E-Filed Document Mar 2 2018 13:44:46 2017-KA-00853-COA Pages: 9 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI JOHN WARE APPELLANT VS. NO. 2017-KA-00853 STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE, IN RESPONSE TO APPELLANT S PRO SE BRIEF APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: KATY GERBER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104577 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF CONTENTS......................................................... I TABLE OF AUTHORITIES.................................................... ii STATEMENT OF THE ISSUES................................................... 1 STATEMENT OF THE CASE.................................................... 1 STATEMENT OF THE FACTS................................................... 1 SUMMARY OF THE ARGUMENT............................................... 1 ARGUMENT................................................................. 2 I. WHETHER WARE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL........................................................ 2 II. WHETHER WARE RECEIVED AN ILLEGAL SENTENCE............... 4 CONCLUSION................................................................ 5 CERTIFICATE OF SERVICE.................................................... 6 i
TABLE OF AUTHORITIES Cases Parker v. State, 208 So. 3d 19 (Miss. Ct. App. 2017)... 4 Putsay v. State, 221 So. 3d 320 (Miss Ct. App. 2016).... 2, 3 Reed v. State, 987 So. 2d 1054 (Miss. Ct. App. 2008)... 2 Sellers v. State, 167 So. 3d 268 (Miss. Ct. App. 2015).... 3 Statutes Mississippi Code Annotated section 97-37-5.... 4 Mississippi Code Annotated section 99-19-81.... 4 Rules Mississippi Rule of Appellate Procedure 28(a)(3)... 2 ii
STATEMENT OF THE ISSUES I. WHETHER WARE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. II. WHETHER WARE RECEIVED AN ILLEGAL SENTENCE. STATEMENT OF THE CASE On December 4, 2017, the Office of Indigent Appeals filed an appeal on Ware s behalf, and on February 12, 2018, the State filed its response. On February 6, 2018, Ware filed a motion requesting permission to file a pro se supplemental brief and submitted the proposed brief as an attachment to his motion. On February 14, 2018, this Court granted Ware s motion. The State of Mississippi now responds. STATEMENT OF THE FACTS The facts surrounding this appeal are the same as those presented in the State s principal brief and, therefore, will not be repeated here. Any additional facts will be discussed as necessary to resolve the issues below. SUMMARY OF THE ARGUMENT There is insufficient evidence in the record for this Court to address Ware s claim that he received ineffective assistance of counsel prior to trial. However, there is sufficient evidence in the record for this Court to address Ware s claims that he received ineffective assistance after trial. Therefore, this Court should decline to address Ware s pre-trial ineffective-assistance claim and dismiss it without prejudice to Ware s ability to raise it in post-conviction proceedings. And this Court should find that Ware s post-trial ineffective-assistance claims are without merit because Ware failed to prove that counsel was deficient. In addition, this Court should find that Ware s sentence did not exceed the maximum permitted by law and, therefore, was not illegal. 1
ARGUMENT As a preliminary matter, the State notes that Mississippi Rule of Appellate Procedure 28(a)(3) provides, in relevant part: Each issue presented for review shall be separately numbered in the statement [of issues]. No issue not distinctly identified shall be argued.... Because Ware failed to specifically identify his assignments of error, they are not properly before this Court. See Reed v. State, 987 So. 2d 1054, 1056-57 ( 8) (Miss. Ct. App. 2008). Procedural bar notwithstanding, the State will address Ware s claims. I. WHETHER WARE RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL. Ware claims he received ineffective assistance of counsel before and after his trial. Generally, this Court does not consider claims of ineffective assistance of counsel when the claim is made on direct appeal because there is usually insufficient evidence within the record to evaluate the claim. Putsay v. State, 221 So. 3d 320, 350 ( 97) (Miss Ct. App. 2016) (citation omitted). A claim of ineffective assistance of counsel brought on direct appeal should be addressed only when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge. Id. at 350-51. A. Pre-Trial Assistance of Counsel Ware claims that his attorney, Shawn Harris, began representing him in a workmen s compensation case prior to the criminal charge in this case. (Pro Se Brief p. 1, 3). Ware asserts that he planned to plead guilty to the criminal charge, but Harris discouraged him from doing so. (Pro Se Brief p. 4, 5, 6, 9). According to Ware, Harris did not want any action in the criminal case until there was a settlement in the workmen s compensation case to avoid losing his attorney s fee. (Pro Se Brief p. 4-5, 9). So Harris led him to believe that the criminal charge would be dismissed or that, 2
if he pleaded guilty, the court would reject the recommended sentence of five years probation and sentence him to five years imprisonment. (Pro Se Brief p. 4, 5). In addition, Ware claims that he informed the circuit court, at the guilty plea hearing, that he was not satisfied with Harris s representation because he believed the charge could have been dismissed or Harris could have negotiated a better plea deal. (Pro Se Brief p. 2, 4, 5). The record does not affirmatively show ineffectiveness of constitutional dimensions prior to trial. Nor can the State stipulate that the record is adequate to allow this Court to address this issue. Therefore, this Court should decline to address the merits of this claim and dismiss it without prejudice to Ware s ability to raise the claim in post-conviction proceedings, if he chooses to do so. See id. at 351. B. Post-Trial Assistance of Counsel Ware suggests that he was prejudiced when another attorney stood in for Harris during the sentencing hearing because the stand-in attorney did not make any objections. (Pro Se Brief p. 1, 9, 11). However, Ware does not seem to indicate what objections should have been made. Furthermore, a review of the record shows that any objection would have been imprudent. See Sellers v. State, 167 So. 3d 268, 273 ( 20) (Miss. Ct. App. 2015). Ware also claims that the trial court should have known that a stand-in attorney was not allowed. (Pro Se Brief p. 1, 7, 9). But this Court s opinion in Sellers, suggests that a stand-in attorney is permissible. Id. at 274. Therefore, this Court should find that Ware has failed to prove that counsel was deficient. 3
II. WHETHER WARE RECEIVED AN ILLEGAL SENTENCE. Ware also suggests that he received an illegal sentence. (Pro Se Brief p. 10-12). This Court has held that [a]n illegal sentence is one that does not conform to the applicable penalty statute. Parker v. State, 208 So. 3d 19, 24 ( 14) (Miss. Ct. App. 2017) (citation omitted). Mississippi Code Annotated section 97-37-5 provides that any person convicted of being a felon in possession shall be fined not more than Five Thousand Dollars ($5,000), or imprisoned for not less than one (1) year nor more than ten (10) years, or both. And Mississippi Code Annotated section 99-19-81 mandates that habitual offenders are to be sentenced to the maximum term of imprisonment. Here, Ware was indicted for possession of a deadly weapon by a convicted felon. Because he was convicted and found to be a habitual offender, the court sentenced him to the statutorily required sentence of ten (10) years imprisonment (with two (2) years suspended, eight (8) years to serve, and two (2) years of post-release supervision), and ordered him to pay a $2,000 fine. Ware s sentence did not exceed the maximum permitted by law. Therefore, this Court should find that it was not illegal. 4
CONCLUSION Ware s claims are procedurally barred for failure to comply with M.R.A.P. 28(a)(3). Procedural bar notwithstanding, there is insufficient evidence in the record for this Court to address Ware s claim that he received ineffective assistance prior to trial. However, Ware s remaining claims are without merit. Therefore, the State requests this Honorable Court to affirm Ware s conviction and sentence, and dismiss his pre-trial ineffective-assistance claim without prejudice to his ability to raise it in post-conviction proceedings, if he chooses to do so. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL BY: s/ Katy Gerber KATY GERBER SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 104577 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 5
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: Mollie M. McMillin, Esq. Office of State Public Defender Post Office Box 3510 Jackson, MS 39207-3510 Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: Honorable Christopher A. Collins Circuit Court Judge 401 E. Beacon Street, Suite 235 Philadelphia, MS 39350 Honorable Mark Duncan District Attorney Post Office Box 603 Philadelphia, MS 39350 This the 2nd day of March, 2018. OFFICE OF THE ATTORNEY GENERAL Post Office Box 220 Jackson, Mississippi 39205-0220 Telephone: (601) 359-3680 s/katy Gerber KATY GERBER SPECIAL ASSISTANT ATTORNEY GENERAL 6