IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO: 2016-CA COA APPEALED FROM CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI

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1 E-Filed Document Jul :05: CA COA Pages: 38 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO: 2016-CA COA JOHNNY LEWIS WASHINGTON APPELLANT VS. STATE OF MISSISSIPPI APPELLEE APPEALED FROM CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI BRIEF OF THE APPELLANT, JOHNNY LEWIS WASHINGTON ORAL ARGUMENT REQUESTED David S. Van Every, Sr. Attorney For Appellant 514 SECOND AVENUE NORTH P.O. Box 761 Columbus, MS PHONE: (662) FAX: (662) MS Bar # 6094

2 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI CASE NO: 2016-CA COA JOHNNY LEWIS WASHINGTON APPELLANT VS. STATE OF MISSISSIPPI APPELLEE APPEALED FROM CIRCUIT COURT OF LOWNDES COUNTY, MISSISSIPPI BRIEF OF THE APPELLANT, JOHNNY LEWIS WASHINGTON ORAL ARGUMENT REQUESTED David S. Van Every, Sr. Attorney For Appellant 514 SECOND AVENUE NORTH P.O. Box 761 Columbus, MS PHONE: (662) FAX: (662) MS Bar # 6094

3 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHNNY LEWIS WASHINGTON VS. STATE OF MISSISSIPPI APPELLANT CAUSE NO: 2016-CA COA APPELLEE CERTIFICATE OF INTERESTED PERSONS The undersigned counsel of record certifies that the following listed persons of interest in the outcome of this case. These representations are made in order that the justices of the Supreme Court and/or the Court of Appeals may evaluate possible disqualification or recusal. Johnny Lewis Washington, Appellant David S. Van Every, Sr., Counsel for Appellant State of Mississippi, Appellee Honorable Jason L. Davis, Asst. Mississippi Attorney General, Counsel for the Appellee Honorable James T. Kitchens, Jr., 16 th Circuit, Circuit Court Judge Honorable Scott Colom, 16 th Circuit, District Attorney Respectfully submitted, By /s/ David S. Van Every, Sr. DAVID S. VAN EVERY, SR. APPELLANT S ATTORNEY DAVID S. VAN EVERY ATTORNEY AT LAW P. O. BOX SECOND AVENUE NORTH COLUMBUS, MS (662) MS BAR 6094 i

4 RECOMMENDATION ON ORAL ARGUMENT The appellant, Johnny Lewis Washington, respectfully requests oral argument. This appeal involves whether the appellant herein knowingly, and voluntarily waived his right to a trial by jury in his resentencing on his capital murder conviction. Another issue is whether appellant understood the consequences of the Trial Judge s sentencing order. The appeal involves whether the Trial Court had authority to resentence Appellant. Oral argument could contribute to a clearer understanding of the applicable law and issues involved. ii

5 TABLE OF CONTENTS CERTIFICATE OF INTERESED PERSONS.i REQUEST FOR ORAL AGRUMENT....ii TABLE OF CONTENTS iii, iv TABLE OF CITATIONS AND AUTHORITIES... v, vi STATEMENT OF INCARCERATION...vii STATEMENT OF ASSIGNMENT.viii STATEMENT OF ISSUES......ix STATEMENT OF CASE STATEMENT OF THE FACTS SUMMARY OF THE ARGUMENT ARGUMENT I. The Trial Court erred when it resentenced Washington because it lacked authority to do so pursuant to Miss. Code Am II. The Trial Court erred when it resentenced Washington to a sixty (60) year sentence with a Life sentence to run consecutively with the sixty (60) year sentence, and exceeded its authority and went outside the resentencing options granted to the trial court by Judge Keady s Order III. Whether the lower Court hearing the MOTION TO VACATE SENTENCE, erred in not vacating and setting aside Washington s capital murder resentence and in failing to rule on the issue of whether or not Washington knowingly, intelligently, and voluntarily waived his State and Federal right to a trial by jury, after the issue of the knowingness, voluntariness, and intelligence of the purported waiver had been raised.8 iii

6 IV. Whether the Trial Court erred in holding that Washington had knowingly, freely, voluntarily and intelligently waived his State and Federal constitutional rights to a trial by jury in the resentencing phase of Washington s capital murder conviction V. Whether the defendant s lawyer s MOTION TO PERMIT DEFENDANT TO WAIVE JURY TRIAL AND IMPOSE A LIFE SENTENCE, alone, by itself is sufficient to constitute a voluntary, knowing, and intelligent waiver of appellant s State and Federal Constitutional rights to a trial by jury in appellant s capital murder resentencing 18 VI. Whether the Defendant s lawyer s MOTION TO PERMIT DEFENDANT TO WAIVE JURY TRIAL AND IMPOSE A LIFE SENTENCE, alone, by itself, is sufficient to constitute a voluntary, knowing, and intelligent waiver of appellant s State and Federal Constitutional rights to a trial by jury in appellant s capital murder resentencing VII. Appellant has suffered cumulative and plain error, which caused him to be deprived of his constitutional right to a fair resentencing in violation of the 5 th and 14 th amendments to the United States Constitution CONCLUSION CERTIFICATE OF SERVICE ELECTRONIC DISK (original only) 27 iv

7 TABLE OF CITATIONS AUTHORITES CASES PAGE Alexander v. State, 226 So. 2d 905, 907 (Miss. 1969). 14, 19 Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992)..9 Boykin v. Alabama, 395 U.S. 238, 89. S. Ct. 1709, 23 L. Ed. 2d , 14, 17, 19, 20 Brown v. State, 731 So. 2d 595, 598 (Miss. 1999) 1 Chunn v. State, 669 So. 2d 29 (Miss. 1996) 14, 15, 16 Carney v. Cochran, 369 U.S. 506, 516 (1962) 17 Courtney v. State, 704 So 2d 1352 (Miss Ct. App. 1997).9 Duncan v. Louisiana, 391 US 145, 163, (1968) 15, 17 Evans v. State, 547 So. 2d 38, 40 (Miss. 1989).6 Godinez v. Moran, 509 U.S. 389 (1993)..14 Jefferson v. State, 556 So. 2d 1016, 1026 (Miss. 1986)..21 Neal v. State, 525 So. 2d 1279, 1281 (Miss. 1987) 1 Patton v. United States, 281 U.S. 276 (1930) 14, 15 Robinson v. State, 345 So. 2d 1044 (Miss. 1977) 6, 15 Smith v. State, 806 So. 2d 1148, 1150 (Miss. Ct. App. 2002) 1 Stewart v. State, 229 So 2d 53, 57 (Miss. 1969)...19 Vittitoe v. State, 556, So 2d 1062, (Miss. 1990) 16, 23 Washington v. Watkins, 655 F2d 1346 (5 th Cir., September 14, 1981)..3 Washington v. Watkins, 662 F. 2d 1116 (5 th Cir. Unit A, December 3, Washington v. State, 361 So. 2 nd 61 (Miss Washington v. Mississippi, 441 US 916, 99 S.Ct. 2016, 60 L. Ed. 2d 388 ( Watson v. State, 196 So. 2d 893 (Miss. 1967)...16 v

8 Wilson v. State, 577 So. 2d 395 (Miss. 1991) 9 MISSISSIPPI CODE SECTIONS Miss. Code Ann Miss. Code Ann (Supp. 1981) 3, 5, 6, 7, 8, 10, 12, 13, 18 Miss. Code Ann et seq. 1 Miss. Code Ann LEARNED TREATISES Jury Waiver in Capital Cases; An Assessment Of The Voluntary, Knowing and Intelligent Standard, 39 Clev. St. L. Rev. 605, 615 (1991). 15 The Bench Book For United States District Judges, section (3 rd Ed. 1986). 15 RULES Federal Rule of Civil Procedure Rule 23 (a) 15 Rule of Criminal Procedure 3:03 (2) 16, 17, 18 URCCC Rule 8.04 (A) (3).16 CONSTITUTIONAL PROVISIONS Fifth Amendment to the U.S. Constitution 14, 23 Sixth Amendment to the U.S. Constitution... 4, 15, 17, 24 Fourteenth Amendment to the U.S. Constitution.14, 17, 23 Article III of the U.S. Constitution..15, 17 Article 3 Section 31 of the Constitution of the State of Mississippi. 4, 24 vi

9 STATEMENT OF INCARCERATION Appellant Johnny L. Washington is presently incarcerated and housed in the Mississippi State Penitentiary in Parchman, Mississippi, in service of the terms imposed by the Trial Court in this case. Appellant has been continuously confined since the date of his arrest, March 29, vii

10 STATEMENT OF ASSIGNMENT The Supreme Court should consider hearing this case as it involves serious constitutional errors in the sentencing of Appellant s vacated death sentence, pursuant to Rule 16 (b) (1) of Mississippi Rules of Appellant Procedure. viii

11 STATEMENT OF THE ISSUES Issue One: The Trial Court erred when it resentenced Washington because it lacked authority to do so pursuant to Miss Code Ann Issue Two: The Trial Court erred when it resentenced Washington to a sixty (60) year sentence with a life sentence to run consecutively with the sixty (60) year sentence, and exceeded its authority and went outside the resentencing options granted to the trial court by Judge Keady s Order. Issue Three: Whether the lower Court hearing the MOTION TO VACATE SENTENCE, erred in not vacating and setting aside Washington s capital murder resentence and in failing to rule on the issue of whether or not Washington knowingly, intelligently, and voluntarily waived his State and Federal right to a trial by jury, after the issue of the knowingness, voluntariness, and intelligence of the purported waiver had been raised. Issue Four: Whether the Trial Court erred in holding that Washington had knowingly, freely, voluntarily and intelligently waived his State and Federal constitutional rights to a trial by jury in the resentencing phase of Washington s capital murder conviction. Issue Five: Whether the Defendant s lawyer s MOTION TO PERMIT DEFENDANT TO WAIVE JURY TRIAL AND IMPOSE A LIFE SENTENCE, alone, by itself, is sufficient to constitute a voluntary, knowing, and intelligent waiver of appellant s State and Federal Constitutional rights to a trial by jury in appellant s capital murder resentencing. Issue Six: Whether the Trial Court erred in utilizing the unusual and confusing resentencing order wherein the Trial Court wrote in the to run consecutively with Cause Number 7925 and Cause Number 7926 addition into the sentencing order causing all three cases to run consecutively to each other, with the result that the Appellant did not know his maximum/minimum sentence in any of the cases. Issue Seven: Appellant has suffered cumulative and plain error, which caused him to be deprived of his constitutional right to a fair resentencing in violation of the 5 th and 14 th amendments to the United States Constitution. ix

12 STATEMENT OF THE CASE This Court has exclusive jurisdiction over the person and the subject matter pursuant to Miss. Code Ann et seq. Washington, having served 38 years in prison, filed the MOTION TO VACATE AND SET ASIDE SENTENCE AND CONVICTION (CT ) (RE-3) (hereinafter Motion to Vacate Sentence )on July 3, 2015, which was heard by the Lowndes County Circuit Court Judge, who without a hearing, summarily issued an Order (CT ) (RE-4) overruling and denying Washington s Motion to Vacate Sentence. Feeling aggrieved by the clearly erroneous overruling of his Motion to Vacate Sentence, Washington timely filed a Notice of Appeal. The case is now before this Court. Under the Mississippi Uniform Post-Conviction Collateral Relief Act, Miss Code Ann et seq., the application for post-conviction relief must, in part, meet the pleading requirements of The application must also present a claim procedurally alive substantially showing denial of a state or federal right. Neal v. State, 525 So. 2D 1279, 1281 (Miss. 1987) A Trial Court s denial of post-conviction relief will not be reversed absent a finding that the trial court s decision was clearly erroneous, Smith v. State, 806 So. 2D 1148,1150 ( 3) (Miss. Ct. App. 2002). However, when issues of law are raised the proper standard of review is de novo. Brown v. State, 731 So. 2D 595, 598 ( 6) (Miss.1999). FACTS 1. Washington was tried in the Circuit Court of Lowndes County for the capital 1

13 murder of convenient store owner J. K. Woods. Washington was convicted of the capital murder in Lowndes County Circuit Court cause number 5859 on May 26, 1977 and sentenced to death by lethal gas (CT-20) (RE-9). 2. Washington appealed the death sentence to the Mississippi Supreme Court, which affirmed Washington s capital murder conviction and death sentence on July 12, See Washington v. State, 361 So. 2 nd 61 (Miss. 1978). 3. Washington further petitioned the United States Supreme Court for a Writ of Certiorari to hear his case but certiorari was denied April 16, 1979 in the case of Washington v. Mississippi, 441 US 916, 99 S.Ct. 2016, 60 L. Ed. 2d 388 (1979). 4. Washington then filed a Request for Leave to file Petition for Writ of Coram Nobis in the Mississippi Supreme Court which was summarily denied on May 25, Washington then filed a petition for writ of habeus corpus in the United States District Court for the Northern District of Mississippi, Greenville Division, on November 9, 1979 and after an evidentiary hearing, the District Court denied the petition for writ of habeus corpus on December 18, Washington appealed the United States District Court s denial of the writ of habeus corpus to the United States Court of Appeals for the Fifth Circuit on September 14, The Fifth Circuit reversed Washington s death sentence but upheld the capital 2

14 murder conviction and the case was sent back to the U. S. District Court for further proceedings. 7. A petition for Rehearing and Suggestion for Rehearing En Banc was filed with the Fifth Circuit and on December 3, The petition for rehearing En Banc was denied. See Washington v. Watkins, 655 F. 2d 1346 (5 th Cir., September 14, 1981) and also, Washington v. Watkins, 662 F. 2d 1116 (5 th Cir. Unit A, December 3, 1981). 8. In obedience to the Order of the United States Fifth Circuit Court of Appeals the United States District Court issued an Order on May 18, 1982, (CT-21-24) (RE-2) (hereinafter Judge Keady s Order ) that found Washington s capital murder conviction was valid, but the death sentence must be set aside due to errors of constitutional dimensions in the Trial Court s instructions to the jury at the sentencing phase of Washington s trial. Judge Keady s Order vacated Washington s death sentence and imposed a life sentence under Mississippi law, unless the State chose to resentence petitioner in accordance with state law, Miss. Code Ann (Supp. 1981), to be done within 180 days of the date of the Order, May 18, After numerous continuances of the District Court s Order to either sentence Washington to life in prison or to resentence him in accordance with state law, Miss. Code Ann (Supp. 1981), the Lowndes County Circuit Court Trial Judge resentenced Washington on February 25, 1983 pursuant to (CT-20) (RE-9). The trial judge sentenced Washington to serve life in prison, to be served consecutively to 3

15 Washington s combined sixty year sentences in Lowndes County Circuit Court Cause numbers 7925 (CT-330) (RE-6) and 7926 (CT-341) (RE-7). The non-capital sentences were apparently indicted, heard and entered on the same day of Washington s capital murder resentence in cause number However, the Order sentencing Washington to life in the state penitentiary had a handwritten inter-delineation within the Order to the effect that the life sentence was to run consecutively with sentences in Cause No and No This addition was apparently penned onto the order by the Trial Judge but there is no proof of that in the record as the handwritten addition was not initialed. Also it appears that the number 9 in both 7925 and 7926 had been superimposed over another number. The additional charges found in Cause Numbers 7925 and 7926, were convictions for armed robbery and aggravated assault carrying sentences of forty (40) years and twenty (20) years, respectively. It is important to note the indictments and sentences on the companion cases happened on the same date as the capital murder resentence, i.e. February 25, 1983, and all three cases, 5859, 7925, and 7926 arose out of the same set circumstances. SUMMARY OF THE ARGUMENT Washington s Motion to Vacate Sentence was clearly erroneously dismissed as there is no evidence that Washington ever competently waived his Article III 31 Miss. Constitution and the Sixth Amendment to the U. S. Constitution rights to a trial by jury or that any purported waiver was a knowing, intelligent and voluntary relinquishment of his right to a trial by jury on his capital murder conviction resentence. There was no record of any hearing on his resentencing and we can only speculate if a hearing occurred at all. 4

16 It is clear that Washington did not personally waive his right to trial by jury in writing. Nor did he ever engage in a colloquy on record with either the Trial Judge, the prosecutor or his own counsel concerning his agreement to or understanding about the purported waiver of a jury trial. The lack of any hearing, the total lack of any record, the lack of a written agreement concerning his new capital murder sentence and the absence of a written waiver all inescapably lead to the conclusion that Washington never knowingly waived the right to a jury trial herein. All of the above deficiencies lend credence to Washington s affidavit that I did not even know what I was being sentenced to in case number 5859 (CT-357) (RE-3). Judge Keady s Order (CT-21-24) (RE-2) offered the State two options in resentencing Washington. The first option offered was life in prison. The second option was to resentence Washington in accordance with It is clear that the State chose the latter option, rejecting the life in prison option. Because the Trial Court s resentence was not one of the options in Judge Keady s Order, and Washington s constitutional right to a trial by jury was violated by the sixty (60) years added to the life sentence, this Court must vacate the sentence. Since Judge Keady s Order had a time limit of 180 days for the resentencing, allowing for continuances, the State s prerogative to resentence Washington in a constitutionally protected and legal manner has expired. As a result, Washington must immediately be released from prison. ARGUMENT ISSUE I The Trial Court erred when it resentenced Washington because it lacked authority to do so pursuant to Miss Code Ann

17 It is clear that Washington never entered into a knowing, intelligent and voluntary waiver of his right to a trial by jury during the resentencing phase of his trial. However, assuming arguendo that Washington explicitly in writing and on the record and in open court voluntarily waived his right to a jury herein, the Trial Court would still be without power to conduct the resentencing procedure herein because both the State of Mississippi and the defendant must waive resentencing by the jury in order for the trial judge to issue the sentence. Miss Code Ann. Section (1) reads in pertinent part, If the trial jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose or may be conducted before the trial judge sitting without a jury if both the State of Mississippi and the defendant agree thereto in writing. This statute requires both the State and the Defendant to agree in writing to allow the trial court, other than a jury, to resentence the Defendant pursuant to Miss Code Ann (1981). Also, the case of Robinson v. State 345 So. 2d. 1044, 1045 (Miss 1977) held that, It has been settled in Mississippi that a trial by jury in criminal cases may be waived by the agreement of the defendant and the prosecution. See also Evans v. State 547 So. 2d 38, 40 (Miss. 1989). Again, there is not one bit of evidence that the State of Mississippi signed a waiver allowing the trial judge, rather than a jury, to resentence Washington. Nor is there a trace of evidence Washington personally waived a jury trial in writing. It is a metaphysical certainty that both parties who were required to agree in writing that the trial judge could resentence Washington, i.e. the State and the defendant, did not enter 6

18 into any written agreement to that effect. As a result, the trial judge was wholly without authority to resentence Washington on February 25, The sentence in 5859 rendered on February 25, 1983, should be vacated and set aside and this Court should order Washington immediately released from prison. ISSUE II The Trial Court erred when it resentenced Washington to a sixty (60) year sentence with a life sentence to run consecutively with the sixty (60) year sentence, and exceeded its authority and went outside the resentencing options granted to the trial court by Judge Keady s Order. Washington s Motion to Vacate Sentence also put forward the idea that the Trial Court s sentence of life in prison to run consecutively with a forty (40) year and a twenty (20) year sentence violates and is contemptuous of Judge Keady s Order. The sixty (60) years plus life resentence was a sentence not authorized by the Order. A careful reading of Judge Keady s Order reveals that Judge Keady gave the Lowndes County Circuit Court two distinct options in the resentencing phase of Washington s capital murder conviction. One, the imposition of a life sentence under Mississippi law. Two, to resentence Petitioner in accordance with State law, i.e. Miss. Code Ann (Supp. 1981). Keady s Order further stated, The State, in our opinion, is free to make this choice. It is clear that the State chose to resentence Washington under This is evident from the trial court s sentencing order that refers to Washington s waiver of a jury trial (CT-314) (RE-7). In an apparent act of vindictiveness, the State, aggrieved that their death sentence had been overturned, sought to enhance Washington s capital murder sentence of merely 7

19 life in prison to a sentence of sixty (60) years plus life in prison. Rather than abide by Keady s Order, the State managed to sentence Washington to, in effect, a life sentence without parole, something that did not allow at that time. However, in its zeal to imprison Washington for life without parole, the State failed to make a record of his sentencing, failed to have Washington enter a voluntary and intelligent waiver of his right to a jury trial, and caused untold confusion to anyone trying to interpret the results and consequences of the trial court s unusual resentencing order. In summary, the trial court chose to resentence Washington under , which offered two sentences, i.e. life with parole or death. The Trial Court, without a resentencing hearing or a written waiver of a resentencing hearing, and without a written agreement of the terms of the resentence, sentenced Washington to life imprisonment to serve after a new sixty (60) years sentence had been served. Clearly, this sentence was not one of the choices authorized by Judge Keady s Order. The resentencing order exceeded the Trial Court authority to resentence Washington and as such should be vacated. ISSUE III Whether the lower Court hearing the MOTION TO VACATE SENTENCE, erred in not vacating and setting aside Washington s capital murder resentence and in failing to rule on the issue of whether or not Washington knowingly, intelligently, and voluntarily waived his State and Federal right to a trial by jury, after the issue of the knowingness, voluntariness, and intelligence of the purported waiver had been raised. Washington s Motion to Vacate Sentence was incorrectly dismissed by the Trial Judge as there is no evidence that Washington ever knowingly, intelligently, and 8

20 voluntarily waived his state and federal rights to a trial by jury in the resentencing of his capital murder conviction. It is abundantly clear that Washington s Motion to Vacate Sentence raised the issue of the voluntariness of Washington s waiver of jury trial for the Lower Court hearing the motion to consider. Washington s Motion to Vacate Sentence reads in pertinent part, after a diligent search and inquiry in Lowndes County Circuit Court Case Number 5859, with specific reference to the resentencing of Petitioner, Johnny Lewis Washington, it is abundantly clear that there is no evidence that Johnny Lewis Washington voluntarily, knowingly and intelligently waived his right to a trial by jury on the resentencing of his capital murder conviction. (RE-1) It is well settled law that when the issue of the voluntariness of the waiver or relinquishment of a fundamental, constitutional right is raised, the burden remains upon the State to affirmatively show the voluntariness of the waiver or relinquishment of his right by clear and convincing evidence. Alexander v State, 605 So 2d 1171, 1172 (Miss (citing Wilson v State, 577 So 2d 395,397 (Miss. 1991), see also, Courtney v. State 704 So. 2d 1352, 1359 (Miss Ct. App 1997). The State failed to meet its burden to prove the voluntariness of the waiver of jury trial herein by clear and convincing evidence when the State wholly failed to respond to Washington s Motion to Vacate. Further, the trial judge hearing the Motion to Vacate Sentence sidestepped and wholly failed to rule on Washington s claim that he did not knowingly, freely, intelligently, and voluntarily waive his right to a jury trial at his resentencing. One 9

21 reason is that there is no convincing proof in the record that Washington ever waived his right to a jury trial. The Trial Judge s order (CT ) (RE-5) reads as follows: Regarding the Petitioner s first assertion of error, the Court finds this issue to be without merit. Assuming arguendo that the Petitioner did not waive his right to a jury trial on remand of his sentencing, this failure to waive is irrelevant. A reading of the order entered by the United States District Court makes it clear that the Petitioner would he sentenced to life imprisonment unless the State chose to retry the sentencing phase of the Petitioner s trial. Further as a result of Judge Buck s order, the Petitioner received the most lenient sentence possible under Miss. Code Ann , therefore, even if his right to a jury trial at sentencing was violated no prejudice resulted from such a violation. 7. The Trial Court hearing the Motion to Vacate Sentence stated that whether or not Washington s constitutional rights were violated was irrelevant and that Washington was not prejudiced by the lack of constitutional rights on the trial court s unusual sixty (60) years plus life in prison sentence. The motion hearing judge failed to rule on the voluntariness of the waiver to a jury trial once the issue was raised. In effect, both the State and the Motion Hearing Judge neglected to offer proof that the waiver was voluntary. As such, the failure of the State to prove its case and the failure of the Court to rule on the Motion, demands that the Motion be sustained and Washington freed from prison. In this case, once Washington raised the issue of the voluntariness of the waiver of his right to a jury trial by his Motion to Vacate Sentence, it was incumbent upon the State to show, by clear and convincing evidence, that Washington s right to a jury trial was voluntarily waived. The State not only failed to show the voluntariness of the waiver of jury trial by clear and convincing proof, the State failed to put on any proof contesting the Motion to Vacate Sentence. The State ignored the Motion to Vacate Sentence leaving 10

22 only the trial court to investigate on its own and rule on the motion in failing to respond to the Motion. The State cannot now go back and challenge the Motion. The State did not meet its burden to prove the voluntariness of the jury trial waiver by clear and convincing proof. Upon information and belief, the Lowndes County Circuit Court, for over fifty years, has required the waiver of jury trials, a subset of the guilty plea, to be signed by the Defendant in writing. The Court has also required a colloquy between the trial judge and Defendant on record to insure that the Defendant knew the consequences of his waiver and that the Defendant knew he was surrendering important Constitutional rights. Examples of the Lowndes County Circuit Court s requirements on waiver of a jury trial in 1983 are found in the companion cases, numbers 7925 (CT ) (RE-4) and 7926 (CT ) (RE-5). Washington, by filing the post-conviction Motion to Vacate Sentence, raises the issue that once the voluntariness of a waiver of the right to trial by jury is raised, the State has an affirmative duty to show that Washington s purported waiver was knowingly and intelligently waived. If Washington s resentence had been handled like the companion cases of all felony guilty plea cases in Lowndes County since at least 1983, the State would have to show the waiver was in writing, signed by Washington, and combined with a colloquy on record between the Trial Judge and Washington concerning Washington s understanding of the waiver and it s consequences. Exactly like the Lowndes County Circuit Court Judge s have done for years. However, in its haste to enhance Judge Keady s life in prison option in the state penitentiary, the State failed to ensure Washington s waiver was voluntary. The 11

23 sentencing Trial Court neglected to advise Washington of his State and Federal constitutional rights to a trial by jury on his capital murder resentencing, as the Court had done in hundreds of cases, the vast majority being lesser felonies compared to the case at bar. As a result, there was no knowing, voluntary or intelligent waiver by Washington s of his right to be resentenced by a jury in his capital murder conviction. Because of these due process violations, Washington s resentence is void. The State cannot now resentence Washington because the Federal Court mandatesd a timely resentence. The State, in essence, waived its right to resentence Washington on his capital murder conviction because of its clear error of constitutional magnitude. Again, amazingly, the Trial Judge s order of December 21, 2015, further ruled that the Petitioner received the most lenient sentence possible under Miss. Code Ann (RE-4) However, , in 1983, only offered two possible sentences, life in prison or death. If the State had wanted the most lenient sentence, it would have done nothing and allowed Judge Keady s imposition of a life sentence under Mississippi law to stand. The Motion Hearing Judge failed to realize that whether or not Washington s waiver was knowingly and voluntarily made is highly relevant. If it was found that Washington s waiver of jury trial was not intelligently, knowingly and voluntarily done, then the sentencing trial judge had no authority to resentence Washington. Therefore, the resentencing order is void no matter how lenient. Also, the Motion Hearing Judge s Order (RE-4) also implies that if the sentencing Trial Judge s Order (RE-7) is somehow tainted, as it was, then the Court can fall back on Judge Keady s first option, life in prison. However, Judge Keady s Order, (RE-2) as stated before, made it clear that the 12

24 State had two choices in resentencing Washington, and the resentencing must be done within 180 days of the Order. Once a choice is made, the other option disappears. Once the State chose to resentence Washington under and the trial judge seriously violated Washington s rights in the resentencing, it has no sentencing option left available. Washington s right to a jury trial on his resentence is relevant. Both the State and the Motion Hearing Judge failed in upholding their Constitutional duty to affirmatively show, once Washington raised the issue of the voluntariness of his waiver, that Washington did in fact knowingly waive his right to a trial by jury in his resentencing. The State failed to respond to the Motion to Vacate Sentence. The Court failed to rule on the issue of voluntariness of the waiver. Because of these failures, this Court must sustain Washington s Motion to Vacate Sentence. ISSUE IV Whether the Trial Court erred in holding that Washington had knowingly, freely, voluntarily and intelligently waived his State and Federal constitutional rights to a trial by jury in the resentencing phase of Washington s capital murder conviction. The Trial Court accepted Washington s attorney s MOTION TO PERMIT DEFENDANT TO WAIVE JURY TRIAL AND IMPOSE A LIFE SENTENCE, (herein after Motion to Permit) (CT ) (RE-8) as Washington s waiver of his right to have a jury resentence him in the case at bar. Other than for his attorney s Motion to Permit there is no evidence that Washington waived his right to a trial by jury. The right to a trial by jury is part and parcel of a guilty plea. Boykin v Alabama 395 US 238, 243 (1969), discussing what constitutes an effective waiver of a federal constitutional right, said, 13

25 Several federal constitutional rights are involved in a waiver that takes place when a plea of guilty is entered in a state criminal trial. First is the privilege against compulsory self-incrimination guaranteed by the Fifth Amendment and applicable to the State by reason of the Fourteenth.Second is the right to trial by jury.third is the right to confront one s accusers We cannot presume a waiver of these three important federal rights from a silent record The case of Chunn v State 669 So. 2d 29, 32 (Miss. 1996), speaking of Boykin stated: Clearly, the fact that the waiver of these three fundamental rights, including jury trial, cannot be presumed is the ground out of which the Boykin requirement of an affirmative, on the record, showing of waiver grows. Correspondingly, in Alexander this Court quoted this language, adopting the rationale as well as the holding in Boykin; Alexander, 226 So 2d 905, 909 (Miss. 1969). If the determination, by some means, of the knowing and voluntary waiver of each of the three fundamental rights is not required, there can be no other basis for Boykin. However it is done, the trial court must satisfy itself that a waiver of fundamental constitutional rights is knowing and voluntary. Godinez v. Moran, 509 U.S. 389, 113 S. Ct. 2680, 125 L. Ed. 321 (1993). It is the duty of the trial court to assure that kind of knowledge and volition. In the case at bar, the trial court failed to assure the voluntariness and knowingness of the jury trial waiver. The silent non-existent record of the resentencing speaks volumes about the trial courts protection, or lack thereof, of Washington s right to a trial by jury on his resentencing. In the federal system, a pure Boykin on-the-record colloquy is required to achieve a constitutional waiver of a jury trial. Patton v United States 281 U. S. 276, , 50 S. Ct. 253, 263, 74 L. Ed. 854, 870 (1930) states that:. before any waiver can become effective the consent of government counsel and the sanction of the court must be had, in addition to the express and intelligent consent of the defendant. And the duty of the trial court in that regard is not to be discharged as a mere matter of rote, but with sound and 14

26 advised discretion, with an eye to avoid unreasonable or undue departures from that mode of trial or from any of the essential elements thereof, and with a caution increasing in degree as the offenses dealt with increase in gravity. Patton v There can be no graver degree of offense than found in this case. Therefore, the caution utilized therein should have been of the highest degree. However, with regard to Washington s right to a trial by jury, the trial court threw caution to the wind. The holding and dicta with regard to jury trial waivers as found in Patton v United States has been codified into Federal Rule of Criminal Procedure Rule 23 (a), which states four requirements of a valid waiver to a jury trial; 1) the waiver must be in writing; 2) the government must consent to the waiver; 3) the trial court must accept the waiver, and 4) the waiver must be made voluntarily, knowingly, and intelligently. Jury Waiver For Capital Cases: An Assessment of the Voluntary, Knowing, and Intelligent Standard, 39 Clev. St. L. Rev. 605, 616 (1991). In fact, the Bench Book For United States District Judges contains suggested colloquy s for waivers of jury trials and written forms for the waiver of a jury trial. Clev. St. Law 617. The case of Duncan v. Louisiana held that the right to trial by jury guaranteed defendants in criminal cases in federal courts by Article III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to Defendants in State Courts. Duncan v Louisiana 391 US 145, 162 (1968). Again, the case of Chunn v State noted that while Robinson v State 35 So 2d 1044 (Miss. 1977) does not require that there be an intentional relinquishment or abandonment of a known right in order for there to be a valid waiver, Chunn went on to state that it does not require that the Appellate Courts of the State ignore the record as 15

27 presented. 33. In Watson v. State 196 So. 2d 893,896 (Miss. 1967) the Court held When constitutional rights are involved it is incumbent upon the Trial Court to have a full-blown hearing and a record reflecting the same. If such a hearing is held, then it is not difficult for us to determine whether or not the accused has been denied any of his constitutional rights. While it may be easy to ignore or overlook the record herein consisting of a two page motion (CT ) (RE-8) and a one-page court order (CT 314) (RE-7), it is clear that Washington did not voluntarily or intentionally relinquish his right to a trial by jury herein. The Case of Vittitoe v State 556 So 2d 1062, (Miss. 1990) held that Rule 3.03 of the Rules of Criminal Procedure (RCP), embodies the Boykin criteria of a knowing and voluntary waiver of a guilty plea. RCP Rule 3.03(2), now URCCC 8.04 A(3), states: (2) Voluntariness. Before the Trial Court may accept a plea of guilty, the Court must determine that the plea is voluntarily and intelligently made and a showing that the plea of guilty was voluntary and intelligently made must appear in the record. Vittitoe further holds that the requirements of the above paragraph are of course absolute, and a violation of its provisions would clearly be prejudicial to a defendant It has been shown that a waiver of a trial by jury is one of the fundamental constitutional rights waived when entering a guilty plea, therefore the above rule of criminal procedure applies to this case. The ruling in Vittitoe would require that Washington s waiver of a jury trial must appear in the record and if not, it is assumed that 16

28 the waiver was not voluntarily or intelligently made, and that the Defendant has suffered prejudice. It is important to point out that RCP 3:03 (2) was in effect in 1983, the year Washington was resentenced. In Boykin the U.S. Supreme Court, stated: The requirement that the prosecution spread on the record the prerequisites of a valid waiver is not constitutional innovation. In Carney v. Cochran, 369 US 506, 516 (1962), dealt with a problem of waiver of the right to counsel, a Sixth Amendment right. We held; Presuming waiver from a silent record is impermissible. The record must show, or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer. Anything less is not a waiver...we think the same standard must be applied to determining whether a guilty plea is voluntarily made Several federal constitutional rights are involved in a waiver that takes place when a guilty plea is entered in a state criminal trial..second, is the right to trial by jury. Duncan v Louisiana, 391 US 145, 163, (1968) Duncan is relevant and significant to our case in that Duncan stated: The Court today holds that the right to trial by jury guaranteed defendants in criminal cases in federal courts by Article III of the United States Constitution and by the Sixth Amendment is also guaranteed by the Fourteenth Amendment to defendants in state courts Boykin held, What is at stake for an accused facing death or imprisonment demands the utmost solicitude of which courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may later be sought and forestalls the spin-off of collateral proceedings that seek to probe murky memories It is clear that Washington did not knowingly waive his right to a trial by jury at his resentencing. One cannot refer to a resentencing hearing because it is not clear any 17

29 hearing occurred in the matter. It is clear there was no record to memorialize the event if it happened. Further, there was no written agreement between the parties as to the terms of the resentence. Neither Washington nor the state signed any documents in the matter, even though requires both to waive a jury trial in writing, as did RCP 3.03(2). All of the above serious errors of constitutional proportions, together with the States failure to respond to Washington s Motion to Vacate Sentence and the Court s finding that Washington s constitutional right to a trial by jury is irrelevant, all combine to make it abundantly clear that the Lowndes County Circuit Court s handling of Washington s resentencing and Motion to Vacate Sentence were all clearly erroneous. The only remedy is for this Court to sustain Washington s Motion to Vacate Sentence and issue an Order releasing Washington from prison. ISSUE V Whether the Defendant s lawyer s MOTION TO PERMIT DEFENDANT TO WAIVE JURY TRIAL AND IMPOSE A LIFE SENTENCE, alone, by itself, is sufficient to constitute a voluntary, knowing, and intelligent waiver of appellant s State and Federal Constitutional rights to a trial by jury in appellant s capital murder resentencing. Washington s lawyer filed a MOTION TO PERMIT DEFENDANT TO WAIVE JURY TRIAL AND IMPOSE A LIFE SENTENCE, (CT ) (RE-8) (hereafter Motion to Permit ) wherein defense counsel requested that the Court permit Defendant knowingly and intelligently and with the consultation and advice of counsel, to waive trial by jury, and Defendant concomitantly requests that the Court impose a sentence of imprisonment for life in the state penitentiary, pursuant to Miss. Code Ann. Section It is important to note Defendant Washington did not join in the Motion, nor did 18

30 Washington ever sign anything with reference to his resentencing. It is well settled law that an attorney cannot, by himself, waive an important constitutional right on behalf of his client. With reference to a guilty plea to a felony, Mississippi law holds that an accused cannot plead by his attorney. The Defendant must plead personally. In Alexander v State, 226 So. 2d 905, 907 (Miss. 1969), the Court held that co-defendant Morris did not plead to the felony indictment personally, and that the plea of guilty by his attorney was invalid. See also, Stewart v State 229 So. 2d 53, 57 (1969). While the case at bar involves an attorney moving the Court in writing, by way of a motion to permit his client to waive his right to a jury trial, the Alexander case involves the attorney actually pleading guilty for his client. As noted, the right to a trial by jury is one of the constitutional rights surrendered with a valid guilty plea. It follows that an attorney cannot, by himself, waive his client s constitutional right to a trial by jury. This is exactly what Washington s counsel attempted to do in the case at bar. The Alexander case referenced the case of Boykin v Alabama, 395 U.S. 238, 89. S. Ct. 1709, 23 L.Ed. 2D 274, (1969) the United States Supreme Court which held that, It was error, plain on the face of the record, for the trial judge to accept petitioner s guilty plea without an affirmative showing that it was intelligent and voluntary.. We held presuming waiver from a silent record is impermissible. The record must show or there must be an allegation and evidence which show, that an accused was offered counsel but intelligently and understandingly rejected the offer.. Boykin@ 242. Alexander then concluded that We think this same standard must be applied to determine whether a guilty plea is voluntarily made See also, Stewart v State 229 So 2d 53, 57 (Miss. 1969). 19

31 Boykin went on to note that The requirement of the prosecution to spread on the record the prerequisites of a valid waiver is no constitutional innovation. Boykin also held that a right to a jury trial is one of the constitutional waivers involved in a guilty plea Again, Boykin held that the waiver of such an important right cannot be presumed from a silent record. What is at stake for an accused facing the death penalty or imprisonment demands the utmost solicitude of which Courts are capable in canvassing the matter with the accused to make sure he has a full understanding of what the plea connotes and of its consequence. When the judge discharges that function, he leaves a record adequate for any review that may be later sought and forestalls the spinoff of collateral proceedings that seek to probe murky memories. Boykin v Alabama 395 US 238, 244 (1969). Applying the reasoning in these cases to the one at bar, it is clear that Washington s lawyer James S. Liebman s Motion to Permit Defendant to Waive Jury Trial and to Impose a Life Sentence cannot under any circumstances substitute or qualify as a voluntary, knowing, free, and intelligent waiver of Washington s right to a jury trial in his capital murder resentence. No presumption of waiver from a silent record is permissible. No record was made in the case at bar. Absolutely no record whatsoever in a capital murder resentencing. This is beyond the pale. We have only murky memories of what happened. Washington s affidavit shows there was no agreement concerning his resentence. The record, or lack thereof, supports his affidavit (CT 357). Defense counsel shall not conclude any plea bargaining on behalf of his client without his clients full and complete consent, being certain that the decision to plead is made with the Defendant. Defense counsel shall advise the Defendant of all pertinent 20

32 matters bearing on the entry of the plea to enter and likely results or alternatives thereof Jefferson v State 556 So. 2d 1016, 1026 (Miss. 1986). In summary, a lawyer cannot waive a jury trial on behalf of his client as the waiver is personal to the Defendant and can only be waived by the Defendant. ISSUE VI Whether the Trial Court erred in utilizing the unusual and confusing resentencing order wherein the Trial Court wrote in the to run consecutively with Cause Number 7925 and Cause Number 7926 addition into the sentencing order causing all three cases to run consecutively to each other, with the result that the Appellant did not know his maximum/minimum sentence in any of the cases. There is nothing in the record to show Washington even knew of the handwritten addition to the sentence. Washington s sworn affidavit (CT 357) states that Washington did not know, at the time of his resentencing in Cause Number 5859, that the Trial Judge had added in his own handwriting, that the life sentence in the Order was to be served consecutive to the forty (40) year armed robbery sentence in Cause Number 7925 and the twenty (20) year aggravated assault sentence in Cause Number Washington was not aware of any agreement between the Trial Judge, the prosecution and his lawyers to enhance his life in prison sentence to allow the Trial Judge to add to the printed Order. As a result, Washington was not advised by the court of the minimum/maximum sentence that he would serve and which sentence would begin his term. It is apparent, assuming Washington properly waived his right to a jury trial to resentence him, that Washington only believed he would be sentenced to life imprisonment. His attorney s Motion to Permit (CT ) (RE-8) only authorized Washington to waive the jury trial and incur life imprisonment, not life plus sixty (60) 21

33 years. Further, a careful reading of Washington s lawyer s Motion to Permit reflects that the lawyer merely asks the Court to allow Washington to perform a future action, i.e., to waive his jury trial, something Washington never did. Washington s sworn affidavit states in relevant part: Further, I never knew, until much later, that the trial judge did not just sentence me to life in prison in Cause Number The Trail Judge added in his own handwriting to my capital murder resentencing order, that the life in prison sentence was to be served consecutive to the 40 year armed robbery sentence in 7925 and the 20 year aggravated assault sentence in If I had known about the trial judge s handwritten addition to my life sentence, I would not have agreed to plead guilty in the other cases, i.e. cause numbers 7925 and I may have gone to a jury trial on all three cases. The trial judge did not conduct a hearing concerning my resentencing. I was not aware of any agreement between the judge or prosecutor or my lawyers giving me life in prison to run consecutive with two other sentences, equaling 60 years and again, there was no written agreement or hearing concerning my resentencing. (CT ) To summarize, the sentence in 5958 states it is to run consecutively with sentences in Cause Number 7925 and The sentence in 7925 of forty (40) years shall run consecutively with any other sentence imposed. The sentence in 7926 of twenty (20) years shall run consecutively with any other sentence imposed. All three sentences state that they shall run consecutively to the other sentences. Which sentence begins to run first, which next and which next? The Lowndes County Circuit Court Minute Books may help. The sentencing Order in 5859 was entered first in Lowndes County Circuit Court Minute Book 92 at page 536 (CT 314) (RE-7). The Order in 7925 was entered next in Minute Book 92 at page 537 (RE-5), and the Order in

34 was entered last in Minute Book 92 at page 538 (RE-6). Since 5958 was the first sentence in the minute book there was no prior sentence, prior to 5958, recorded in the minute books. It follows that there was no sentence, at the time 5958 was spread upon the minutes for it to run consecutive to. A court can only speak through its minutes, so case 5958 is the first case on record. The other sentences are to run consecutive to all other sentences. The result is confusing at best. The matter is further complicated when reviewing the Trial Court s sentencing Order in 7925 (CT 330) (R-5) which states that and he shall not be eligible for parole until he has served ten (10) years of said sentence. In 7926 the Trial Court was silent as to the eligibility of parole. If 7925 is the first sentence to run, then Washington can be paroled after ten years, and other sentences begin to run. But which sentence follows, the twenty year aggravated assault sentence or the life in prison? If 7926 is the first sentence, then would Washington be eligible for parole after five years? If so, Washington could possibly begin serving his life sentence after serving fifteen years. There is no way Washington, with a fifth grade education, could understand his sentence. Since Washington did not and could not understand the consequences of his sentence, then his waiver of a jury trial must be deemed to be involuntary ISSUE VII Appellant has suffered cumulative and plain error, which caused him to be deprived of his constitutional right to a fair resentencing in violation of the 5 th and 14 th amendments to the United States Constitution. 23