AARON L. PATANE A/K/A AARON LEE PATANE A/K/A AARON PATANE v. STATE OF MISSISSIPPI
NO. 2016-CP-00194-COA
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
AFFIRMED – 04/18/2017
BEFORE IRVING, P.J., FAIR AND WILSON, JJ.
DATE OF JUDGMENT: 01/08/2016
TRIAL JUDGE: HON. ANDREW K. HOWORTH
COURT FROM WHICH APPEALED: CALHOUN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: AARON L. PATANE (PRO SE)
ATTORNEY FOR APPELLLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST- CONVICTION RELIEF DENIED
DISPOSITION: AFFIRMED – 04/18/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
IRVING,
¶1. Aaron Patane appeals the judgment of the Circuit Court of Calhoun County, denying his motion for post-conviction relief
¶2. Finding no error, we affirm.
FACTS
¶3. In December 2014, by criminal information, Patane was charged with sexual battery in violation of
DISCUSSION
¶4. “When reviewing a trial court’s decision to dismiss a . . . [PCR motion], an appellate court will not disturb the trial court’s factual findings unless they are found to be clearly erroneous.” Buckley v. State, 119 So. 3d 1171, 1173 (¶4) (Miss. Ct. App. 2013). “Our review of . . . a question of law[] is de novo.” Id.
I. Voluntariness of Guilty Plea
¶5. Patane alleges that he was coеrced into signing his plea petition by his attorney, and neither the court nor his attorney advised him of the rights he would be giving up or the consequences of his guilty plea. He states that he did not have time to read the documents included in the plea petition and signed them under the threat of additional charges being brought by the district attorney.
¶6. The State responds that “[a] plea is considered voluntary and intelligent if the defendant is advised about the nature of the charge against him and the consequences of the entry of the plea. The [plea] petition fully enumerates the rights that [Patane] would waive upon signing the plea.” Ward v. State, 879 So. 2d 452, 455 (¶9) (Miss. Ct. App. 2003). “The plea petition, similarly to statements in open court, may be used to discredit post-plea allegations.” Id. The State cоntends that the plea petition, signed by Patane, contains all of the necessary information to verify the voluntariness of his guilty plea.
¶7. Based on Patane’s plea petition and his responses to the court’s inquiries during his plea colloquy, it is clear that he was fully informed of his rights, and his plea was voluntarily and intelligently given. Patane’s signed plea petition contained the requisite admonishments informing him of the following rights he would be relinquishing, among others:
My lawyer has advised me of the nature of the charge and/or charges and the possible defenses that I may have to the charge and/or charges exhibited against me.
I understand that I may plead “not guilty” and may persist in that plea and that [a.] the Constitution guarantees me the right to a speedy and public trial by jury, [b.] the right to see, hear[,] and cross[-]examine all witnesses called to testify, [c.] the right to use the power and processes of the court to compel the production of evidence including the attendance of any witnesses in my favor, [d.] the right to have the presence and assistance of a lawyer at all stages of the trial and any appeal, [e.] the right to testify in my own defense, [f.] the right to a jury verdict of all twelve juror[s] before I could be found guilty, [g.] I understand that if I plea[d] not guilty
and demand a jury trial I would be by law presumed innocent of the charge and/or charges at the outset of a jury trial and that presumption would remain with me until removed by competent and credible evidence, and [I] am proven guilty beyond a reasonable doubt and to the satisfaction of twelve jurors.
In addition to the admonishments above, the plea petition also outlined explanations of Patane’s: right against self incrimination, in forma pauperis right, maximum sentence for his crime—life imprisonment,1 right to a voluntary plea, аnd eligibility for parole or early release.
¶8. During Patane’s plea colloquy—addressing his understanding of the contents of his plea petition—he had the following exchange with the court:
[COURT]: On each page of this plea petition there are signature lines and each one of them purports to bear your signature. Did you sign all 7 of theses pages?
[PATANE]: Yes, sir.
[COURT]: Before you signed it did you go over it with your attorney?
[PATANE]: Yes, sir.
[COURT]: Did your attorney explain the contents of this petition to you and explain it to you in a way that you could understand?
[PATANE]: Yes, sir.
* * * *
[COURT]: Are you satisfied with the services of your attorney?
[PATANE]: Yes, sir.
* * * *
[COURT]: Has anybody done anything to intimidate you, threaten you[,] coerce you[,] or otherwise force you to plead guilty?
[PATANE]: No sir.
[COURT]: You understand that the Department of Corrections calculates sеx offenders on a quote, day for day basis; do you understand that?
[PATANE]: Yes, sir.
¶9. As Patane’s plea petition and plea colloquy clearly demonstrate that he was fully informed of the rights that he would relinquish by pleading guilty, we find no merit to his assertion that his guilty plea was not entеred freely and voluntarily. This issue is without merit.
II. Ineffective Assistance of Counsel
¶10. Patane argues that he would not have pleaded guilty and would have taken his case to trial had his counsel not provided ineffective assistance. He asserts that his attorney demanded that he sign the plea-petition documents or the State would withdraw its offer. He also asserts that his counsel provided no explanation as to what he was signing, and specifically did not explain the minimum and maximum sentences for the charge. He states that he was led to beliеve that a life sentence was the lowest sentence available for the charge. Patane further asserts that his
¶11. In order to prove ineffective assistance of counsel—in the context of a guilty plea—a defendant “must show that, were it not for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.” Burrough v. State, 9 So. 3d 368, 373 (¶22) (Miss. 2009). The State asserts that Patane makes no such showing and offers no support for his allegations except his own affidavit. Since Patane failed to provide affidavits—other than his own—in support of his arguments, the State аlleges that “[w]here a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit.” Bass v. State, 174 So. 3d 883, 885 (¶6) (Miss. Ct. App. 2015). However, this Court has clarified the scope of that interpretation, stating:
The fact that there [are] no affidavits does not in and of itself render the motion invalid. The statute states affidavits are required of those witnesses that will testify. Thus, if there are no witnesses to the allegations asserted by the appellant, there is no requirement for supporting affidavits. Rather, the appellant may attest to the facts that he intends to prove through his petition. Thus, a [PCR] motion is not properly denied based solely on the fact that there are no supporting affidavits.
Castro v. State, 159 So. 3d 1217, 1219 (¶7) (Miss. Ct. App. 2015). As in Castro, there were no witnesses to testify to Patane’s private interactions with his attorney, the content of which may or may not support his claim that his counsel was ineffective and that counsel’s ineffectiveness was the basis for Patane choosing to plead guilty. Despite the allegations in his affidavit, when asked during his plea colloquy if he was satisfied with the services of his attorney, Patane responded, “Yes, sir.”
¶12. There is no possibility of parole for a person convicted of a sex crime.
battery under Section 97-3-95(1)(d) who is eighteen (18) years of age or older shall be imprisoned for life in the State Penitentiary or such lesser term of imprisonment as the court may determine, but not less than twenty (20) years.”
¶13. In light of this information, there does not appear to be any cognizable motivation for Patane to plead guilty and receive a sentence of life in prison to avoid additional charges that would have effectively made his sentence exactly the same. A trial by jury would seem to prove more advantageous when weighing the absolute of life in prison versus the possibility of twenty years or an acquittal. Although an on-the-record explanation of why Patane chose to accept the plea agreement would be helpful, the absence of such an explanation does not amount to ineffective assistance
¶14. In analyzing the ineffective-assistance-of-counsel claim, based on the record before
us, we find that Patane has not proven that his counsel was in error, except as to the minimum sentence placed in thе plea petition. However, we find that he failed to prove that there was “a reasonable probability that, but for counsel’s errors, [he] would not have pleaded guilty and would have insisted on going to trial.” Keith v. State, 999 So. 2d 383, 389-90 (¶17) (Miss. Ct. App. 2008) (emphasis added) (internal citations and quоtations omitted). As previously discussed, Patane was aware of the rights he was giving up and the effect that his guilty plea could potentially have on his eligibility for parole, yet he chose to plead guilty anyway. Although the plea petition mistakenly stated that the minimum sentence was life imprisonment, and no one during the plea colloquy corrected the information, we cannot conclude that but for this error, Patane would have chosen to go to trial and face the eight other charges invоlving his abuse of the minor child, including additional charges of sexual battery, possession of child pornography, and touching for lustful purposes. Moreover, he could have eventually been prosecuted as a habitual offender, which would have netted him a life sentence. Further, as stated, he was informed by the criminal information as to the minimum sentence for the charge to which he pleaded guilty. Consequently, this issue is without merit.
III. Life Sentence
¶15. Patane argues that his life sentence was illegal and therefore unconstitutional because it was handed down without the recommendation of a jury. However, the State correctly responds that “[u]nlike most crimes that carry a potential sentence of life, section 97-3-101(3) does not require that a jury make the determination as to whether the defendant will
receive life in prison or some lesser sentence.” Carter v. State, 996 So. 2d 112, 128-29 (¶43) (Miss. Ct. App. 2008). As stated previously, sexual battery carries a sentence of life imprisonment or “such lesser term of imprisonment as the court may determine, but not less than (20) years.”
¶16. THE JUDGMENT OF THE CALHOUN COUNTY CIRCUIT COURT DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO CALHOUN COUNTY.
LEE, C.J., BARNES, ISHEE, CARLTON, FAIR, GREENLEE AND