Sykes v. State, 91-KP-1030

• Decision Date: 23 September 1993
• Docket Number: No. 91-KP-1030,91-KP-1030
• Citation: 624 So.2d 500
• Parties: Ronald SYKES v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 500

624 So.2d 500

Ronald SYKES v. STATE of Mississippi.

No. 91-KP-1030.

Supreme Court of Mississippi.

Sept. 23, 1993.

Rehearing Denied Nov. 17, 1994.

Ronald Sykes, pro se.

Michael C. Moore, Atty. Gen., John R. Henry, Jr., Sp. Asst. Atty. Gen., Jackson, for appellee.

Before HAWKINS, C.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the court:

This case presents the question whether the failure to advise the accused of the minimum sentence as provided in the Uniform Criminal Rules of Circuit Court Practice is fatal, regardless of circumstances. We hold that it is not and that it was not fatal under the circumstances here at issue. We also reject Sykes' other claims and affirm the judgment of the trial court denying post-conviction relief.

I

This is an appeal from a judgment of the First Judicial District of Hinds County Circuit Court summarily dismissing a motion for post-conviction relief filed by Ronald Sykes. On December 6, 1990, Ronald Sykes and his brother Robert each pleaded guilty to possession of methamphetamines with intent to distribute and possession of more than an ounce of marijuana with intent to distribute. Ronald Sykes, who had two prior felony convictions, was sentenced as an habitual offender on the marijuana charge to three years; he was sentenced to twenty-nine years as a non-habitual on the methamphetamines count. The sentences were set to run consecutively. In September 1991, Sykes filed a motion to vacate his conviction with the Hinds County Circuit Court. He claims the following errors as grounds for relief:

1. The plea of guilty entered under Count 1 ¹ of the indictment [was] involuntary as a matter of law where the court and counsel incorrectly informed [movant] that there was (sic) no mandatory minimum sentence under the statute governing sentencing for said offense.

2. Movant was indicted, convicted and sentenced for possessing a substance which the controlled substance statute (Miss.Code of 1972, Sec. 41-29-113) does not describe and, therefore, does not prohibit.

3. Movant was provided with ineffective assistance of counsel where counsel represented movant and movant's brother on the same charge and operated under a conflict of interest.

Sykes has abandoned his second claim of error, after the State pointed out in its brief that Secs. 41-29-115(A)(c)(3) and 41-29-139(a)(1) & (2), Miss.Code Ann. (Supp.1993), specifically proscribe the possession of methamphetamine with intent to distribute.

II

Sykes contends that the trial judge did not inform him that the Mississippi Code specifies a minimum fine of $1,000 for possessing controlled substances with intent to distribute. He goes on to argue that this lack of advice renders his guilty plea involuntary. Rule 3.03 of the Mississippi Uniform Criminal Rules of Circuit Court Practice does provide that:

When the defendant is arraigned and wishes to plead guilty to the offense charged, it is the duty of the trial court to address the defendant personally and to inquire and determine: ... [t]hat the accused understands the nature and consequences of his plea, and the maximum and minimum penalties provided by law....

Miss.Unif.Crim.R.Circ.Ct.Prac. 3.03. Additionally, this Court has said on several occasions that failure to apprise a defendant of the maximum and minimum penalties for the offenses he is charged with renders a plea to those offenses involuntary and invalid. Mallett v. State, 592 So.2d 524 (Miss.1991); Wilson v. State, 577 So.2d 394, 397 (Miss.1991); Vittitoe v. State, 556 So.2d 1062, 1063-65 (Miss.1990). ²

A portion of the section pertaining to sentencing for possession of methamphetamine with intent to distribute reads:

In the case of controlled substances classified in Schedule I or II, ³ as set out in Sections 41-29-113 and 41-29-115, ... such person may, upon conviction, be imprisoned for not more than thirty (30) years and shall be fined not less than One Thousand Dollars ($1,000.00) nor more than One Million Dollars ($1,000,000.00) or both;

Miss.Code Ann. Sec. 41-29-139(b)(1) (Supp.1992). The record reflects that the following discussion took place regarding sentencing requirements, when Ronald Sykes and his brother appeared to plead guilty:

BY THE COURT: Now, correct me if I'm wrong on the maximum sentence. I believe the maximum sentence for possession of methamphetamines with the intent to distribute is 30 years. Is that right?

BY MR. MARSHALL (DEFENSE COUNSEL): That's correct, Your Honor.

BY THE COURT: And a Million Dollar fine?

BY MR. MARSHALL: Yes, sir.

BY THE COURT: And for the possession of marijuana of more than one ounce with intent to distribute is three years.

BY MR. MARSHALL: Yes, sir.

BY THE COURT: And a Thirty Thousand Dollar fine. Is that correct?

BY MR. MARSHALL: Yes, sir.

BY THE COURT: And there is no minimum on this.

BY MR. MARSHALL: That's correct, Your Honor.

BY THE COURT: All right.

BY THE COURT: Do each of you understand the maximum sentence that you could receive?

A. (ROBERT SYKES): Yes, sir.

A. (RONALD SYKES): Yes, sir.

A comparison of the statutory sentencing prescription and the colloquy that took place in the Court reveals that Sykes is correct in his assertion that the Code mandates a minimum fine of $1,000 of which he was not advised.

Ronald Sykes was not levied a fine, however. Moreover, Ronald Sykes was well aware of the plea bargained recommendation of the district attorney that he be sentenced to three years as an habitual offender on the marijuana charge and 29 years on the methamphetamine charge. Essentially, therefore, he is arguing to this Court that his guilty plea was involuntary, because he was not advised regarding a relatively minor minimum fine that he should have received but did not receive.

This Court has on past occasions applied harmless error analysis to omissions in advice to pleading defendants, where the circumstances of the case were such that no actual harm fell upon the defendants. See Gaskin v. State, 618 So.2d 103 (Miss.1993); Vittitoe v. State, 556 So.2d 1062, 1064 (1990). Specifically, the Court has said that where the trial court fails to inform a defendant of the critical elements of the offense with which he is charged but the record shows the defendant was apprised of those elements by other sources prior to his pleading guilty, the error of the court in failing to properly advise the defendant is harmless. Gaskin v. State, 618 So.2d 103 (Miss.1993); Vittitoe v. State, 556 So.2d 1062, 1064 (1990).

The case at bar calls for a natural extension of that rule. It is true that under proper application of the law, Ronald Sykes should have received a fine of at least $1,000 and not more than $1,000,000 for possessing methamphetamine with the intent to distribute it. The fact of the matter is that he did not; and we cannot imagine that he would have chosen not to plead guilty to the same terms he received, if the judge had simply said to him, "Ronald, the law says you should receive a fine of at least $1,000, but I am not going to impose that fine upon you." We hold that where, as here, we can say beyond a reasonable doubt that the failure to advise an accused of a minimum played no role in the decision of the accused to plead, such failure is not fatal to the sentence.

III

Sykes' final assertion of error is that he received ineffective assistance of counsel in the plea process. He claims a conflict of interest existed in the dual representation that was rendered to Sykes and his brother, who was charged with the same crimes. It is axiomatic that the Sixth Amendment right to counsel encompasses a right to effective assistance from an attorney who is conflict-free. See Cuyler v. Sullivan, 446 U.S. 335, 349, 100 S.Ct. 1708, 1718, 64 L.Ed.2d 333, 347 (1980); Littlejohn v. State, 593 So.2d 20, 23 (Miss.1992). Joint representation is not per se violative of the Sixth Amendment, however. Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348; Armstrong v. State, 573 So.2d 1329, 1331 (Miss.1990); Stringer v. State, 485 So.2d 274, 275 (Miss.1986). This Court said in Littlejohn v. State, 593 So.2d at 26, "A lawyer can represent two or more parties on the same side of a lawsuit if their interests are identical. Interests are identical when the parties will receive a correspondingly equal benefit if they are successful, or a correspondingly equal detriment if they lose."

In Stringer v. State, 485 So.2d at 275, this Court held that "in order to demonstrate a violation of his Sixth Amendment Rights, a defendant must establish that an actual conflict of interest affected his lawyer's performance." (quoting Cuyler, 446 U.S. at 350, 100 S.Ct. at 1719, 64 L.Ed.2d at 348); quoted in Armstrong, ...