Wallace v. State, 2014–CP–01131–COA.

• Decision Date: 09 February 2016
• Docket Number: No. 2014–CP–01131–COA.,2014–CP–01131–COA.
• Citation: 184 So.3d 993
• Parties: Reginald Desmond WALLACE a/k/a Reginald Wallace, Appellant v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

184 So.3d 993

Reginald Desmond WALLACE a/k/a Reginald Wallace, Appellant

v.STATE of Mississippi, Appellee.

No. 2014–CP–01131–COA.

Court of Appeals of Mississippi.

Feb. 9, 2016.

Jane E. Tucker, Jackson, attorney for appellant.

Office of the Attorney General by Billy L. Gore, attorney for appellee.

Before IRVING, P.J., BARNES and ISHEE, JJ.

BARNES, J., for the Court:

¶ 1. Following his guilty pleas to armed robbery, kidnapping, and conspiracy to commit armed robbery, Reginald Desmond Wallace (Reginald) unsuccessfully sought postconviction relief (PCR) in the Madison County Circuit Court. On appeal, he argues that his guilty pleas were coerced because the circuit court impermissibly revoked his appearance bond during the guilty-plea hearing. Reginald further argues that the circuit court was obligated to accept best-interest pleas despite the fact that the prosecution offered no sentencing recommendations. We find no merit to these claims. However, to promote the judicial economy and expedite a final resolution of the litigation in this case, we remand this case to the circuit court for an evidentiary hearing regarding Reginald's claim that his former attorney failed to communicate a favorable offer to plead guilty to a lesser offense.

FACTS AND PROCEDURAL HISTORY

¶ 2. This appeal is the third case that stems from the late November 2011 armed robbery of Kimberly Lewis, the comanager of Sand Dollar Lifestyles in Ridgeland, Mississippi, as she left work to make the store's deposit.¹ Shortly after Lewis got in her car, a man later identified as Demarcus Timmons exited a silver Chevrolet Cobalt that was parked nearby, and got into Lewis's car. Armed with a pistol, Timmons ordered Lewis to drive to a hotel approximately one mile away. Lewis followed Timmons's instructions. The silver Cobalt followed Lewis's car. After Lewis parked at the hotel, Timmons took the store deposit from her, along with some of her personal property, including her cell phone. The driver of the silver Cobalt picked up Timmons and sped away.

¶ 3. The subsequent investigation led authorities to interview Kenisha Rush, another comanager of Sand Dollar Lifestyles. Rush admitted that her boyfriend, Antonio Wallace, was involved in the robbery. Antonio and Reginald are brothers. Authorities later discovered that the silver Cobalt belonged to Timmons's girlfriend, Kimberly Gates. Gates and Rush eventually revealed that there was a plan to rob Lewis and take the store deposit, which was inflated due to after-Thanksgiving sales. Reginald was implicated as the driver of the silver Cobalt, while Gates rode in the backseat.

¶ 4. Reginald, Antonio, Timmons, Rush, and Gates were all indicted and charged with armed robbery, kidnapping, and conspiracy to commit armed robbery. Reginald retained Ottawa Carter as his attorney. The record contains a memorialized plea offer from the prosecution. In exchange for Reginald's guilty pleas to armed robbery and kidnapping, the prosecution would drop the conspiracy charge and recommend concurrent sentences effectively equivalent to twenty years in the custody of the Mississippi Department of Corrections (MDOC). However, Reginald allowed the prosecution's offer to expire.

¶ 5. Rush and Gates both took plea deals and pleaded guilty to simple robbery. On September 24, 2012, Timmons and Reginald both filed petitions to plead guilty to all three charges. At that time, Reginald was a fourth-year criminal-justice major at Jackson State University. In his guilty-plea petition, he acknowledged that all three of his guilty pleas would be "open," in that the prosecution would not recommend any particular sentences. However, by pleading guilty, Reginald would avoid the possibility of receiving life sentences for armed robbery and kidnapping. Difficulties involved with the nature of Reginald's pleas and the factual basis for them will be discussed in greater depth in the analysis below. Suffice it to say, those difficulties frustrated the circuit judge to some extent, which led to the revocation of Reginald's bond. Ultimately, the difficulties were resolved, and the circuit judge accepted Reginald's guilty pleas. As anticipated, the prosecution did not recommend any sentences. The circuit judge requested a presentence investigation report, and postponed Reginald's sentencing hearing until after Antonio's trial.

¶ 6. Meanwhile, Reginald discharged Carter and hired John Colette to represent him during the sentencing hearing. Antonio went to trial in April 2013. Colette advised Reginald not to testify during Antonio's trial, but Reginald ignored Colette's advice.² During Reginald's sentencing hearing, the circuit judge opined that Reginald's testimony at Antonio's trial was untruthful "in that it was not consistent ... with reason[.]" The circuit judge noted that Antonio's lawyer had asked Reginald a question about a four-minute phone conversation between him and Antonio. According to the circuit judge, the question resulted in "the longest pregnant pause [he had] ever seen [.]" The circuit judge further opined that Reginald "did not have an answer to that question, and ... the jury could [have] reasonably infer[red] that [he and Antonio] were talking about ... this robbery[,] and what they were going to do with [Lewis.]" Noting that Reginald had a remaining life expectancy of thirty-nine years, the circuit court sentenced him to thirty years for both armed robbery and kidnapping, and five years for conspiracy. The circuit judge set all three sentences to run concurrently.

¶ 7. On April 14, 2014, Reginald filed a pro se PCR motion. He claimed that he "had no part in the planning or execution" of the crimes, and his "only crime ... was failing to get out [of] the car as soon as [he] became aware that a crime was about to take place." He also claimed that Carter was ineffective because he did not inform him of "possible defenses or anything beneficial to [his] defense." Reginald further claimed that his pleas were involuntary because Carter " ‘convinced [him]’ that [his] best out was an open plea." Additionally, Reginald argued that Carter "filed several motions that were of no effect." Finally, Reginald claimed that his sentences were overly harsh and motivated by the circuit judge's prejudice and bias.

¶ 8. Among other documents, Reginald attached a letter from his mother, Patricia Greer. Although the letter was styled as a sworn affidavit, it is not notarized. Greer's letter supported Reginald's claims that Carter was ineffective, and the circuit court's sentences were motivated by prejudice.

¶ 9. The circuit court ordered the State to respond to Reginald's PCR motion. The State complied, arguing that Reginald was not entitled to relief. Affidavits from Carter and Colette were attached to the State's response.

¶ 10. Carter's affidavit stated that Reginald lied to him about his involvement in the robbery. Carter further stated that Reginald initially told him that Rush would testify that she and Lewis had "staged the whole thing." Carter later learned that Reginald had been involved with the robbery. Carter confronted Reginald, who "admitted to being involved, but [he] still maintained that the robbery [had been] staged."

¶ 11. According to Carter's affidavit, Reginald and Greer refused to entertain the prosecution's memorialized plea offer because Reginald believed that "Rush would testify that the robbery was staged." When they learned that Rush would testify that Lewis was merely a victim, Reginald still "did not want a deal." Carter's affidavit went on to state that the memorialized plea offer lapsed, and Reginald also refused a subsequent offer to plead guilty to the lesser offense of simple robbery.

¶ 12. After receiving the State's response and Carter's affidavit, Reginald wrote a letter to the circuit judge stating that Carter had never informed him of an offer to plead guilty to simple robbery. Reginald's mother wrote a similar letter. The circuit court subsequently dismissed Reginald's PCR motion without conducting an evidentiary hearing.³ Represented by new retained counsel, Reginald appeals.

STANDARD OF REVIEW

¶ 13. We will not disturb a circuit court's decision to dismiss or deny a PCR motion unless the circuit court abused its discretion. Hughes v. State, 106 So.3d 836, 838 (¶ 4) (Miss.Ct.App.2012). Questions of law are reviewed de novo. Id.

ANALYSIS

I. Voluntary Guilty Pleas

¶ 14. Reginald claims that his guilty pleas were involuntary. His claim is based on the fact that the circuit judge revoked his bond during the guilty-plea hearing. According to Reginald, the revocation of his bond coerced him to enter guilty pleas.

¶ 15. Before accepting a guilty plea, a circuit court must determine that it is entered voluntarily and intelligently. Wilbanks v. State, 14 So.3d 752, 754 (¶ 6) (Miss.Ct.App.2009). A guilty plea is involuntary if it was "induced by fear, violence, deception, or improper inducements." URCCC 8.04(A)(3). A defendant is free to attack a guilty plea collaterally, but there is a strong presumption of validity to solemn declarations made in open court. Hannah v. State, 943 So.2d 20, 25 (¶ 11) (Miss.2006). Reginald "bears the burden of proving by a preponderance of evidence that [his] guilty plea[s] w[ere] involuntary." Norris v. State, 162 So.3d 833, 837–38 (¶ 20) (Miss.Ct.App.2014).

¶ 16. After the prosecutor first recited the factual basis, Carter asked the circuit court whether Reginald could simply discuss "his involvement." The circuit judge said that Reginald had to agree with the recited factual basis, "or he can go to trial." Carter clarified that Reginald wanted to enter best-interest guilty pleas pursuant to North Carolina v. Alford, 400 U.S. 25, 37, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). However, the prosecution expected Reginald "to admit his involvement in all three of these felonies." The prosecution added: "[S]ince Antonio ... is still on the docket, I would like [Reginald] on the record to either admit to this or...