258 So. 3d 315
Miss. Ct. App.2018Background
- Barry D. Ware was indicted for first-degree murder and pleaded guilty to second-degree murder, receiving a 30-year sentence.
- Ware filed a post-conviction relief (PCR) motion claiming his plea was not voluntary because counsel and others misinformed him about parole/early-release eligibility.
- Affidavits from Ware, his wife, and father-in-law said defense counsel and the district attorney indicated Ware could be released early; details varied.
- At an evidentiary hearing, Ware and his witnesses testified to those statements; the district attorney and Ware’s trial counsel denied ever advising Ware about parole or earned time.
- The circuit court found the witnesses’ testimony inconsistent and credited the state witnesses, denied PCR, and Ware appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Ware’s guilty plea was involuntary due to misinformation about parole/early release | Ware: plea was not voluntary because he relied on counsel/DA statements that he would be eligible for parole/trusty/earned time | State: plea transcript and records show plea was knowing; lack of parole info is not constitutionally required; factfinder should resolve conflicting testimony | Court affirmed: judge credited State; plea was voluntary and knowing because credibility determinations favored State |
| Ineffective assistance for allegedly misinforming about parole/earned time | Ware: counsel’s erroneous advice caused him to plead guilty | State: counsel denied giving parole advice; even absent advice, no constitutional right to parole info; defendant must show Strickland prejudice | Court affirmed: no deficient performance shown; claim without merit |
| Alleged ineffective assistance for failure to advise about conditional release tied to conviction of greater (first-degree) offense | Ware: counsel failed to advise that a life sentence could later permit conditional release at age 65, which would have affected plea decision | State: Ware was never convicted of first-degree murder; no authority shows counsel must advise about conditional release for an unpleaded/uncharged consequence; conditional release discretionary | Court affirmed: claim procedurally and substantively meritless; no duty to advise about discretionary conditional release |
| Judicial bias in handling PCR and credibility findings | Ware: judge showed bias (comments and findings), failed to review record | State: judge issued a detailed opinion; credibility findings are the judge’s role; presumption of impartiality stands | Court affirmed: Ware failed to rebut the presumption of judge’s impartiality; no bias shown |
Key Cases Cited
- Thinnes v. State, 196 So. 3d 204 (Miss. Ct. App.) (plea involuntariness when defendant relied on affirmative misinformation about parole)
- Readus v. State, 837 So. 2d 209 (Miss. Ct. App.) (misadvice by counsel may vitiate plea)
- Mosley v. State, 150 So. 3d 127 (Miss. Ct. App.) (distinguishing lack of parole knowledge from affirmative misinformation)
- Jackson v. State, 178 So. 3d 807 (Miss. Ct. App.) (no constitutional right to full parole information before plea)
- Stewart v. State, 845 So. 2d 744 (Miss. Ct. App.) (same principle on parole information and pleas)
- Strickland v. Washington, 466 U.S. 668 (U.S.) (two-prong standard for ineffective assistance of counsel)
- Sharp v. State, 152 So. 3d 1212 (Miss. Ct. App.) (trial judge as factfinder resolves credibility in PCR hearings)
- Hughes v. State, 106 So. 3d 836 (Miss. Ct. App.) (standard of review for PCR denials)
- Barnett-Phillips v. State, 195 So. 3d 226 (Miss. Ct. App.) (parole/early-release decisions non-appealable/discretionary)