IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DONALD GREGORY CHAMBLISS NO CP COA STATE OF MISSISSIPPI BRIEF FOR THE APPELLEE

Transcription

1 E-Filed Document Jul :09: CP COA Pages: 11 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DONALD GREGORY CHAMBLISS APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS 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 STATEMENT OF FACTS ARGUMENT Issue I. Issue II. Issue III. Defendant Chambliss was present at the guilty plea and most assuredly entered his plea voluntarily, knowingly, and intelligently It is abundantly clear defendant had constitutionally effective assistance of counsel Petitioner quotes sentencing provision for possession. He was convicted of sale. The trial court applied the new sentencing that went into effect July 1, CONCLUSION CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES STATE CASES Bennett v. State, 990 So.2d 155 (Miss. 2008) Brooks v. State, 573 So.2d 1350 (Miss. 1990) , 5 Bynum v. State, 916 So. 2d 534 (Miss. Ct. App. 2005) Grossley v. State, 127 So.3d 1143 (Miss. App Harper v. State, 122 So. 3d 788 (Miss. Ct. App. 2013) Liddell v. State, 7 So.3d 217 (Miss. 2009) Mann v. State, 2 So.3d 743 (Miss. Ct. App. 2009) Mohead v. State, 158 So. 3d 358 (Miss. Ct. App. 2014), Puckett v. Stuckey, 633 So.2d 978 (Miss.1993) Thompson v. State, 78 So. 3d 939 (Miss. Ct. App. 2012) Towner v. State, 837 So.2d 221 (Miss. Ct. App. 2003) STATE STATUTES Miss. Code Ann Miss. Code Ann (a)(1)(A) Miss. Code Ann (c)(1)(A) Miss. Code Ann Miss. Code Ann Miss. Code Ann ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DONALD GREGORY CHAMBLISS APPELLANT VS. NO CP COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE The grand jury of Lauderdale County indicted defendant in November, 2013, for Sale of Methamphetamine within 1500 feet of a church, as a subsequent and habitual offender all in violation of Miss. Code Ann ; ; & (Indictment, c.p ; 58). Defendant petitioned the court to plead guilty and a plea hearing was held. (c.p ). As part of a fabulous plea deal, the prosecutor dropped three other indictments, and two of the sentencing enhancements, applicable to this present sale charge. (c.p ). The trial court sentenced defendant to serve eight (8) years in the custody of the Mississippi Department of Corrections as an Habitual Offender under Miss. Code Ann without possibility of such sentence being reduced or suspended not to be eligible for early release, with three (3) years initially suspended, followed by five (5) years of post-release supervision according to the provisions of Miss. Code Ann In addition defendant was ordered to pay a $2,500 fine, $300 crime lab fee, $10 victim Bond Fund payment, $200 AB fee and court costs of $ for a total of $3, (Sentencing Order, c.p ). A little less than two months later, Chambliss filed a motion for post-conviction relief. (C.p. 2-19). And again filed an updated motion in December. (C.p.20-28). In February, 2015, the trial 1

5 court denied the petition and dismissed it in a comprehensive order encompassing findings of fact and conclusions of law meticulously chronicled and cited. (Order denying and dismissing, c.p ). (C.p ). Petitioner Chambliss timely filed his notice of appeal and is proceeding in forma pauperis. STATEMENT OF FACTS On or about December 12, 2012 defendant Chambliss did sell methamphetamine to an rd individual within 1500 feet of Gospel Lighthouse Church at street in Meridian, Mississippi. (Indictment, c.p. 40 & transcript, c.p. 91). Defendant pled guilty and admitted his two prior felonies for habitual status. (Tr. C.p. 103). SUMMARY OF THE ARGUMENT Issue I. Defendant Chambliss was present at the guilty plea and most assuredly entered his plea voluntarily, knowingly, and intelligently. The claims that petitioner did not stand before the judge and knowingly plead guilty are clearly, obviously and repeatedly, documented in the record, and cited by the trial court in denying relief. Consequently, no relief should be granted on this first claim of error. Issue II. It is abundantly clear defendant had constitutionally effective assistance of counsel. The allegations of ineffective assistance were legally insufficient in fact and the trial court was correct in denying post-conviction relief based on this claim. 2

6 Issue III. Petitioner quotes sentencing provision for possession. He was convicted of sale. The trial court applied the new sentencing that went into effect July 1, Petitioner Chambliss quotes statutory law for the sentencing of the crime of possession. Petitioner Chambliss was indicted and pled guilty to sale which has a significantly different sentencing scheme. The trial court did give this petitioner the benefit of the new sentencing guidelines at the time of sentencing. Any claim by petitioner is based upon erroneous application of the wrong statutory provision for sentencing for a different crime. ARGUMENT Issue I. Defendant Chambliss was present at the guilty plea and most assuredly entered his plea voluntarily, knowingly, and intelligently. In this first allegation of trial court error, it is with incredulity the State reads that petitioner Chambliss, even at this late juncture, states... to the best of his knowledge, there was no plea colloquy, whereas Appellant stood before the bench (judge), to actually enter said plea. (Def. Pro se brief, p. 4). The trial court clearly and succinctly dealt with this issue in the order denying and dismissing the petition. (Order, denying, cp. 111). The trial court found: Petitioner claims that he never stood before a judge to actually [enter] the [guilty] plea. Furthermore, Petitioner claims that the trial court did not question Petitioner in open court and that there was no factual basis for Petitioner s plea. The Court flatly rejects all of these arguments as invalid. A plain reading of the Guilty Plea hearing clearly established that the Court adequately questioned Petitioner and established a factual basis for the guilty plea, Petitioner confirmed his desire to plead guilty in open court, repeatedly admitted to the elements of the crime, and did so freely and voluntarily. The Court finds Petitioner s arguments on this issue not well taken and dismisses accordingly. (Order denying relief p.3, clerk s papers, p.111) 3

7 (Followed by four pages of detailed references to the plea colloquy transcript, refuting petitioner s claims). It is the position of the State the findings of the trial court as such are amply supported by the record of the plea colloquy found in the clerk s papers at pages In fact the first question asked is directed to this defendant if he was present and his response was yes. He was present with his attorney. (C.p.90). 3. When this Court reviews a trial court's denial of a petition for post-conviction relief, [w]e will not disturb the trial court's factual findings unless they are found to be clearly erroneous. Mann v. State, 2 So.3d 743, 745 ( 5) (Miss. Ct. App. 2009). However, we review questions of law under the de novo standard. Id. Harper v. State, 122 So. 3d 788 (Miss. Ct. App. 2013). It is the position of the State this issue is patently without merit in fact and in law and no relief should be granted on this first claim of error. Issue II. It is abundantly clear defendant had constitutionally effective assistance of counsel. 26. Our appellate courts have been instructed to strongly presume that counsel's conduct falls within a wide range of reasonable professional assistance, and the challenged act or omission might be considered sound trial strategy. In other words, defense counsel is presumed competent. Liddell v. State, 7 So.3d 217, ( 6) (Miss. 2009) (quoting Bennett v. State, 990 So.2d 155, 158 ( 9) (Miss. 2008)). Grossley v. State, 127 So.3d 1143 (Miss. App. 2013). Again, the trial court went into much detail (c. p ), ultimately finding that the assertions of petitioner Chambliss were insufficient to even allege deficient performance of counsel. (Order denying motion, p.10; c.p. 118). As this reviewing court has held in a factually similar post-conviction appeal: 5. We find Thompson failed to allege with specificity and detail that his lawyer's performance was deficient and prejudicial. Brooks v. State, 573 So.2d 1350,

8 (Miss. 1990). Further, the Mississippi Supreme Court has held where a PCR movant offers only his own affidavit in support of an ineffective-assistance-of-counsel claim, such evidence is insufficient to meet the pleadings requirements of Mississippi Code Annotated section (1)(e) (Supp. 2011). Id. 6. We also take note that at his plea hearing, Thompson was asked if he was satisfied with the services and advice he received from his counsel. He acknowledged to the judge that he was. Thompson also affirmed that no one had pressured him to plead guilty. The circuit judge read Thompson the indictment, which charged him with possession of cocaine with intent to distribute, and listed two of Thompson's prior qualifying felony convictions. The circuit judge then asked Thompson whether the allegations in the indictment were true. Thompson admitted under oath that they were. 7. Thompson's extensive list of prior violent convictions certainly qualified him as a habitual offender, placing him squarely in the sights of a life sentence. Yet Thompson's counsel negotiated a favorable plea agreement that cut Thompson's potential sentence to fifteen years. Also, a second charge in cause number was passed to the file as a result of the plea agreement. 8. On this evidence, we find Thompson's counsel was quite effective and that Thompson's guilty plea was voluntarily entered. We affirm the circuit court's denial of Thompson's PCR motion. Thompson v. State, 78 So. 3d 939, 941 (Miss. Ct. App. 2012). It is the position of the State the trial court was correct in his ruling which is amply supported by the record on appeal. Issue III. Petitioner quotes sentencing provision for possession. He was convicted of sale. The trial court applied the new sentencing that went into effect July 1, [... ] In its order denying the application, the supreme court stated that Bynum's sentence was to be interpreted in accordance with the governing laws at the time his crime was committed. Bynum v. State, 916 So. 2d 534 (Miss. Ct. App. 2005). Looking to the record, defendant committed his crime in December, 2012 (Indictment & Plea Transcript), and pled guilty in May, He was sentenced in September, 2014, and within the 5

9 order the trial court made notation that the sentencing took into consideration the changes in the law reflected as of July 1, 2014). (Sentencing Order, c.p. 37). The trial court did consider the new sentencing guidelines. The problem is that Petitioner Chambliss has taken the language and sentence from the Possession part of the new statutory provisions of HB 585. It is to be remembered that defendant did plead guilty to SALE not mere possession. Accordingly, the applicable sentencing statute, the State would now argue, is codified as Miss. Code Ann (a)(1)(A). The language petitioner mistakenly wishes were applicable is from Miss. Code Ann (c)(1)(A)(possession). So, the trial court, as memorialized in the sentencing order, did in fact take into consideration the new sentencing of House Bill 585 that went into effect July 1, The problem is that petitioner misapprehends fact and law in citing to the statutory language for a possession conviction and subsequent sentence. In point, he pled guilty to SALE of a controlled substance, specifically Methamphetamine. It is clear the trial court was correct in his sentencing, even if at the time of the crime and pleading guilty, the court did sentence this defendant in accordance with the provisions of HB [... ] [I]t is well settled that, in the name of judicial economy, an appellate court can affirm the circuit court's judgment if the right result is reached even though for the wrong reason. Towner v. State, 837 So.2d 221, 225 ( 9) (Miss. Ct. App. 2003) (citing Puckett v. Stuckey, 633 So.2d 978, 980 (Miss.1993)). Mohead v. State, 158 So. 3d 358 (Miss. Ct. App. 2014), reh'g denied (Feb. 24, 2015). So in the situation here, the sentence imposed was within the statutory limits for the crime for which this defendant was charged and pled guilty. The sentence was and is legal. The trial court was correct in denying and dismissing the motion for post-conviction relief. 6

10 CONCLUSION Based upon the record on appeal and the ruling of the trial court, the State would ask this Court to affirm the trial Court denial and dismissal of the motion for post-conviction relief. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601) BY: /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO

11 CERTIFICATE OF SERVICE I, JEFFREY A. KLINGFUSS, 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: Honorable Lester F. Williamson, Jr. Circuit Court Judge P.O. Box 86 Meridian, MS Honorable E.J. (Bilbo) Mitchell District Attorney P.O. Box 5172 Meridian, MS Donald G.Chambliss, Pro Se, #97711 S.M.C.I. Area I, Unit 9 P.O. Box 1419 Leakesville, MS This the 29th day of July, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE NO FAX NO /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL 8