Ware v. State, 51398

• Decision Date: 30 January 1980
• Docket Number: No. 51398,51398
• Citation: 379 So.2d 904
• Parties: Eugene WARE v. STATE of Mississippi.
• Court: Mississippi Supreme Court

Page 904

379 So.2d 904

Eugene WARE v. STATE of Mississippi.

No. 51398.

Supreme Court of Mississippi.

Jan. 30, 1980.

Edmund Lee Baugh, Jr., Aberdeen, for appellant.

A. F. Summer, Atty. Gen., by Karen A. Gilfoy, Asst. Atty. Gen. and Carolyn B. Mills, Special Asst. Atty. Gen., Jackson, for appellee.

EN BANC.

COFER, Justice, for the Court:

The opinion and the dissenting opinion hereinbefore entered are withdrawn after consideration of appellee's Petition for Rehearing, and the following is the controlling opinion.

Eugene Ware entered plea of guilty in the Circuit Court of Monroe County to two charges (1) aggravated assault and (2) attempted armed robbery, to which charges he had earlier pleaded not guilty. In the proceedings leading to his change in his plea, the court meticulously explained the results of his plea and made sure he understood the consequences and that his plea was voluntarily and understandingly chosen. He was not advised, until it was made a part of his sentencing proceedings, that the sentence for attempted armed robbery was without parole.

Mississippi Code Annotated, section 47-7-3 (Supp.1978), provides in part:

(d) No person shall be eligible for parole who shall on or after January 1, 1977, be convicted of robbery or attempted robbery through the display of a firearm.

Appellant's plea of guilty took place on October 25, 1978, and his sentence was imposed on November 3, 1978, at which time the sentencing court informed him the sentence would be served without parole.

Promptly after the sentence was imposed appellant filed petition for writ of error coram nobis. The petition, with appellant faltering to some small degree in its prosecution, was heard fully and denied by the circuit court.

This appeal from that denial is upon two assignments of error:

1. The trial court committed reversible error in denying appellant's petition for writ of error coram nobis.

2. Appellant was not afforded effective assistance of counsel.

A careful search of the record fails to reveal an actual reliance on any hope of parole while deliberating on whether to enter his guilty plea. There is not shown any effort to procure a delay before the actual sentencing when, thereat, he learned for the first time that there would not be any parole available.

Unless the trial court's judgment amounts to a clear abuse of judicial discretion or that the court's decision on the coram nobis petition is incorrect, the court's denial of the writ, after full hearing as here shown to have taken place, will not be disturbed on appeal.

In Botts v. State, 210 So.2d 777 (Miss.1968), this Court said:

The function of a writ of error coram nobis is to bring to the court's attention some matter of fact which does not appear on the face of the record which was unknown to the court or the parties at the time, and which, if known, and properly presented, would have prevented the rendition of the original judgment. . . .

The burden of proof is upon the petitioner on an application for a writ of error coram nobis to establish to a reasonable probability facts upon which he relies for relief. (Authorities omitted).

The question as to whether or not a new trial should be granted on an application for a writ of error coram nobis is largely within the sound discretion of the trial court, and Where the record discloses the full hearing on the petition, the judgment of the trial court should be sustained unless it appears on appeal that the judgment is a clear abuse of judicial discretion or that the order of the trial court on the hearing upon a petition for writ of error coram nobis is incorrect as a matter of law. (Emphasis added). (210 So.2d at 779).

We are without precedent in this jurisdiction by which to be guided in resolving the question as to whether the bar against parole in this case should have been explained to appellant before his plea.

Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969), spoke thus:

What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and Of its consequence. . . . (Emphasis added). (395 U.S. at 244, 89 S.Ct. at 1712, 23 L.Ed.2d at 280).

In Alexander v. State, 226 So.2d 905 (Miss.1969), we said:

Of equal importance, in a crucial stage of a criminal proceeding, is the decision of an accused to plead guilty to a felony charge. The trial court should not accept a guilty plea or a change from a not guilty to a guilty plea without first addressing the defendant personally and determining That the plea is made voluntarily with understanding of the nature of the charge and the consequence of the plea. (Emphasis added). (226 So.2d at 909).

As mentioned above, we have not addressed the question as to whether deprivation of parole is one of those consequences necessarily to be known and understood by a pleading defendant. There is not unanimity on the issue among the courts.

The state, in support of its petition for rehearing, has cited United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 60 L.Ed.2d 634 (1979). Timmreck entered a guilty plea to an indictment for a drug offense, in which, by statute, there accompanies the sentence a special mandatory parole period of years. 21 U.S.C.A. section 841(b)(1)(A). The sentencing judge explained to Timmreck the consequences of his plea, but failed to include in his information that there would be the mandatory parole term at the conclusion of the sentence. Timmreck took no appeal, but moved to vacate the sentence on the ground that Rule 11 of the Federal Rules of Criminal Procedure had not been followed through the Court's failure to apprise him of the parole time at the end of his imprisonment. That rule provides, and did when Ware was sentenced, in pertinent part:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and inform him of, and determine that he understands, the following:

(1) The nature of the charge to which the plea is offered, the mandatory minimum penalty provided by law, if any, and the maximum possible penalty provided by law; . . . .

The United States Supreme Court, citing Hill v. U. S., 368 U.S. 424, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962), held:

The reasoning in Hill is equally applicable to a formal violation of Rule 11. Such a violation is neither constitutional nor jurisdictional: the 1966 amendment to Rule 11 obviously could not amend the Constitution or limit the jurisdiction of the federal courts. Nor can any claim reasonably be made that the error here resulted in a "complete miscarriage of justice" or in a proceeding "inconsistent with the rudimentary demands of fair procedure." Respondent does not argue that he was actually unaware of the special parole term or that, if he had been properly advised by the trial judge, he would not have pleaded guilty. His only claim is of a technical violation of the rule. That claim could have been raised on direct appeal, see McCarthy v. United States, 394 U.S. 459, 89 S.Ct. 1166, 22 L.Ed.2d 418, but was not. And there is no basis here for allowing collateral attack "to do service for an appeal." Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 1590, 91 L.Ed.2d 1982. (441 U.S. at 783-784, 99 S.Ct. at 2087, 60 L.Ed.2d at 638).

The United States Court of Appeals for the Fifth Circuit has treated the issue in several cases.

Trujillo v. U. S., 377 F.2d 266 (5th Cir. 1967), cert. denied, 389 U.S. 899, 88 S.Ct. 224, 19 L.Ed.2d 221 (1967), involved a defendant indicted on three counts: transporting and concealing marijuana, failure to pay transfer tax on the sale of marijuana, and unlawful sale of marijuana. On a sentence for unlawful sale of marijuana, the convict is ineligible for parole. (26 U.S.C., section 7237(d)). Following his plea of guilty to the unlawful sale, appellant made a motion to vacate the sentence, on the ground that he should have been informed, prior to his guilty plea, that upon conviction, he would not be eligible for parole.

In upholding the judgment of the U. S. District Court, Southern District of Texas, the Circuit Court said:

The question for determination is whether a guilty plea may be accepted in a federal district court without the defendant first being informed that conviction upon a plea of guilty to the offense for which he is charged will render him ineligible for parole. We decide that the defendant need not be advised of the unavailability of parole, and affirm the judgment. (377 F.2d at 267).

F.R.Crim.P. provides in pertinent part that the court "shall not accept (a plea of guilty) without first determining that the plea is made voluntarily with understanding of the nature of the charge." This rule generally is interpreted to mean that the defendant should understand the "consequences of the plea." (Authorities omitted). Thus The issue here is whether ineligibility for parole is a consequence of the plea about which a defendant must be informed.

It is obvious that while a defendant is entitled to be informed to the end that he will understand the nature of the charge, It is not necessary to this end that he be advised of every "but for" consequence which follows from a plea of guilty. (Examples of consequences not required, and authorities.) (377 F.2d at 268).

The appellant was apprised of the mandatory minimum sentence, the maximum possible sentence and the maximum possible fine. Through this information he well understood "the range of allowable punishments," Von Moltke v. Gillies, 332 U.S. 708, 724, 68 S.Ct. 316, 92 L.Ed. 309 (1948), and the consequences of his plea. See United States v. Cariola, supra, 2 Cir., 323 F.2d (180,) at 186. As to the contention that he should have been even further enlightened with respect to the unavailability of parole, we quote with approval...