Smith v. StateSmith v. State
- Reporters:
- ,
- Before:
- Barnes, King, Lee, Myers, Southwick, Irving, Chandler, Griffis, Ishee, Roberts (en banc)
BARNES, J., for the Court.
SUMMARY OF FACTS AND PROCEDURAL HISTORY
¶ 1. On May 6, 1998, Edward Earl Smith, Jr., was indicted fоr the crime of murder. Smith, through advice of counsel, requested re-arraignment on the lessor charge of manslaughter and ultimately entered a guilty plea to manslaughter on September 9, 1998, in the Cirсuit Court of Leake County. The trial court promptly
STANDARD OF REVIEW
¶ 2. This Court reviews the trial court‘s denial of post-conviction relief under the “clearly erroneous” standard. Robinson v. State, 904 So.2d 203, 204(¶ 3) (Miss.Ct.App.2005) (citing Brown v. State, 731 So.2d 595, 598(¶ 6) (Miss.1999)). Therefore, this Court will not disturb the trial court‘s factual findings unless they are found to be clearly erroneous. Questions of law, however, are reviewed de novo. Id.
ISSUES AND ANALYSIS
I. WHETHER THE TRIAL COURT ERRED IN FINDING THAT SMITH‘S POST-CONVICTION RELIEF MOTION WAS PROCEDURALLY BARRED.
¶ 3. Smith recognized that absent an exсeption, his new motion for post-conviction relief is procedurally barred. In fact, there are two procedural bars applicable to this case. Smith pled guilty to the charge of manslaughter on September 9, 1998. According to
¶ 4. Secondly, Smith is procedurally barred from asserting his motion because it is successive. Under
¶ 5. Excepted from both procedural bars are “cases in which the prisoner can demonstrate either that there has been an intervening decision in the Supreme Court of either the State of Mississippi or the United States which would have adversely affected the outcome of his cоnviction or sentence.” See
¶ 6. First, Smith cites no authority that Blakely should be applied retroactively to
¶ 7. Secondly, the Blakely decision is clearly distinguishable from the instant case. At issue in Blakely was the trial court‘s statutory authority to determine enhancing factors without a jury. Blakely, 542 U.S. at 300, 124 S.Ct. 2531. The trial court in Blakely sentenced the defendant to ninety months’ imprisonment, despite the fifty-three-month statutory limit imposed by Washington state law. Id. Therefore, by deciding whether an enhancing factor had been met, the Blakely trial judge deprived the defendant of his right to have a jury dеcide whether an enhancing factor was present. Id. at 303, 124 S.Ct. 2531. No such enhancement is at issue in the present case. Therefore, the Blakely decision could not affect the outcome of Smith‘s сonviction or sentence. Other courts have consistently held that Blakely has no application where the sentence is within the statutory limitation. See, e.g., U.S. v. Green, 405 F.3d 1180, 1192-93 (10th Cir.2005); State v. Stover, 140 Idaho 927, 929-30, 104 P.3d 969 (Idaho 2005); People v. Nelson, 16 A.D.3d 1172, 1173, 791 N.Y.S.2d 236 (2005); State v. Curlis, WD-04-032 (18), 2005 WL 635025 (Ohio App. 6th Dist., March 18, 2005).
¶ 8. In the present case, Smith plеd guilty to the lesser charge of manslaughter and received the maximum punishment allowed by Mississippi law for the crime under
II. WHETHER SMITH WAS AFFORDED EFFECTIVE ASSISTANCE OF COUNSEL.
¶ 9. Smith also asserts that he was not afforded effective assistance of counsel because his attorney failеd to provide him with adequate information regarding the charge of manslaughter prior to his guilty plea. “Errors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration.” Luckett v. State, 582 So.2d 428, 430 (Miss. 1991). However, in Bevill v. State, 669 So.2d 14, 17 (Miss.1996), the Mississippi Supreme Court stated that:
It is conceivable that under the facts of a particular case, this Court might find that a lawyer‘s performance was so deficient, and so prejudicial to the defendant that the defendant‘s fundamental constitutional rights were violated. However, this Court has never held that merely raising a claim of ineffective assistance of cоunsel is sufficient to surmount the procedural bar.
Therefore, Smith‘s mere assertion of ineffective assistance is not enough to surmount the procedural bar. Accordingly, we must examine Smith‘s claim of ineffective assistance оf counsel before determining whether it qualifies as an exception to the procedural bar.
¶ 10. The test for ineffective assistance of counsel was set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under the Strickland standard, in order to demonstrate ineffective assistance of counsel, Smith must show “that his counsel‘s performance was so deficient as to constitute prejudice, and that but for the сounsel‘s errors the outcome in the trial court would have been different.” Covington v. State, 909 So.2d 160, 161-62(¶ 4) (Miss.Ct.App. 2005). In order to prevail on his claim of ineffective assistance of counsel, Smith would also have to overcоme the “strong but rebuttable presumption that [his] attorney‘s performance falls within a wide range of reasonable professional assistance and that the decisions made by trial counsеl are strategic.” Id. at 162(¶ 4).
¶ 11. In the present case, Smith asserts that his counsel failed to inform him of the elements of the lesser charge of manslaughter, therefore depriving him of an informed guilty plea. However, Smith never specifically states any particular element in the charge of manslaughter that would have changed his decision to plead guilty to manslaughter. Smith vaguely asserts that he wоuld have proceeded to trial on the charge of murder rather than plead guilty to manslaughter had he known the elements of manslaughter because the State would have been unable to prove the malice aforethought required in a murder charge. Again, we find Smith‘s argument to be misplaced. His complaint is that he did not fully appreciate the elements of the chargе of murder, not manslaughter. Furthermore, under Laster v. State, 811 So.2d 317, 320(10) (Miss.Ct.App.2001), “a jury in a murder case may be instructed on and permitted to convict of the lesser crime of manslaughter so long as the facts are reasonably capable of being interpreted to support a manslaughter conviction.” Smith fails to recognize that any potential jury considering the murder charge may well have also been instructеd as to the lesser crime of manslaughter.
¶ 12. Smith admitted in his petition to plead guilty to manslaughter that “he hit Shevra Singleton in the heat of passion causing [her] death.”
¶ 13. Smith also claims that his guilty plea was not knowing and intelligent. Smith cites Austin v. State, 734 So.2d 234 (Miss.Ct.App.1999), for the proposition that a trial court‘s failure to enumerate each element of a lesser charge during the guilty plea renders the plea ineffective. However, in Austin, the defendant filed a timely motion for post-conviction relief. Id. at 235(¶ 1). The Court in that case expressly noted that had the motiоn been filed three months later, Austin‘s claim of an involuntary plea would have been procedurally barred. Id. (¶ 3). In Trotter v. State, 907 So.2d 397 (Miss.Ct.App.2005), this Court recognized that a claim of an involuntary guilty plea does not surmount the procedural bar. Id. at 402 (¶¶ 14-15) (citing Cole v. State, 608 So.2d 1313, 1319 (Miss.1992)). Therefore, Smith‘s claim is procedurally barred.
IV. WHETHER THE LOWER COURT ERRED IN RULING THAT SMITH MUST FORFEIT GOOD TIME CREDITS FOR PURSUING A FRIVOLOUS ACTION.
¶ 14. Smith‘s discontentment concerning the loss of good time credits is also without merit. Under
¶ 15. THE JUDGMENT OF THE CIRCUIT COURT OF LEAKE COUNTY DISMISSING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO LEAKE COUNTY.
KING, C.J., LEE AND MYERS, P.JJ., SOUTHWICK, IRVING, CHANDLER, GRIFFIS, ISHEE AND ROBERT