Willie Wash v. State of Mississippi , 218 So. 3d 764 ( 2017 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CP-01705-COA
WILLIE WASH APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/05/2015
TRIAL JUDGE: HON. ROBERT P. CHAMBERLIN
COURT FROM WHICH APPEALED: DESOTO COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: WILLIE WASH (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ALICIA MARIE AINSWORTH
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF
DENIED
DISPOSITION: AFFIRMED - 05/02/2017
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE LEE, C.J., BARNES AND FAIR, JJ.
BARNES, J., FOR THE COURT:
¶1. Willie Wash appeals the Circuit Court of DeSoto County’s judgment denying his
motion for post-conviction relief (PCR). Finding no error, we affirm.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
¶2. In November 2013, Wash was indicted for one count of third-offense felony
shoplifting, in violation of Mississippi Code Annotated section 97-23-93(6) (Rev. 2006), for
stealing eight containers of Gain washing detergent and one pack of Bounty paper towels
from a Walmart. Wash was charged as a habitual offender under Mississippi Code
Annotated section 99-19-83 (Rev. 2015), as two of his numerous other prior felonies were
violent in nature.1 On May 1, 2014, Wash pleaded guilty to the shoplifting as charged, and
as a result, the State agreed to lower his habitual-offender status to section 99-19-81, thereby
allowing Wash to receive the maximum term of imprisonment prescribed for the crime of
shoplifing rather than life imprisonment. The court sentenced Wash to serve five years in
the custody of the Mississippi Department of Corrections, and to pay a fine of $1,000.
¶3. On April 23, 2015, Wash filed a lengthy PCR motion claiming ineffective assistance
of counsel, irregularities in his indictment, involuntary plea, vindictive prosecution, and other
constitutional violations. More specifically, Wash argued that he never received a
preliminary hearing and that one of his prior crimes was listed twice on the indictment.
Attached to his motion were numerous letters written by Wash to his counsel from January
through April 2014, as well as bar-complaint information.2 In the letters, Wash complained
about his counsel’s assistance and the falsity of his indictment; he requested the “discovery
package” for his case and a rule book. In May 12, 2015, Wash filed an amended PCR
motion, making similar claims, but additionally arguing that the State breached the plea
agreement in violation of the State and Federal Constitutions because he was promised
eligibility for parole after serving fifty percent of his sentence.
¶4. On June 5, 2015, the circuit court denied Wash’s motion, finding his claims without
1
The majority of Wash’s 545-page record on appeal is a pen-pack and other
documentation of his prior criminal history for shoplifting, burglary, and other crimes,
starting as early as 1972, and mostly occurring in the Memphis, Tennessee area. His two
violent felonies were aggravated assault with a deadly weapon in 2001.
2
However, Wash never pursued an ethical complaint with the Mississippi Bar
alleging violation of the Rules of Professional Conduct.
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merit. Nearly five months later, on November 9, 2015, Wash appealed the denial. The next
day, the circuit court issued an order granting leave for Wash to proceed on appeal in forma
pauperis, and this Court subsequently permitted Wash’s out-of-time appeal.3
STANDARD OF REVIEW
¶5. When reviewing a circuit court’s denial of a PCR motion, the appellate court will only
disturb the circuit court’s factual findings if they are clearly erroneous. Matters of law are
reviewed de novo. Doss v. State, 19 So. 3d 690, 694 (¶5) (Miss. 2009) (citations omitted).
ANALYSIS
¶6. Wash makes several assertions in his lengthy brief before this Court, but they all relate
to ineffective assistance of counsel. To succeed on this claim, the defendant must show that
his trial counsel’s performance was deficient, and he was prejudiced by that deficiency.
McCollum v. State, 81 So. 3d 1191, 1192-93 (¶8) (Miss. Ct. App. 2012) (citing Strickland
v. Washington, 466 U.S. 668, 687 (1984)). In the context of a guilty plea, the defendant must
show that his “counsel’s errors proximately resulted in the guilty plea and, but for counsel’s
3
The circuit court noted in its November 10 order that while the order denying
Wash’s PCR motion had been mailed to Wash on June 5, 2015, Wash apparently did not
receive it in a timely manner, because on October 12, 2015, Wash filed a petition for a writ
of mandamus requesting the circuit court rule on his PCR motion. Accordingly, on the same
day the circuit court received Wash’s petition for a writ of mandamus, the court mailed
another copy of the June 5 order to Wash, and on November 9, 2015, the court received
Wash’s notice of appeal, dated November 3, 2015. On February 9, 2016, this Court granted
Wash an out-of-time appeal for good cause.
While the rules on the trial court extending the time to file a notice of appeal under
Mississippi Rule of Appellate Procedure 4(g) are very strict, the comment to Rule 4(g) states
the court may suspend Rule 4 to permit out-of-time appeals in criminal cases. Post-
conviction-relief proceedings are governed by this rule. M.R.A.P. 4(g) cmt.
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error, the defendant would not have entered the guilty plea.” Id. at 1193 (¶8) (quoting
Deloach v. State, 937 So. 2d 1010, 1011 (¶5) (Miss. Ct. App. 2006)). The defendant “must
show unprofessional errors of substantial gravity,” and allege such facts with “specificity and
detail.” Cole v. State, 918 So. 2d 890, 894 (¶10) (Miss. Ct. App. 2006) (citation omitted);
Kinney v. State, 737 So. 2d 1038, 1041 (¶8) (Miss. Ct. App. 2006) (citation omitted).
However, there is a strong rebuttable presumption that counsel’s conduct falls “within the
wide range of reasonable professional assistance.” Kinney, 737 So. 2d at 1041 (¶8) (citation
omitted).
¶7. Wash fails to prove ineffective assistance. He claims his counsel failed to conduct an
investigation of his case and any possible defenses. However, for claims of failure to
investigate, “the defendant must state with particularity what the investigation would have
revealed and how it would have altered the outcome.” Madden v. State, 991 So. 2d 1231,
1238 (¶31) (Miss. Ct. App. 2008) (citation omitted). Wash vaguely comments about a
plausible defense related to a warrant in Shelby County, but he fails to explain how the
warrant relates to his defense, or how it would alter his case’s outcome.
¶8. Additionally, Wash claims his counsel should have objected to defects in his
indictment; specifically, he should have “challenged” two prior violent convictions from
Tennessee that enhanced his sentence. However, Wash admitted to all of his prior crimes,
including these two, in his plea colloquy. Moreover, “a guilty plea waives any claim to a
defective indictment.” Phillips v. State, 25 So. 3d 404, 407 (¶6) (Miss. Ct. App. 2010)
(quoting Harris v. State, 757 So. 2d 195, 197 (¶9) (Miss. 2000)). We find no merit to this
contention.
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¶9. Wash also contends his counsel was ignorant of the law, and used intimidation and
scare tactics. As a result, Wash states he was forced to enter a plea agreement and accept a
five-year sentence. However, Wash provides no proof of these allegations except his own
bare assertions in his brief, which are contradicted by the record. The reviewing court cannot
decide issues “based on assertions from the briefs alone. The issues must be supported and
proved by the record.” Bell v. State, 117 So. 3d 661, 663 (¶8) (Miss. Ct. App. 2013) (quoting
Pulphus v. State, 782 So. 2d 1220, 1224 (¶15) (Miss. 2001)). The plea-hearing transcript
indicates Wash’s counsel had adequate time to prepare and investigate the case. During his
plea colloquy, Wash represented that he had no disagreements with the State’s proof, agreed
that his counsel explained his potential sentence, and stated he had not been threatened or
coerced into pleading guilty. He also claimed to be satisfied with his counsel’s advice and
representation. Wash signed a plea agreement to the same effect, stating his counsel was
competent.
¶10. Wash fails to prove that his counsel’s performance was deficient. Accordingly, this
issue is without merit. We affirm the circuit court’s denial of his PCR motion.
¶11. THE JUDGMENT OF THE CIRCUIT COURT OF DESOTO COUNTY
DENYING THE MOTION FOR POST-CONVICTION RELIEF IS AFFIRMED. ALL
COSTS OF THIS APPEAL ARE ASSESSED TO DESOTO COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, CARLTON, FAIR, WILSON,
GREENLEE AND WESTBROOKS, JJ., CONCUR.
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