IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

Transcription

1 E-Filed Document Dec :38: CP COA Pages: 26 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI THOMAS J. HOOGHE a/k/a a/k1a THOMAS HOOGHE a/ida THOMASJAMESHOOGHE HOOGHE APPELLANT vs. VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: BILLYL. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

2 TABLE OF CONTENTS TABLE OF AUTHORITIES... ii STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 2 SUMMARY OF THE ARGUMENT... 5 ARGUMENT... 8 HOOGHE'S CLAIMS OF A DEFECTIVE INDICTMENT, INVOLUNTARY PLEAS, ILLEGAL SENTENCE, INEFFECTIVE LA WYER, ET CETERA, ARE EITHER WAIVED, DEVOID OF MERIT ON THEIR FACE OR SUBSTANTIALLY AND MATERIALLY CONTRADICTED BY THE OFFICIAL RECORD... 8 Issue I. Denial of Preliminary Hearing... 9 Issues II and III. Defective Indictment Issue IV. Illegal Sentence Issue V. Jurisdictional Question Issue VI. Unconstitutional Auto Larceny Statute Issue VII. Factual Basis for Pleas Issue VIII. Ineffective Counsel Issue IX. Duration of Sentence Issue X. Cumulative Error CONCLUSION CERTIFICATE OF SERVICE... 16

3 TABLE OF AUTHORITIES STATE CASES Anderson v. State, 577 So.2d 390 (Miss. 1991)... 8, 10 Baker v. State, 358 So.2d 401 (Miss. 1978)... 5, 7, 9 Bilbo v. State, 881 So.2d 966 (Ct. App. Miss. 2004)... 6, 8 Brown v. State, 731 So.2d 595 (Miss. 1999)... 7, 8 Buckhalter v. State, 912 So.2d 159 (Ct. App. Miss. 2006) Conerly v. State, 607 So.2d 1153 (Miss. 1992) Dockery v. State, 96 So.3d 759 (Ct. App. Miss. 2012)... 5, 6 Drennan v. State, 695 So.2d 581 (Miss. 1997)... 7 Elliott v. State, 41 So.3d 701 (Ct. App. Miss. 2009) Fairly v. State, 812 So.2d 259 (Ct. App. Miss. 2002)... 7, 9 Falconer v. State, 832 So.2d 622 (Ct. App. Miss. 2002) Fleming v. State, 604 So.2d 280 (Miss. 1992) Flowers v. State, 35 So.3d 516 (Miss. 2010) Genry v. State, 735 So.2d 186 (Miss. 1999) Hannah v. State, 943 So.2d 20 (Miss. 2006) Hersick v. State, 904 So.2d 116 (Miss. 2004)... 7, 8 Hobgood v. State, 926 So.2d 847 (Miss. 2006) Hooghe v. State, 138 So.3d 240 (Ct. App. Miss. 2014)... 2, 13, 14 Hughes v. State, 983 So.2d 270 (Miss. 2008) Jefferson v. State, 556 So.2d 1016 (Miss. 1989)... 8, 10 ii

4 Joiner v. State, 61 So.3d 156 (Miss. 2011)... 10, 11 Luckett v. State, 582 So.2d 428 (Miss. 1991)... 8 Mayfield v. State, 612 So.2d 1120 (Miss. 1992)... 9 Mitchell v. State, 58 So.3d 59 (Ct. App. Miss. 2011) Mowdy v. State, 638 So.2d 738 (Miss. 1994)... 9 Parker v. State, 71 So.3d 620 (Ct. App. Miss. 2011)... 6 Philips v. State, 856 So.2d 568 (Ct. App. Miss. 2003)... 7 Richardson v. State, 769 So.2d 230 (Ct. App. Miss. 2000)... 5, 9 Rigdon v. State, 126 So.3d 931 (Ct. App. Miss. 2013) Robinson v. State, 920 So.2d 1009 (Ct. App. 2003)... 9 Sanders v. State, 847 So.2d 903 (Ct. App. Miss. 2003)... 9 Smith v. State, 430 So.2d 406 (Miss. 1983) State v. Santiago, 773 So.2d 921 (Miss. 2000)... 6 Swilley v. State, 93 So.3d 901 (Ct. App. Miss. 2012) Taylor v. State, 766 So.2d 830 (Ct. App. Miss. 2000)... 5, 8, 9 Turner v. State, 590 So.2d 871 (Miss. 1991)... 6 Vie lee v. State, 653 So.2d 920 (Miss. 1995) Walton v. State, 16 So.3d 66 (Ct. App. Miss. 2009)... 5, 6 Watkins v. State, 101 So.3d 628 (Miss. 2012) Williams v. State, 24 So.2d 360 (Ct. App. Miss. 2009) Wilson v. State, 967 So.2d 32 (Miss. 2007) iii

5 STATE STATUTES Miss. Code Ann l(h) Miss. Code Ann Miss. Code Ann (1)(d) and (3)... 1 Miss. Code Ann Miss. Code Ann (2)... 5, 6, 14 Miss. Code Ann (1) Miss. Code Ann (7)... 6, 8 IV

6 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI THOMAS J. HOOGHE a/k/a THOMAS HOOGHE a/k/a THOMASJAMESHOOGHE APPELLANT VERSUS NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE In an opinion handed down on March 29, 2016, the Court of Appeals affirmed the dismissal of Thomas Hooghe's petition for post-conviction relief"... because his PCRmotion was not sworn to and did not contain a verified oath as required by Mississippi Code Annotated section (l)(d) and (3)." (Cause No CP COA, slip opinion at 3) The dismissal was affirmed without prejudice, thus allowing Hooghe to re-file a procedurally proper motion in compliance with Mississippi Code Annotated section On May 19, 2016, Hooghe filed a new motion for PCR, assailing the integrity of the same pleas of guilty entered on September 22, 2014, to a single count of motor vehicle theft and three counts of grand larceny. Hooghe also complained about the forty-five ( 45) year sentence as a nonhabitual offender imposed in their wake. On July 7, 2016, the circuit judge entered a five (5) page order and opinion denying sunnnarily Hooghe's second quest for post-conviction relief and affirming the integrity ofhooghe's 1

7 forty-five (45) year sentence. Hooghe has appealed anew. He has raised several new issues in addition to those raised in his first PCR. They include (I) the denial of a preliminary hearing; (II) and (III) a defective indictment; (IV) an illegal sentence; (V) lack of jurisdiction; (VI) an unconstitutional statute; (VII) failure to find a factual basis for the guilty pleas; (VIII) ineffective counsel; and (IX) cumulative error. STATEMENT OF THE FACTS THOMAS HOOGHE is a fifty-seven (57)year old Caucasian male and ex-marine honorably discharged. (C.P. at 73, 92, 172) Hooghe has a twelfth grade education and can both read and write. (C.P. at 73, 155) While we thank Hooghe for his honorable military service (C.P. at 155), sadly, Mr. Hooghe appears to be a non-violent criminal entrepreneur with a rather extensive criminal history which consists of prior convictions of burglary (5 counts) in the state of Ohio in 1996, unauthorized use of a motor vehicle in Texas in 2007 and again in 2008, and the unlawful taking of a motor vehicle in DeSoto County Mississippi in (C.P. at , ) Indeed, Hooghe is no stranger to this Court. See Hooghe v. State, 138 So.3d 240 (Ct. App. Miss. 2014), an earlier appeal from a denial of post-conviction relief following Hooghe's guilty plea in DeSoto County to the unlawful taking of a motor vehicle. A great deal of what this Court said then and there equally applies here and now to Hooghe' s present complaints which mirror the earlier complaints. On April 14, 2014, Hooghe was released from physical custody in the MDOC. A week later, on or about April 22, 2014, Hooghe committed the offense charged in lower court cause number It is needless to say, but we say it nevertheless, Mr. Hooghe appears beyond 2

8 rehabilitation. Hooghe seeks appellate review of the summary denial of his "Motion for Post Conviction Collateral Relief' re-filed in the Circuit Court of Madison County on May 19, (C.P. at 3-21) Hooghe filed his first motion on December 30, 2014, and his amended motion for postconviction collateral relief on February 9, 2015, only three (3) months and four (4) months, respectively, after entering on September 22, 2014, voluntary pleas of guilty to three (3) counts of grand larceny in lower court cause number and a single count of grand larceny in lower court cause number (Appellee's exhibit A, attached.) Following his negotiated and open pleas whereby the State, in exchange for Hooghe's pleas of guilty, agreed to eschew going forward on all charges as a habitual and subsequent offender (C.P. at , 146, ), Judge Emfinger, in the wake of a presentence investigation and report (C.P. at ), sentenced Hooghe on September 29, 2014, to serve fifteen (15) years (Count I), ten (10) years (Count II), ten (10) years (Count III), and ten (10) years (Count IV), for a total period of incarceration of forty-five (45) years. (C.P. at ,158-59) The ink had hardly dried on the papers reflecting Hooghe's pleas and the multiple sentences imposed in their wake when Hooghe,pro se either in person or via an industrious inmate writ-writer, filed a motion for post-conviction relief serving up a smorgasbord of illegitimate complaints. In his fill-in-the-blank, unsworn, handwritten motion, Hooghe claimed, inter alia, (1) he was twice denied a preliminary hearing; (2) his indictment was multiplicitous and defective; (3) the auto larceny statute, the basis for the charge in count I, is unconstitutionally vague and ambiguous and his indictment therefor was duplicitous; (4) his indictment failed to allege "probable cause;" (5) he was illegally sentenced; (6) his lawyer was ineffective and, topping it all off, (7) there was cumulative error. 3

9 On February 9, 2015, Hooghe filed an amendment to his motion for post-conviction relief. (C.P. at ) It, likewise, appeared to be unsworn and thereby lacking the trustworthiness of the official oath. On March 29, 2016, the Court of Appeals affirmed, without prejudice, the dismissal of Hooghe's first motion for PCR because, inter alia, it was not accompanied by a verified oath. Hooghe re-filed a proper petition on May 19, (C.P. at 3-21) On July 7, 2016, Judge Emfinger, the same judge who had entertained Hooghe's guilty pleas, summarily denied Hooghe's second motion as plainly or manifestly without merit. Judge Emfinger, after making specific findings of fact and reaching correct conclusions oflaw in a five ( 5) page order and opinion, found that it plainly appeared that the Petitioner was not entitled to any relief and that Hooghe's request should again be denied and dismissed. (C.P. at ) The ten claims made by Hooghe in his second direct appeal closely resemble the claims made in his first appeal, viz., (I) he was twice denied a preliminary hearing; (II) his first indictment was rnultiplicitous and therefore fatally defective; (III) his indictments failed to satisfy the requirement of notice as to the nature of the charges; (IV) Hooghe was improperly convicted of felonies when each grand larceny count charged misdemeanors; (V) the trial court was without jurisdiction to accept a plea of guilty to the second indictment; (VI) the auto larceny statute is unconstitutionally vague and ambiguous; (VII) the trial judge failed to find a factual basis for Hooghe's pleas; (VIII) Hooghe had ineffective counsel; (IX) a life sentence constituted cruel and unusual punishment; and (X) there was cumulative error. Several of these claims are belied by the transcript of the plea-qualification hearing taking place on September 22, The other claims have been waived as a result ofhooghe's voluntary pleas of guilty to the crimes charged. 4

10 Hooghe wholeheartedly agreed there was a factual basis for his pleas of guilty to the crimes charged. An informative factual basis was explained by the prosecutor in plain and ordinary English. (C.P. at ) Hooghe agreed to plead guilty but not as an habitual or subsequent offender, charges that the prosecution declined to pursue. (C.P. at , 147) This Court has said, time and again, that"[ s ]olenm declarations in open court carry a strong presumption of verity." Baker v. State, 358 So.2d 401, 403 (Miss. 1978). Accordingly, an evidentiary hearing was not required. Richardson v. State, 769 So.2d 230 (Ct. App. Miss. 2000); Taylor v. State, 766 So.2d 830 (Ct. App. Miss. 2000). This appeal from denial of post-conviction relief flowing in the wake of voluntary and intelligent pleas of guilty is but another feeble effort by an industrious prisoner and his jailhouse lawyers to talce advantage of a system that bends over backwards to protect the rights of the guilty. While Hooghe's arguments are intellectually stimulating, they fall short of convincing us, or persuading a reviewing court, the trial judge was clearly erroneous or manifestly wrong in summarily denying post-conviction relief. The posture of this appeal is controlled, fully and fairly, by the standards found in Dockery v. State, 96 So.3d 759, 763 (ill 7) (Ct. App. Miss. 2012), which addressed the "clearly erroneous" and "preponderance of the evidence" standards. See also Walton v. State, 16 So.3d 66, 70 (i!8) (Ct. App. Miss. 2009) ["The burden of proving that a guilty plea was involuntary is on the defendant and must be proven by a preponderance of the evidence."] SUMMARY OF THE ARGUMENT Miss. Code Ann (2) authorizes a circuit judge to summarily dismiss a motion for post-conviction relief if it is manifestly devoid of merit. Specifically, "[i]fit plainly appears from 5

11 the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the petitioner to be notified." See Parker v. State, 71 So.3d 620,623 (Ct. App. Miss. 2011) quoting from State v. Santiago, 773 So.2d 921, (i!l 1) (Miss. 2000). It did, the judge made, and he was. "When a trial court has denied a petition for post-conviction relief, this Court will examine whether the denial is clearly erroneous." Bilbo v. State, 881 So.2d 966, 967 (i!3) (Ct. App. Miss. 2004). "This Court has established that dismissal of a PCR motion is proper where 'it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Id. (Quoting Turner v. State, 590 So.2d 871, 874 (Miss. 1991)). Judge Emfinger's order of dismissal reflects that"... it plainly appears from the face of the above-mentioned petition that the petitioner is not entitled to any relief and that such motion should be dismissed pursuant to Miss. Code Ann (2) (1972)." (C.P. at 185) When reviewing the voluntariness of a guilty plea, this Court"... will not set aside findings of a trial court sitting without a jury unless such findings are clearly erroneous." Dockery v. State, supra, 96 So.3d 759, 763,r17), citing Walton v. State, supra, 16 So.3d 66, 70 (i!8) (Ct. App. Miss. 2009). "The burden is upon [Hooghe] to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief." Bilbo v. State, supra, 881 So.2d 966, 968 (i!3) (Ct. App. Miss. 2004) citing Miss. Code Ann (7) (Rev. 2000). Hooghe has failed to do so here. 6

12 Hooghe swore, under the trustworthiness of the official oath and under the pain and penalty of perjury (C.P. at 137), he understood the elements of each offense (C.P. at ), he understood the maximum penalty could be 45 years (C.P. at 145, 152), he understood the State could prove the factual basis asserted for his pleas (C.P. at ); he was "satisfied" with the representation of his lawyer and wished to make no complaints about his attorney (C.P. at 151 ), and he was voluntarily pleading guilty to the crime of motor vehicle theft charged in count I of cause number , grand larceny charged in Count II, grand larceny charged in Count III, and grand larceny charged in cause number (C.P. at 150, ) Solemn declarations in open court carry a strong presumption of verity. Baker v. State, supra, 358 So.2d 401,403 (Miss. 1978); Fairly v. State, 812 So.2d 259,263 (i[ll) (Ct. App. Miss. 2002). "This court reviews the denial of post-conviction relief under an abuse of discretion standard." Philips v. State, 856 So.2d 568, 570 (Ct. App. Miss. 2003). Summary denial was not an abuse of judicial discretion and was practical, prudent and proper in this case. This Court will not reverse findings of fact made by a trial judge unless they are clearly erroneous [Brown v. State, 731 So.2d 595, 598 (i[6) (Miss. 1999)], or manifestly wrong. Hersick v. State, 904 So.2d 116, 125 (Miss. 2004). There are material contradictions between what Hooghe says "here and now" that carmot be reconciled with what Hooghe said "then and there." Lest we forget, Hooghe did not go to trial. Rather, he entered pleas of guilty. Aside from all the material contradictions found here, Hooghe, by his voluntary pleas of guilty, waived all non-jurisdictional defects incident to trial and antecedent to his plea. Drennan v. State, 695 So.2d 581 (Miss. 1997); Luckett v. State, 582 So.2d 428 (Miss. 7

13 1991); Anderson v. State, 577 So.2d 290 (Miss. 1991); Jefferson v. State, 556 So.2d 1016, 1019 (Miss. 1989). By pleading guilty, Hooghe also waived any "defenses" he might have had to the charges. Taylor v. State, 766 So.2d 830 (Ct. App. Miss. 2000). Therefore, summary denial was not an abuse of judicial discretion. ARGUMENT HOOGHE'S CLAIMS OF A DEFECTIVE INDICTMENT, INVOLUNTARY PLEAS, ILLEGAL SENTENCE, INEFFECTIVE LA WYER, ET CETERA, ARE EITHER WAIVED, DEVOID OF MERIT ON THEIR FACE OR SUBSTANTIALLY AND MATERIALLY CONTRADICTED BY THE OFFICIAL RECORD. "The burden is upon [Hooghe] to prove by a preponderance ofthe evidence that he is entitled to the requested post-conviction relief." Bilbo v. State, supra, 881 So.2d 966, 968 (i/3) (Ct. App. Miss. 2004) citing Miss. Code Ann (7) (Rev. 2000). Hooghe has failed to do so here. We say again! When reviewing the trial court's decision to deny a petition for postconviction relief, an appellate court will not disturb the trial court's factual findings unless they are found to be clearly erroneous. Brown v. State, 731 So.2d 595,598 (i/6) (Miss. 1999). "A trial judge's finding will not be reversed unless manifestly wrong." Hersick v. State, 904 So.2d 116, 125 (Miss. 2004). "However, where questions of law are raised the applicable standard of review is de nova," i.e., afresh or anew. Id. Any claims made by Hooghe that his pleas of guilty were not entirely voluntary are belied by the official record which includes the transcript of the plea-qualification hearing talcing place on September 22, 2014, as well as the petition to enter plea of guilty. (C.P. at ; ) This 8

14 Court has said, time and again, that "[s]olenrn declarations in open court carry a strong presumption of verity." Baker v. State, supra, 358 So.2d 401,403 (Miss. 1978). In Robinson v. State, 920 So.2d 1009, 1012 (if!o) (Ct. App. 2003), the Court of Appeals held that material contradictions in the plea transcript rendered Robinson's assertions "a sham." We respectfully submit the same may be equally true here. Although a defendant is entitled to change his mind, solenrn declarations made in open court under the trustworthiness of the official oath carry a strong presumption of verity. Baker v. State, supra, 358 So.2d 401,403 (Miss. 1978); Fairley v. State, 812 So.2d 259,263 (if! l)(ct. App. Miss. 2002), citing Richardson v. State, supra, 769 So.2d 230, (ifl4) (Ct. App. Miss. 2000). Stated somewhat differently, for purposes of determination of the voluntariness of a guilty plea, the Supreme Court places "... a strong presumption of validity upon an individual's statements made under oath." Mowdy v. State, 638 So.2d 738, 743 (Miss. 1994). This presumption has not been overcome here. Accordingly, an evidentiary hearing was not required. Richardson v. State, supra, 769 So.2d 230 (Ct. App. Miss. 2000); Taylor v. State, 766 So.2d 830 (Ct. App. Miss. 2000). Issue I. Denial of Preliminary Hearing. Hooghe complains he was twice denied a preliminary hearing. Hooghe' s indictment by a Grand Jury operated as a waiver ofhooghe's right to a preliminary hearing. "We hold that once a defendant has been indicted by a grand jury, the right to a preliminary hearing is deemed waived." Mayfield v. State, 612 So.2d 1120, 1129 (Miss. 1992). See also Sanders v. State, 847 So.2d 903, 907 (Ct. App. Miss. 2003). 9

15 Issues II aud III. Defective Indictment. Hooghe says his indictment suffered from "multiplicity" and failed to give him adequate notice of the nature of the crimes charges. Hooghe's voluntary pleas of guilty waived these arguments. See Buckhalter v. State, 912 So.2d 159 (Ct. App. Miss. 2006), which correctly held that a valid guilty plea admits all elements of a formal charge and operates as a waiver of all non-jurisdictional defects contained in an indictment. "[T]he law is well settled that[,] with only two exceptions, the entry of a!mowing and voluntary guilty plea waives all other defects or insufficiencies in the indictment." Joiner v. State, 61 So.3d 156, 159,r7 (Miss. 2011) (quoting Conerly v. State, 607 So.2d 1153, 1156 (Miss. 1992)); Anderson v. State, supra, 577 So.2d (Miss. 1991); Jefferson v. State, supra, 556 So.2d 1016, 1019 (Miss. 1989). A guilty plea does not waive an indictment's failure to charge an essential element of the crime charged, and it does not waive the lack of subject matter jurisdiction. Joiner v. State, supra, 61 So.3d 156, 159,r7 (Miss. 2011). Neither of those exceptions are applicable here. In addition, the trial judge correctly found no arguable double jeopardy violation, citing Watkins v. State, 101 So.3d 628,632 (Miss. 2012). (C.P. at 182) Issue IV. Illegal Sentence. Hooghe claims his sentence was illegal because the trial judge failed to consider the amended statute. The trial judge sentenced Hooghe under the correct statutes. (C.P. at 162) See Flowers v. 10

16 State, 35 So.3d 516, 518 (i!s) (Miss. 2010) ["It is fundamental that the statute in effect at the time an offense is committed is the one that must control the prosecution of the offense."] See also Wilson v. State, 967 So.2d 32 (Miss. 2007), cited and relief upon by the trial judge. In any event, Hooghe failed to object to the sentence on this basis at trial, and the matter was waived. "Errors related to improper sentencing are procedurally barred if no objection is made at trial." Hughes v. State, 983 So.2d 270,282 (Miss. 2008), reh denied, cert denied 129 S.Ct. 633, 172 L.Ed.2d 620 (2008). Stated differently, "[i]n order for an error related to improper sentencing to be preserved for appeal, there must be an objection made at trial." Hobgood v. State, 926 So.2d 847, 857 (Miss. 2006), reh denied, cert denied 127 S.Ct. 928, 549 U.S. 1118, 166 L.Ed.2d 714 (2007). See also Williams v. State, 24 So.2d 360 (Ct. App. Miss. 2009). There is no fundamental right implicated here. See Miss. Code. Ann (h) citing (a)(l)(b)(l). Issue V. Jurisdictional Question. Hooghe claims the trial court was without jurisdiction to accept a guilty plea to the second indictment because it was never lawfully served and no arraignment or preliminary hearing was ever held. Hooghe's voluntary and intelligent guilty plea to the grand larceny charged in the second indictment waived each of these matters which focus on procedure as opposed to subject matter. Joiner v. State, supra, 61 So.3d 156, 159 (i!7) (Miss. 2011). In addition the trial judge was neither clearly erroneous nor manifestly wrong in finding as 11

17 a fact and concluding as a matter oflaw"... that the petitioner was served with the indictment and waived arraignment in that case." (C.P. at 183) Issue VI. Unconstitutional Auto Larceny Statute. "Constitutional arguments not asserted at trial are waived." Fleming v. State, 604 So.2d 280,292 (Miss. 1992), citing Smith v. State, 430 So.2d 406,407 (Miss. 1983). Miss. Code Ann (1) reads as follows: Failure by a prisoner to raise objections, defenses, claims, questions, issues or errors either in fact or law which were capable of determination at trial and/or on direct appeal, regardless of whether such are based on the laws and the constitution of the state of Mississippi or of the United States, shall constitute a waiver thereof and shall be procedurally barred, but the court may upon a showing of cause and actual prejudice grant relief from the waiver. This section "... prohibits a prisoner from raising certain issues in a PCR motion if they should have been raised prior to filing a PCR motion, and a failure to raise these issues acts as a waiver." Swilley v. State, 93 So.3d 901, 904 (18) (Ct. App. Miss. 2012). pleas. Issue VII. Factual Basis for Pleas. Hooghe claims the trial judge failed to determine whether there was a factual basis for his This claim is materially contradicted by the record. See plea qualification hearing at C.P , Hooghe, under the trustworthiness of the official oath, in fact, agreed with the court there was a legal and factual basis for his pleas and that he was telling the court that he was freely and voluntarily admitting his guilt to these crimes. (C.P. at ) Issue VIII. Ineffective Counsel. Hooghe's ineffective assistance of counsel claim was waived by virtue ofhis voluntary pleas 12

18 of guilty. Rigdon v. State, 126 So.3d 931 (Ct. App. Miss. 2013). Moreover, Hooghe told Judge Emfinger he was satisfied with his lawyer and acknowledged he had no complaints to make about his lawyer's representation. (C.P. at 168) Hooghe agreed there was a legal and factual basis for his pleas as those facts were explained by the prosecutor. (C.P. at ) These aclmowledgments have got to stand for something. See Elliott v. State, 41 So.3d 701, 708 (i!23) (Ct. App. Miss. 2009), where "Elliott's testimony at the plea hearing contradict[ ed] his contentions [and] Elliott affirmed that he was 'totally satisfied' with his counsel's legal representation." To overcome the strong presumption that counsel's performance falls within the wide range of reasonable professional assistance the petitioner must show that there exists a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. Hooghe v. State, 138 So.3d 240, 247 (i!31) (Ct. App. Miss. 2014) Because Hooghe entered a guilty plea he must demonstrate that but for counsel's errors he would not have pleaded guilty but would have instead insisted on going to trial and the outcome would have been different. Mitchell v. State 58 So.3d 59, 62 (,r15) (Ct. App. Miss. 2011) (citing Hannah v. State, 943 So.2d 20, 24 (i!7) (Miss. 2006)). Because Hooghe has offered only his own affidavit, his claim of ineffective counsel is devoid of merit. Vielee v. State, 653 So.2d 920,922 (Miss. 1995). He has failed to prove any instance of deficiency. Issue IX. Duration of Sentence. Hooghe claims that his forty-five (45) year sentence, which was within the limits imposed by statute, constituted cruel and unusual punishment. This complaint was waived when neither Hooghe nor his counsel objected to the duration of the sentence at the time of Hooghe's pleas. 13

19 Rather, they both agreed to open pleas (R. 152), and both acquiesced to the punishment imposed at sentencing on September 29, (R ) Hooghe's petition to enter a plea of guilty, signed under oath, reflects in paragraph 8 that the maximum penalty for the crimes charged was "10/10/10/15 [yrs]" for a total of forty-five (45) years. "The law presumes that a defendant prepares the plea petition 'with an appreciation of its fateful consequences.'" Hooghe v. State, supra, 138 So.3d 240,245 ('1[14) (Ct. App. Miss. 2014). This claim was also waived for the reasons expressed in our response to Issue IV, supra. Issue X. Cumulative Error. There being no error in any individual part, there can be no error to the whole. Genry v. State, 735 So.2d 186,201 (Miss. 1999). CONCLUSION The circuit judge found "... that it plainly appears from the face of the above-mentioned petition that the petitioner is not entitled to any relief and that such motion should be dismissed pursuant to Miss. Code Ann (2)." (C.P. at 185) Miss. Code Ann reads, in its pertinent parts, as follows: * * * * * * (2) Jfitplainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified. * * * * * * It does, he did, and he was. Falconerv. State, 832 So.2d 622 (Ct. App. Miss. 2002) ["(W)e affirm the dismissal of Falconer's motion for post-conviction relief as manifestly without merit."]. Appellee respectfully submits this case is devoid of any claims worthy of an evidentiary hearing or vacation of the guilty pleas voluntarily and intelligently entered by Thomas Hooghe. 14

20 Accordingly, the judgment entered in the lower court summarily denying Hooghe's motion for postconviction relief should be forthwith affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: Isl Billy L. Gore BILLY L. GORE SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

21 Case 45Cll:16"ls-122 Document 6 Filed 07/07/21.,~o Page 1 of 5 IN THE CIRCUIT COURT OF MADISON COUNTY, MISSISSIPPI THOMAS JAMES HOOGH!t' I L E D..I.., MADISONCOUNTY PETITIONER vs. JUL ANITA!RAY,~IRC~ CLE~~VIL ACTION NO. Cl E BY.uQJA~u D.C..... '.- -. STATE OF MISSISSIPPI RESPONDENT ORDER TO DENY AND DISMISS MOTION FOR POST-CONVICTION COLLATERAL RELIEF COMES NOW BEFORE THE COURT the MOTION FOR POST-CONVICTION COLLATERAL RELIEF filed by THOMAS HOOGH E ("petitioner") in the above styled and numbered cause on May 19, Pursuant to Miss. Code Ann (1972, as amended), on July 6, 2016, the Court ordered that a transcript of petitioner's guilty plea hearing and sentencing hearing that were conducted on or about September 22, 2014, and September 29, 2014, respectively, be placed in this file. The Court further ordered that a certified copy of each of petitioner's criminal files, which are Cause Nos and on the docket of this Court, be placed in this file. After reviewing the motion and all its attachments, the underlying criminal files, the transcript of the guilty plea and the sentencing hearings, and being otherwise advised in the premises, the Court finds as follows: Page I of 5 181

22 Case 45Cl1:16 ",-122 Document 6 Filed 07/07/'L... ~d Page 2 of 5 1. The petitioner has filed one prior motion seeking post-conviction relief in Madison Co. Civil Action No This Court denied and dismissed ttie petition as filed. The.. petitioner appealed this Court's action and the Mississippi Court of Appeals affirmed the dismissal of this prior petition, but did so without prejudice to allow the petitioner to re-file a procedurally proper motion. The instant motion was filed as a result of the ruling of the appellate court and appears to be properly verified. 2. The petitioner's first issue is that he is entitled to post-conviction relief because he was denied a preliminary hearing for the crimes he was charged with in each of the two indictments against him. This Court cannot determine from the files whether the petitioner was given a preliminary hearing by a lower court. However, since the record is clear that the petitioner was indicted in each case, this issue is without merit. See Sanders v. State, 847 So. 2d 903, 907 (Miss. App. 2003). 3. The petitioner's second issue is that his three (3) convictions in Cause No violate the prohibition against double jeopardy. However, it is clear to the Court from a review of the indictment that each count therein would require proof of at least one element differentfrom the other counts. Therefore, this issue is without merit. See Watkins v. State, 101 So. 3d 628,632 (Miss. 2012). 4. The third issue raised by the petitioner concerns the sufficiency of the indictments. Page 2 of 5 182

23 Case 45Cll:16-l-,-122 Document 6 Filed 07/07/2...,... d Page 3 of 5 Petitioner contends that the indictment fail to set out the "proximate cause" of each offense. The Court finds that each of the charges contained in each of the indictments herein are sufficient pursuant to UR CCC The claim is without merit. 5. The petitioner next claims that he was illegally sentenced. Petitioner contends that, since his pleas of guilty were entered and he was sentenced after the effective date of H.B. 585, he was improperly sentenced. However, as was explained during his guilty plea, the Court found that H.B. 585 changed the elements of the offense of grand larceny. Therefore, pursuant to Miss. Code Ann , Wilson v. State, 967 So. 2d 32 (Miss. 2007) and Flowers v. State, 35 So. 3d 516 (Miss. 2010) the Court applied the law that was in effect at the time of the offenses. This claim is without merit. 6. Petitioner's fifth issue is that the Court was without jurisdiction to accept his guilty plea in Cause No because he had not been served with the indictment, was not arraigned and was not afforded a preliminary hearing. The file in that cause clearly shows that the petitioner was served with the indictment and waived arraignment in that case. This issue is without merit. 7. The sixth issue raised by the petitioner is that he was convicted under an unconstitutional statute, This issue is without merit. 8. The petitioner next contends that the trial court failed to determine whether there Page 3 of 5 183

24 Case 45Cll:16~cv-122 Document 6 Filed 07/07/2t,l6 Page 4 of 5 was a factual basis for each of the charges. During the guilty plea, the Court read to the petitioner the elements of each of the charges, the State set forth the factual basis for each charge and the petitioner, under oath, agreed that the State could prove the factual basis of each charge beyond a reasonable doubt and that it was more likely than not that he would be convicted of each charge if each matter proceeded to trial. Further, the petitioner testified, again under oath, that the probability of his conviction was greater than his acquittal and that he wished to take advantage of the plea bargain being offered by the State. In this case, while the guilty plea was an "open plea", the State had agreed not to proceed against the petitioner as an habitual offender in either case. This issue is without merit. 9. Finally, the petitioner contends that he is entitled to post-conviction relief because he received ineffective assistance of counsel. To establish a claim of ineffective assistance of counsel, the petitioner must show that but for his counsel's errors, he would not have pied guilty to the crimes, would have proceeded to trial, and the ultimate outcome would have been different. Watson v. State, 100 So. 3d 1034, (Miss. App.2012) and Henderson v. State, 89 So. 3d 598,602 (Miss. App.2011). The burden is on the petitioner. Where the petitioner presents no affidavit in support of his claim, his claim may be dismissed without a hearing. Where his only support is his own affidavit and it is contradicted by unimpeachable documents in the record, his claim may be dismissed without a hearing. Laneri v. State, 141 So. 3d 53, (Miss. App.2014) and Edwards v. State, 995 So. 2d 824, 826 (Miss. App.2008). In this case, the petitioner's claim is Page 4 of 5 184

25 Case 45Cll:16-b,-122 Document 6 Filed 07/07/ Page 5 of 5 supported solely by his own affidavit which is contradicted by his own statements, under oath, during the guilty plea hearing. This claim is without merit. 10. The Court further finds that it plainly appears from the face of the above-mentioned petition that the petitioner is not entitled to any relief and that such motion should be dismissed pursuantto Miss. Code Ann (2) (1972, as amended), IT IS, THEREFORE, ORDERED that the MOTION FOR POST-CONVICTION COLLATERAL RELIEF should be and the same is hereby denied and dismissed. SO ORDERED AND ADJUDGED this the Z'.11 day of,!yjy_, Page 5 of 5 185

26 CERTIFICATE OF SERVICE I, BILLY L. GORE, hereby certify that on this day I electronically filed the foregoing pleading or other paper with the Clerk of the Court using the MEC system which sent notification of such filing to the following: Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 19th day of December, Honorable John Huey Emfinger Circuit Court Judge P.O. Box 1885 Brandon,MS Honorable Michael Guest District Attorney P.O. Box 68 Brandon,MS Thomas J. Hooghe, Pro Se, # EMCF Hwy. 80 W Meridian, MS OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO Isl Billy L. Gore BILLY L. GORE SPECIAL ASSIST ANT ATTORNEY GENERAL 16