Jerry Walker v. State of Mississippi ( 1994 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 94-CA-00705-SCT
JERRY WALKER
v.
STATE OF MISSISSIPPI
ON MOTION FOR REHEARING
DATE OF JUDGMENT: 06/01/94
TRIAL JUDGE: HON. MELVIN KEITH STARRETT
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PRO SE
ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: WAYNE SNUGGS
BY: PAT S. FLYNN
DISTRICT ATTORNEY: DUNN LAMPTON
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION: AFFIRMED - 11/20/97
MOTION FOR REHEARING FILED: 05/01/96
MANDATE ISSUED: 12/1/97
EN BANC.
PITTMAN, JUSTICE, FOR THE COURT:
INTRODUCTION
¶1. Motion for Rehearing granted. The original opinions in this case are withdrawn and this opinion
affirming the trial court is substituted therefor.
¶2. Jerry Walker appeals the denial without evidentiary hearing of his motion for post-conviction
relief in the Circuit Court of Lincoln County. Walker's motion alleged (among other things) that his
guilty plea to a charge of armed robbery had been entered involuntarily. Prior to filing his motion for
post-conviction relief, Walker made two requests for the transcript of his plea hearing, which were
denied by the trial court. Although Walker did not raise this issue on appeal to this Court, we briefly
address this issue to express this Court's opinion that the trial court was correct in its denial of
Walker's request for a free copy of his plea transcript. Pursuant to our holding in Fleming v. State,
553 So. 2d 505 (Miss. 1989) (holding that petitioner did not show a specific need nor that the
documents sought were necessary to decide a specific issue; and therefore, he was not entitled to the
documents free of charge), we find that Walker did not demonstrate sufficient need to entitle him to a
free copy of his plea transcript.
¶3. On appeal, Walker raises the sole issue of ineffective assistance of counsel. Finding that Walker
failed to offer any evidence to substantiate his claim of ineffective assistance of counsel, we hold that
the trial court was correct in denying his motion for post-conviction relief. We affirm the holding of
the trial court.
FACTS AND PROCEDURAL HISTORY
¶4. On January 13, 1992, Jerry Walker was indicted in the Circuit Court of Lincoln County on one
count of armed robbery and one count of aggravated assault. Walker pled guilty to the charge of
armed robbery (the charge of aggravated assault was dismissed on January 22, 1992, pursuant to an
order of nolle prosequi), and was sentenced on January 30, 1992, to eight years in prison without
parole. In February 5, 1994, Walker filed a Motion for Plea Transcript and affidavit of poverty. On
February 9, 1994, the court denied Walker's motion, stating that "the plea transcript has not been
transcribed and is not part of the file and that no showing of need for same has been shown." On May
7, 1994, Walker filed another request for his plea transcript and other documents. The record
contains no ruling on the second transcript request. But Walker never received his transcript leading
one to assume it was denied.
¶5. On May 21, 1994, Walker filed a motion for post-conviction relief in the circuit court, asserting
that (1) his plea was involuntary, and entered without understanding of the charge and consequences
of a plea; and (2) he was not advised of the minimum and maximum sentences for the charges against
him. Walker asserted that he would not have pled guilty had he known of the three-year mandatory
minimum sentence for armed robbery. He requested an evidentiary hearing and that the court grant
him parole or early release. The trial court found that Walker was not entitled to any relief, and
denied the motion without hearing by order dated June 18, 1994. It is from the denial of this motion
that Walker appeals to this Court raising the following issue:
WHETHER PETITIONER WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL
AS GUARANTEED BY THE 6TH AMENDMENT OF THE UNITED STATES
CONSTITUTION.
¶6. Finding the issues raised by Walker in his motion for post-conviction relief to be without merit
coupled with the fact that the issues raised in the trial court are not before this Court on appeal, we
therefore lack jurisdiction to address these issues. The only issue now before this Court as discussed
supra, is one of ineffective assistance of counsel.
ANALYSIS
¶7. Walker argues ineffective assistance of counsel. He alleges that his attorney only visited him once
prior to entry of his guilty plea thus denying him effective assistance of counsel. Walker further states
that his attorney's failure to do any investigative work prejudiced him, and caused him to plead guilty.
Walker says that his attorney's advising him that he faced a thirty-year sentence if convicted was
encouraging him to "cop out," and he perceived same as a threat. He alleges that his attorney's advice
resulted in his "being intimidated to the point that he would take any plea offer that involved a more
merciful sentence." Finally, Walker asserts that his attorney's actions forced a denial of his
constitutional right to confront the witnesses against him.
¶8. To prove a claim of ineffective assistance of counsel, a petitioner must show (1) deficiency of
counsel's performance (2) sufficient to constitute prejudice to the defense. Strickland v.
Washington, 466 U.S. 668, 687 (1984); Moody v. State, 644 So. 2d 451, 456 (Miss. 1994). The
burden of proving that both prongs of Strickland have been met is on the defendant who faces a
"rebuttable presumption that counsel's performance falls within the broad spectrum of reasonable
professional assistance." Moody, 644 So. 2d at 456; McQuarter v. State, 574 So. 2d 685, 687 (Miss.
1990). The Strickland test "'applies to challenges to guilty pleas based on ineffective assistance of
counsel.'" Brooks v. State, 573 So. 2d 1350, 1353 (Miss. 1990) (quoting Leatherwood v. State, 539
So. 2d 1378, 1381 (Miss. 1989)).
¶9. Walker offers no substantiation of his claim of ineffective assistance of counsel. He simply asserts
that his attorney devoted an inadequate amount of time to his case, and that his attorney "threatened"
him with a harsh sentence if he did not plead guilty. This Court notes, however, that the fact that his
attorney conferred with him only once does not, in and of itself, establish ineffective assistance of
counsel. See Harveston v. State, 597 So. 2d 641, 642 (Miss. 1992)(Court rejects ineffective
assistance of counsel claims where attorney conferred with defendant for only one hour and fifteen
minutes prior to guilty plea; "Harveston's complaints of ineffective assistance of counsel, because his
attorney failed to make pretrial investigation and to spend more time with him, are insufficient as a
matter of law"). Moreover, this Court notes that Walker ultimately received an 8-year sentence when
facing a possible 30-year sentence. We do not regard this result as indicative of a valid claim of
ineffective assistance of counsel.
¶10. In the affidavit filed with his motion for post-conviction relief, Walker states, "[t]he identified
person or persons, admitted to committing the crime, also stated, I the third party was not involved."
Presumably, this is an assertion that someone else admitted to committing the crime, and also stated
that Walker was not a participant in the crime. However, Walker makes no assertion that he advised
his attorney of this information, nor does his attempt to substantiate the above statement with the
affidavit of the speaker or anyone else who might confirm the statement. In sum, Walker offers no
evidence whatsoever that his attorney's performance was deficient. To merit an evidentiary hearing
on the issue of ineffective assistance of counsel, a defendant's allegations of counsel's performance
must raise "sufficient questions of fact on the issue of ineffective assistance of counsel." Washington
v. State, 620 So. 2d 966, 970 (Miss. 1993); see also Alexander v. State, 605 So. 2d 1170, 1173
(Miss. 1992). Furthermore, this Court has stated that an argument for ineffective assistance of
counsel is strengthened by not informing the defendant of the maximum sentence he faces. Vittitoe v.
State, 556 So. 2d 1062, 1065 (Miss. 1990) (quoting Uniform Criminal Rules of Circuit Court
Practice, Rule 3. 03). Any failure to inform the defendant of the maximum possible sentence is not
relevant in the case sub judice.
¶11. Therefore, we hold that Walker has failed to raise sufficient questions of fact on the issue of
ineffective assistance of counsel; therefore, he is not entitled to relief on this issue.
CONCLUSION
¶12. Walker fails to offer any evidence to substantiate his claim of ineffective assistance of counsel;
therefore, this assignment of error is without merit. Consistent with this Court's previous decisions
regarding ineffective assistance of counsel, the ruling of the Circuit Court of Lincoln County is
affirmed.
¶13. LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
LEE, C.J., PRATHER AND SULLIVAN, P.JJ., BANKS, ROBERTS, SMITH AND MILLS,
JJ., CONCUR. McRAE, J., CONCURS IN RESULT ONLY.