a prior felony conviction for strong arm robbery from Miami, Florida and was sentenced to thirty years in the custody of the Mississippi Department of Corrections, with twenty years to serve and the remaining ten years to be served on post-release supervision for five years.
¶ 2. On February 27, 2003, Sykes filed his motion for post-conviction relief raising as error that he received ineffective assistance of counsel, his sentence was excessive, and he was denied due process because he was not informed that his sentence could not be appealed to the Mississippi Supreme Court for direct review. Sykes' motion for post-conviction relief was denied on September 2, 2003.
¶ 3. Aggrieved by the denial of his motion, Sykes appeals raising the following six issues:
¶ 4. Finding no error, we affirm.
LEGAL ANALYSIS
¶ 5. Sykes' first assignment of error is that he was denied his Sixth Amendment right to effective assistance of counsel. Sykes contends that his counsel was ineffective because he was advised to plead guilty to armed robbery. Sykes argues that he would have been convicted, at worst, for the crime of accessory after the fact.
STANDARD OF REVIEW
¶ 6. "The standard of review for a claim of ineffective assistance of counsel is a two-part test: the defendant must prove, under the totality of the circumstances, that (1) his attorney's performance was defective and (2) the deficiency deprived the defendant of a fair trial." Reynolds v. State, 784 So.2d 929, 933(¶ 15) (Miss.2001) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Hiter v. State, 660 So.2d 961, 965 (Miss.1995)). "This review is highly deferential to the attorney, and there is a strong presumption that the attorney's conduct fell within the wide range of reasonable professional assistance." Reynolds, 784 So.2d at 933 (citing Hiter, 660 So.2d at 965). "With respect to the overall performance of the attorney, `counsel's choice of whether or not to file certain motions, call witnesses, ask certain questions, or make certain objections fall within the ambit of trial strategy' and cannot give rise to an ineffective assistance of counsel claim." Reynolds, 784 So.2d at 933-34 (citing Cole v. State, 666 So.2d 767, 777 (Miss.1995)).
DISCUSSION
¶ 7. Sykes first argues that he received ineffective assistance of counsel. In attempting to meet the heavy burden set forth in Strickland, Sykes offers the following:
¶ 8. A careful review of the record indicates that Sykes was very well aware of the crime to which he was entering a plea. The trial judge asked Sykes repeatedly about his involvement in the crime, to which Sykes' story changed almost as often as the questions. After hearing what proof was to be presented by the State and by Sykes' admission of participation in the crime, the trial judge accepted his plea of guilty. In accepting Sykes' plea, the trial judge asked:
The record clearly demonstrates that Sykes conferred with his attorney regarding his options and the proper strategy for his case. Further, it cannot be said that Sykes counsel's brief moment of confusion regarding which charges the State would pursue, rise to the level of ineffective assistance of counsel as provided by Strickland. Sykes has failed to prove that his counsel's "disoriented" state deprived him of a fair trial. The record clearly indicates that the trial judge explained to Sykes the terms of the plea agreement. Sykes cannot argue that he was unaware of the matter to which he was pleading.
¶ 9. This assignment of error does not show a violation to the two-prong test set forth in Strickland and we therefore find no merit to this argument.
¶ 10. Sykes next contends that his sentence was excessive due to the fact that his cohorts to this crime were given lesser sentences, and the sentence which he received exceeds the punishment prescribed by Mississippi Code Annotated § 97-1-5 (Rev.2000) for the crime of accessory after the fact.
STANDARD OF REVIEW
¶ 11. "It is well settled in this State that the imposition of sentence in a criminal proceeding is within the sole discretion of the trial judge, and that this Court will not reverse a sentence where it is within the limits prescribed by statute." Corley v. State, 536 So.2d 1314, 1319 (Miss.1988) (citing Johnson v. State, 461 So.2d 1288, 1292 (Miss.1984); Contreras v. State, 445 So.2d 543, 546 (Miss.1984); Bracy v. State, 396 So.2d 632, 636 (Miss.1981)).
DISCUSSION
¶ 12. Sykes argues that his sentence was excessive, as the other participants of the crime received a lesser sentence. Armed robbery is governed by Mississippi Code Annotated § 97-3-79 (Rev.2000) which states in pertinent part:
upon conviction, shall be imprisoned for life in the state penitentiary if the penalty is so fixed by the jury; and in cases where the jury fails to fix the penalty at imprisonment for life in the state penitentiary the court shall fix the penalty at imprisonment in the state penitentiary for any term not less than three (3) years.
The sentence prescribed by the trial court was well within the statutory guidelines and is not subject to review by this Court. There is no merit to this assignment of error.
¶ 13. Sykes next argues that he was denied his right to due process because the trial court did not inform him that a plea of guilty acts as a waiver to appeal of the conviction.
STANDARD OF REVIEW
¶ 14. "A plea of guilty entered by one fully aware of the direct consequences, including the actual value of any commitments made to him by the court, must stand unless induced by threats (or promises to discontinue improper harassment), misrepresentation (including unfulfilled or unfulfillable promises), or perhaps by promises that are by their nature improper as having no proper relationship to the prosecutor's business (e.g. bribes)." Williams v. State 752 So.2d 410, 412 (¶ 4) (Miss.Ct.App.1999) (citing Brady v. U.S., 397 U.S. 742, 755, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1970)).
DISCUSSION
¶ 15. The applicable portion of the plea hearing is as follows:
¶ 16. The record clearly demonstrates that Sykes was informed that should he plead guilty to the crime that his plea of guilty would act as a waiver to a direct appeal to the Mississippi Supreme Court pursuant to Mississippi Code Annotated § 99-35-101 (Rev.2000). As such, this assignment of error is without merit.
¶ 17. Sykes next argues that as a prior convicted felon, the circuit court was without authority, in accordance with Mississippi Code Annotated § 47-7-3 (Rev.2004), to suspend any portion of his sentence. Therefore, Sykes argues that the entire sentence was improperly imposed.
DISCUSSION
¶ 18. Mississippi Code Annotated § 47-7-3(1)(a) states as follows:
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