IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO CA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Dec :20: CA COA Pages: 23 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI BARRY D. WARE APPELLANT VS. NO CA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JOE HEMLEBEN 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 iii STATEMENT REGARDING ORAL ARGUMENT STATEMENT OF THE ISSUES STATEMENT OF THE CASE SUMMARY OF THE ARGUMENT ARGUMENT I. THE TRIAL COURT DID NOT ERR IN FINDING THAT WARE S GUILTY PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED II. III. THE TRIAL COURT DID NOT ERR IN FINDING THAT WARE S TRIAL COUNSEL WAS CONSTITUTIONALLY EFFECTIVE THE RECORD DOES NOT SUPPORT WARE S CLAIM THAT THE TRIAL COURT SHOWED EXTREME PREJUDICE TOWARDS WARE OR THAT THE TRIAL COURT FAILED TO REVIEW THE ENTIRE RECORD AND CHOSE TO IGNORE SUBSTANTIAL AMOUNT OF THE EVIDENCE PRESENTED CONCLUSION CERTIFICATE OF SERVICE ii

3 TABLE OF AUTHORITIES Cases Alford v. State, 185 So. 3d 429 (Miss. Ct. App. 2016) Barnett-Phillips v. State, 195 So. 3d 226 (Miss. Ct. App. 2016) Daughtery v. State, 847 So. 2d 284 (Miss. Ct. App. 2003) Doss v. State, 19 So.3d 690 (Miss.2009) Jackson v. State, 178 So. 3d 807 (Miss. Ct. App. 2014)... 9, 11 Johns v. State, 926 So. 2d 188 (Miss. 2006)... 6 Jones v. State, 922 So.2d 31 (Miss. Ct. App. 2006) Lyle v. State, 756 So.2d 1 (Miss. Ct. App.1999)... 7, 15 Magee v. State, 124 So. 3d 71 (Miss. Ct. App. 2012)... 6 Mullins v. Ratcliff, 515 So. 2d 1183 (Miss. 1987) Poss v. State, 17 So. 3d 167 (Miss. Ct. App. 2009)... 6 Rigdon v. State, 126 So. 3d 931 (Miss. Ct. App. 2013) Robinson v. State, 964 So. 2d 609 (Miss. Ct. App. 2007) Sharp v. State, 152 So. 3d 1212 (Miss. Ct. App. 2014)... 7 Simmons v. State, 805 So. 2d 452 (Miss. 2001) Stewart v. State, 845 So. 2d 744 (Miss. Ct. App. 2003).... 9, 12, 13 Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984) Thinnes v. State, 196 So. 3d 204 (Miss. Ct. App. 2016)... 16, 17 Thorson v. State, 76 So.3d 667 (Miss. 2011)... 7 West v. State, 226 So. 3d 1238 (Miss. Ct. App. 2017)... 9, 13 iii

4 Statutes Mississippi Code Annotated section Mississippi Code Annotated section Mississippi Code Annotated section , 9, 11 iv

5 STATEMENT REGARDING ORAL ARGUMENT The State of Mississippi submits that the issues raised by the appellant involve well settled principles of law. Due to the straightforward application of the law and facts in this case, which are fully set forth in the record, the State of Mississippi does not request oral argument. STATEMENT OF THE ISSUES I. THE TRIAL COURT DID NOT ERR IN FINDING THAT WARE S GUILTY PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED. II. III. THE TRIAL COURT DID NOT ERR IN FINDING THAT WARE S TRIAL COUNSEL WAS CONSTITUTIONALLY EFFECTIVE. THE RECORD DOES NOT SUPPORT WARE S CLAIM THAT THE TRIAL COURT SHOWED EXTREME PREJUDICE TOWARDS WARE OR THAT THE TRIAL COURT FAILED TO REVIEW THE ENTIRE RECORD AND CHOSE TO IGNORE SUBSTANTIAL AMOUNT OF THE EVIDENCE PRESENTED. STATEMENT OF THE CASE On February 8, 2012, Barry Ware was indicted, by the Attla County Grand Jury, of first degree murder in the shooting death of Cedric M. Sharkey. C.P. 20. On August 6, 2013, Ware filed a petition to enter a plea of guilty to the charge of second degree murder. C.P. 21. That same day, a plea hearing was held in the Circuit Court of Attala County, the honorable Joseph H. Loper, Jr. Circuit Judge, presiding. C.P. 29. Upon the recommendation of the State, Ware was sentenced to thirty years in the custody of the Mississippi Department of Corrections (MDOC). C.P. 42. On August 5, 2016, Ware filed a motion for post-conviction collateral relief (PCR) in which he asked the trial court to vacate his conviction and sentence on the grounds that: 1.) his plea was 1

6 not knowingly, voluntarily, and intelligently entered; 2.) his attorney was ineffective; and 3.) there was no factual basis in the record to support his conviction on a charge of second degree murder. C.P In his motion, Ware claimed that his guilty plea was not knowingly, voluntarily and intelligently entered because his attorney, John Colette, incorrectly advised him concerning his parole eligibility. C.P. 6. He further claimed that his attorney was constitutionally ineffective because, based on the erroneous advise of his attorney, Ware pled guilty to second degree murder and was sentenced to 30 years in prison; however, according to Ware, he would have been in better position had Ware gone to trial and been found guilty of first degree murder and sentenced to life in prison, because Ware, who was 44 years old at the time of sentencing, would have been eligible to apply for conditional release 21 years later when he turned 65 years old, pursuant to Mississippi Code Annotated section In summary, Ware contends that he would have been better off serving life without parole given the chance that he could apply for conditional release after 21 years, rather than a certain term of 30 years. Finally, Ware asserted that there was no factual basis in the record to support his guilty plea to second degree murder. 1 Attached to his motion for PCR were affidavits from Ware, his wife, Pam Ware, and his father-in-law, Mitchell Hedgepeth. C.P. 18; 43; 45. In his affidavit, Ware claims that Mr. Colette told him that if he pled guilty to second degree murder, he would be eligible for trustee earned time and parole after five years. C.P. 18. In Pam Ware s affidavit, she claimed that Mr. Colette told her and Ware that Ware would be eligible for trustee time of 30 days for every 30 days he served in 1 The third issue, whether there was a factual basis to support the plea, was not argued in Ware s brief before this Court. Accordingly, the State submits that this issue has been abandoned and waived. Nevertheless, the State submits that record demonstrates that there was a sufficient factual basis to support the plea, and that the trial court did not err in so finding. 2

7 prison and could make parole in as little as 2 to 5 years on a 30 year sentence. C.P. 43. Pam also claimed that she met with District Attorney Doug Evans prior to Ware s guilty plea. C.P. 43. According to Pam, Mr. Evans told her that if [Ware] plead guilty to Second Degree murder.... Ware would go to prison but that he would be eligible for parole after serving a percentage of his sentence. He also said that for Second Degree Murder, [Ware] would be eligible for trustee status and receive 30 extra days credit on his sentence for every 30 days he served. C.P. 43. Pam further claimed that Mr. Evans told her that when Ware came up for parole, approval for his parole had to be requested from the family of the victim (Mr. Sharkey); the District Attorney; and the Warden of the prison he was in. He told us that 2 of the 3 had to approve, and he said he would have no problem approving of [Ware] being paroled. C.P. 44. In his affidavit, Hedgepeth also stated that he attended a meeting with District Attorney Doug Evans and that during the meeting, Mr. Evans told them that Ware would be parole eligible within 5 to 7 years. C.P. 45. On August 15, 2016, the trial court ordered the State to file a written response, and on October 14, 2016, the State filed its response in opposition to Ware s motion for PCR. C.P. 62; 64. Ware filed a reply on October 24, C.P. 70. The trial court entered an order setting the matter for an evidentiary hearing and ordering John Colette to be present for the hearing. C.P An evidentiary hearing was held on March 31, C.P. 73; T. 1. Pam testified that she was present when Mr. Colette discussed parole eligibility with Ware. T. 10. According to Pam, Mr. Colette advised them that Ware would be eligible for parole after serving a percentage of his sentence. T. 10. Pam also testified that she and Hedgepeth met with District Attorney Doug Evans the week before the guilty plea and that Mr. Evans told them that Ware would be parole eligible after serving an unspecified percentage of his sentence and that Mr. Evans would recommend him for 3

8 parole. T. 14. Pam also testified that at no time did Mr. Colette discuss the possibility of conditional release. T. 23. Ware also testified at the hearing. T. Ware testified that Mr. Colette never informed him that if he proceeded to trial and was sentenced to life in prison, he could petition the trial court for conditional release upon turning 65 years of age. T. 29. He further testified that, had he known this, he would have proceeded to trial. T. 33. Ware also testified that Mr. Colette told him that if he pled guilty to second degree murder and was sentenced to 30 years in prison, he would be parole eligible and that he would be out of prison in two years, or a maximum of five years. T. 30; 32; 35. Hedgepeth testified that he attended some of the meetings between Mr. Colette and Pam and that he could recall terms such as parole eligibility and earned time being mentioned at unspecified times. T. 50. Hedgepeth also testified that he accompanied Pam when she met with Mr. Evans and that the purpose of the meeting was to inform Mr. Evans of Ware s good character. T. 50; 58. According to Hedgepeth, Mr. Evans informed them that he was going to recommend a 30 year sentence and that during the discussion we discussed the possibility of parole. T. 53. Hedgepeth was left with the impression that Ware would be eligible for parole at some point. T. 53. The State called John Colette to testify. Mr. Colette testified as to his discussion with Mr. Evans concerning a plea. T. 64. According to Mr. Colette, due to the nature of the case, Mr. Evans agreed to recommend 30 years, however, Mr. Evans would not object to Mr. Colette asking the trial court for the minimum sentence of 20 years. T. 65. Mr. Colette testified that at no time did he offer any advice to Ware on the issue of parole eligibility. T. 66. According to Colette, it is not his practice to discuss with his clients the number of years they may or may not have to serve on a given sentence before becoming parole eligible because I never know. T. 67. When asked if he ever told 4

9 Ware that he would be eligible for parole and get 30 for a 30 day trustee earned time, Mr. Colette replied: Absolutely not... I m getting old but I know one thing... the 30 for 30 term, I ve never used. That s a term that people in prison use. My office has never indicated to anybody 30 to 30. We just don t get into that mathematical issue. T. 67. Mr. Colette further testified that he did not inform Ware about the possibility of conditional release. T. 70. According to Mr. Colette, the decision to accept the plea offer was based on the insurmountable evidence of guilt. Mr. Colette testified: [A]gain, the advice to go to trial or to accept the plea, in my opinion, turned on the evidence that the State had. And in this particular case, they had a young black man that was shot in the back. Not only that, but a gun that belonged to my client planted at this young man s hand. And I didn t see any benefit to him taking the chance going to trial and getting a life sentence. So that s the decision I made. Had nothing to do with nor did we discuss when he would get out, is taking a life sentence better than a 30 year sentence. That just never happened. T Mr. Colette denied ever discussing earned time or trustee time with Ware. T. 77. District Attorney Doug Evans was also called to testify. Mr. Evans testified that he met with Pam and Hedgepeth at the request of Mr. Colette. T. 84. According to Mr. Evans, Mr. Colette called me and stated that [Pam and Hedgepeth] wanted to see if they could come talk to me basically to tell me what a good person [Ware] was. T. 84. According to Mr. Evans, at no time during the 2 Although not relevant to the issues raised on appeal, some background information as to the nature of the crime is necessary for contextual purposes to explain Mr. Colette s comments on the nature of the case. The shooting death of Cedric M. Sharkey resulted from Ware s and his cohort, Frankie Barber s belief that Sharkey was stealing scrap metal and other items from Barber. On the day of the murder, Ware and Barber chased Sharkey in Ware s truck, causing Sharkey to crash his car. Sharkey exited his vehicle and ran towards the tree line. Ware exited his truck with a hunting rifle, fired two shots into the air and then two shots in the direction of Sharkey, striking Sharkey in the back. Ware then planted a gun a Sharkey s person. The crime received heavy media attention and, according to some media reports, was investigated by the FBI as a possible hate crime. 5

10 meeting did he discuss the possibility of parole or how the parole system functioned, or anything about earned time. T When asked if he discussed the parole procedure and the Mississippi Parole Board with Pam, Mr. Evans stated that he did not, and did not even know what the procedure was. T. 86. He further testified that he did not even know what trustee earned time is. T. 81. Following Evans testimony, the trial court heard arguments from counsel and concluded the hearing. T. 95; 104; 110. On May 11, 2017, the trial court entered an order and corresponding opinion, denying Ware s PCR. C.P. 75; 84. Ware timely appealed. C.P. 85. SUMMARY OF THE ARGUMENT The issues raised by Ware are without merit. The trial court did not err in finding that Ware s trial counsel did not misinform Ware as to his parole edibility. Likewise, Ware was not affirmatively misinformed about the prospect of conditional release and the trial court correctly found that the fact that Ware did not know about conditional release did not render his guilty plea involuntary. Similarly, Ware s trial counsel was constitutionally effective and the trial court did not demonstrate any bias towards Ware. ARGUMENT This Court has held that [o]n appeal, the appropriate standard of review for denial of post-conviction relief after an evidentiary hearing is the clearly erroneous standard. Poss v. State, 17 So. 3d 167, 169 ( 5) (Miss. Ct. App. 2009) (quoting Johns v. State, 926 So. 2d 188, 194 ( 29) (Miss. 2006)). In so doing, this Court must examine the entire record and accept that evidence which supports or reasonably tends to support the findings of fact made below, together with all reasonable inferences which may be drawn therefrom and which favor the circuit court s findings 6

11 of fact. Magee v. State, 124 So. 3d 71, 75 ( 8) (Miss. Ct. App. 2012), aff'd, 124 So. 3d 64 (Miss. 2013) (quoting Thorson v. State, 76 So.3d 667, 674 ( 18) (Miss.2011)). See also Doss v. State, 19 So.3d 690, 694 ( 5) (Miss.2009). Furthermore, [d]eference is given to the circuit judge as the sole authority for determining credibility of the witnesses. Id. (quoting Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss.1987)). However, questions of law are reviewed de novo. Id. Finally, [t]he burden of proof at an evidentiary hearing in post-conviction relief cases is on the petitioner to show by a preponderance of the evidence he or she is entitled to relief. Id. (citing Miss. Code Ann (7) (Supp.2012). I. THE TRIAL COURT DID NOT ERR IN FINDING THAT WARE S GUILTY PLEA WAS KNOWINGLY, VOLUNTARILY, AND INTELLIGENTLY ENTERED. In his brief before this Court, Ware asserts that the trial court erred when it concluded that Mr. Ware voluntarily, intelligently, and knowingly entered his guilty plea even though the undisputed facts revealed that he was affirmatively misinformed regarding his eligibility for conditional release. Appellant s Brief Page 7. Also at issue at the evidentiary hearing, as raised in Ware s motion for PCR, was whether Ware s trial counsel affirmatively misinformed him as to his parole eligibility. Parole Eligibility This Court has held that, in PCR proceedings, [t]he purpose of an evidentiary hearing is for the court to receive evidence in order to make findings of fact. Lyle v. State, 756 So.2d 1, 2 ( 7) (Miss. Ct. App.1999). And the trial court, sitting as the trier of fact, is tasked with resolving all credibility issues that arise in a PCR hearing. Sharp v. State, 152 So. 3d 1212, 1214 ( 10) (Miss. Ct. App. 2014). Thus here, in the face of competing contradictory testimony, it was the trial court s 7

12 duty, as the fact-finder, to determine the credibility of the witnesses and ultimately to determine whether Ware was misinformed about parole eligibility. Ware s testimony, and his witnesses testimony, was that Mr. Colette told Ware that he would be parole eligible if he pled guilty to second degree murder. Although both Ware and Pam testified to that general proposition, the specifics were not consistent. Pam testified that Mr. Colette told her that if Ware pled guilty to second degree murder he would received trustee earned time and would get out of prison in five or ten years. T She also testified that Mr. Colette said he would be out in three to five years. T. 11. She also testified that Mr. Colette said Ware would serve ten years. T. 18. Ware testified that Mr. Colette said that he would be eligible for parole and out in two years. T. 32. On the other hand, Mr. Colette testified that he did not advise Ware in any way or at any time regarding parole or earned time. T Mr. Colette was adamant that it was not his practice to advise clients on parole eligibility or earned time. Thus, the fact in dispute was whether Mr. Colette affirmatively misinformed Ware about parole eligibility. In the face of such dispute, it was the trial court s duty as the fact-finder, to resolve the dispute. In its reasoned opinion, the trial court found that the testimony of Mr. Colette and the testimony of Ware s witnesses, was irreconcilable. 3 C.P. 28. Noting its responsibility, sitting as the fact-finder, to determine the credibility of witnesses, the trial court found the testimony of Mr. Colette to be more credible. C.P. 28. Accordingly, the trial court found that Ware was not advised 3 The trial court also found the Mr. Evans testimony to be irreconcilable with Ware s witnesses testimony. However, as the trial court noted, neither Pam or Hedgepeth testified that they related Evan s supposed statements to Ware and there was no testimony that Evans alleged statements played any part in Ware s decision to plead guilty. Accordingly, the trial court found that it would be improvident to further analyze the alleged discussion between Evans and Pam. C.P. 4 8

13 by his attorney that he would be eligible for parole and that the possibility of parole played no role in his decision to enter a guilty plea. C.P. 29. The State submits that the trial court, sitting as the fact-finder, correctly concluded that Ware was not misinformed as to his parole eligibility. Conditional Release In his brief before this Court, Ware claims that he was affirmatively misinformed as to conditional release; however, this assertion is not a correct characterization of the testimony at the hearing and the findings of the trial court. Instead, the testimony and the trial court s findings demonstrate that Mr. Colette did not inform Ware about anything concerning conditional release pursuant to Mississippi Code Annotated section Thus, Ware was not affirmatively misinformed about conditional release, he was not informed at all. What Ware is attempting to do is to cast his trial counsel s statement that a life sentence means a life sentence, in terms of misinformation because prisoner s serving a life sentence may be eligible to apply for, and might receive, conditional release. 5 Ware would like this Court to find that a criminal defendant pleading guilty must be informed of every facet of the law and every possibliltiy under the law in order for his plea to be valid. However, that is simply not the case. As this Court has held, being unaware of ineligibility for parole is not synonymous with ill or erroneous advice. 4 Section (1)(a) provides: (1) An inmate shall not be eligible for the earned time allowance if: (a) The inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release[.] 5 Indeed, to follow Ware s logic, a defendant who is advised to plead guilty to a lesser offense because, if found guilty of the charged offense, the defendant would spend the rest of his life in prison, would be invalid if trial counsel failed to inform the defendant that, upon being sentenced to life in prison, he could petition the Governor for parole or clemency. 9

14 West v. State, 226 So. 3d 1238, 1240 ( 9) (Miss. Ct. App. 2017). See also Jackson v. State, 178 So. 3d 807, 810 ( 13) (Miss. Ct. App. 2014); Stewart v. State, 845 So. 2d 744, 747 ( 11) (Miss. Ct. App. 2003). Indeed, A defendant does not possess a constitutional right to full parole information at or before his guilty plea. Stewart, 845 So. 2d at 747 ( 11). Nevertheless, the transcript of the guilty plea, and the accompanying documents, demonstrate that Ware s plea was knowingly and voluntarily entered. During the plea hearing, Ware affirmed that he understood that on second degree murder, the possible sentence is anywhere from 20 to 40 years and that the district attorney s office was recommending a 30 year sentence. C.P. 35. The trial court informed Ware of each and every right he was waiving by entering a guilty plea and Ware stated that he understood the rights he was waiving. C.P The trial court inquired as to whether anyone had offered Ware a reward, hope of reward or given Ware a promise or money or anything of value to get Ware to plead guilty and Ware stated no sir. C.P. 34. Ware affirmed that his decision to enter a guilty plea was a free and voluntary act and that the decision was his alone. C.P Likewise, in his petition to enter a plea of guilty, Ware acknowledged that by entering a plea of guilty, the possible sentence was 20 to 40 years and that the State was recommending 30 years in prison. C.P Accordingly, this issue is without merit. II. THE TRIAL COURT DID NOT ERR IN FINDING THAT WARE S TRIAL COUNSEL WAS CONSTITUTIONALLY EFFECTIVE. Ware next argues that his trial counsel was constitutionally ineffective. According to Ware, he pled guilty to second degree murder, knowing that he would receive a thirty year sentence but that he was led to believe he would only serve an unspecified percentage of that sentence. Appellant s Brief Page 10. Further, Ware claims that his trial counsel was ineffective for informing him that if 10

15 he was found guilty of first degree murder, he would receive a life sentence and never get out of prison, which, according to Ware, was untrue because had he been sentenced to life in prison, he would have been eligible to petition the trial court for conditional release 21 years later when he turned 65. To prevail on a claim of ineffective assistance of counsel, Ware must show: (1) his counsel's performance was deficient and (2) prejudice resulted. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984). Here, Ware pled guilty which waives claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea. Alford v. State, 185 So. 3d 429, 432 ( 15) (Miss. Ct. App. 2016) (quoting Rigdon v. State, 126 So.3d 931, 936 ( 16) (Miss. Ct. App. 2013)). Further, it is presumed that counsel s representation falls within the range of reasonable professional assistance. Jackson v. State, 178 So. 3d 807, 812 ( 20) (Miss. Ct. App. 2014) (citing Strickland, 466 U.S. at 689, 104 S. Ct. 2052). In order to overcome this presumption, Ware must show that there is a reasonable probability that, but for counsel s unprofessional errors, the result of the proceeding would have been different. Id. Ware claims in his brief that his trial counsel convinced Mr. Ware to plead guilty to a crime that would require him to languish in prison until he was 75 years old instead of proceeding to trial to possibly gain his freedom, or at worst, receiving a sentence that allowed him at least the chance to gain his release from prison after twenty-one (21) years at age 65 pursuant to Section Appellants Brief Page 11. Thus, Ware claims that his plea was induced. Pursuant to Rule 8.04(33) of the Uniform Rules of Circuit and County Court Practice, A plea of guilty is not voluntary if induced by fear, violence, deception, or improper inducements. 11

16 The claim that counsel was ineffective for informing Ware that if he was convicted of first degree murder, he could spend the rest of his life in prison is without merit. Ware s trial counsel s informing him of his possible sentence does not constitute coercion or inducement, it constitutes sound advice. In fact, this Court has held that [c]ounsel has a duty to fairly, even if that means pessimistically, inform the client of the likely outcome of a trial based upon the facts of the case... [and] If the attorney believes that it is in his client's best interest to plead guilty, it is his duty to inform him of that fact. Robinson v. State, 964 So. 2d 609, 612 ( 8) (Miss. Ct. App. 2007) (quoting Daughtery v. State, 847 So.2d 284, 287( 6) (Miss. Ct. App. 2003)). Thus, the fact that a defendant pled guilty because he feared a harsher sentence otherwise, does not render the plea involuntary. Id. (quoting Jones v. State, 922 So.2d 31, 35( 10) (Miss. Ct. App. 2006)). Similarly, the claim that his trial counsel was ineffective for failing to inform him of the possibility of conditional release is likewise without merit. Section (1)(a) provides: (1) An inmate shall not be eligible for the earned time allowance if: (a) The inmate was sentenced to life imprisonment; but an inmate, except an inmate sentenced to life imprisonment for capital murder, who has reached the age of sixty-five (65) or older and who has served at least fifteen (15) years may petition the sentencing court for conditional release[.] In denying Ware s claim, the trial court reasoned as follows: This code section provides no criteria that a sentencing court is to consider in determining whether conditional release should be granted. Thus, it appears that sentencing courts have unfettered discretion in determining whether it is granted. Atrial court's denial of a recommendation for parole or early release pursuant to Miss. Code Ann (1)(g)(iii), is not an appealable judgment. Barnett-Phillips v. State, 195 So.3d 226, 230 (Miss. Ct. App. 2016). Presumably, a court s denial of conditional release would also be a judgement not subject to appellate review. This court finds that if parole is a matter of legislative grace, then conditional release 12

17 is a matter of judicial grace. Being unaware of ineligibility for parole, earned time, and meritorious time is not synonymous with ill or erroneous advice. A defendant does not have a constitutional right to full parole information at or before his guilty plea. Stewart v. State, 845 So. 2d 744, 747 (Miss. Ct. App. 2003). This court believes that it is also true of conditional release. This court finds that a criminal defendant is not entitled to be advised that he has the right to petition the court for conditional release, since the decision of whether to grant it is left totally to the whims of the judge to whom the request is presented. This court finds that Ware s attorney was not deficient in failing to discuss parole or conditional release eligibility with him prior to the entry of his guilty plea. Therefore, this court finds that his claim of ineffective assistance of counsel claim is without merit. C.P Ware claims that he would have been better off receiving a life sentence with the slim chance of early release rather than pleading guilty to a lesser crime and receiving a certain 30 year sentence, which ensured that he would one day be released from prison. However, that is simply not the case, because it ignores the fact that, if conditional release is denied, Ware would be without a remedy and would spend the rest of his life in prison. Indeed, the State submits that it would have been ineffective for Ware s trial counsel advise him to plead guilty to first degree murder with the promise of conditional release at age 65 because conditional release is not guaranteed and in fact, left to the discretion of the trial court. As the trial court noted here: In the arguments made at the conclusion of the hearing that was conducted in this matter, Ware's attorney seemed to believe that requesting conditional release was tantamount to being granted it. That is certainly not the case. The fact that Ware shot in the back and killed a young black man that he had accused of theft, without any proof of the victim's culpability in the theft, and then planted at least one, and arguably two weapons at the crime scene, are not facts that would likely generate much judicial sympathy for Ware. The total uncertainty as to whether conditional release would be granted in any particular situation is the very reason that a criminal defendant is not entitled to be informed of the possibility of conditional release. C.P. 81 n. 3. To be clear, Ware is claiming that his trial counsel was ineffective for informing him that if he was found guilty of first degree murder, he would likely spend the rest of his life in prison 13

18 and for failing to inform him of the possibility of conditional release. As noted above, being unaware of ineligibility for parole is not synonymous with ill or erroneous advice. West, 226 So. 3d at 1240 ( 9). And, [a] defendant does not possess a constitutional right to full parole information at or before his guilty plea. Stewart, 845 So. 2d at 747 ( 11). The claim that Ware would be better off serving a life sentence with a chance, albeit slim, of one day being granted conditional release rather than a certain term of 30 years with the guarantee of one day being released from prison is nonsensical. Nevertheless, Ware s claim that he was induced or coerced by his attorney is contradicted by the record. In his petition to enter a plea of guilty, Ware stated that: My lawyer has advised me as to the possibilities of my conviction on the charges with which I am charged and thoroughly discussed all aspects of my case with me. My lawyer has made no threats or promises of any type or kind to induce me to enter this plea of guilty, and the decision to seek the entry of this plea was my own and mine alone, based on my own reasons and free from any outside coercive influences. C.P He further acknowledged that the District Attorney shall make no recommendations to the Court concerning my sentence except as follows: Thirty (30) yrs MDOC. C.P. 23. Likewise, during his guilty pleas hearing, Ware stated that he was completely and totally satisfied in all respects with his attorney s representation. C.P. 37. Accordingly, this issue is without merit. III. THE RECORD DOES NOT SUPPORT WARE S CLAIM THAT THE TRIAL COURT SHOWED EXTREME PREJUDICE TOWARDS WARE OR THAT THE TRIAL COURT FAILED TO REVIEW THE ENTIRE RECORD AND CHOSE TO IGNORE SUBSTANTIAL AMOUNT OF THE EVIDENCE PRESENTED. Finally Ware asserts that the trial court abused its discretion by allegedly demonstrating extreme prejudice against Ware and by prejudicially failing to review the entire record... and ignor[ing] substantial amount of the evidence. Appellant s Brief Page 13. As a preliminary matter, 14

19 Ware fails to support these arguments with relevant authority. Failure to cite relevant authority obviates the appellate court s obligation to review such issues. Simmons v. State, 805 So. 2d 452, 487 ( 90) (Miss. 2001). In support of his assertion that the trial court failed to review the entire record, Ware points to the trial court s opinion, in which the trial court found: The testimony of Doug Evans and Ware s witnesses is also irreconcilable. However, neither Pam Ware nor Mitchell Hedgepeth testified that the contents of their conversation with Evans was ever relayed to Barry Ware. Additionally, nothing in Barry Ware's testimony would indicate that Pam Ware and Mitchell Hedgepeth ever discussed the Evans meeting with him. There was absolutely no testimony that their discussion with Evans played any role in [Ware s] decision to plead guilty. Thus, this court finds that it would be improvident to further analyze the discussions conducted between Evans, Pam Ware, and Mitchell Hedgepeth. C.P. 78 n. 1. According to Ware, this conclusion is contradicted by the supporting affidavits of Ware, Pam, and Hedgepeth which were attached to Ware s motion for PCR. Particularly, in his affidavit, Ware stated that I know my wife and my father-in-law met personally with District Attorney Doug Evans... [and] she told me that he advised them of basically the same thing that Mr. Colette advised me as to how much time I would have to serve for Second Degree Murder. C.P. 19. Likewise, in their respective affidavits, both Pam and Hedgepeth stated that they told Ware about their discussion with Mr. Evans. C.P. 44; 46. However, it is important to note that the trial court granted an evidentiary hearing which indicates that the trial court reviewed the affidavits, which are a threshold requirement for entitlement to a hearing. Nevertheless, during the hearing, Ware did not testify that he relied on this alleged information when he pled guilty and Pam and Hedgepeth did not testify that they relayed the information to Ware. Further, Mr. Evans denied making any statements to Pam and Hedgepeth 15

20 concerning parole, how much of the sentence Ware would serve, or anything concerning trustee earned time. In fact, Mr. Evans testified that he did not know how the parole system operated or what the term trustee earned time meant. T. 86; 91. Nevertheless, as noted above, [t]he purpose of an evidentiary hearing is for the court to receive evidence in order to make findings of fact. Lyle v. State, 756 So.2d at 2 ( 7). Here, the trial court found, based on the sworn testimony received at the hearing, that Pam and Hedgepth did not relay the information to Ware and that Ware did not rely on the information in deciding to plead guilty. Furthermore, given that the trial court found the testimony of Ware, Pam, and Hedgepeth to lack credibility, it stands to reason that the trial court found Mr. Evans testimony that he did not discuss parole with Pam and Hedgepeth to be credible. Finally, the claim that the trial court failed to review the entire record is belied by the record. Here, the trial court entered a ten page reasoned opinion in which the trial court summarized the relevant testimony and evidence received at the hearing and provided a reasoned analysis. Ware s claim that the trial court demonstrated prejudice against Ware is also without merit. Ware claims that the trial court was clearly biased against [Ware] when drafting its opinion. Appellant s Brief Page 13. Ware claims that the trial court showed bias against Ware and his PCR counsel due to a recent reversal in his district obtained by that same attorney. The case that Ware is referring to is Thinnes v. State, 196 So. 3d 204 (Miss. Ct. App. 2016). 6 Ware takes particular issue with the following finding in the trial court s opinion: It is the opinion of this court that after sitting in prison for nearly three (3) years while learning the prison lingo, and after becoming aware 6 Thinnes deals with a PCR petitioner s entitlement to an evidentiary hearing, not the conduct or said hearings or the trial court s findings at the hearing. 16

21 of the case of Thinnes v.state, 196 So.3d 204 (Miss. Ct. App. 2016), that Ware tailored the facts in this case to meet the facts in Thinnes, and then hired the prevailing attorney in Thinnes to represent him in this matter. C.P. 79. However, this statement is merely representative of one part of the trial court s explanation of its credibility finding and should be considered in context. In explaining one of the various reasons it found Mr. Colette s testimony compelling, the trial court reasoned: In reaching the conclusion that Colette s testimony is more believable, this court found particularly compelling Colette s testimony that: I am getting old but I know one thing-the 30 for 30 term, I've never used. That s a term that people in prison use. My office has never indicated to anybody 30 to 30. We just don't get into that mathematical issue. So I did not. And we didn t know. That testimony is compelling because it is the experience of this court based on over twenty-four (24) years experience in handling felony criminal cases and post-conviction cases that arise from them, that inmates, not attorneys use terminology such as 30 for 30, earned time credit, and trustee status. It is the opinion of this court that after sitting in prison for nearly three (3) years while learning the prison lingo, and after becoming aware of the case of Thinnes v.state, 196 So.3d 204 (Miss. Ct. App. 2016), that Ware tailored the facts in this case to meet the facts in Thinnes, and then hired the prevailing attorney in Thinnes to represent him in this matter. C.P This is not demonstrative of any bias towards Ware, but merely the trial court expounding upon issues of credibility. Ware proceeds to attempt to parse out the trial court s credibility findings and points to them as evidence of bias. It is the trial court s function, when sitting as the trier of fact, to make credibility determinations. Simply because the trial court found Ware to lack credibility does not mean the trial court was biased against Ware. Ware has failed to demonstrate that the trial court harbored any actual bias towards him, or that the trial court failed to review the entire record prior to issuing its opinion. Accordingly, this issue is without merit. 17

22 CONCLUSION The State of Mississippi submits that the trial court did not err in denying Barry Ware s motion for Post-Conviction Collateral Relief. Based upon the arguments presented herein, as supported by the record on appeal, the State would ask this Court to affirm the trial court s denial of Ware s motion for relief. OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: /s/ Joe Hemleben JOE HEMLEBEN SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

23 CERTIFICATE OF SERVICE I hereby certify that on this day I electronically filed (and mailed by United States Postal Service) 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: Honorable Joseph H. Loper Circuit Court Judge Post Office Box 616 Ackerman, MS Honorable Doug Evans District Attorney Post Office Box 1262 Grenada, MS Honorable Thomas M. Fortner 525 Corinne Street Hattiesburg, MS This the 18th day of December, OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi Telephone: (601) _/s/ Joe Hemleben JOE HEMLEBEN SPECIAL ASSISTANT ATTORNEY GENERAL 19