E-Filed Document Jul 16 2015 14:56:53 2014-CP-01341-COA Pages: 20 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI DANIEL RICHARD ZALES APPELLANT VS. NO. 2014-CP-01341-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: LA DONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 101888 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES................................................... iii STATEMENT OF ISSUES...................................................... 1 STATEMENT OF FACTS...................................................... 1 SUMMARY OF ARGUMENT................................................... 3 ARGUMENT................................................................. 4 I. ZALES ENTERED A VALID GUILTY PLEA. HE WAS INFORMED OF THE NATURE AND ELEMENTS OF THE CHARGE AGAINST HIM, THE RIGHTS HE WAIVED BY ENTERING A PLEA, AND THE MINIMUM AND MAXIMUM SENTENCE AVAILABLE FOR THE CRIME CHARGED. FURTHER, THE COURT ENSURED THAT A FACTUAL BASIS EXISTED FOR THE ACCEPTANCE OF THE PLEA........................................................... 4 Explanation of the Nature of the Charge............................... 5 Minimum/Maximum Sentence....................................... 6 Explanation of Rights Waived....................................... 6 Factual Basis..................................................... 7 Explanation of Alford Plea.......................................... 9 II. III. THE TRIAL COURT WAS NOT REQUIRED TO HOLD A BIFURCATED SENTENCING HEARING AFTER THE ENTRY OF ZALES GUILTY PLEA. NOR WAS THE STATE REQUIRED TO PROVE THAT ZALES WAS REPRESENTED BY COUNSEL IN THE PROCEEDINGS RELATED TO THE PREDICATE FELONIES USED FOR HABITUAL OFFENDER SENTENCING....................... 11 ZALES CANNOT CLAIM INEFFECTIVE ASSISTANCE OF COUNSEL WHERE HE CHOSE TO REPRESENT HIMSELF. THE RECORD SUPPORTS A FINDING THAT ZALES WAIVER OF HIS RIGHT TO COUNSEL WAS KNOWINGLY AND INTELLIGENTLY MADE.......................................................... 12 i
IV. ZALES RAISES NO COGNIZABLE CLAIM UNDER THE PCR STATUTE IN ARGUING THAT THE CIRCUIT CLERK ERRED IN SELLING MARRIAGE CERTIFICATE............................ 13 V. ZALES WAIVED HIS RIGHT TO A PRELIMINARY HEARING BY ENTERING A GUILTY PLEA..................................... 14 VI. ZALES IS BARRED FROM CHALLENGING THE SUFFICIENCY OF THE STATE S EVIDENCE BECAUSE HE ENTERED A VALID GUILTY PLEA.................................................. 14 CONCLUSION.............................................................. 14 CERTIFICATE OF SERVICE................................................. 15 ii
TABLE OF AUTHORITIES FEDERAL CASES United States v. Oberski, 734 F.2d 1030 (5th Cir. 1984)................................. 7 STATE CASES Alexander v. State, 605 So.2d 1170 (Miss.1992)..................................... 4, 5 Argol v. State, 155 So. 3d 848 (Miss. Ct. App. 2013).................................. 9 Borden v. State, 122 So. 3d 818 (Miss. Ct. App. 2013).................................. 7 Cougle v. State, 966 So.2d 827 (Miss. Ct. App. 2007).................................. 9 Davis v. State, 811 So.2d 346 (Miss. Ct. App. 2001).................................. 12 Epps v. State, 161 So. 3d 158 (Miss. Ct. App. 2014)................................. 11 Estelle v. State, 558 So.2d 843 (Miss. 1990)......................................... 12 Glasper v. State, 914 So.2d 708 (Miss. 2005)..................................... 9, 11 Lott v. State, 597 So.2d 627 (Miss. 1992)............................................ 7 McNealy v. State, 951 So.2d 615 (Miss. Ct. App. 2007)................................. 4 Minchew v. State, 967 So.2d 1244 (Miss. Ct. App. 2007)............................... 11 Partain v. State, 78 So.3d 350 (Miss. Ct. App. 2011).................................. 14 Patton v. State, 34 So.3d 563 (Miss. 2010).......................................... 13 Paty v. State, 162 So.3d 850 (Miss. Ct. App. 2014)................................... 13 Pierce v. State, 115 So. 3d 869 (Miss. Ct. App. 2013).................................. 7 Smith v. State, 935 So.2d 412 (Miss. Ct. App. 2006)................................... 7 Thompson v. State, 956 So.2d 355 (Miss. Ct. App. 2007).............................. 14 White v. State, 921 So.2d 402 (Miss. Ct. App. 2006)................................... 4 iii
FEDERAL STATUTES U.S. Const. Amend VI.......................................................... 13 STATE STATUTES Miss. Code Ann. 97-21-33...................................................... 5 Miss. Code Ann. 99-19-81..................................................... 11 Miss. Code Ann. 99-39-5...................................................... 13 iv
STATEMENT OF ISSUES I. ZALES ENTERED A VALID GUILTY PLEA. HE WAS INFORMED OF THE NATURE AND ELEMENTS OF THE CHARGE AGAINST HIM, THE RIGHTS HE WAIVED BY ENTERING A PLEA, AND THE MINIMUM AND MAXIMUM SENTENCE AVAILABLE FOR THE CRIME CHARGED. FURTHER, THE COURT ENSURED THAT A FACTUAL BASIS EXISTED FOR THE ACCEPTANCE OF THE PLEA. 1 II. III. IV. THE TRIAL COURT WAS NOT REQUIRED TO HOLD A BIFURCATED SENTENCING HEARING AFTER THE ENTRY OF ZALES GUILTY PLEA. NOR WAS THE STATE REQUIRED TO PROVE THAT ZALES WAS REPRESENTED BY COUNSEL IN THE PROCEEDINGS RELATED TO THE PREDICATE FELONIES USED FOR HABITUAL OFFENDER SENTENCING. ZALES CANNOT CLAIM INEFFECTIVE ASSISTANCE OF COUNSEL WHERE HE CHOSE TO REPRESENT HIMSELF. THE RECORD SUPPORTS A FINDING THAT ZALES WAIVER OF HIS RIGHT TO COUNSEL WAS KNOWINGLY AND INTELLIGENTLY MADE. ZALES RAISES NO COGNIZABLE CLAIM UNDER THE PCR STATUTE IN ARGUING THAT THE CIRCUIT CLERK ERRED IN SELLING MARRIAGE CERTIFICATE. V. ZALES WAIVED HIS RIGHT TO A PRELIMINARY HEARING BY ENTERING A VALID GUILTY PLEA. VI. ZALES IS BARRED FROM CHALLENGING THE SUFFICIENCY OF THE STATE S EVIDENCE BECAUSE HE ENTERED A VALID GUILTY PLEA. STATEMENT OF FACTS Daniel Richard Zales was indicted as a habitual offender for kidnapping, rape, and uttering a forgery. C.P. 49, T. 45. Zales was represented by appointed counsel, but during a motion hearing he asked the court to appoint him, defendant Zales, as co-counsel and give him access to [the] 1 For clarity and ease of discussion, the State has lumped numerous assignments of error into one issue, as several of Zales assignments of error go toward the single issue of whether he entered a valid guilty plea. Further, Zales dedicated four separate assignments of error (Appellant s issues numbered 1, 5, 7, 10) to the single issue of whether a factual basis existed for the plea. The State seeks to bring order to its response by consolidating Zales issues in a more orderly, logical fashion. 1
legal system. T. 47. The trial court explained that Zales could present matters to the court, but could not be appointed as co-counsel since he was not an attorney. T. 48. The court then went on to consider Zales numerous pro se motions which had been filed with the trial court. T. 48-87. Two weeks prior to trial, Zales advised the court that he wished to dismiss appointed counsel and represent himself. T. 91. The trial court went to great lengths in attempting to ascertain why Zales felt that he was qualified to represent himself when he was already represented by able appointed counsel. T. 92-95. The trial court explained to Zales that although he had the right to represent himself, if he chose to do so he would be held to the same standard as an attorney. T. 95. The trial court also pointed out that he was facing two life sentences and an additional ten years if he was convicted and opined that it was not in his best interest to proceed with self-representation. T. 95-96. Nevertheless, after much questioning by the trial court, Zales insisted on selfrepresentation with formerly appointed counsel staying on as stand-by counsel only. T. 95-101. On the morning of trial, Zales decided to accept a previously rejected plea offer from the State. T. 205-206. Zales was still representing himself, but also had stand-by counsel. Under the terms of the very generous plea offer, the State agreed to nol pros the kidnapping and forcible rape charges in exchange for Zales knowing, voluntary, and intelligent plea of guilt on Count III uttering a forgery. T. 211-212. Both the prosecution and the trial court laid out the factual basis for the charge. T. 217-219, 223-224. The trial court advised Zales of the only sentencing option available if he chose to plead guilty as a habitual offender and advised him of the rights he waived if he entered a plea. 207-224. Although it is apparent from the record that stand-by counsel had already advised Zales what an Alford plea was, the trial court also advised Zales as to the meaning of an Alford plea. T. 207, 217. At the conclusion of the hearing, the trial court, satisfied that Zales was entering a knowing, voluntary, and intelligent plea, accepted Zales Alford plea and sentenced him 2
as a habitual offender to ten years in the custody of the Mississippi Department of Corrections. T. 223. Less than three months after entering a knowing, voluntary, and intelligent guilty plea, Zales filed a motion for post-conviction relief in the trial court. C.P. 5-47. In an extraordinarily detailed order, the trial court addressed each of Zales issues, found that they had no merit, and denied postconviction relief. C.P. 48-72. Aggrieved, Zales appeals the trial court s denial of post-conviction relief. SUMMARY OF ARGUMENT Zales raises numerous complaints that relate to the voluntariness of his guilty plea. The appellate record shows that his plea was entered knowingly and voluntarily, as he was informed of the nature and elements of the charge against him, the minimum and maximum available sentence available for the crime charged, and the rights he would waive by entering a plea. A factual basis for the plea is evident from the specific allegations in the indictment, the trial court s recitation and explanation of the charges at the plea hearing, and the prosecutor s recitation at the plea hearing of the facts the State would prove if Zales proceeded to trial. Zales claim that he did not understand what an Alford plea was is also belied by the record. Zales is under the false impression that he was entitled to have a bifurcated sentencing hearing before he could be sentenced as a habitual offender. A bifurcated hearing for habitual offender sentencing is only necessary where the jury determines guilt. Zales claim that the State was required to prove that he had been represented by counsel during the proceedings related to the predicate felonies used for habitual offender sentencing is without basis in law. Zales cannot claim ineffective assistance of counsel because he knowingly, voluntarily, and 3
intelligently, at least as contemplated by law, waived his right to counsel and elected to proceed pro se. Zales waived his right to a preliminary hearing by entering a valid guilty plea. Zales raises several issues which amount to no more than attack on the sufficiency of the State s evidence against him. However, he waived the right to challenge the State s evidence by entering a valid guilty plea. Based on the foregoing, the trial court correctly denied post-conviction relief. ARGUMENT I. ZALES ENTERED A VALID GUILTY PLEA. HE WAS INFORMED OF THE NATURE AND ELEMENTS OF THE CHARGE AGAINST HIM, THE RIGHTS HE WAIVED BY ENTERING A PLEA, AND THE MINIMUM AND MAXIMUM SENTENCE AVAILABLE FOR THE CRIME CHARGED. FURTHER, THE COURT ENSURED THAT A FACTUAL BASIS EXISTED FOR THE ACCEPTANCE OF THE PLEA. Zales claims that he was not informed of the nature and elements of the charge against him, the minimum available sentence, or the rights he would waive by entering a guilty plea, and that there was no factual basis for the trial court to accept his guilty plea. All claims are belied by the record. A guilty plea is valid only if it is entered into voluntarily, knowingly, and intelligently, with sufficient awareness of the relevant circumstances and likely consequences. McNealy v. State, 951 So.2d 615 ( 6) (Miss. Ct. App. 2007). A plea is voluntary when the defendant has been informed of the nature of the charges against him and the consequences of entering a guilty plea. White v. State, 921 So.2d 402, 405 ( 9) (Miss. Ct. App. 2006) (citing Alexander v. State, 605 So.2d 1170, 1172 (Miss.1992)). The trial court must inform the defendant of the minimum and maximum prescribed penalties and the constitutional rights forfeited by entering a guilty plea. Id. 4
Specifically, the defendant must be told that a guilty plea involves a waiver of the right to a trial by jury, the right to confront adverse witnesses, and the right to protection against self-incrimination. Alexander v. State, 605 So. 2d 1170, 1172 (Miss. 1992). Explanation of the Nature of the Charge Count III of Zales indictment charged him with Uttering a Counterfeit Instrument. The crime of uttering a counterfeit instrument is committed where one has uttered or published as true, and with intent to defraud, any forged, altered, or counterfeit instrument,... knowing such instrument... to be forged, altered, or counterfeited... Miss. Code Ann. 97-21-33. Zales indictment specified that he committed the crime as follows: Daniel Richard Zales... in Kemper County, Mississippi, on or about the 7th day of August, A.D., 2012, did wilfully, unlawfully, and feloniously with intent to defraud, utter and publish as true and genuine to one Tracy Murray, Circuit Clerk of Kemper County, DeKalb, Mississippi, a certain false, forged, and counterfeit writing on paper, commonly known as a Certificate of Marriage, wherein Daniel Richard Zales had signed the name of Dean Steadman to the Certificate of Marriage, thereby creating the false representation that the rites of marriage were performed by Dean Steadman, an ordained minister, when in fact Daniel Richard Zales had forged the 2 name of Dean Steadman on the Certificate of Marriage. The record shows that Zales was informed of the nature of the charges against him, not only by the plain language of the indictment, but also by the trial court and stand-by counsel. At the plea hearing, Zales admitted on the record that he had gone over the facts that led to... being charged with uttering or presenting the altered or counterfeit or not genuine instrument to the Clerk here in Kemper County back on August 7 of 2012 with standby counsel. T. 208. Zales then stated his belief that the instrument was not counterfeit, and the trial court agreed. T. 208-209. The trial court 2 It does not appear that the indictment was included in the appellate record certified by the Circuit Clerk s Office. Zales, however, includes an uncertified copy of the indictment in his record excerpts, listed as Exhibit 40 and found on page 211 of his record excerpts. 5
replied, [Defense counsel] wrote on here counterfeit, and it s really not. I think the way I would do it was exactly the way I presented it. I actually gave some thought to it. Presented as true to Tammy Murray, Circuit Clerk, Kemper County, a certificate of marriage knowing that -- and this is what was on there, quote, Dean Stedman, an ordained minister, closed quote was not a genuine signature thereon. T. 209. Zales further acknowledged on the record that standby counsel had informed him of the elements of the crime and exactly what they d have to prove to find him guilty. T. 209. Zales was also advised of the nature of the charges and elements of the crime by the prosecution s statement of the factual basis for the charge, which the State will discuss in greater detail below. Minimum/Maximum Sentence The record clearly shows that Zales was aware that he had been charged as a habitual offender and that he was pleading guilty as a habitual offender. The trial court clearly and unambiguously advised Zales of the only possible sentence he could receive if he pleaded guilty to uttering a forgery as a habitual offender. The trial court judge stated on the record that he if entered the plea, he would be sentenced under the provisions of Section 99-19-81 which calls for day-forday time, maximum sentence, and further clarified that the sentence would be ten years day for day and a $10,000 fine. T. 208. The trial again clarified that if he pleaded guilty, the court had no option other than to sentence him to ten years day-for-day. T. 212. As such, there is no room for doubt that Zales was advised of the only possible sentence he could receive if he chose to enter a guilty plea. Explanation of Rights Waived The trial court advised Zales on the record of all of the rights he would forfeit if he entered a guilty plea. T. 210-211. The trial court advised that if Zales chose to go to trial, he had the right 6
to a speedy and public trial by jury, the right to compulsory process, the right to confront witnesses against him, the right to assistance of counsel, the right to have the State prove each element of the offense beyond a reasonable doubt, the right to testify or remain silent, the right to have the jury instructed that it could not use his silence against him if he chose to not testify, and if found guilty, the right to appeal. T. 210-211. Zales claims that he was not informed of his right against selfincrimination. It is true that in advising him of the rights he would waive if he entered a guilty plea that the trial court did not use the term self-incrimination. However, this Court has held that advising a defendant of his right to testify or not testify fully apprises the defendant of his right against self-incrimination. Pierce v. State, 115 So. 3d 869, 872 ( 10) (Miss. Ct. App. 2013) (citing Smith v. State, 935 So.2d 412, 414-15 ( 3-7) (Miss. Ct. App. 2006)). Accordingly, in advising Zales that if he chose to go to trial he had the right to testify or not testify sufficiently informed Zales of his right against self-incrimination. Factual Basis A trial court must ensure that a factual basis exists before the court may accept a guilty plea. URCCC 8.04(A)(3). Reviewing courts must ensure that the record contains facts which are sufficiently specific to allow the court to determine that the defendant s conduct was within the ambit of that defined as criminal. Lott v. State, 597 So.2d 627, 628 (Miss. 1992) (quoting United States v. Oberski, 734 F.2d 1030, 1031 (5th Cir. 1984)). There are numerous ways to establish a sufficient factual basis: statements by the prosecution, witness testimony, prior proceedings, admission by the defendant, and sufficiently specific indictments. Borden v. State, 122 So. 3d 818, 823 ( 18) (Miss. Ct. App. 2013). The reviewing court examines the record as a whole to determine whether a sufficient factual basis exists for the acceptance of a guilty plea. Id. The record is replete with examples to show that a factual basis existed for the trial court to 7
accept Zales guilty plea. First, the indictment, quoted above, was sufficiently specific to show that Zales conduct violated the uttering a counterfeit instrument statute. The State has already shown that the trial court, in informing the defendant of the nature of the crime charged, also laid out the factual basis. T. 208-209. Additionally, the State s recitation of facts it intended to prove if Zales went to trial established a factual basis for the plea. The prosecution alleged the following: Your Honor, that on August 7th, 2012, Mr. Zales presented a document -- a marriage certificate to Tracy Murray, and there may be some discrepancy as to who actually signed the name of Dean Steadman, but it was -- or Stockman, but he is not a marriage -- By The Court: Ordained minister. By the Prosecution:-- ordained minister or anything like that. And it was either signed by Mr. Zales himself or by some young black man that was walking with him down the street. There s some discrepancy as to who signed it; but when Mr. Zales presented it to Tracy Murray, the Circuit Clerk, he knew that it was a forged or counterfeit document. T. 218. After the recitation, the trial court asked if Zales understood that was a summary of the State s evidence it would present if Zales went to trial, and asked if he wished to proceed with the guilty plea. T. 218. Zales stated that he agreed with the recitation for the most part, but took issue with the counterfeit part of the uttering a counterfeit document. T. 218. The trial court, again explaining the nature of the charges, advised Zales that the allegation was that when he presented the certificate of marriage, he knew or had reason to know that the portion of the document Dean Steadman, an ordained minister was not genuine. T. 219. Later in the hearing, the prosecution proceeded with its factual basis as follows: I want to say one thing because I really didn t go into it because we really got off on the meaning of true and genuine or whatever we finally went with. The facts of the case would be that Tracy Murray accepted that, and she would testify that she accepted it from him. And [the kidnapping/rape victim who was the other named party on the marriage certificate] would say that she actually watched the Defendant sign Mr. Steadman s name. His testimony in a video statement would be that he 8
didn t, that someone else signed it; but he says in that videotape that he did present it. And I think the reason he s doing an Alford is that he understands it to be more of a forgery charge when it s really an uttering charge, so I just want -- did want those facts to be on -- it s not the forgery itself we re complaining about. It s the actual uttering or passing of it. T. 223-224. Between the specific allegations in the indictment, the trial court s explanation of the nature of the charge against him, and the prosecution s recitation of the facts it intended to prove if Zales proceeded to trial, there is no question that a factual basis existed for the trial court to accept Zales plea. Explanation of Alford Plea Finally, Zales claims that his plea was involuntary because the trial court did not explain what an Alford plea was or distinguish it from a guilty plea. He further claims that he would have gone to trial if he knew what an Alford plea was. First, Zales cites no authority which stands for the proposition that the trial court must explain what an Alford plea is or distinguish it from a run-of-themill guilty plea. The failure to cite authority to support an assignment of error effectively waives the issue. Glasper v. State, 914 So.2d 708, 726 ( 40) (Miss. 2005). Without abandoning its position that Zales has failed to support his claim, the State would also show that his claim is without merit. An Alford plea is valid if it is made after the defendant has knowingly and intelligently concluded that his best interests require entry of the guilty plea. Argol v. State, 155 So. 3d 848, 852 ( 11) (Miss. Ct. App. 2013) (citing Cougle v. State, 966 So.2d 827, 830 (Â 14) (Miss. Ct. App. 2007)). Obviously it was in Zales best interest to enter an Alford plea to uttering a forgery and receive ten years in prison. His only alternative was to go to trial for kidnpapping, forcible rape, and uttering a forgery and face two life sentences plus a ten year sentence. The record shows that when the trial court asked Zales of his intention to enter a guilty plea, Zales replied, What about no contest? T. 207. Stand-by counsel then stated, It s an Alford plea. 9
He ll get to that point. T. 207. Later in the plea hearing, the trial court informed the defendant that the State planned to dismiss with prejudice Counts I and II if the court accepted Zales guilty plea as to Count III. T. 213. Zales then asked, Is that a no contest plea? T. 213. The court then stated, Well, you re entering a plea of guilty, but you re not admitting you re guilty. T. 214. The trial court further clarified the meaning of an Alford plea later in the proceedings in the following exchange: T. 216-217. Court: Okay. Now, as I understand it -- and we talked about this briefly just a minute ago -- you re entering a plea of guilty, but you feel like that technically for whatever reason you re not guilty of the offense, right? Zales: That s right, yes, sir. Court: But you understand with this habitual criminal enhancement and possibility of consecutive life sentences plus another ten years and all that being day-forday time that you feel like although it s not something you feel like you re technically guilty of, the better thing for your long-term is to go ahead, accept the deal and get the matter behind you; right? Zales: Yes, sir. Further, Zales plea petition contains the following statement, which he initialed: I wish to enter my plea pursuant to Alford v. North Carolina. Based upon the evidence the D.A. plans to present against me, and reviewing my case with my attorney, I believe that a jury would convict me and I would receive a much stiffer sentence. Therefore, I wish to accept the State s plea bargain offer, enter my plea of guilty, yet maintain my innocence, because I believe it s in my best interest. 3 Zales claim that he did not understand what an Alford plea was is belied by the record. The record also clearly shows that Zales voluntarily and intelligently concluded that it was in his best interest to enter the plea. 3 While a copy of the plea petition does not appear in the certified appellate record, exhibit 33 of Zales record excerpts contains a copy of the agreement. 10
For the forgoing reasons, all of Zales claims relating to the voluntariness of his guilty plea are without merit. II. THE TRIAL COURT WAS NOT REQUIRED TO HOLD A BIFURCATED SENTENCING HEARING AFTER THE ENTRY OF ZALES GUILTY PLEA. NOR WAS THE STATE REQUIRED TO PROVE THAT ZALES WAS REPRESENTED BY COUNSEL IN THE PROCEEDINGS RELATED TO THE PREDICATE FELONIES USED FOR HABITUAL OFFENDER SENTENCING. Zales claims that he was improperly sentenced as a habitual offender because was not given a bifurcated sentencing hearing after the entry of his guilty plea. A bifurcated hearing was not warranted, and Zales was properly sentenced as a habitual offender. Although URCCC Rule 11.03 suggests the necessity of a bifurcated sentencing hearing on habitual offender status after conviction, this Court has held that a defendant who enters a plea of guilty is not entitled to a separate hearing. Epps v. State, 161 So. 3d 158, 161-62 ( 8-9) (Miss. Ct. App. 2014) (citing Minchew v. State, 967 So.2d 1244, 1248 ( 10) (Miss. Ct. App. 2007)). Further, even if there was such a requirement, Zales failure to request a separate sentencing hearing at the time of sentencing bars him from raising the claim for the first time on appeal. Minchew at 1248 ( 12). Zales also claims that the State failed to prove he was represented by counsel in the prior precedings related to the predicated felonies used to prove habitual offender status. First, Zales cites no authority to support his claim that such must be proven by the State. A such, his claim is barred. Glasper, 914 So.2d at 726 ( 40). Further, there is no such requirement that the State prove such in order for a defendant to be sentenced as a habitual offender. See Miss. Code Ann. 99-19-81. 11
III. ZALES CANNOT CLAIM INEFFECTIVE ASSISTANCE OF COUNSEL WHERE HE CHOSE TO REPRESENT HIMSELF. THE RECORD SUPPORTS A FINDING THAT ZALES WAIVER OF HIS RIGHT TO COUNSEL WAS KNOWINGLY AND INTELLIGENTLY MADE. Zales lodges numerous complaints against previously appointed counsel in claiming that he received ineffective assistance of counsel. However, as previously stated, Zales chose to represent himself and keep previously appointed counsel as stand-by counsel. T. 91-101. As such, Zales has no viable claim of ineffective assistance of counsel. Davis v. State, 811 So.2d 346, 351 ( 10) (Miss. Ct. App. 2001) (citing Estelle v. State, 558 So.2d 843 (Miss. 1990)). Zales next claim, contradictory as it is, is that he was denied the right to counsel at the plea hearing, and that he did not authorize counsel to negotiate a plea. At the motion hearing held two weeks prior to the guilty plea hearing, Zales advised the court that he wished to represent himself going forward. T. 91-62. The trial court then complied with URCCC Rule 8.05, and through a lengthy exchange attempted to impress upon Zales that he had no legal expertise, whereas appointed counsel did, and that the consequences of this are if you re found guilty, you could get two consecutive life sentences without the possibility of parole plus ten years in addition to that. T. 92-101. Zales insisted on proceeding with self-representation, but agreed that he wanted appointed counsel to stay on as stand-by counsel. T. 96. After the court was satisfied that Zales waiver was knowing and voluntary, he directed appointed counsel to remain on as stand-by counsel. T. 100. The hearing on the State s motion continued, and Zales did in fact act as his own attorney by crossexamining the State s witness and presenting argument to the court. T. 124-154 Another hearing on Zales motions, filed pro se, was held the following week. T. 155-204. It is clear from the record that Zales was in fact representing himself, with the assistance of stand-by counsel. The plea hearing was conducted a week later, and the record again indicates that Zales was 12
continuing to represent himself, with assistance from stand-by counsel. T. 205-224. Certainly criminal defendants have a constitutional right to counsel. U.S. Const. amend VI. However, the right to counsel, like nearly all constitutional rights, may be waived. Patton v. State, 34 So.3d 563, 564-565 (Miss. 2010). The trial court complied with the requirements of Rule 8.05. Even after being advised that it was not wise to proceed with self-representation, Zales insisted upon doing so. When a defendant who wishes to proceed pro se is made aware of the dangers and disadvantages of selfrepresentation and the record shows that his decision was informed and his own, then his waiver of assistance of counsel is deemed knowingly and intelligently made. Paty v. State, 162 So.3d 850, 854 ( 17) (Miss. Ct. App. 2014). Here, the record supports a finding that Zales waiver of counsel 4 was knowingly and intelligently made, as contemplated by the law. Accordingly, his claim fails. IV. ZALES RAISES NO COGNIZABLE CLAIM UNDER THE PCR STATUTE IN ARGUING THAT THE CIRCUIT CLERK ERRED IN SELLING MARRIAGE CERTIFICATE. Under this assignment of error, Zales argues that had the clerk followed the proper procedure for issuing a marriage certificate, then he could not have committed the crime of uttering a counterfeit instrument. Mississippi Code Annotated Section 99-39-5 lists the available grounds for relief in a motion for post-conviction relief. Zales claim simply does not fit under any recognized ground for relief. 4 Zales also claims that defense counsel was unauthorized to engage in plea negotiations on his behalf. The details of the final plea negotiation are not apparent from the record, so Zales presents no proof that stand-by counsel negotiated the plea without authorization. But what is apparent is that the plea hearing transcript shows that Zales was 100 percent on board with the deal, regardless of who negotiated it. 13
V. ZALES WAIVED HIS RIGHT TO A PRELIMINARY HEARING BY ENTERING A GUILTY PLEA. Zales claims that his due process rights were violated because he did not receive a preliminary hearing. However, the entry of a valid guilty plea waives all non-jurisdictional rights or defects which are incident to trial, including a preliminary hearing. Partain v. State, 78 So.3d 350, 354 ( 16) (Miss. Ct. App. 2011). As shown in Issue 1, Zales entered a valid guilty plea. VI. ZALES IS BARRED FROM CHALLENGING THE SUFFICIENCY OF THE STATE S EVIDENCE BECAUSE HE ENTERED A VALID GUILTY PLEA. Zales makes several claims throughout his brief which amount to no more than an attack on the sufficiency of the State s evidence against him. However, the entry of a valid guilty plea operates as a waiver of the right to challenge the State s evidence. Thompson v. State, 956 So.2d 355, 357 ( 6) (Miss. Ct. App. 2007). CONCLUSION For the foregoing reasons, the trial court s denial of post-conviction relief should be affirmed. Respectfully submitted, JIM HOOD, ATTORNEY GENERAL OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680 BY: /s/ La Donna Holland LA DONNA HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 101888 14
CERTIFICATE OF SERVICE I, LA DONNA C. HOLLAND, 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: This the 16th day of July, 2015. Honorable Lester F. Williamson, Jr. Circuit Court Judge P.O. Box 86 Meridian, MS 39302 Honorable E.J. (Bilbo) Mitchell District Attorney P.O. Box 5172 Meridian, MS 39302-5172 Daniel Richard Zales, Pro Se, #187017 W.C.C.F./M.T.C. P.O. Box 1889 Woodville, MS 39669 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 /s/ La Donna C. Holland LA DONNA C. HOLLAND SPECIAL ASSISTANT ATTORNEY GENERAL 15