MISSISSIPPI COURT OF APPEALS OPINIONS HAND DOWN DATE: 9/20/2016 SIMS v. STATE, NO. 2015-KA-01311-COA http://courts.ms.gov/images/opinions/co115582.pdf Topics: Armed robbery - Ineffective assistance of counsel - Weight of evidence HON. WAYMAN DAL WILLIAMSON JONES COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE Judge Carlton Victor Sims was convicted of four counts of armed robbery and sentenced to four concurrent terms of twenty-eight years. He appeals. Issue 1: Ineffective assistance of counsel Sims argues that his trial attorneys rendered ineffective assistance of counsel by failing to object to the prejudicial hearsay testimony of two of the State s witnesses and by failing to request an alibi jury instruction. The State declines to stipulate that the record is adequate for judicial review of this issue on direct appeal. However, the record contains sufficient evidence to address Sims s claim on direct appeal. Sims argues that his trial attorneys repeatedly failed to object to prejudicial and inadmissible hearsay testimony elicited from two of the State s witnesses. However, the evidence in the record reflects and supports a trial strategy of attacking inconsistencies in witness testimony. Thus, the decision by Sims s attorneys to not object to the disputed testimony can be fairly characterized as a strategic decision. Throughout Sims s trial, the defense attempted to emphasize the inconsistencies existing among the various witness accounts of the armed robbery. Sims s attorneys questioned the two law-enforcement officials about the differing accounts of the armed robbery related to them by the alleged victims. In questioning the four victims about the events of the armed robbery, the defense continued to highlight any inconsistencies existing in their testimony. The record shows that, in addition to identifying discrepancies between the witnesses trial testimony and their prior statements to police, the defense also attempted to emphasize the inconsistencies that existed from one account of the armed robbery to the next. Finally, during its closing argument, the defense once again identified for the jury the various discrepancies and inconsistencies existing among the witnesses accounts of the armed robbery. Thus, Sims has failed to show that his attorneys representation fell below an objective standard of reasonableness. Sims also argues that his trial attorneys provided ineffective assistance of counsel because they failed to request an alibi jury instruction. Although Sims claims that his alibi constituted his sole defense at trial, the record shows that his attorneys pursued a defense and a trial strategy that attacked the contradictions and Page 1 of 9
inconsistencies in the victims stories to impeach the victims credibility. The record also shows that Sims testified on his own behalf and asserted that he was at a night club at the time of the armed robbery. A review of the record, however, shows that the trial testimony, including Sims s own testimony, failed to support an alibi instruction or to foreclose the possibility that Sims possessed the opportunity to commit the offense. Sims s testimony constituted a general denial of having committed the crime. Instead of pursuing an alibi defense, Sims s attorneys attacked the credibility of the witnesses by highlighting the inconsistencies and contradictions in their stories. Since Sims s evidence, or lack thereof, failed to present the necessary elements of an alibi defense, the circuit court was not required to instruct the jury on the issue. And, there is no ineffective assistance of counsel by Sims s attorneys based on the failure to request such an instruction. Issue 2: Weight of evidence Sims argues that the testimony of the four alleged armed-robbery victims was so contradictory that the testimony failed to support the verdicts against him. However, there is no merit to his argument. While the victims testimony varied in some respects, their accounts also corroborated each other on several material points. The victims testimony also provided sufficient evidence of each element of the indicted offenses for the jury to find Sims guilty of each offense beyond a reasonable doubt. Page 2 of 9
ODOM v. MISSISSIPPI DEPARTMENT OF CORRECTIONS, NO. 2015-CP-01058-COA http://courts.ms.gov/images/opinions/co115124.pdf Topics: Parole eligibility - Timeliness of appeal - Section 47-5-807 - Exhaustion of administrative remedies - Section 41-29-139 - Section 47-7-3(f) HON. WILLIAM E. CHAPMAN III RANKIN COUNTY CIRCUIT COURT FRANKLIN RAY ODOM (PRO SE) OFFICE OF THE ATTORNEY GENERAL: ANTHONY LOUIS SCHMIDT JR. Judge Barnes Reversed and rendered. Franklin Odom pled guilty in Rankin County Circuit Court to the sale of methamphetamine (Count I) and methamphetamine possession (Count II). He was sentenced to thirty years for Count I and eight years for Count II, and post-release supervision of five years after serving twenty years of his sentence for Count I. Since Odom was currently serving twenty-two years of post-release supervision for a prior conviction of possession of precursors with intent to manufacture, the circuit court revoked that sentence based on his convictions. Odom was also convicted in another cause for possession of methamphetamine in Madison County. Upon later learning the MDOC considered him to be ineligible for parole on all of his sentences, except for the two-year sentence for possession of methamphetamine, Odom filed a grievance through the MDOC s Administrative Remedy Program. The MDOC rejected Odom s request, noting the MDOC does not handle Parole Board matters. Odom was notified of the MDOC s rejection of his grievance but filed no subsequent requests through the ARP. Instead, he filed a Complaint on Parole Eligibility with the Rankin County Circuit Court. Odom subsequently filed a Motion to Mandate Parole Eligibility. The circuit court entered a judgment of dismissal for lack of jurisdiction from an appeal of an MDOC administrative decision. Odom appeals. The MDOC argues that Odom s appeal is untimely under section 47-5-807. Although the record shows Odom did not receive the MDOC s rejection of his grievance until October 28, 2014, he did not exhaust his administrative remedies. Rather, Odom abandoned the MDOC administrative process and filed an original action with the circuit court on December 1, 2014, attacking the MDOC s computation of his parole eligibility, not the denial of his grievance during the ARP. While it is not improper for an inmate to pursue a question regarding his parole eligibility date by way of the MDOC s ARP, he may also challenge his parole eligibility as an original action in a circuit court. Therefore, the circuit court had jurisdiction to consider the merits of Odom s claim. Odom argues that the MDOC erred in finding his sentence for the sale of methamphetamine was not eligible for parole. Under amendments to sections 41-29-139 and 47-7-3(f), effective on July 1, 2014, parole eligibility was extended to persons, such as Odom, who were convicted of selling or manufacturing controlled substances. Additionally, a recent change by the Legislature to section 47-7-3(f) has confirmed that parole eligibility is extended to those inmates incarcerated for the sale or manufacture of a controlled substance. Thus, Odom s conviction for the sale of methamphetamine is parole-eligible, and the judgment is reversed and rendered. Page 3 of 9
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Topics: Post-conviction relief - Time bar - Ineffective assistance of counsel - Voluntariness of plea SAVINELL v. STATE, NO. 2015-CP-01262-COA http://courts.ms.gov/images/opinions/co115564.pdf HON. ROBERT P. CHAMBERLIN DESOTO COUNTY CIRCUIT COURT RYAN SAVINELL (PRO SE) OFFICE OF THE ATTORNEY GENERAL: KAYLYN HAVRILLA MCCLINTON Judge Barnes Ryan Savinell pled guilty to armed robbery and was sentenced to twelve years and eight years of post-release supervision. Savinell s first motion for post-conviction relief was dismissed by the circuit court. He appealed the dismissal, but the appeal was dismissed for failure to pay the costs of the appeal. Savinell filed a second PCR motion which the court dismissed. Savinell appealed, and the Court of Appeals affirmed. Savinell filed a third PCR motion which was denied. Savinell filed a request for an out-of-time appeal, which the circuit court granted. Because Savinell filed his latest PCR motion more than three years after he entered his guilty plea, it is time barred. His third motion raises the same issues of ineffective assistance of counsel raised in his second PCR motion. Citing his counsel s failure to conduct an independent investigation, which Savinell claims would have shown his innocence, Savinell argues that his plea was involuntary due to ineffective assistance of counsel. Savinell is essentially arguing either that he is factually innocent of the crime or the evidence would have been insufficient to support his guilt of the crime charged. Regardless, a valid guilty plea waives all non-jurisdictional rights or defects which are incident to the trial including the right to confront and cross-examine the State s witnesses, the right to a jury trial, and the right to have the State prove each element of the offense beyond a reasonable doubt. There is no basis for Savinell s claim of ineffective assistance of counsel and no violation of a fundamental right exempting Savinell s claims from any procedural bar. Page 5 of 9
ALLEN v. STATE, NO. 2015-KA-00861-COA http://courts.ms.gov/images/opinions/co115219.pdf Topics: Armed robbery & Conspiracy to commit armed robbery - Weight of evidence - URCCC 10.05 - Timeliness of motion for new trial HON. WILLIAM E. CHAPMAN III RANKIN COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: GEORGE T. HOLMES, ERIN ELIZABETH PRIDGEN OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE Chief Judge Lee Joshua Allen was convicted of one count of armed robbery and one count of conspiracy to commit armed robbery. He was sentenced to thirty-five years for the armed-robbery conviction and five years for the conspiracy conviction. He appeals. Allen argues that his verdict was against the overwhelming weight of the evidence. URCCC 10.05 requires that a motion for new trial must be made within ten days of the judgment, and in the case of a motion for JNOV, the motion must be made either within the ten days or by the end of the term of court. Allen s judgment of conviction was filed on March 3, 2015. So to be timely, Allen s motion for a new trial would have to have been filed within ten days of that date. However, it was not filed until May 7, 2015. And although Allen filed a motion for a new trial, the basis for his motion was procedural and substantive errors committed during the trial.... That language is insufficient to preserve the weight-of-the-evidence issue for appeal. CONCUR IN PART AND IN RESULT WITHOUT SEPARATE OPINION Presiding Judge Irving Page 6 of 9
Topics: Post-conviction relief - Permission from Supreme Court - Section 99-39-7 - Frivolous filing PAYTON v. STATE, NO. 2015-CP-00957-COA http://courts.ms.gov/images/opinions/co115220.pdf HON. RICHARD A. SMITH SUNFLOWER COUNTY CIRCUIT COURT GLEN PAYTON (PRO SE) OFFICE OF THE ATTORNEY GENERAL: SCOTT STUART Chief Judge Lee Glen Payton was convicted of statutory rape in 2009. His conviction was affirmed on appeal. In 2015, Payton filed a petition for habeas corpus in s in the Sunflower County Circuit Court. Treating the petition as one for post-conviction relief, the trial court determined that it did not have jurisdiction since Payton had failed to seek permission from the Supreme Court pursuant to section 99-39-7. Payton appeals. Pursuant to section 99-39-7, Payton was required to seek permission from the Supreme Court before filing his PCR motion in the trial court. Since Payton failed to do so, the trial court properly dismissed his PCR motion for lack of jurisdiction. Payton has previously been sanctioned for a similar filing. In his sixth application, the Supreme Court noted that the filing was Payton s sixth application; it had denied the five prior applications; and it had sanctioned Payton for his third, fourth, and fifth applications. The Supreme Court sanctioned him again. His present filing is also frivolous. Therefore, he is sanctioned in the amount of $250. CONCUR IN PART WITHOUT SEPARATE OPINION Judge James Page 7 of 9
Topics: Sexual battery - Impeachment evidence - Sentencing jury instruction - Section 97-3-101(3) - Section 99-19-81 - Right to speedy trial - Newly discovered evidence - Ineffective assistance of counsel KEYS v. STATE, NO. 2013-KA-00475-COA - MODIFIED OPINION ON MOTION FOR REHEARING http://courts.ms.gov/images/opinions/co116663.pdf HON. EDDIE H. BOWEN COVINGTON COUNTY CIRCUIT COURT OFFICE OF STATE PUBLIC DEFENDER: W. DANIEL HINCHCLIFF OFFICE OF THE ATTORNEY GENERAL: LISA L. BLOUNT Presiding Judge Griffis The motion for rehearing is denied, and this opinion is substituted for the previous per curiam affirmance. Joseph Keys was convicted of sexual battery and sentenced as a habitual offender to life. He appeals. Issue 1: Impeachment evidence Keys argues the circuit court erred both when it prohibited him from impeaching a witness s testimony and when it prohibited him from introducing evidence that the victim lived with a convicted sex offender. Unless the witness to be impeached is confronted with the specific statement, then impeachment cannot be allowed. Here, the circuit judge correctly found the defense failed to lay a proper predicate. Furthermore, the record shows the circuit judge gave the defense every opportunity available to present from another witness concerning a phone call from the witness in question. With regard to the person with whom the victim lived (her grandfather), the circuit judge asked Keys s counsel if he had any knowledge that the grandfather may have been the perpetrator, and Keys s counsel said he did not. The circuit judge found not only that the potential for prejudice outweighed any probative effect, but also that there was no probative effect, and the status of the grandfather was simply not relevant. Nothing in the record shows that the court abused its discretion. Issue 2: Jury instruction Jury Instruction S-8 informed the jury of three possible verdicts that it could reach: (1) guilty of sexual battery and fix the penalty at life imprisonment, (2) guilty of sexual battery and cannot agree to fix the penalty at life imprisonment, and (3) not guilty. The jury returned the verdict of guilty with life imprisonment. However, section 97-3-101(3) provides that the circuit court shall set the term of imprisonment, with a maximum sentence of life imprisonment, or a lesser term not to be less than twenty years. And, the prosecution moved prior to trial to sentence Keys as a habitual offender under section 99-19-81. Therefore, the circuit judge was required to set the term of imprisonment, and a life sentence without parole was mandatory if Keys was convicted. The State confesses error in the jury instruction. However, the error is harmless since it had absolutely no effect on the sentence itself. Issue 3: Right to speedy trial Page 8 of 9
Keys failed to raise a speedy-trial issue either at trial or in his motion for a new trial, and the issue was first raised in his pro se appellate brief. The failure to raise a constitutional speedytrial claim at trial limits appellate review to a plain-error analysis. In addition, Keys fails to show any prejudice stemming from the delay in bringing him to trial. Issue 4: Newly discovered evidence Keys attached copies to his pro se brief of purported text messages between the victim and another person, in which the victim may have admitted her testimony against Keys was fabricated. However, these texts are not in the record and were not presented in the circuit court either at trial or in the motion for a new trial. Evidence that is discovered after trial must still be presented to the trial court in a motion for a new trial for the issue to be raised on direct appeal. This issue is dismissed without prejudice. Issue 5: Ineffective assistance of counsel An ineffective-assistance-of-counsel claim is only addressed on direct appeal if the record affirmatively shows there was ineffectiveness, or if the parties stipulate the record is sufficient to address the claim. Here, the record does not show counsel s performance was constitutionally deficient, nor have the parties stipulated. Therefore, this issue is dismissed without prejudice. Page 9 of 9