Weatherspoon v. State, 97-CA-00627-COA.

• Decision Date: 23 March 1999
• Docket Number: No. 97-CA-00627-COA.,97-CA-00627-COA.
• Parties: Kevierre WEATHERSPOON, Appellant, v. STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

736 So.2d 419

Kevierre WEATHERSPOON, Appellant, v. STATE of Mississippi, Appellee.

No. 97-CA-00627-COA.

Court of Appeals of Mississippi.

March 23, 1999.

Robert E. Buck, Greenville, Attorney for Appellant.

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

BEFORE THOMAS, P.J., LEE, AND SOUTHWICK, JJ.

LEE, J., for the Court:

¶ 1. On September 1, 1996, Kevierre Weatherspoon was indicted for aggravated assault against Edward Williams. On October 28, 1996, Kevierre Weatherspoon withdrew his previous plea and entered a plea of guilty to the charge of aggravated assault. On January 31, 1997, approximately three months following his plea of guilty, Weatherspoon obtained new counsel and filed a "Petition For Post-Conviction Relief." The trial court determined the petition had no merit and the same was denied. From this denial, Weatherspoon perfects his appeal to this Court and argues that the guilty plea was involuntary due to misrepresentations made to him by counsel, and therefore, the trial court erred in denying his petition. Additionally, Weatherspoon argues that he received ineffective assistance of counsel. Finding his arguments without merit, we affirm.

FACTS

¶ 2. On September 1, 1996, Weatherspoon was indicted for aggravated assault against Edward Williams. There are two versions presented in this case relative to the events leading up to the assault of Williams. One version was that presented by Weatherspoon to his counsel, and the other version of events was presented to the court by Williams, the victim. Weatherspoon informed his attorney that the gun discharged while both he and Williams were fighting over the gun. Williams would later testify that he and Weatherspoon were in an altercation and when he began to retreat, Weatherspoon shot at him and the bullet grazed his shoulder.

¶ 3. Weatherspoon testified at the hearing on his petition for post-conviction relief, that his former counsel had stated if the victim were to testify to the effect that the shooting was accidental he would be placed on probation; however, it must be noted that the victim, Williams, testified to a different version of the events surrounding the shooting than originally anticipated. Weatherspoon claims that it was counsel's statements relative to probation that induced him to plead guilty to the aggravated assault charge against him. Instead of probation, Weatherspoon was sentenced to twelve years in the custody of the Mississippi Department of Corrections with five years suspended. Weatherspoon is currently serving his seven year sentence.

I. WHETHER THE TRIAL COURT ERRED BY FINDING THAT THE APPELLANT'S GUILTY PLEA WAS VOLUNTARILY ENTERED AND BY DENYING APPELLANT'S PETITION FOR POST-CONVICTION RELIEF.

¶ 4. The first assignment of error argued by the appellant is that the trial court erred by finding his guilty plea to have been voluntary and in denying his petition for post-conviction relief. Appellant relies primarily upon Rule 8.04(3) of the Uniform Rules of Circuit and County Court Practice. The appellant argued in his petition for post-conviction relief that his plea of guilty was not voluntary, but was induced by a promise from counsel "that if he would change his plea to guilty he would not receive any time to serve but would be placed on probation by the court."

¶ 5. Our standard of review pertaining to voluntariness of guilty pleas is well settled: "this Court will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous." Schmitt v. State, 560 So.2d 148, 151 (Miss.1990). In order to meet constitutional standards, a guilty plea must be freely and voluntarily entered. Henderson v. Morgan, 426 U.S. 637, 653, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). "The question whether a plea of guilty [is] a voluntary and knowing one necessarily involves issues of fact." Sanders v. State, 440 So.2d 278, 283 (Miss.1983). It is essential that the plea be made by the defendant after proper advice by counsel, and it must be made with the defendant's full understanding of the consequences. Henderson v. Morgan, 426 U.S. 637, 653, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976) (citations omitted). Notwithstanding, it is possible that the thoroughness of the interrogation performed by the circuit court at the time the plea was tendered may be the most important evidence to consider. Sanders, 440 So.2d 278, 288 (1983). Not considering the advice a defendant may have been given by his counsel, the questioning performed by the circuit court and explanations to him of his rights and the resulting consequences of a guilty plea "may" be sufficient to render the guilty plea voluntary without anything else. Id. at 288. With all of this in mind this Court reviews the entire record to make a determination of whether the guilty plea of Weatherspoon was voluntary.

¶ 6. A review of the guilty plea hearing and the record of the hearing on Weatherspoon's petition for post-conviction relief reflects that Weatherspoon's plea was voluntary. At the guilty plea hearing the judge inquired as to whether Weatherspoon understood he was being charged with aggravated assault, and Weatherspoon answered in the affirmative. The judge then proceeded to have the substance of the charge read to Weatherspoon from the indictment. The judge then inquired whether Weatherspoon understood the charge against him, and again Weatherspoon answered in the affirmative. Additionally, both prior to and then again at the guilty plea hearing, Weatherspoon was informed of the maximum and minimum sentences that could be imposed for the crime he was charged. Furthermore, Weatherspoon stated under oath that he understood the penalties that could be imposed by the judge in his case and he had not been threatened or promised anything by anyone, including his attorney, in return for his plea of guilty.

¶ 7. In Sanders v. State, 440 So.2d 278, 287 (Miss.1983), the Mississippi Supreme Court made a distinction between "firm representation" by defense counsel relative to guilty pleas and sentencing as opposed to a "generalized prediction." The Court stated:

At the evidentiary hearing, the Circuit Court's central concern will be the question of whether, under applicable substantive constitutional standards, Sanders' two pleas of guilty were voluntarily and knowingly entered with a full appreciation of the consequences of each plea. We emphasize that a mere expectation or hope, however reasonable, of a lesser sentence than might be meted out after conviction upon trial by jury will generally not be sufficient to entitle petitioner to relief in cases such as this. Yates v. State, 189 So.2d 917 (Miss.1966). Likewise, the generalized prediction of defense counsel that a lesser sentence is likely upon a plea of guilty is in and of itself insufficient to entitle petitioner to relief. Sanders, 440 So.2d at 287. Further, the mere representation by defense counsel that in his experience sentences imposed upon persons who plead guilty are somewhat less than those customarily given to persons convicted of comparable offenses after trial by jury is not enough. (citations omitted).

On the other hand, a firm representation by defense counsel that, if a plea of guilty be tendered, petitioner would receive a fixed, relatively lenient sentence, if in fact relied upon by petitioner in entering his plea, may be sufficient to entitle him to relief.

¶ 8. The burden of proving that a guilty plea is involuntary is on the defendant and must be proven by preponderance of the evidence. Schmitt v. State, 560 So.2d 148, 151 (Miss.1990)(Superseded by Miss.Code Ann. § 99-39-23 (Supp.1998)). Weatherspoon has failed to meet this burden. As aforementioned, the record reflects that Weatherspoon received all pertinent information from both counsel and the trial judge relative to his guilty plea and the sentencing that might be imposed. Weatherspoon's guilty plea was voluntary, and although Weatherspoon and his counsel had discussed the possibility of probation and Weatherspoon held out the hope that he would receive probation, he was made aware that there were no guarantees to a particular sentence that might be imposed by the court. The ultimate decision to plead guilty was left to Weatherspoon. We, therefore, find no reversible error by the trial court.

II. WHETHER APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶ 9. The second assignment of error argued by the appellant is that he was denied effective assistance of counsel. Weatherspoon argues that he received ineffective assistance of counsel, not only to misleading statements made by his counsel relative to his sentencing, but in addition, Weatherspoon argues that his court appointed counsel was ineffective for several other reasons. Weatherspoon stated the following reasons: (1) counsel did not obtain or request discovery, (2) counsel did not interview any witnesses except the victim, (3) counsel did not know that there were any persons at the scene of the altercation other than the appellant and the alleged victim, (4) counsel did not consider going to trial, (5) counsel did not discuss any possible defenses with the appellant, and (6) counsel pled the appellant "open"and erroneously lead the appellant to believe that he would receive no more than a probationary sentence. Weatherspoon argues that all of these factors rendered the performance of counsel deficient.

¶ 10. In order to prevail on the issue of whether his defense counsel's performance was ineffective, it requires a showing that counsel's performance was deficient and that he was prejudiced by counsel's mistakes. Strickland v. Washington, 466 U.S. 668, 687-96, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This test "applies to challenges to guilty pleas based on ineffective assistance of counsel." Hill v. Lockhart, 474 U.S. 52, 58, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985). The burden is on the defendant to bring forth proof which demonstrates...