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

Transcription

1 E-Filed Document Jul :14: CP COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHNNY HOLTON APPELLANT VS. NO CP STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: ALICIA AINSWORTH 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 ISSUES... 1 STATEMENT OF THE CASE... 1 STATEMENT OF THE FACTS... 2 SUMMARY OF THE ARGUMENT... 3 ARGUMENT... 4 I. Whether the trial judge should have recused himself from ruling on Holton s Post-Conviction Relief Petition because the judge was the presiding judge over Holton s plea hearing... 4 II. Whether Holton received ineffective assistance of counsel CONCLUSION... 9 CERTIFICATE OF SERVICE i

3 TABLE OF AUTHORITIES Cases Adams v. State, 117 So.3d 674 (Miss. Ct. App. 2013) , 7 Ford v. State, 121 So.3d 325 (2013) , 5 Hill v. State, 60 So.3d 824 (Miss. Ct. App. 2011) King v. State, 821 So.2d 864 (Miss. Ct. App. 2002) Missouri v. Frye, U.S.,, 132 S.Ct. 1399, 182 L.Ed.2d 379 (2012) , 7 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) , 7 Tubwell v. Grant, 760 So.2d 687 (Miss. 2000) Statutes Miss. Code Ann Miss. Code Ann (1)(d) Miss. Code Ann (2) , 4 Miss. Const. art. 6, ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHNNY HOLTON APPELLANT VS. NO CP STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE ISSUES I. Whether the trial judge should have recused himself from ruling on Holton s Post-Conviction Relief Petition because the judge was the presiding judge over Holton s plea hearing. II. Whether Holton received ineffective assistance of counsel. STATEMENT OF THE CASE This appeal proceeds from a denial of Johnny Holton s Post-Conviction Relief Petition. On October 21, 2011, in the Circuit Court of Winston County, Mississippi, with the Honorable Clarence E. Morgan presiding, Appellant Johnny Holton entered a guilty plea to one count of sexual battery of a child under fourteen years of age and one count of sexual battery of a child under eighteen by a person in a position of authority. (C.P. 20). The trial court sentenced Holton to thirty years per count, with the sentences to run concurrently. (C.P. 24). Holton filed his Post-Conviction Relief Petition on November 24, (C.P ). The trial court denied his petition on December 3, (C.P. 62). Holton filed a Notice of Appeal of the trial court s dismissal of his petition on January 5, (C.P. 63). 1

5 STATEMENT OF THE FACTS On September 27, 2011, Johnny Holton was indicted on the following counts: Count I touching a child for lustful purposes; Count II sexual battery of a child under fourteen; Count III sexual battery of a child under fourteen; Count IV sexual battery of a child under fourteen; Count V sexual battery of a child at least fourteen but under sixteen; Count VI sexual battery of a child at least fourteen but under sixteen; Count VII sexual battery of a child at least fourteen but under sixteen; Count VIII touching a child for lustful purposes; and Count IX sexual battery of a child under eighteen by a person in a position of trust or authority. (C.P. 3-5). On October 21, 2011, Holton filed a Petition to Enter Plea of Guilty on Count II (sexual battery of a child under fourteen, Miss. Code Ann (1)(d)) and Count IX (sexual battery of a child under eighteen by a person in a position of trust or authority, Miss. Code Ann (2)). (C.P. 6-9). On that same day, Judge Clarence E. Morgan, III, presided over Holton s plea hearing. (C.P. 12). The State agreed to dismiss the seven other counts against Holton in exchange for his guilty plea on Counts II and IX. (C.P. 21). During the hearing, the trial court questioned Holton s attorney, Steve Wright, regarding whether he explained to Holton what the State would have to prove in order to convict him, what his constitutional rights were, and whether he explained the minimum and maximum sentence on each charge. (C.P. 14). Wright answered in the affirmative to all questions. The trial court then asked Holton whether he was guilty of the charges against him, whether he understood his constitutional rights, and whether he discussed the charges with his attorney and was satisfied with his representation. (C.P ). The trial court then informed Holton of the minimum and maximum penalties for his crimes and asked him if understood; Holton answered in the affirmative. (C.P. 18). The State then testified to the factual basis of each charge against Holton and stated the 2

6 victims of the crimes (Holton s step children) would testify at trial against him. (C.P ). The trial court found Holton s plea was free and voluntary and that there was a sufficient factual basis for the charges against him. (C.P. 20). The State recommended a sentence of 30 years per count, to run concurrently, and the trial court accepted that recommendation and sentenced Holton to serve 30 years on each count, with the sentences running concurrently. (C.P ). The final judgment against Holton was entered on October 24, (C.P ). Holton filed his Post-Conviction Relief Petition on November 24, (C.P ). Judge Morgan denied his petition by Order filed December 3, 2014, stating the petition is without merit. (C.P. 62). Holton filed his Notice of Appeal on January 5, (C.P. 63). SUMMARY OF THE ARGUMENT Holton s post-conviction relief petition was filed more than three years after entry of the judgement against him, therefore, his petition in time barred. However, if this Court finds his petition is not time barred, his claims have no merit. The trial judge was not required to recuse himself because he presided over both Holton s guilty plea as well as ruled on his PCR petition. The record does not indicate any evidence of bias or prejudice to Holton and Holton offers no evidence of such. Therefore, this issue has no merit. Also, Holton waived his right to assert his trial counsel was ineffective because the record shows his plea was voluntarily. Notwithstanding the waiver, the record belies Holton s assertions that his attorney s performance was deficient and he was prejudiced by any deficiencies. Therefore, Holton s conviction and sentence should be upheld. 3

7 ARGUMENT I. Whether the trial judge should have recused himself from ruling on Holton s Post-Conviction Relief Petition because the judge was the presiding judge over Holton s plea hearing. According to the Mississippi Uniform Post-Conviction Collateral Relief Act, challenges to guilty pleas must be filed within three years after entry of the judgment of conviction. Miss. Code Ann (2) (Supp. 2014). The judgement of conviction against Holton was entered on October 24, 2011, but Holton did not file his post-conviction relief (PCR) petition until November 24, 2014, therefore, his petition should be procedurally barred as untimely. Time bar notwithstanding, Holton s appeal of the denial of his petition has no merit. The Court will not reverse a trial judge s denial of a PCR petition on appeal absent a finding that the trial judge s decision to deny the motion was clearly erroneous. Ford v. State, 121 So.3d 325, 327 (2013) (internal citation omitted). However, when reviewing issues of law, this Court s proper standard of review is de novo. Id. Holton first argues that the trial judge should have recused himself from ruling on his PCR petition because the same trial judge presided over his guilty plea. (Brief of Appellant p. 3). Holton claims that because the trial judge had [prior] knowledge of the case, he had a personal bias or prejudice to the case. (Brief of Appellant p. 3). However, Holton never made a motion seeking recusal of the trial judge, so he is procedurally barred from raising the issue for the first time on appeal. See Tubwell v. Grant, 760 So.2d 687, 689 (Miss. 2000) (where party failed to object or file a motion asking for the judge s recusal, the argument is procedurally barred from raising the issue on appeal). The Mississippi Code of Judicial Conduct, our state statutes, and our state constitution address the matter of recusal. Ford, 121 at 327 (citing Miss. Code of Jud. Cond. Canon 3(E)(1); 4

8 Miss. Code Ann (Rev. 2002); Miss. Const. art. 6, 165; King v. State, 821 So.2d 864, 868 ( 12) (Miss. Ct. App. 2002). [T]his Court uses an objective test: A judge is required to disqualify himself if a reasonable person, knowing all the circumstances, would harbor doubts about his impartiality. Id. (citing King, 821 So.2d at 867 ( 13)). The challenger holds the burden of overcoming the presumption that a judge, sworn to administer impartial justice, is qualified and unbiased. Id. Even if Holton had moved to recuse the trial judge from ruling on his petition, the trial judge would not have committed error by denying his motion because Holton s allegations of bias are unsupported. The trial judge did not prosecute Holton for his crimes, he only sat as a neutral arbiter over his guilty plea. Nothing in the record indicates the trial judge had any bias against Holton that would prejudice his case and Holton offers nothing to support his assertions, other than his bare accusations that the trial judge was bias by presiding over both his guilty plea and ruling on his PCR petition. The fact that the trial judge had prior knowledge of the case does not equate to bias. Therefore, Holton s accusations fail to overcome the presumption that the trial judge was qualified and unbiased, and no reasonable person, aware of all of the circumstances would question the trial judge s impartiality. This issue has no merit. II. Whether Holton received ineffective assistance of counsel. In Holton s second and third issues in his brief, he argues he received ineffective assistance of counsel during his entire pre-trial and plea bargaining process, and specifically, his trial counsel failed to request a psychological examination for Holton, did not prepare a defense for Holton, did not inform him of the minimum and maximum sentences for his crimes, and his trial counsel neglected to inform him he could withdraw his guilty plea within thirty days and that he had three years to file a petition for post-conviction relief. (Brief of Appellant p. 7-13). 5

9 Where a defendant voluntarily pleads guilty to an offense, he waives all claims of ineffective assistance of counsel except insofar as the alleged ineffectiveness relates to the voluntariness of the giving of the guilty plea. Adams v. State, 117 So.3d 674, 677 (Miss. Ct. App. 2013) (quoting Hill v. State, 60 So.3d 824, 827 ( 6) (Miss. Ct. App. 2011). A plea will be deemed to meet this standard where the defendant is advised concerning the nature of the charge against him and the consequences of his plea. Hill, 60 So.3d at 828. The State submits that Holton, by pleading guilty, waived his claim of ineffective assistance of counsel because the record indicates Holton s plea was voluntary. In Holton s signed plea petition, he states his attorney informed him of the nature of the charge, of any and all defenses, and that his plea is given freely and voluntarily, with Holton s full understanding of all of the matters set forth in his indictment and in his petition. (C.P. 6-9). Also, his plea petition specifically sets out the minimum and maximum sentences for his crimes, as well as the sentencing recommendations of the District Attorney. (C.P. 7). At his plea hearing, Holton stated on the record to the trial court that his attorney had fully informed him of the charges against him, his possible defenses, his rights and the waiver of those rights, and that he was satisfied with his attorney s representation. (C.P ). The trial court informed Holton, on the record, of the minimum and maximum sentences for his crimes and Holton acknowledged he was aware of the District Attorney s sentencing recommendations. (C.P ). Therefore, Holton can not now argue that his counsel was ineffective or that his plea was involuntarily, as the record belies his assertions. Without waiving the foregoing arguments, the State also submits Holton s claims of ineffective assistance of counsel is without merit. Claims of ineffective assistance of counsel in the plea bargain context are governed by the two-part test set forth in Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Adams, 117 So.3d at 677 (quoting Missouri v. 6

10 Frye, U.S.,, 132 S.Ct. 1399, 1405, 182 L.Ed.2d 379 (2012)). Under this test, Holton has to show: (1) his counsel s performance was deficient, and (2) the deficiency was prejudicial. Id. (citing Strickland, 466 U.S. at 687, 104 S.Ct. 2052). Holton argues his attorney was ineffective for failing to request a psychological examination and he attached to his brief an affidavit from his sister stating she asked Holton s attorney if she could speak to the judge about Holton undergoing a mental evaluation. (Brief of Appellant, Exhibit A). Neither Holton, nor his sister in her affidavit, state with specificity any reason that Holton s attorney should have requested a mental examination. Nowhere in the record is there any assertion that Holton has or had any mental illness or a need to evaluate his psychological capacity. Therefore, Holton failed to provide sufficient evidence of his attorney s ineffectiveness under Strickland as to his failure to request a mental examination. Holton argues that his counsel failed to inform him that he could withdraw his guilty plea within thirty days and that he had three years to file a petition for post-conviction relief. However, Holton does not offer any evidence that by not receiving this information, he was prejudiced in any way or that he would not have pleaded guilty or would have sought to withdraw his guilty plea. His assertions alone that his attorney s performance was deficient for failing to give him this information is not sufficient to render his counsel s assistance ineffective. Holton also claims his counsel was ineffective for making poor strategic and tactical choices and that his counsel acted in reckless disregard for Holton s best interests. Holton supports this claim by arguing that his counsel did not engage in plea-bargaining negotiations on his behalf. The record proves otherwise. Holton was originally indicted on nine different offences for sexual battery and touching his step daughters for lustful purposes. In return for a guilty plea, the State dismissed all charges except for two and recommended he receive only a thirty year sentence for 7

11 each count, to run concurrently. Holton s plea agreement indicates that his attorney did, in fact, negotiate a good deal and a lesser sentence for Holton. Therefore, his claim of ineffective assistance on this issue is also without merit. 8

12 CONCLUSION For the foregoing reasons, the State of Mississippi respectfully requests that this Honorable Court affirm Samuel Nuckolls conviction and sentence. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Alicia Ainsworth ALICIA AINSWORTH SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS TELEPHONE: (601)

13 CERTIFICATE OF SERVICE I 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 Clarence E. Morgan, III Circuit Court Judge Post Office Box 721 Kosciusko, Mississipi Honorable Doug Evans District Attorney Post Office Box 1262 Grenada, Mississippi Johnny Holton, # E.M.C.F Hwy. 80 West Meridian, Mississippi This the 22nd day of July, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Alicia Ainsworth ALICIA AINSWORTH SPECIAL ASSISTANT ATTORNEY GENERAL 10