Wilkins v. State , 2009–CP–01711–COA.

• Decision Date: 01 March 2011
• Docket Number: No. 2009–CP–01711–COA.,2009–CP–01711–COA.
• Citation: 57 So.3d 19
• Parties: Terry WILKINS, Appellantv.STATE of Mississippi, Appellee.
• Court: Mississippi Court of Appeals

57 So.3d 19

Terry WILKINS, Appellant

v.STATE of Mississippi, Appellee.

No. 2009–CP–01711–COA.

Court of Appeals of Mississippi.

Sept. 14, 2010.Rehearing Denied March 1, 2011.

Terry Wilkins, Appellant, pro se.Office of the Attorney General by Ladonna C. Holland, attorney for appellee.Before KING, C.J., GRIFFIS and ISHEE, JJ.KING, C.J., for the Court:

¶ 1. Terry Wilkins filed a pro se motion for post-conviction relief on March 12, 2009. On July 20, 2009, the Lafayette County Circuit Court denied the motion. Wilkins filed a timely appeal arguing the following issues: (1) he received ineffective assistance of counsel because his attorney failed to investigate his case and adequately prepare a defense; (2) his sentence was unconstitutional because his co-defendant received a lesser sentence; (3) his guilty plea was not entered knowingly, voluntarily, and intelligently because he was not informed of the minimum and maximum sentence; (4) his indictment was defective because it incorrectly listed the date of one of the offenses used for sentence enhancement; and (5) the State failed to prove his habitual status. Finding no error, we affirm the judgment of the trial court.

FACTS

¶ 2. On February 23, 2007, Wilkins was indicted for burglary of a dwelling pursuant to Mississippi Code Annotated section 97–17–23 (Rev.2006) and as a habitual offender pursuant to Mississippi Code Annotated section 99–19–81 (Rev.2007). On July 2, 2007, Wilkins entered a guilty plea and was sentenced to serve seventeen and a half years in the custody of the Mississippi Department of Corrections (MDOC). On March 12, 2009, Wilkins filed a motion for post-conviction relief. On July 20, 2009, the Circuit Court of Lafayette County denied Wilkins's motion for post-conviction relief. Wilkins claimed that his conviction and sentence should be set aside for the following reasons: (1) his counsel provided him ineffective assistance; (2) the State failed to meet its burden of proof according to Mississippi Code Annotated section 99–19–81; (3) his guilty plea was not valid because intervening case law ruled the Uniform Rules of Circuit and County Court 8.04 unconstitutional; and (4) he was denied due process because his sentence was not within the statutory limits. Wilkins timely filed his appeal on August 12, 2009.

STANDARD OF REVIEW

¶ 3. “When reviewing a lower court's decision to deny a petition for post-conviction relief, this Court will not disturb the trial court's factual findings unless they are found to be clearly erroneous.” Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss.2008) (quoting Lambert v. State, 941 So.2d 804, 807 (¶ 14) (Miss.2006)). “However, where questions of law are raised, the applicable standard of review is de novo.” Id.

ANALYSIS

I. Ineffective Assistance of Counsel

¶ 4. Wilkins argues that he received ineffective assistance from his trial counsel. Specifically, Wilkins contends that: (1) his counsel failed to investigate the facts of the offense charged; (2) his counsel failed to interview witnesses; (3) his counsel failed to call witnesses to rebut the State's witnesses; (4) his counsel failed to adequately prepare a defense; and (5) his counsel failed to object to the disparity in the sentencing between him and his co-defendant.

¶ 5. The burden of proving ineffective assistance of counsel rests on Wilkins. In order to establish a claim of ineffective assistance of counsel, Wilkins must prove that counsel's performance was deficient and that his defense was prejudiced by his counsel's deficient performance. Coleman v. State, 979 So.2d 731, 735 (¶ 14) (Miss.Ct.App.2008) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Under Strickland, there is a strong, but rebuttable, presumption that counsel's performance falls within the range of reasonable professional assistance. Id. (¶ 14) (citing Strickland, 466 U.S. at 689, 104 S.Ct. 2052). “To overcome this presumption, the defendant must show that there is a reasonable probability that, but for the counsel's unprofessional errors, the result of the proceeding would have been different.” Id. (quoting Strickland, 466 U.S. at 694, 104 S.Ct. 2052).

¶ 6. Wilkins failed to provide any credible proof of his trial counsel's alleged deficient performance. Wilkins did claim the existence of an alibi witness, Susan Kesler, that his defense counsel failed to interview. According to Wilkins, had his counsel interviewed Kesler, she would have stated that Wilkins was at her home at the time of the burglary. Wilkins asserts that Kesler was willing to sign an affidavit and testify regarding Wilkins's whereabouts during the crime. Wilkins asserts that he would not have pled guilty and have proceeded to trial if he had had an alibi witness and he possibly would have been acquitted of the charges against him. This Court notes with interest that while Wilkins has suggested that Kesler was prepared to offer an affidavit and testify regarding his alibi, no affidavit from Kesler has been presented as a part of this post-conviction-relief proceeding, nor has any such affidavit been incorporated into the record on appeal. Instead, Wilkins has only provided his self-serving affidavit. “In cases involving post-conviction collateral relief, ‘where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.’ ” Cherry v. State, 24 So.3d 1048, 1051 (¶ 6) (Miss.Ct.App.2010) (quoting Vielee v. State, 653 So.2d 920, 922 (Miss.1995)).

¶ 7. Wilkins maintains that had his counsel investigated the facts of the case and interviewed witnesses, the outcome of the trial likely would have been different. This Court has previously held that in order for a failure to investigate claim to rise to ineffective assistance of counsel, the defendant must state with particularity what the investigation would have revealed and how it would have altered the outcome. Johnson v. State, 987 So.2d 501, 504 (¶ 15) (Miss.Ct.App.2008). This Court recognizes that defense counsel has a duty to interview potential witnesses and make an independent investigation of the facts and circumstances of a case. However, without more, the mere failure to investigate will not give rise to a viable claim of ineffective assistance of counsel. Reed v. State, 918 So.2d 776, 778 (¶ 5) (Miss.Ct.App.2005) (citing Brown v. State, 798 So.2d 481, 496 (¶ 21) (Miss.2001)). To establish a viable claim, Wilkins must also demonstrate that the likely outcome of the trial would have differed if his counsel had, in fact, conducted an investigation. Wilkins claims that he was at Kesler's home at the time of the burglary, but the only particulars as to what counsel would have discovered had he investigated were found in Wilkins's affidavit. In addition to Kesler and his co-defendant, David L. Dickey, Wilkins identified one other individual, Ronnie Winters, who likely would have knowledge of the facts of this case. However, Wilkins failed to provide the trial court or this Court with an affidavit from either Kesler, Dickey, or Winters.

¶ 8. During the plea colloquy, the State represented to the trial court that it would offer evidence to prove the following facts in its case against Wilkins:

[T]he State would expect to prove in this case that on or about the 17th day of October 2006 in Lafayette County, State of Mississippi, within the jurisdiction of this Court that this defendant, Terry Wilkins, in concert with another defendant, David L. Dick[ey], did break and enter a structure which is number 207 on a county road in Lafayette County, Mississippi, which was the property of Dee Mize, which was a dwelling house of Dee Mize; that they entered this dwelling house, or one of them did, in cooperation with the other; and that they took certain goods out of that structure; that they sold those goods; that those goods, some of which were later recovered, most of which were later recovered; and that that would be what we would prove with respect to the actual breaking and entering.

With respect to the allegations that the defendant is a habitual offender, we would expect to prove that in cause number LK–03–294 in this court that the defendant, Terry Wilkins, was convicted on the 1st day of October 2003 for the felony crime of receiving stolen property; and he was sentenced to serve more than a year on [that] occasion; and that also in the cause number LK–03–295 in this court the defendant, Terry Wilkins, was convicted on or about the same day of taking a motor vehicle, taking away a motor vehicle, which is another felony crime; and that he was sentenced to serve more than a year on that occasion as well; and that some portion of that time was suspended; but in each case he received a sentence of 5 years. That's what we would expect to prove, and I want to know if the defendant agrees that that's substantially correct.

In response to a question from the trial court, Wilkins acknowledged under oath that the representations of the State as what the evidence would show were substantially true and correct. Included in those representations which Wilkins acknowledged as being substantially true and correct were: (1) he was guilty of burglary as charged, and (2) he had two prior felony convictions that would qualify him for habitual status. While Wilkins now asserts that he was innocent, the trial court is entitled to place great faith in the validity of sworn statements he made during the plea hearing. See Harris v. State, 822 So.2d 1129, 1131 (¶ 4) (Miss.Ct.App.2002). Therefore, this claim is without merit.

¶ 9. Wilkins also asserts that his counsel was ineffective because he failed to object to the disparity between his sentence and the sentence imposed upon Wilkins's co-defendant. Wilkins was sentenced as a habitual offender to seventeen and a half years in the custody of the MDOC, while his co-defendant, Dickey, who had three prior convictions, was sentenced on March 9, 2007, as...