APPELLATE BRIEF IN SUPPORT OF POST-CONVICTION RELIEF

E-Filed Document Sep 23 2015 13:42:39 2015-CA-00502-COA Pages: 18 IN THE SUPREME COURT OF THE STATE OF MISSISSIPPI Trial Court Nos. 2006-109; 2006-157 / No. 2015-CA-00502-C0A NEDRA PITTMAN, Petitioner v. STATE OF MISSISSIPPI, Respondent APPELLATE BRIEF IN SUPPORT OF POST-CONVICTION RELIEF 1 of 18 E. Tucker Gore (MSB #8362) Attorney at Law 207 Lillian Greenwood, Mississippi 38930 Telephone: (662) 347-6535 Fax: (662) 219-0125

TABLE OF CONTENTS TABLE OF AUTHORITIES.....3 CERTIFICATE OF INTERESTED PARTIES....... 4 DESIGNATION OF RECORDS.....5 STATEMENT OF THE ISSUES....6 PROCEDURAL HISTORY.....7 PRESERVATION OF ISSUES.......8 STANDARD OF REVIEW... 10 STATEMENT OF FACTS...... 10 ARGUMENT............13 CONCLUSION.....17 2 of 18

TABLE OF AUTHORITIES MISSISSIPPI ANNOTATED CODE Miss. Code Ann. 97-11-25 (1972).......7, 11 Miss. Code Ann. 97-21-59 (1972)...6, 11 Miss. Code Ann. 99-39-1 (1972)...6 Miss. Code Ann. 99-39-5 (1972)...8 Miss. Code Ann. 99-39-11 (1972).....9 Miss. Code Ann. 99-39-21 (1972).. 8, 13 Miss. Code Ann. 99-39-27 (1972).....9 UNITED STATES SUPREME COURT Engle v. Isaac, 456 U.S. 107 (1982),,,,,,,, 8 Strickland v. Washington, 466 U.S. 668 (1984).... 10, 13, 14 MISSISSIPPI SUPREME COURT Smith v. State, 477 So. 2d 191 (Miss. 1985).... 8 Luckett v. State, 582 So. 2d 428 (Miss. 1991)...8 Myers v. State, 583 So. 2d 174 (Miss. 1991).....14 Foster v. State, 687 So. 2d 1124 (Miss. 1996)... 13 Readus v. State, 837 So. 2d 209 (Miss. 2003)..... 8, 9, 14, 15 Wilcher v. State, 863 So. 2d 776 (Miss. 2003).....13 Ross v. State, 954 So. 2d 968 (Miss. 2007)......10, 14 Spicer v. State, 973 So. 2d 184 (Miss. 2007)....13 Galloway v. State, No. 2010-DP-09127-SCT (Miss. June 6, 2013)..13 MISSISSIPPI COURT OF APPEALS Harney v. State, 919 So. 2d 282 (Miss. App. 2005) 9 Winston v. State, 893 So. 2d 274 (Miss. App. 2005).....10 Ivory v. State, 999 So. 2d 420 (Miss. App. 2008) 9 Mayhan v. State, 26 So. 3d 1072 (Miss. App. 2009)..... 10 3 of 18

CERTIFICATE OF INTERESTED PARTIES The undersigned counsel of record certifies that the following persons have an interest in the outcome of this case. These representatives are made in order that this Court may evaluate possible disqualification or recusal. 1. Pittman, Nedra, Appellant 2. Honorable Jim Hood, Attorney General for the State of Mississippi 3. Honorable E. Tucker Gore, Attorney for Appellant 4. Honorable Dewayne Richardson, District Attorney for the Fourth Circuit 5. District of the State of Mississippi, Circuit Court Honorable Ashley Hines /s/e. Tucker Gore E. Tucker Gore MSB# 8362 Attorney at Law 207 Lillian Greenwood, Mississippi 38930 4 of 18

DESIGNATION OF THE RECORDS The following records are designated in this cause. 1. First & Second Indictments, attached as Exhibit 1 2. Orders of Appointment, attached as Exhibit 2 3. Orders of Arraignment & Plea, attached as Exhibit 3 4. Motion for Relief of Counsel and Order for Relief, attached as Exhibit 4 5. Petition to Enter Plea of Guilty, attached as Exhibit 5 6. Sentencing Order, attached as Exhibit 6 7. Sentencing Hearing Transcript, attached as Exhibit 7 8. Order for Nolle Prosequi, attached as Exhibit 8 9. Order of Recusal, attached as Exhibit 9 10. Transcript of Hearing on Recusal, attached as Exhibit 10 11. Orders of Reassignment, attached as Exhibit 11 12. Warrant, attached as Exhibit 12 13. Order of Revocation, attached as Exhibit 13 14. Affidavit of Nedra Pittman, attached as Exhibit 14 15. March 4, 2015, Order Denying Petition for Post-Conviction Relief, attached as Exhibit 15 5 of 18

STATEMENT OF THE ISSUES Whether Petitioner was denied her fundamental right to a fair sentencing hearing and effective assistance of counsel so that her Due Process rights have been implicated, and she should be excepted from the procedural bars of the Mississippi Uniform Post-Conviction Collateral Relief Act. 6 of 18

COMES NOW Nedra Pittman (hereinafter Petitioner ), by and through her undersigned counsel pursuant to Miss. Code Ann. 99-39-1 (1972) et seq., who moves this Court for an order granting a new trial for the reasons set forth and described below. PROCEDURAL HISTORY On or about May 23, 2006, Petitioner was indicted by grand jury in the Circuit Court of Washington County of two counts of uttering forgery in violation of Miss. Code Ann. 97-21-59 (1972). On that same day, Petitioner was indicted by grand jury in the Circuit Court of Washington County of one count of embezzlement in violation of Miss. Code Ann. 97-11-25 (1972). See State of Mississippi v. Pittman, 2006-157 (Miss. Cir. Ct. May 23, 2006) & State of Mississippi v. Pittman, 2006-109 (Miss. Cir. Ct. May 23, 2006); First & Second Indictments, attached as Exhibit 1. Petitioner was appointed a public defender for representation in both cases on July 17, 2006. See Orders of Appointment, attached as Exhibit 2. On July 17, 2006, Petitioner pled not guilty to all charges in both cases. See Orders of Arraignment and Plea, attached as Exhibit 3. Petitioner s counsel was later relieved from representation of the uttering forgery charges due to a conflict of interest. See Motion for Relief of Counsel and Order of Relief, attached as Exhibit 4. On September 25, 2006, Petitioner asked the Circuit Court to enter a plea of guilty in both cases and as to all counts. See Petition to Enter Plea of Guilty, attached as Exhibit 5. Two days later, the Circuit Judge Margaret Carey-McCray entered two sentencing orders in Petitioner s cases, whereby Petitioner was sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections with two (2) years in the Intensive Supervision Program and eight (8) years in probation for the crimes of embezzlement and one count of uttering 7 of 18

forgery, with both sentences to run concurrent. See Sentencing Orders, attached as Exhibit 6, and Sentencing Hearing Transcript, attached as Exhibit 7. The second count of uttering forgery was nolle prossed. See Order for Nolle Prosequi, attached as Exhibit 8. On May 18, 2010, Circuit Judge Margaret Carey-McCray entered an order recusing herself from Petitioner s cases after the State filed a Motion to Show Cause and/or for Sentencing. See Order of Recusal, attached as Exhibit 9, and Transcript of Hearing on Recusal, attached as Exhibit 10. Petitioner s cases were thereafter reassigned to Circuit Judge Ashley Hines. See Orders of Reassignment, attached as Exhibit 11. While Petitioner was on post-conviction release, however, a warrant was issued for Petitioner s arrest for violating the conditions of her probation by allegedly traveling to Arkansas and committing the crime of breaking and entering and theft of property in Crossett, Arkansas. See Warrant, attached as Exhibit 12. Thereafter, Petitioner s probation was revoked for failure to obey laws and failure to remain in the state of Mississippi by Circuit Judge Ashley Hines on February 24, 2014. See Order of Revocation, attached as Exhibit 13. Thereafter, Petitioner s Petition for Post- Conviction Relief was denied by Judge Ashley Hines on March 4, 2015, and Petitioner filed a Notice of Appeal with this Honorable Court. See March 4, 2015, Order, attached as Exhibit 15. PRESERVATION OF ISSUES Miss. Code Ann. 99-39-5(2)(b) (1972) sets forth a three-year statute of limitations on post-conviction relief motions, and Miss. Code Ann. 99-39-21(6) (1972) requires a petitioner to allege in [her] motion such facts as are necessary to demonstrate that [her] claims are not procedurally barred under the Mississippi Uniform Post-Conviction Collateral Relief Act (hereinafter Collateral Relief Act ). None of the issues presented in this motion, however, are procedurally barred by the Collateral Relief Act because a failure to consider these issues would 8 of 18

result in a fundamental miscarriage of justice. As the Mississippi Supreme Court made clear in Luckett v. State, [e]rrors affecting fundamental constitutional rights may be excepted from procedural bars which would otherwise prohibit their consideration. 582 So. 2d 428, 430 (Miss. 1991) (citing Smith v. State, 477 So. 2d 191, 195-96 (Miss. 1985)). Furthermore, the United States Supreme Court has stated that in appropriate cases the principles of comity and finality... must yield to the imperative of correcting a fundamentally unjust incarceration. Engle v. Isaac, 456 U.S. 107, 135 (1982). None of the issues in this motion are procedurally barred because an intervening decision of the Mississippi Supreme Court in Readus v. State would have adversely the outcome of Petitioner s conviction and therefore excuses her from such procedural bars under Miss. Code Ann. 99-39-27(9). See, e.g., 837 So. 2d 209 (Miss. 2003). As was the case in Readus, an affidavit from Petitioner supports her allegation that she received ineffective assistance of counsel because her lawyer instilled an expectation of a far more lenient sentence than [she] actually received. Id. at 214; Exhibit 14: Affidavit of Nedra Pittman. 1 Petitioner s affidavit allege[s] [her] attorney s errors with specificity, and [c]ounsel s alleged deficiency was not cured by the plea colloquy because the erroneous advice was not directly contradicted by the lower court s questioning. Id. Readus would have adversely affected the outcome of Petitioner s conviction since it establishes that deficient advice by 1 In full, Petitioner s affidavit states: I would have never pled guilty if I had known I could ve received house arrest. My attorney told me the State had offered a good deal of probation and that I should take it. He said I would be on supervised probation for a few years and then on unsupervised probation for a while. He didn t talk about the conditions of probation though. At Court, my attorney didn t explain to me what was happening. Then I found out that the Judge had changed my deal and that I would have to be on house arrest. But my attorney never said that the Judge could do that, and he never mentioned house arrest. 9 of 18

counsel of the possible consequences of a guilty plea may constitute actual prejudice to the defendant. See, e.g., id. ( To show prejudice, Readus must prove that he would never have pled guilty but for the deficient advice. This is exactly the allegation Readus makes on PCR. ). Because Petitioner was denied her fundamental right to a fair sentencing hearing and denied effective assistance of counsel, Petitioner s Due Process rights have been implicated, and she should be excepted from the procedural bars of the Mississippi Uniform Post-Conviction Collateral Relief Act. STANDARD OF REVIEW In reviewing a motion for post-conviction relief, the court must study the entire record to determine whether the petitioner makes a substantial showing of a denial of a federal right. Ivory v. State, 999 So. 2d 420, 425-26 (Miss. App. 2008) (internal quotation marks omitted). The court is required to review the original motion, together with all the files, records, transcripts, and correspondence relating to the judgment under attack. Harney v. State, 919 So. 2d 282 (Miss. App. 2005) (quoting Miss. Code Ann. 99-39-11(1) (1972)). Summary dismissal of a motion for post-conviction relief is only proper if it plainly appears from the record that the movant is not entitled to any relief. Mayhan v. State, 26 So. 3d 1072, 1078 (Miss. App. 2009) (quoting Winston v. State, 893 So. 2d 274, 276 (Miss. App. 2005)) (internal quotation marks omitted). Petitioner alleges that she was denied effective assistance of counsel when her counsel assured her that she would receive a sentence of probation in exchange for entering a guilty plea and when her counsel failed to explain that the Judge could differ from the recommended sentence in Cause No. 2006-109. Ineffective assistance of counsel is evaluated under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 10 of 18

688 (1984). The Strickland test is comprised of two parts: first, the court must determine whether the defendant received reasonably effective assistance of counsel. Id. at 689-91. If the court determines that the defendant did not receive reasonably effective assistance of counsel, then the court must determine whether the insufficiency of counsel had a reasonable probability of affecting the outcome of the case. Id. at 694. In determining whether the Strickland standard has been met, the court must consider the entire record at trial and in post-conviction proceedings. Ross v. State, 954 So. 2d 968, 1019 (Miss. 2007). Since Petitioner was denied effective assistance of counsel when her counsel erroneously advised her that she would receive a sentence of only supervised and unsupervised probation if she entered a guilty plea and when he failed to inform Petitioner that the Judge could impose a different sentence such as one including jail time or house arrest, Petitioner has been denied a fair and impartial trial and should be granted a new trial and/or an evidentiary hearing as postconviction relief. STATEMENT OF FACTS On or about May 23, 2006, Petitioner was indicted by grand jury in the Circuit Court of Washington County of two counts of uttering forgery in violation of Miss. Code Ann. 97-21-59 (1972). See State of Mississippi v. Pittman, 2006-157 (Miss. Cir. Ct. May 23, 2006); Exhibit 1. In the Indictment, Petitioner was allegedly to have willfully, unlawfully and fraudulently [committed forgery] to injure and defraud... Effie Webb, DBA / Main Street Liquors on or about October 1, 2004, and November 24, 2005. See Exhibit 1. On that same day, Petitioner was indicted by grand jury in the Circuit Court of Washington County of one count of embezzlement in violation of Miss. Code Ann. 97-11-25 (1972). See State of Mississippi v. Pittman, 2006-109 (Miss. Cir. Ct. May 23, 2006); Exhibit 1. In that Indictment, Petitioner was alleged to have 11 of 18

embezzled from her employer, Greenville Port Commission, on or about October 1, 2003, and July 14, 2005. See Exhibit 1. Petitioner was appointed a public defender for representation in both cases on July 17, 2006. See Exhibit 2. On July 17, 2006, Petitioner pled not guilty to all charges in both cases. See Exhibit 3. Petitioner s counsel was later relieved from representation of the uttering forgery charges due to a conflict of interest. See Exhibit 4. On September 25, 2006, Petitioner asked the Circuit Court to enter a plea of guilty in both cases and as to all counts. See Exhibit 5. In the instant cases, the State had recommended that Petitioner serve five years on supervised release and five years on unsupervised release with certain restitution requirements in both cause numbers. See Exhibit 7. 2 At Petitioner s Sentencing Hearing, Circuit Judge Margaret Carey-McCray, differed from the State s recommendation. 3 Thereafter, Petitioner s counsel did not immediately ask for a moment to speak with his client or for a brief recess to explain to Petitioner what was happening. See Exhibit 7. Furthermore, at the Sentencing Hearing, Petitioner s counsel did not ask for a recess even after Petitioner showed substantial confusion as to what was transpiring including, but not limited to, after Petitioner asked I have jail for 6 years and then is that what you said. 4 2 The State recommends in both cause numbers that the defendant serve ten years MDOC, suspended five years supervised probation, and five years unsupervised; $300 attorney s fees; $500 Crime Victims Compensation Fund; court costs and assessments; and restitution in a total amount of $89,881.97 to be paid to the Circuit Clerk s Office well, to be paid, I m sorry, to the Mississippi State Auditor s Office through the Circuit Clerk s Office. See Exhibit 7, pgs. 9-10. 3 THE COURT: Okay. Ms. Pittman, the Court is going to waiver a little from the agreed recommendation in this case. See Exhibit 7, pgs. 14-15. 4 THE DEFENDANT: I have jail for 6 years and then is that what you said? THE COURT: No. I have you the Intensive Supervision Program, which is house arrest. THE DEFENDANT: Okay.... THE DEFENDANT: Will I be, like, allowed, so I can get a you have to have a telephone; right? Like a home phone? THE COURT: Yes. Do you have a telephone? THE DEFENDANT: No, ma am. See Exhibit 7, pgs. 18 21. 12 of 18

Circuit Judge Carey-McCray subsequently entered two sentencing orders in Petitioner s cases, whereby Petitioner was sentenced to serve ten (10) years in the custody of the Mississippi Department of Corrections with two (2) years in the Intensive Supervision Program or on house arrest and eight (8) years in probation for the crimes of embezzlement and one count of uttering forgery, with both sentences to run concurrent. See Exhibits 6 & 7. The second count of uttering forgery was nolle prossed. See Exhibit 8. On May 18, 2010, Circuit Judge Margaret Carey-McCray entered an order recusing herself from Petitioner s cases after the State filed a Motion to Show Cause and/or for Sentencing. See Exhibits 9 & 10. 5 Petitioner s cases were thereafter reassigned to Circuit Judge Ashley Hines. See Exhibit 11. After Petitioner completed her sentence in the custody of the Mississippi Department of Correction, she was subsequently released to serve eight (8) years on probation. See Exhibit 6. After her release, however, a warrant was issued for Petitioner s arrest for violating the conditions of her probation by allegedly traveling to Arkansas and committing the crime of breaking and entering and theft of property in Arkansas. See Exhibit 12. Thereafter, Petitioner s probation was revoked for failure to obey laws and failure to remain in the state of Mississippi by Circuit Judge Ashley Hines on February 24, 2014. See Exhibit 13. ARGUMENT Petitioner would show that she is entitled to a new trial because Petitioner s was denied effective assistance of counsel when she only pled guilty to the aforementioned charges 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 5 Circuit Judge Carey-McCray s Order of Recusal states the following: During earlier proceedings, which consisted of Defendant s guilty plea, sentencing and a subsequent show cause hearing, the Defendant and circumstances herein were personally unknown to the Court. However, at this point, the undersigned judge is personally familiar with the Defendant and has first hand knowledge of some the circumstances involved herein. 13 of 18

possibility of receiving house arrest. Furthermore, Due Process requires that no bar be placed on Petitioner s claim for relief because her procedural and substantive Due Process rights, as guaranteed by the United States and Mississippi Constitutions, were significantly breached. See infra II. Preservation of Issues. Petitioner alleges that her defense counsel acted in a manner that was ineffective by inducing Petition to plea guilty only after assuring Petitioner that she would the State s recommended sentence at her Sentencing Hearing and without counsel informing her of the conditions associated with probation or the possibility of receiving house arrest. Ineffective assistance of counsel claims ordinarily are more appropriately brought during post-conviction proceedings because direct appeal is limited to the trial-court record in its review of the claim. Galloway v. State, No. 2010-DP-09127-SCT, at 52 (Miss. June 6, 2013) (citing Wilcher v. State, 863 So. 2d 776, 825 (Miss. 2003)). Although an underlying substantive claim considered on direct appeal is barred from being brought in a motion for post-conviction relief under the doctrine of res judicata, a court upon a showing of cause and actual prejudice [may] grant relief from the waiver. Miss. Code Ann. 99-39-21(1) (1972). In addition, the Mississippi Supreme Court has cautioned that other issues which were either presented through direct appeal or could have been presented on direct appeal or at trial are procedurally barred and cannot be relitigated under the guise of poor representation by counsel. Spicer v. State, 973 So. 2d 184, 197 (Miss. 2007) (quoting Foster v. State, 687 So. 2d 1124, 1129 (Miss. 1996)) (internal quotation marks omitted). If an allegation of ineffective assistance of counsel was not substantively addressed on direct appeal or if an allegation was addressed but a defendant can show prejudice, a claim of ineffective assistance of counsel may be properly heard in a motion for post-conviction relief. 14 of 18

Spicer, 973 So. 2d at 202. Since the ineffective assistance of counsel claim was not addressed on any direct appeal and since her ineffective counsel caused actual prejudice to Petitioner in violation of Miss. Code Ann. 99-39-21(1) (1972), Petitioner s claims are properly before this Court. Ineffective assistance of counsel is evaluated under the standard set forth by the United Stated Supreme Court in Strickland v. Washington, 466 U.S. 668, 688 (1984). The Strickland test is comprised of two parts: first, the court must determine whether the defendant received reasonably effective assistance of counsel. Id. at 689-91. If the court determines that the defendant did not receive reasonably effective assistance of counsel, then the court must determine whether the insufficiency of counsel had a reasonable probability of affecting the outcome of the case. Id. at 694. In determining whether the Strickland standard has been met, the court must consider the entire record at trial and in post-conviction proceedings. Ross v. State, 954 So. 2d 968, 1019 (Miss. 2007). Petitioner has fulfilled the first prong of the Strickland test: that she did not receive reasonably effective assistance of counsel. See generally Strickland, 466 U.S. at 689-91. As established in Readus v. State, a voluntary guilty plea emanates from the defendant s informed consent. 837 So. 2d 209, 212 (Miss. Ct. App. Feb. 4, 2003) (quoting Myers v. State, 583 So. 2d 174, 177 (Miss. 1991)). A reasonably effective counsel would have made the defendant fully aware of the consequences of the plea, and [a]n allegation that the defendant pled guilty in response to counsel s mistaken advice may vitiate the plea. Id. at 212; see also id. at 214 ( Readus alleged that his lawyer misrepresented the lengths of the sentences that he would be imposed for a guilty plea and after trial. This contention is grounds for showing deficient performance under Strickland. ). In the instant case, Petitioner clearly expressed confusion as to 15 of 18

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. See Exhibits 7 & 14. The second and final prong of the Strickland test has been fulfilled as well since the insufficiency of counsel had a reasonable probability of affecting the outcome of the case by inducing Petition to plea guilty only after assuring her that she would substantial leniency by the Court and not informing her that her current sentence was even an available option. Strickland, 466 U.S. at 694; Exhibit 14. Furthermore, even if the Court determines that Petitioner engaged in a plea colloquy, a plea colloquy does not necessarily excuse ineffective assistance of counsel. See, e.g., Readus, 837 So. 2d at 213, 214; Myers, 583 So. 2d. at 177-78. In Petitioner s case, her ineffective assistance of counsel was not cured by the plea colloquy because the erroneous advice was not directly contradicted by the lower court s questioning. Readus, 837 So. 2d at 214. Although Petitioner was asked by the Court, has anyone promised you I would be lighter in sentencing you just because you re giving up your right to go to trial, Petitioner was not asked whether her counsel had explained the possible sentencing options to her, whether counsel had explained to her the conditions associated with post-conviction supervised or unsupervised release, or whether counsel had even mentioned the possibility of Petitioner receiving home arrest. See Exhibit 7. Since there exists a reasonable probability that Petitioner s ineffective counsel induced her to plea guilty and affected the outcome of the case, Petitioner respectfully requests that she be granted a new trial as post-conviction relief. 16 of 18

CONCLUSION WHEREFORE, for the foregoing reasons, Petitioner Nedra Pittman, respectfully requests that this Court vacate her convictions and sentences in Cause Nos. 2006-157 and 2006-109 and order a new trial, or in the alternative, order an evidentiary hearing of the claims of error raised herein. Respectfully submitted, /s/e. Tucker Gore E. Tucker Gore MSB# 8362 Attorney at Law 207 Lillian Greenwood, Mississippi 38930 Telephone: (662) 347-6535 Fax: (662) 219-0125 E-mail: tuckergore44@yahoo.com 17 of 18

CERTIFICATE OF SERVICE I, Tucker Gore, attorney for Petitioner herein, do hereby certify that I have this day mailed postage fully pre-paid/hand-delivered/faxed, a true and correct copy of the forgoing Motion for Leave to Petition for Post Conviction Review to: Circuit Judge Ashley Hines Fourth Circuit Court District P. O. Box 1315 Greenville, MS 38702 District Attorney Dewayne Richardson P.O. Box 426 Greenville, MS 38702 This the 23rd day of September, 2015. /s/e. Tucker Gore E. Tucker Gore MSB# 8362 Attorney at Law 207 Lillian Greenwood, Mississippi 38930 Telephone: (662) 347-6535 Fax: (662) 219-0125 E-mail: tuckergore44@yahoo.com 18 of 18