E-Filed Document Sep 15 2015 14:14:52 2015-CP-00265-COA Pages: 13 IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY BURNS APPELLANT VS. NO. 2015-CP-00265-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE APPELLEE DOES NOT REQUEST ORAL ARGUMENT JIM HOOD, ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 9390 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE: (601) 359-3680
TABLE OF CONTENTS TABLE OF AUTHORITIES................................................... ii STATEMENT OF THE CASE................................................... 1 STATEMENT OF FACTS...................................................... 1 SUMMARY OF THE ARGUMENT.............................................. 2 ARGUMENT................................................................. 3 Issue I. Issue II. Issue III. Issue IV. Issue. V. The Plea Colloquy clearly and the response of Burns were legally sufficient for the trial court to find a factual basis to support the guilty plea...................................... 3 The Indictment was not defective as it correctly charged the crime to which he pled and was sentenced.................... 4 Defendant s competency was never put at issue and this claim is without merit........................................ 5 Defendant was made aware, repeatedly, of the maximum and minimum penalties to which he may be subjected upon a plea of guilty.......................................... 6 Petitioner had Constitutionally effective assistance of counsel..................................................... 7 CONCLUSION............................................................... 8 CERTIFICATE OF SERVICE.................................................. 9 i
TABLE OF AUTHORITIES FEDERAL CASES Lokos v. Capps, 625 F.2d 1258, 1264 69 (5th Cir.1980)................................ 5 Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)............. 7 United States v. Broce, 488 U.S. 563, 109 S.Ct. 757, 102 L.Ed.2d 927 (1989)............... 3 STATE CASES Burrough v. State, 9 So.3d 368 (Miss. 2009)........................................ 3, 7 Carpenter v. State, 899 So.2d 916 (Miss. Ct. App. 2005)................................ 7 Carson v. State, 161 So.3d 153 (Miss. Ct. App. 2014),.................................. 7 Coleman v. State, 483 So.2d 680 (Miss.1986)......................................... 7 Corley v. State, 585 So.2d 765 (Miss.1991).......................................... 3 Ferrell v. State, 158 So.3d 1204 (Miss. Ct. App. 2015)................................. 7 Harden v. State, 59 So.3d 594 (Miss. 2011).......................................... 5 Higginbotham v. State, 122 So.3d 1205 (Miss. Ct. App.),............................. 5, 6 McCray v. State, 107 So.3d 1042 (Miss. Ct. App.2012)................................ 7 Richardson v. State, 767 So.2d 195 (Miss. 2000)..................................... 6 Scott v. State, 141 So.3d 34 (Miss. Ct. App. 2014)..................................... 4 Vanwey v. State, 55 So.3d 1133 (Miss. Ct. App. 2011)................................ 5, 6 Vielee v. State, 653 So.2d 920 (Miss.1995)........................................... 7 Watts v. State, 97 So.3d 722 (Miss. Ct. App.2012).................................... 7 ii
STATE STATUTES Miss. Code Ann. 97-3-19....................................................... 4 Miss. Code Ann. 97-3-19(2)(e)............................................... 1, 4, 6 Miss. Code Ann. 97-3-65 (4)(a).................................................. 1 Miss. Code Ann. 97-17-7....................................................... 1 Miss. Code Ann. 99-19-81...................................................... 1 Miss. Code Ann. 99-39-1....................................................... 1 iii
IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI TIMOTHY BURNS APPELLANT VS. NO. 2015-CP-00265-COA STATE OF MISSISSIPPI APPELLEE BRIEF FOR THE APPELLEE STATEMENT OF THE CASE The grand jurors of Copiah County indicted Timothy Burns for Capital Murder (2 Counts), rd Rape and 3 Degree Arson as an habitual offender in violation of Miss. Code Ann. 97-3-19(2)(e), 97-3-65 (4)(a), 97-17-7 & 99-19-81. Aided by counsel defendant entered into a plea agreement, wherein defendant petitioned the court to plead guilty to the two counts of murder NOT as an habitual offender. The State would recommend life without parole on each count. (Petition, c.p.46-52). A plea colloquy was held, (Tr. 1-130), the court accepted the pleas and sentenced defendant to life without parole on each count to be served consecutively. Counts three and four of the indictment were dismissed. (Sentencing order, c.p.53). A little over 90 days later, petitioner Burns filed a Motion for Post-Conviction Relief pursuant to Miss. Code Ann. 99-39-1, et seq. (Petition, c.p. 9-27). That same month the trial court denied the motion. (Order denying relief, c.p. 28-29). It is from that order denying relief that petitioner filed a timely notice of appeal. (Notice of Appeal, c.p.56). STATEMENT OF FACTS st The facts that the State would have shown were that this defendant on or about the 1 day 1
of November, 2013, did abduct in Hinds County, and transport against her will to Copiah County, where during the course of the kidnaping he did shoot her twice with a shotgun causing her death. Additionally, at the same time defendant Burns did also kidnap another victim in Hinds County, transport that individual to Copiah County and kill that person with a shotgun, both killings occurring during the course of the crime of kidnaping. When asked by the trial judge if these facts were correct, defendant Burns did answer, Yes, Sir. (Tr. 9-10). SUMMARY OF THE ARGUMENT Issue I. The Plea Colloquy clearly and the response of Burns were legally sufficient for the trial court to find a factual basis to support the guilty plea. Issue II. The Indictment was not defective as it correctly charged the crime to which he pled and was sentenced. Issue III. Defendant s competency was never put at issue and this claim is without merit. Issue IV. Defendant was made aware, repeatedly, of the maximum and minimum penalties to which he may be subjected upon a plea of guilty. Issue. V. Petitioner had Constitutionally effective assistance of counsel. 2
ARGUMENT Issue I. The Plea Colloquy clearly and the response of Burns were legally sufficient for the trial court to find a factual basis to support the guilty plea. In this initial claim of trial court error, petitioner claims there was not a factual basis to support the crimes to which he plead guilty and was sentenced. The reviewing Courts of this State have been presented with this situation before and held: 14. Pursuant to Rule 8.04(A)(3) of the Uniform Circuit and County Court Rules, [b]efore the trial court may accept a plea of guilty, the court must determine that the plea is voluntarily and intelligently made and that there is a factual basis for the plea. (Emphasis added). The factual-basis component of the rule requires that, before it may accept the plea, the circuit court have before it, inter alia, substantial evidence that the accused did commit the legally defined offense to which he is offering the plea. Corley v. State, 585 So.2d 765, 767 (Miss.1991). What facts must be shown depends on the crime and its assorted elements. Id. There are numerous ways by which the facts may be found, but what ultimately is required is there must be enough that the court may say with confidence the prosecution could prove the accused guilty of the crime charged. Id. (citing United States v. Broce, 488 U.S. 563, 570, 109 S.Ct. 757, 764, 102 L.Ed.2d 927, 936 (1989)). 15. At the guilty-plea hearing, the State informed the trial court that it had multiple witnesses whose testimonies would show that Burrough broke into a home and therein stole property. The State also told the trial court that it was prepared to offer testimony that Burrough was interviewed shortly after the alleged crime and admitted to taking the property and disposing of it. When asked by the trial court if he did, in fact, do these things which the State intended to prove, Burrough stated, Yes. 16. The record before the Court clearly reveals that the trial court accepted Burrough's voluntarily and intelligently-made plea based on a sufficient evidentiary suggestion of guilt to the charged crime of burglary. Burrough's argument that the trial court accepted his plea without a factual basis is without merit. Burrough v. State, 9 So. 3d 368, 373-74 (Miss. 2009). It is the position of the State the transcript of the plea colloquy provides a legally sufficient basis for the two capital murders for which this petitioner is convicted and imprisoned. The State stated it would prove the venue, cause and manner of death and that there were two human beings 3
named. Further, there was evidence of the underlying felony, kidnaping. To top it all off, the trial judge asked defendant if the State s recitation of proof was correct to which the defendant responded Yes, sir. Tr. 10. Based upon the rationale of Burrough as supported by the record on appeal, and the trial court finding of a factual basis (Tr. 11), there is no merit to this claim of error and no relief should now be granted. Issue II. The Indictment was not defective as it correctly charged the crime to which he pled and was sentenced. This next allegation of error, that the indictment was improper for the lack of the term malice aforethought in the indictment has been heard by the appellate courts and denied. For this defendant was indicted for murder in violation of 97-3-19(2)(e), which States: (2) The killing of a human being without the authority of law by any means or in any manner shall be capital murder in the following cases:... (e) When done with or without any design to effect death, by any person engaged in the commission of the crime of rape, burglary, kidnaping, arson, robbery, sexual battery, unnatural intercourse with any child under the age of twelve (12), or nonconsensual unnatural intercourse with mankind, or in any attempt to commit such felonies; Miss. Code. Ann. 97-3-19. Here, as in Scott v. State, 141 So. 3d 34 ( 6-10) (Miss. Ct. App. 2014), the crime that was committed did not require malice aforethought so petitioners lately raised argument, as in Scott, is without merit. 4
Issue III. Defendant s competency was never put at issue and this claim is without merit. This defendant, now prisoner petitioner, is not the first felon to raise the issue of his competency to plead guilty was not properly addressed by the trial court. 9. Higginbotham argues that the circuit court erred by failing to order a competency hearing prior to his guilty plea and prior to the denial of his PCR motion. 10. Uniform Rule of Circuit and County Court 9.06 states in part: If before or during trial the court, of its own motion or upon motion of an attorney, has reasonable ground to believe that the defendant is incompetent to stand trial, the court shall order the defendant to submit to a mental examination... The record shows that neither Higginbotham nor his defense counsel at trial asserted a request for a competency hearing before the trial court. The record reflects that Higginbotham displayed competency to stand trial and displayed in his plea colloquy by his responses to the trial court that his guilty plea was voluntary, knowing, and intelligent.4 11. Higginbotham's plea colloquy shows that the circuit court specifically questioned both Higginbotham and his trial counsel as to Higginbotham's mental capacity. The circuit court questioned whether Higginbotham suffered from any disabilities of the mind and whether he had the mental capacity to comprehend, understand, and waive his constitutional rights. See Vanwey v. State, 55 So.3d 1133, 1136 ( 6) (Miss. Ct. App. 2011); Lokos v. Capps, 625 F.2d 1258, 1264 69 (5th Cir.1980). The record shows that Higginbotham's counsel indicated during the plea colloquy that he had read the plea petition to his client and that Higginbotham understood the consequences of pleading guilty to the charge. See, e.g., Harden v. State, 59 So.3d 594, 601 03 ( 14 19) (Miss. 2011). Higginbotham v. State, 122 So. 3d 1205, 1209 (Miss. Ct. App.), reh'g denied (July 23, 2013), cert. denied, 123 So. 3d 450 (Miss. 2013) Looking to the record on appeal, to which the trial court referred before denying the motion for post-conviction relief, there is almost the same factual scenario as raised, and found without merit in Higginbotham. (Transcript, c.p. 1-13). When asked if he was undergoing mental treatment, defendant answered, No. (Tr. 8). 5
Further, none of defendant s three attorneys mentioned it nor did Burns complain. 14. Higginbotham bears the burden of proof to show by substantial evidence that his competency to stand trial is in question. See Vanwey, 55 So.3d at 1136 ( 6). As acknowledged above, we will not overturn the trial court's decision to deny relief unless the decision is against the overwhelming weight of the evidence. See Billiot, 655 So.2d at 11. Keeping this standard in mind, we find no abuse of discretion in the trial court's determination that Higginbotham failed to present sufficient grounds to bring his competency reasonably in question, and thus failed to make the required showing that he lacked the requisite competency to enter a valid guilty plea. See Vanwey, 55 So.3d at 1136 ( 6) (providing guidance as to when a defendant must undergo a mental evaluation prior to standing trial or entering a guilty plea). Upon review of the record, we further find no abuse of discretion in the trial court's determination that Higginbotham entered a voluntary, knowing, and intelligent guilty plea. See Richardson v. State, 767 So.2d 195, 203 ( 41) (Miss. 2000) ( [O]nce the trial court has made a finding that the evidence does not show a probability that the defendant is incapable of making a rational defense, the decision will not be overturned unless the finding was manifestly against the overwhelming weight of the evidence. ). This issue is without merit. Higginbotham v. State, 122 So. 3d 1205, 1210 (Miss. Ct. App.), reh'g denied (July 23, 2013), cert. denied, 123 So. 3d 450 (Miss. 2013) Again, mental competency was not at issue and this claim is without merit. Issue IV. Defendant was made aware, repeatedly, of the maximum and minimum penalties to which he may be subjected upon a plea of guilty. Defendant, being advised by three attorneys, was pleading guilty to two counts of Murder in violation of 97-3-19(2)(e). He signed and filed a petition to plead guilty, he was advised by counsel (times 3) and he admitted (Under oath) that he understood the maximum and minimum. (Tr. 7). 35. His contention that the judge did not advise him of the potential penalties is clearly belied by the record, as the trial judge patiently spelled these out to Ferrell, on the record, before accepting the guilty plea. The correct information was also handwritten on Ferrell's petition to enter a guilty plea, and Ferrell himself acknowledged under oath that he knew the penalties. 36. This claim is without merit. 6
Ferrell v. State, 158 So. 3d 1204, 1212 (Miss. Ct. App. 2015) Petitioner claims not of any confusion or error, just now asserts as a matter of law that his case must be reversed. (Brief, p.11). However, his contentions are belied by the facts of the record and the finding of the trial court. No relief should be granted on this claim of error. Issue. V. Petitioner had Constitutionally effective assistance of counsel. In this last claim of error petitioner essentially presents the four previous claims of error (which the State contends are all without merit) and now tries to revive them by claiming the same errors as ineffective assistance of counsel. 3. Carson argues her counsel was ineffective because he failed to advise her about the law of robbery and accessory after the fact, inform her of the consequences of her plea, and investigate the case and interview witnesses. In order to succeed on a claim of ineffective assistance of counsel, the defendant must prove that counsel's performance was deficient and that the deficient performance prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In the context of guilty pleas, this means the defendant must show that, were it not for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Burrough v. State, 9 So.3d 368, 375 ( 22) (Miss.2009) (citing Coleman v. State, 483 So.2d 680, 683 (Miss.1986)). Furthermore, [a] petitioner must produce more than conclusory allegations on a claim of ineffective assistance of counsel. McCray v. State, 107 So.3d 1042, 1045 ( 12) (Miss. Ct. App.2012) (quoting Carpenter v. State, 899 So.2d 916, 921 ( 23) (Miss. Ct. App.2005)). In cases involving post-conviction collateral relief, where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit. Watts v. State, 97 So.3d 722, 726 ( 12) (Miss. Ct. App.2012) (citation omitted) (citing Vielee v. State, 653 So.2d 920, 922 (Miss.1995)).3 4. Carson's motion for PCR rests entirely on her own bare assertions. She offers no additional proof to support her claim that her trial counsel's assistance was deficient and that she would not have pleaded guilty had it been otherwise. We therefore affirm the trial court's decision to deny relief based on this issue. Carson v. State, 161 So. 3d 153, 155-56 (Miss. Ct. App. 2014), reh'g denied (Apr. 14, 2015). 7
Even at this late juncture, defendant does not say that but for his three attorneys deficient performance he would not have pleaded guilty. He just demands relief to prevent manifest injustice. The problem is, there was not in the original motion for post-conviction relief or anywhere else, any evidence to support any of his claims. To sum it up succinctly, he was amply and ably represented by multiple counsel and has not even raised a claim of deficient performance nor supported any claim in a legally sufficient manner to garner relief. No relief should be granted on this last claim of trial Court error. CONCLUSION Based upon the record on appeal and the ruling of the trial court, the State would ask this Court to affirm the trial Court denial of post-conviction relief. 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/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS ASSISTANT ATTORNEY GENERAL MISSISSIPPI BAR NO. 9390 8
CERTIFICATE OF SERVICE I, JEFFREY A. KLINGFUSS, 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: Honorable Lamar Pickard Circuit Court Judge P.O. Box 310 Hazlehurst, MS 39083 Honorable Alexander C. Martin District Attorney P.O. Drawer 767 Hazlehurst, MS 39083 Further, I hereby certify that I have mailed by United States Postal Service the document to the following non-mec participants: This the 15th day of September, 2015. Timothy Burns, Pro Se, #94842 SMCI P.O. Box 1419 Leakesville, MS 39451 OFFICE OF THE ATTORNEY GENERAL POST OFFICE BOX 220 JACKSON, MS 39205-0220 TELEPHONE NO. 602-359-3680 FAX NO. 601-576-2420 /s/ Jeffrey A. Klingfuss JEFFREY A. KLINGFUSS SPECIAL ASSISTANT ATTORNEY GENERAL 9