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 :02: CA COA Pages: 10 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NEDRA PITTMAN APPELLANT VS. NO CA 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 AND FACTS...1 SUMMARY OF THE ARGUMENT... 2 ARGUMENT... 3 The trial court properly denied Pittman s Petition for Post-Conviction Relief because she was not denied effective assistance of counsel....3 CONCLUSION... 6 CERTIFICATE OF SERVICE... 7 i

3 TABLE OF AUTHORITIES Cases Barnes v. State, 949 So.2d 879 (Miss. Ct. App. 2007) Bell v. State, 117 So.3d 661 (Miss. Ct. App. 2013) Evans v. State, 115 So.3d 879 3) (Miss. Ct. App. 2013) , 4 McCray v. State, 107 SO.3d 1042 (Miss. Ct. App. 2012) Riley v. State, 150 So.3d 138 (Miss. Ct. App. 2014) Salter v. State, 2015 WL (Miss. Ct. App. 2015) Smith v. State, 806 So.2d 1148 (Miss. Ct. App. 2002) Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) Statutes Miss. Code Ann (2) ii

4 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NEDRA PITTMAN APPELLANT VS. NO CA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE ISSUES The trial court properly denied Pittman s Petition for Post-Conviction Relief because she was not denied effective assistance of counsel. STATEMENT OF THE CASE AND FACTS This appeal proceeds from a denial of Nedra Pittman s Petition For Post-Conviction Relief. On May 23, 2006, Pittman was indicted on two counts of uttering forgery and one count of embezzlement. (CP 17-19). On September 26, 2006, she filed a Petition to Enter a Guilty Plea to one charge of uttering forgery and to embezzlement. (CP 27). On September 27, 2006, Circuit Judge Margaret Carey-McCray entered a Sentencing Order sentencing Pittman to serve a term of ten (10) years in the custody of the Mississippi Department of Corrections, with two (2) years in the Intensive Supervision Program (ISP), and pending successful completion of the ISP, the remaining eight (8) years of her sentence would be suspended and she 1

5 would be placed on Supervised Probation for five (5) years, followed by three (3) years of Unsupervised Probation. (CP 28-30). The remaining uttering forgery count was nolle prossed. (CP 35). On May 26, 2010, Judge Carey-McCray was recused from Pittman s case and her case was reassigned to Judge Ashley Hines. (CP 37-38). In February of 2013, Pittman was arrest in Crossett, Arkansas, for breaking and entering and theft of property, and a subsequent warrant was issued for her arrest for violating the terms of her probation. (CP 40). She was also accused of violating her probation for traveling to Arkansas without permission or a travel permit. (CP 40). On February 26, 2014, Judge Hines revoked Pittman s probation and she was sentenced to serve two (2) years and ten (10) months in the custody of the Mississippi Department of Corrections. (CP 42). On February 3, 2015, Pittman filed a Petition for Post-Conviction Relief in the Circuit Court of Washington County, Mississippi, claiming she is entitled to relief based on the fact that she received ineffective assistance of counsel. (CP 3-43). The trial court determined that Pittman s petition was time-barred and had no merit and denied and dismissed the petition. (CP 44-47). Pittman timely appealed the trial court s denial of her petition. (CP 48). SUMMARY OF THE ARGUMENT Pittman s petition for post-conviction relief is time-barred by the three year statute of limitations because almost nine years elapsed between her guilty plea and her PCR petition. Even if her claim was not procedurally barred, her claim of ineffective assistance has no merit because her plea petition and the plea transcripts contradict her assertions. The trial court properly denied her petition. 2

6 ARGUMENT The trial court properly denied Pittman s Petition for Post-Conviction Relief because she was not denied effective assistance of counsel. A trial court s dismissal of a post-conviction relief petition will not be reversed by this Court absent a finding that the trial court s decision was clearly erroneous. Barnes v. State, 949 So.2d 879, 880 (Miss. Ct. App. 2007) (quoting Smith v. State, 806 So.2d 1148, 1150 (Miss. Ct. App. 2002)). A petition for post-conviction relief must be filed within three years of the judgment of conviction pursuant to a guilty plea. Id. (citing Miss. Code Ann (2)). There are several statutorily enumerated exceptions which are not subject to the time bar. Id. The exceptions include an intervening court decision, newly discovered evidence, and expired sentence or unlawful revocation of parole, probation, or conditional relief. Id. Pittman s request for post-conviction relief is statutorily time-barred. She was sentenced in 2006 and she did not file her PCR petition until February 3, That time period of almost nine years is well over the three year statute of limitation and she is now barred from raising her claim. Pittman claims she received ineffective assistance of counsel and that ineffective assistance implicated her due process rights, which should exempt her from the three year time bar on her claim. (Appellant s brief p. 10). Errors affecting fundamental constitutional rights are also exempted from the procedural bars. Salter v. State, 2015 WL ( 19) (Miss. Ct. App. 2015) (citing Evans v. State, 115 So.3d 879, 881 ( 3) (Miss. Ct. App. 2013)). Where a petitioner asserts a fundamental right, the courts must address the merits of the PCR petition regardless of procedural bars. Id. at ( 21). However, the supreme court has held that claims of ineffective assistance of counsel and involuntary guilty pleas are indeed subject to the procedural bars. Id. As in Salter, Pittman claims her fundamental rights were violated because her counsel at was 3

7 ineffective. Id. at ( 19). But, the Mississippi Supreme Court has not held that a claim of ineffective assistance of counsel invoke a fundamental right that circumvents the procedural bars that apply to PCR petitions. Id. at ( 22) (citing Riley v. State, 150 So.3d 138, 140 ( 8) (Miss. Ct. App. 2014). Therefore, no fundamental rights exception applies to Pittman s case and her PCR petition was properly denied by the trial court. Even assuming argumendo, the time bar did not apply to Pittman s case, her claim has no merit. To prove ineffective assistance of counsel, Pittman must prove that: (1) [her] counsel s performance was deficient, and (2) this deficiency prejudiced [her] defense. Bell v. State, 117 So.3d 661, 664 (Miss. Ct. App. 2013) (citing Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). [T]here is a strong presumption that counsel s performance falls within the range of reasonable professional assistance. Id. A PCR petitioner must allege facts of counsel s deficient performance with specificity and detail. Id. Pittman argues she is entitled to a new trial because she was denied effective assistance of counsel because she only pleaded guilty to the charges against her after being assured by her attorney that she would receive the State s recommended sentence and without her attorney informing her of the conditions associated with probation or even the possibility of receiving house arrest. (Appellant s brief p ). Pittman claims she has established the first prong of Strickland because she clearly expressed confusion as to what was happening at the Sentencing Hearing, and Petitioner s affidavit supports that she was assured by her attorney that she would only receive the State s recommended sentence. (Appellant s brief p ). During Pittman s plea hearing, the trial court rejected the State s recommended sentence of ten years in custody, all suspended, with Pittman placed on five years of supervised probations. (CP 5, CP Supp. p. 17). Pittman s claims that she was confused because did not know house arrest was 4

8 a possibility and that her attorney did not explain the conditions associated with probation is contradicted by the record. The plea petition she signed states, in pertinent part: I understand the minimum and maximum sentence the Court can give me for this are listed above and that the Court is not bound by the recommendations of the district attorney, and that the Court could, if it saw fit, impose the maximum sentence for this crime. No promises have been made to me regarding a lighter sentence, preferred treatment or anything of value to induce me to petition this Court to enter a guilty plea. I am satisfied with the services of my attorney, and believe my attorney has acted in my best interest. (CP 27). Additionally, Pittman admitted during her plea hearing that her attorney reviewed the plea petition with her. (CP Supp. p. 3). The Court also reviewed with her the minimum and maximum penalties for her charges. (CP Supp. p. 2-3). Pittman knew the trial court did not have to accept the State s recommendations and she stated during the plea hearing that her attorney reviewed the petition with her. It should be noted that she had already successfully completed the Intensive Supervision Program long before she filed her PCR claim complaining of the same. A PCR petitioner may not rely solely on his own self-serving affidavit or otherwise unsupported allegations in his brief. McCray v. State, 107 SO.3d 1042, 1046 (Miss. Ct. App. 2012). And where an affidavit is overwhelmingly belied by unimpeachable documentary evidence in the record such as, for example, a transcript or written statements of the affiant to the contrary to the extent that the court can conclude that the affidavit is a sham no hearing is required. Id. (citation omitted). Here, Pittman s affidavit stating she would not have pleaded guilty had she known about the house arrest option is belied by both her plea petition and the plea hearing transcripts. So, even if her claim was not procedurally barred, the trial court properly denied her petition on its merits. 5

9 CONCLUSION For the foregoing reasons, the State of Mississippi respectfully requests that this Honorable Court affirm 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)

10 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 W. Ashley Hines Circuit Court Judge Post Office Box 1315 Greenville, MS Honorable Dewayne Richardson District Attorney Post Office Box 426 Greenville, Mississippi E. Tucker Gore, Esquire Attorney At Law 207 Lillian Greenwood, MS This the 15th day of December, OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MISSISSIPPI TELEPHONE: (601) s/ Alicia Ainsworth ALICIA AINSWORTH SPECIAL ASSISTANT ATTORNEY GENERAL 7