Hymes v. StateHymes v. State
I.
¶ 2. On April 23, 1991 in the circuit court of Washington County, Larry Hymes was convicted of possession of marijuana with intent to sell or distribute (count I) and possession of a firearm by a convicted felon (count II). He was sentenced to thirty years on count I and five years on count II, to be served consecutively. After getting new cоunsel, Hymes appealed to this Court. On February 16, 1995, we affirmed per curiam. Subsequently on July 27, 1995, Hymes submitted an “Application for Leave to file a Motion for Post-Conviction Relief.” On December 22, 1995, this Court found the application to be well tаken and ordered that Hymes be allowed to file his motion for post-conviction relief in the trial court.
¶ 3. Following this Court‘s order, Hymes filed a motion to vacate his conviction and sentence in the trial court. In his motion, he argued that hе received ineffective assistance of counsel at trial. The circuit court denied Hymes’ request for post-conviction relief, finding that it was an attempt to relitigate his case as the new grounds raised in the motion were not raised on direct appeal and because Hymes failed to meet the requirements set out in Smith v. State, 434 So.2d 212, 219 (Miss. 1983). The trial court‘s ruling had the effect, obviously, of denying Hymes’ request for an evidentiary hearing on the ineffective assistance of counsel claim. Aggrieved, Hymes filed notice of appeal.
II.
¶ 4. Hymes attacks the circuit court‘s denial of his motion to vacate his conviction and sentence, in light of this Court‘s previous order which sanctioned the filing of such motion in the lower court. According to Hymes, the circuit court‘s denial of his motion overruled this Court‘s examination and findings on the motion.
¶ 5. The State responds that this Court‘s grant of the application for leave to file the motion merely guaranteed Hymеs an opportunity to file his pleading in the trial court. After that opportunity was afforded, the
III.
¶ 6.
¶ 7. In thе order granting Hymes’ application for leave to file the motion to vacate, we stated, “Hymes is hereby allowed to file his motion for post-conviction relief with the trial court.” The statute makes clear that when this Court allоws the filing of the motion with the trial court, further proceedings shall occur under the several, enumerated sections, including
¶ 8. After this Court‘s order allowing Hymes to proceed in the lower court, the trial court denied Hymes’ petition ruling that it was insufficiently pled under
¶ 9. Thus, based upon the express terms of
IV.
¶ 10. Hymes further argues that
¶ 11. Among the allegations of deficient legal representation, Hymes argues that trial counsel‘s agreement with the State to stipulate that Hymes had a previous felony conviction for possession of marijuana with intent to deliver was prejudicial and of no benefit to him. Also, Hymes asserts that his counsel failed to argue that his right to a speedy trial was violated. Although the record indicates that Hymes’ constitutional right to a speedy trial was not violаted, we note
¶ 12. Additionally, Hymes claims that his trial counsel was ineffective because he failed to object to testimony provided by his accomplice, Clarence Pearson, who had been convicted and was serving time in the penitentiary for participation in the same crime for which Hymes was being tried. Moreover, counsel failed to request an on-the-record weighing оf the probative value versus the prejudicial effect of Pearson‘s testimony and also failed to request a cautionary instruction from the judge about this testimony. According to Hymes, counsel‘s performance in this regard was prejudicial because once the jury learned that Pearson had been convicted and imprisoned for participating in the same offense, he could not possibly receive a fair trial.
¶ 13. In Brooks v. State, 573 So.2d 1350 (Miss. 1990), this Court clarified the prerequisites for obtaining an evidentiary hearing:
To obtain evidentiary hearing in the lower court on the merits of an effective assistance of counsel issue, a defendant must state “a claim prima facie” in his application to the Court. Tо get a hearing “.. . he must allege ... with specificity and detail” that his counsel‘s performance was defective and that the deficient performance prejudiced the defense (citations omitted).
¶ 14. Upon reading the recоrd evidence, we find there were sufficient allegations raised by Hymes to support a prima facie case of ineffective assistance of trial counsel. Indeed, as Hymes argues, this Court‘s granting of the application for leave to file thе motion could be considered the law of the case. Arguably, Hymes’ ineffective claim may be procedurally barred as it was not raised on direct appeal. The record shows, nevertheless, that Hymes’ counsel on appeal submitted an exceedingly incoherent brief to this Court, thereby providing a reasonable justification for lifting the procedural bar. Moreover, even where different counsel appears on direct appeal, a post-conviction relief proceeding is the usual avenue for ineffective assistance claims. Vielee v. State, 653 So.2d 920 (Miss. 1995).
¶ 15. We therefore hold that the pleading deficiency should not be applied to avert consideration, on the mеrits, of Hymes’ allegation of ineffective assistance of counsel. We are convinced that counsel‘s failure to raise certain objections may have frustrated Hymes’ right to a fair trial and that the trial court‘s limited analysis of the claim fell short of a sufficient inquiry to justify dismissing the claim on the merits.
¶ 16. Accordingly, we reverse and remand this cause of action for further proceedings consistent with this opinion.
¶ 17. REVERSED AND REMANDED.
PRATHER and SULLIVAN, P.JJ., and PITTMAN, McRAE, JAMES L. ROBERTS, Jr., JJ., concur.
DAN LEE, C.J., dissents with separate written opinion joined by SMITH and MILLS, JJ.
DAN LEE, Chief Justice, dissenting:
¶ 18. The majority has apparently accepted Larry Hymes’ (“Hymes“) contention that this Court‘s decision to grant his application to file a motion for post-conviction relief guarantees him, ipso facto, the right to an evidentiary hearing. Because this is a misstatement of our law and because accepting Hymes’ argument in this instance sets a dangerous precedent, I respectfully dissent.
¶ 19. This Court, in considering Hymes’ application on its face, did not find that his claims were bаrred but found that his claims presented a substantial showing of the denial of a state or federal right. These determinations, made from the face of the application, did not preclude a summary judgment by the trial court with access to the complete file, a notion explicitly expressed by our statutes.
(7) In granting the application the court, in its discretion, may:
* * * * * *
(b) Allow the filing of the motion in the trial court for further proceedings under
sections 99-39-13 through99-39-23 .
¶ 20. In instances such as this, where the cоnviction and sentence have been appealed to this Court and we have affirmed, we retain jurisdiction. In such cases a post-conviction motion must be presented to this Court for initial evaluation. Our decision to grant the аpplication, however, does not guarantee the applicant the right to an evidentiary hearing. The applicant is granted the opportunity to “file” his pleading in the trial court. As indicated in the statutes above, summary judgment may still be in order if, after its appraisal of the original motion in conjunction with the entire record, the trial court determines that the applicant is not entitled to any relief.
¶ 21. Often the trial court has before it files and records regarding the trial and conviction not available to this Court at the time of granting the application. Guaranteeing a post-conviction evidentiary hearing to every applicant whose conviction and sentence have been reviewed and affirmed by this Court violates common sense, is not judicially efficient, and is not supported by our post-conviction statutes. An applicant whose conviction and sentence have been reviewed and аffirmed by this Court should stand in the same posture as an applicant who has never appealed his case. The latter must file his post-conviction motion as an original civil action in the trial court, and his conviction is subject to summary dismissal if it comes up short. The same applies to Hymes’ situation.
¶ 22. For the foregoing reasons, I would affirm the trial court‘s dismissal of Hymes’ motion for post-conviction relief.
SMITH and MILLS, JJ., join this opinion.