Wright v. State, 89-KP-226
| Decision Date | 27 March 1991 |
| Docket Number | No. 89-KP-226,89-KP-226 |
| Citation | 577 So.2d 387 |
| Parties | George Willie WRIGHT v. STATE of Mississippi. |
| Court | Mississippi Supreme Court |
George Willie Wright, Parchman, pro se.
Mike C. Moore, Atty. Gen., Wayne M. Snuggs, Asst. Atty. Gen., Jackson, for appellee.
Before HAWKINS, P.J., and PITTMAN and BANKS, JJ.
BANKS, Justice, for the Court:
STATEMENT OF THE CASE
This appeal is taken from order of the Circuit Court of Panola County denying George Wright's motion pursuant to the Mississippi Uniform Post-Conviction Collateral Relief Act for an out-of-time appeal. We reverse and remand.
STATEMENT OF THE FACTS
George Wright was convicted of manslaughter in the Circuit Court of Panola County on April 23, 1987, and sentenced to serve fifteen years in the Mississippi Department of Corrections. He did not appeal the conviction and sentence. On April 8, 1988, he filed a motion in the Panola County Circuit Court requesting an out-of-time appeal pursuant to Sec. 99-39-5(1)(h) and (2) Miss.Code Ann., (Supp.1990) (Mississippi Post-Conviction Relief Act). He asserts as grounds for the motion:
(a) that his attorney, Ted Lucas Smith, Esq., after sentence, failed to advise him of his right to appeal;
(b) that upon conviction and sentence, he advised Attorney Smith that he desired to appeal, but Smith failed to perfect the appeal.
The gravamen of Wright's complaint is that the failure of his attorney to advise him of his right of appeal, or the failure of his attorney to timely perfect his appeal, constituted a denial of effective assistance of counsel.
The trial court, upon initial consideration of Wright's motion and his attached affidavit relating (a) that his attorney, after sentence, failed to advise him of his right to appeal, (b) that he desired an appeal after conviction, (c) that he advised his attorney to this effect, (d) that he did not waive such right, and (e) that his counsel never filed the necessary document to perfect the appeal, found that, pursuant to Sec. 99-39-11(3), Miss.Code Ann. (Supp.1990), the District Attorney's office for the Seventeenth District should respond to the motion. The state by and through the District Attorney timely responded denying the allegations in Wright's motion for relief and asserting affirmatively that Wright, although fully advised of his appeal rights, elected not to appeal. The State attached to its answer
the affidavit of Ted L. Smith, trial counsel, which stated:
(a) that Attorney Smith was hired and paid by Wright who was not indigent;
(b) that he fully advised Wright and his family of his appeal rights; and
(c) Wright never requested and actually elected not to appeal.
By copy of the state's answer and attached affidavit, Wright was afforded the opportunity to admit or deny their correctness. Wright responded by filing his objection to the State's answer and by restating the allegations of his original motion. He attached to his objection another affidavit which stated essentially the same facts as those set forth in the affidavit attached to his original motion and further stated that his family was prepared to testify in support of his version of events.
The trial court upon reconsideration of the motion, answer, and attached exhibits pursuant to Miss.Code Ann. Sec. 99-39-19(1) (Supp.1984) concluded that an evidentiary hearing was not required and issued its order denying and dismissing the motion. The order found and adjudicated that
The gist of Wright's Motion, with annexed exhibits, including his sworn affidavit, is that he requested his attorney, Mr. Smith, to appeal his conviction to the Supreme Court of Mississippi, and that his attorney failed to do that which he requested. Wright states in his Affidavit, inter alia, that Mr. Smith was appointed to represent him, that he (Wright) advised Mr. Smith to appeal his conviction, and that Mr. Smith failed to perfect his appeal. Mr. Smith, on the other hand, through his sworn affidavit, states that he was hired and paid by Wright, who was not indigent, that he (Smith) fully advised Wright of his appeal rights, that Wright and his family were fully aware of Wright's appeal rights, and elected not to appeal, and that Wright never requested an appeal.
Pursuant to Section 99-39-19(1) of the Code, the Court concludes that an evidentiary hearing is not required and that the Court can now make such disposition of the Motion as justice requires. Based on the Motion, and annexed exhibits, including the sworn affidavit of Wright, based on the State's Answer, including the sworn affidavit of Wright's trial attorney, Ted Lucas Smith, and based on the prior proceedings had and conducted in this cause, the Court specifically finds that Wright hired and paid his trial attorney, Honorable Ted Lucas Smith, that Wright was fully advised of his appeal rights by his trial attorney, that Wright and his family were fully aware of Wright's appeal rights and elected not to appeal, and that Wright never requested his hired attorney to appeal his conviction and sentence.
From the order denying and dismissing his motion, Wright prosecutes this appeal.
DISCUSSION
In Neal v. State, 525 So.2d 1279 (Miss.1987) we delineated the responsibility of a trial court with respect to petitions under the UPCRA claiming a denial of a substantial right. We analogized the position of the court when faced with a petition fully supplemented with affidavits to that of a court in a civil proceeding considering a motion for summary judgment. Section 99-39-19 Miss.Code Ann. (Supp.1990); Neal, supra, at 1281 fn. 2; Billiot v. State, 515 So.2d 1234, 1237 (Miss.1987). In both instances, this court eschews trial by affidavit. Brown v. Credit Center, Inc., 444 So.2d 358, 362 (Miss.1983); and Donald v. Reeves Transport Co., 538 So.2d 1191 (Miss.1989) ()
Here the petitioner met the pleading requirements of the UPCRA and, in the end, the court was faced with contradictory affidavits...
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