Tanner v. State
| Citation | 332 So.3d 382 |
| Decision Date | 11 January 2022 |
| Docket Number | 2020-CP-01123-COA |
| Parties | Markey J. TANNER a/k/a Markey Tanner a/k/a Markey Johnny Tanner, Appellant v. STATE of Mississippi, Appellee |
| Court | Court of Appeals of Mississippi |
¶1. On March 1, 2018, Markey Tanner pled guilty to two felonies: driving under the influence (DUI) causing disfigurement or death and leaving the scene of an accident. After accepting Tanner's guilty plea,1 the Harrison County Circuit Court, Second Judicial District, sentenced him to twenty-five years in the custody of the Mississippi Department of Corrections (MDOC), with ten years suspended and fifteen years to serve for his DUI conviction, and twenty years in the custody of the MDOC for his conviction of leaving the scene of an accident with five years of post-release supervision. The circuit court ordered both sentences to run concurrently for a total of twenty years’ incarceration and five years’ post-release supervision.
¶2. Tanner filed a motion for post-conviction relief (PCR) alleging that his guilty plea was involuntarily entered and that he received ineffective assistance of counsel. The circuit court denied Tanner's PCR motion without an evidentiary hearing, despite the affidavits submitted by Tanner and his mother attesting that Tanner's counsel gave him erroneous advice regarding sentencing.
¶3. Finding error, we reverse the order denying post-conviction relief and remand to the circuit court for an evidentiary hearing.
FACTS
¶4. On June 12, 2020, Tanner filed a PCR motion asserting that his guilty plea was involuntarily entered and that he had received ineffective assistance of counsel. Specifically, Tanner alleged that his counsel gave him erroneous information, assuring him the circuit judge agreed that if Tanner pleaded guilty, Tanner would receive a two-year sentence. In support of his claim, Tanner attached an affidavit from his mother to his PCR motion. In the affidavit, Tanner's mother stated that she overheard Tanner's defense counsel inform Tanner that he had spoken to the circuit judge, and the circuit judge agreed that if Tanner pleaded guilty, he would sentence Tanner to fifteen years with ten years suspended, two years to serve, and three years of post-release supervision.
¶5. The circuit court entered an order denying Tanner's PCR motion without holding an evidentiary hearing on his claims. As to Tanner's claim that his plea was involuntary, the circuit court found no merit, explaining that Tanner failed to provide any evidence in support of his claim and that Tanner's testimony under oath at his sentencing hearing contradicted his PCR claims. In its order, the circuit court quoted the following testimony from Tanner's sentencing hearing:
¶6. The circuit court also found no merit to Tanner's claim of ineffective assistance of counsel. The circuit court articulated the standard set forth in Strickland v. Washington , 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), for evaluating claims of ineffective assistance of counsel and found "no indication [that] Tanner's counsel's representation fell below an objective standard of reasonableness, nor is there evidence that, but for counsel's alleged errors, the result would have been different." The circuit court also stated that "Tanner testified at his sentencing hearing that he was satisfied with the services of his attorney."
¶7. Tanner now appeals from the circuit court's order denying his PCR motion.
STANDARD OF REVIEW
¶8. "When reviewing a circuit court's denial or dismissal of a PCR motion, we will reverse the judgment of the circuit court only if its factual findings are clearly erroneous; however, we review the circuit court's legal conclusions under a de novo standard of review." Hays v. State , 321 So. 3d 1208, 1211 (¶4) (Miss. Ct. App. 2021), cert. denied , 321 So. 3d 565 (Miss. 2021).
DISCUSSION
¶9. Tanner argues that the circuit court erred in denying his PCR motion without holding an evidentiary hearing to determine if Tanner's guilty plea was involuntarily entered based upon his counsel's advice and if he received ineffective assistance of counsel. Tanner claims that prior to pleading guilty, the State offered him several different plea bargains, which Tanner's counsel advised him to reject. Tanner states that his counsel assured Tanner that he could get the State to offer a better deal if Tanner would plead guilty. Tanner eventually agreed to enter a guilty plea. Tanner claims that on the day of his plea hearing, his counsel exited the courtroom prior to the hearing and informed Tanner and his family that he had spoken to the circuit judge, and the circuit judge agreed to sentence Tanner to fifteen years, with ten years suspended, two years to serve, and three years of post-release supervision. Tanner asserts that if he had known that he would not receive the two-year sentence, he would not have pleaded guilty. As a result, Tanner submits that his guilty plea was involuntarily entered and that his counsel was ineffective during sentencing.
¶10. A circuit court may summarily dismiss a PCR motion without holding an evidentiary hearing "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." Sylvester v. State , 113 So. 3d 618, 621 (¶9) (Miss. Ct. App. 2013) (citation omitted); see also Miss. Code Ann. § 99-39-11(2) (Rev. 2020). "When the only support the defendant offers is his own affidavit, and it is contradicted by unimpeachable documents in the record, the [Mississippi] [S]upreme [C]ourt has held that an evidentiary hearing is not required." Sylvester , 113 So. 3d at 621 (¶9). "However, when the movant attaches an affidavit of another who supports the allegation, the trial court may be required to conduct an evidentiary hearing." Id . at (¶10).
¶11. In support of his PCR motion, Tanner attached an affidavit from his mother. In the affidavit, Tanner's mother recounted three conversations that she overheard between Tanner and his counsel regarding Tanner's possible sentence. Tanner's mother stated that two of the conversations between Tanner and his counsel were on the phone. Tanner's mother explained that Tanner placed the call on speaker phone, which allowed her to hear the conversation. According to Tanner's mother, counsel first informed Tanner that the State had offered him a twenty-year sentence, with ten years suspended and five years to serve, followed by five years of probation. Tanner's counsel stated that he believed he could get Tanner a better deal if Tanner agreed to plead guilty and avoid a trial. Several weeks later, in a second conversation, Tanner's counsel told him that the State had offered another deal: fifteen years, with ten years suspended, four years to serve, and two years of post-release supervision.
¶12. Tanner's mother stated that the third conversation happened on the day of Tanner's plea hearing. According to Tanner's mother, she was standing in the hall prior to the hearing, and Tanner's counsel exited the courtroom and approached Tanner. Counsel told Tanner that he had talked with the circuit judge, and in exchange for Tanner's submitting to an open plea of guilty, the circuit judge agreed to sentence Tanner to a fifteen-year sentence, with ten years suspended and two years to serve, followed by three years of post-release supervision. After the circuit court actually sentenced Tanner to serve a twenty-year sentence, Tanner's mother stated that she overheard counsel tell Tanner that he would get Tanner's sentence corrected after Tanner served the first two years. Counsel assured Tanner that he would only have to serve the two-year sentence agreed upon by the circuit judge.
¶13. In reviewing Tanner's claims, "we first examine if the alleged erroneous advice would have rendered [his] plea involuntary." Jackson v. State , 178 So. 3d 807, 809-10 (¶10) (Miss. Ct. App. 2014). Next, we "review whether [Tanner] met his burden to present sufficient evidence in support of his claim of error to warrant an evidentiary hearing." Id . at 810 (¶10). "A guilty plea is binding if entered voluntarily, knowingly, and intelligently." Woods v. State , 71 So. 3d 1241, 1244 (¶8) (Miss. Ct. App. 2011). This standard is met if "the defendant is advised concerning the nature of the charge against him and the consequences of the plea." Mason v. State , 42 So. 3d 629, 632 (¶7) (Miss. Ct. App. 2010) (quoting Alexander v. State , 605 So. 2d 1170, 1172 (Miss. 1992) ). However, "[a]n allegation that the defendant pled guilty in response to counsel's mistaken advice may vitiate the plea, because it indicates the defendant may not have been fully aware of the consequences of the plea." Jackson , 178 So. 3d at 810 (¶11). The petitioner bears the burden of proving by a preponderance of the evidence that his plea was involuntarily entered. Woods , 71 So. 3d at 1244 (¶8).
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...involuntary-guilty-plea claim is without merit. "A guilty plea is binding if entered voluntarily, knowingly, and intelligently." Tanner v. State , 332 So. 3d 382, 387 (¶13) (Miss. Ct. App. 2022). This essentially means that the defendant is "advised concerning the nature of the charge again......
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...involuntary-guilty-plea claim is without merit. "A guilty plea is binding if entered voluntarily, knowingly, and intelligently," Tanner v. State , 332 So. 3d 382, 387 (¶13) (Miss. Ct. App. 2022), meaning that the defendant is ‘advised concerning the nature of the charge against him and the ......