Walker v. State
| Decision Date | 20 November 1997 |
| Docket Number | No. 94-CA-00705-SCT,94-CA-00705-SCT |
| Citation | 703 So.2d 266 |
| Parties | Jerry WALKER v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
Jerry Walker, Leakesville, pro se.
Michael C. Moore, Attorney General, Pat S. Flynn, Asst. Atty. Gen., Jackson, for appellee.
En Banc.
ON MOTION FOR REHEARING
INTRODUCTION
¶1 Motion for Rehearing granted. The original opinions in this case are withdrawn and this opinion affirming the trial court is substituted therefor.
¶2 Jerry Walker appeals the denial without evidentiary hearing of his motion for post-conviction relief in the Circuit Court of Lincoln County. Walker's motion alleged (among other things) that his guilty plea to a charge of armed robbery had been entered involuntarily. Prior to filing his motion for post-conviction relief, Walker made two requests for the transcript of his plea hearing, which were denied by the trial court. Although Walker did not raise this issue on appeal to this Court, we briefly address this issue to express this Court's opinion that the trial court was correct in its denial of Walker's request for a free copy of his plea transcript. Pursuant to our holding in Fleming v. State, 553 So.2d 505 (Miss.1989) (), we find that Walker did not demonstrate sufficient need to entitle him to a free copy of his plea transcript.
¶3 On appeal, Walker raises the sole issue of ineffective assistance of counsel. Finding that Walker failed to offer any evidence to substantiate his claim of ineffective assistance of counsel, we hold that the trial court was correct in denying his motion for post-conviction relief. We affirm the holding of the trial court.
¶4 On January 13, 1992, Jerry Walker was indicted in the Circuit Court of Lincoln County on one count of armed robbery and one count of aggravated assault. Walker pled guilty to the charge of armed robbery (the charge of aggravated assault was dismissed on January 22, 1992, pursuant to an order of nolle prosequi), and was sentenced on January 30, 1992, to eight years in prison without parole. In February 5, 1994, Walker filed a Motion for Plea Transcript and affidavit of poverty. On February 9, 1994, the court denied Walker's motion, stating that "the plea transcript has not been transcribed and is not part of the file and that no showing of need for same has been shown." On May 7, 1994, Walker filed another request for his plea transcript and other documents. The record contains no ruling on the second transcript request. But Walker never received his transcript leading one to assume it was denied.
¶5 On May 21, 1994, Walker filed a motion for post-conviction relief in the circuit court, asserting that (1) his plea was involuntary, and entered without understanding of the charge and consequences of a plea; and (2) he was not advised of the minimum and maximum sentences for the charges against him. Walker asserted that he would not
have pled guilty had he known of the three-year mandatory minimum sentence for armed robbery. He requested an evidentiary hearing and that the court grant him parole or early release. The trial court found that Walker was not entitled to any relief, and denied the motion without hearing by order dated June 18, 1994. It is from the denial of this motion that Walker appeals to this Court raising the following issue:
WHETHER PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL AS GUARANTEED BY THE 6TH AMENDMENT OF THE UNITED STATES CONSTITUTION.
¶6 Finding the issues raised by Walker in his motion for post-conviction relief to be without merit coupled with the fact that the issues raised in the trial court are not before this Court on appeal, we therefore lack jurisdiction to address these issues. The only issue now before this Court as discussed supra, is one of ineffective assistance of counsel.
¶7 Walker argues ineffective assistance of counsel. He alleges that his attorney only visited him once prior to entry of his guilty plea thus denying him effective assistance of counsel. Walker further states that his attorney's failure to do any investigative work prejudiced him, and caused him to plead guilty. Walker says that his attorney's advising him that he faced a thirty-year sentence if convicted was encouraging him to "cop out," and he perceived same as a threat. He alleges that his attorney's advice resulted in his "being intimidated to the point that he would take any plea offer that involved a more merciful sentence." Finally, Walker asserts that his attorney's actions forced a denial of his constitutional right to confront the witnesses against him.
¶8 To prove a claim of ineffective assistance of counsel, a petitioner must show (1) deficiency of counsel's performance (2) sufficient to constitute prejudice to the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984); Moody v. State, 644 So.2d 451, 456 (Miss.1994). The burden of proving that both prongs of Strickland have been met is on the defendant who faces a "rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable professional assistance." Moody, 644 So.2d at 456; McQuarter v. State, 574 So.2d 685, 687 (Miss.1990). The Strickland test " 'applies to challenges to guilty pleas based on ineffective assistance of counsel.' " Brooks v. State, 573 So.2d 1350, 1353 (Miss.1990) (quoting Leatherwood v. State, 539 So.2d 1378, 1381 (Miss.1989)).
¶9 Walker offers no substantiation of his claim of ineffective assistance of counsel. He simply asserts that his attorney devoted an inadequate amount of time to his case, and that his attorney "threatened" him with a harsh sentence if he did not plead guilty. This Court notes, however, that the fact that his attorney conferred with him only once does not, in and of itself, establish ineffective...
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Henley v. State, 97-KA-00782-SCT.
...must show that counsel's performance was deficient and that his defense was prejudiced by the deficient performance. Walker v. State, 703 So.2d 266, 268 (Miss.1997); see also Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This Court presumes trial counse......
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Swington v. State, 97-KA-00591-SCT.
...constitute prejudice to his defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Walker v. State, 703 So.2d 266, 268 (Miss.1997). The burden falls upon Swington to prove both prongs of the Strickland standard. McQuarter v. State, 574 So.2d 685, 687 (M......
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Burrell v. State, 97-KP-00404 COA.
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