Opinion
No. 2006-CP-00165-COA.
October 31, 2006. Petition for Rehearing filed November 14, 2006.
COURT FROM WHICH APPEALED: HARRISON COUNTY CIRCUIT COURT, TRIAL JUDGE: HON. JERRY O. TERRY, SR., DATE OF JUDGMENT: 1/4/2006
DISPOSITION: AFFIRMED
ATTORNEY FOR APPELLANT: ARMSTRONG KNIGHT (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: W. GLENN WATTS
BEFORE MYERS, P.J., SOUTHWICK AND GRIFFIS, JJ.
¶ 1. This is an appeal from the denial of post-conviction relief. In May 2003, Armstrong Knight was indicted for the July 2002 murder of Charles Dawson. The murder indictment was later changed to one for manslaughter. In December 2003, Knight pled guilty to manslaughter and three counts of possession of firearms by a felon. The Harrison County Circuit Court sentenced him to a total of thirty years in prison, which was twenty years on the manslaughter charge and ten years for the three firearms charges. Knight filed for relief from this judgment in November 2004. His post-conviction claims were denied without a hearing. We affirm.
DISCUSSION
¶ 2. Knight seeks to be allowed to withdraw his guilty plea based on his allegations of ineffective assistance of counsel. He argues that his plea agreement was breached, that his prior conviction was invalid, that counsel was ineffective, and his guilty plea was not made knowingly, intelligently, and voluntarily. He also requests an evidentiary hearing as to these issues.
Issue 1: The breach of the plea agreement
¶ 3. Knight alleges that his plea agreement was breached when the State failed to return certain personal property valued at $7,100 to his brother. What we find in the record is that Knight's plea petition in 2003 indicated that he understood the recommendation that would be made on sentencing. In addition to the thirty years total incarceration referenced in the petition, there was this hand-written sentence: "Defendant requests personal property returned to his brother." At the plea hearing, Knight's attorney stated that "Armstrong did have a few items of personal property that if the Sheriff's Department would return to his brother, he would appreciate it. It's a computer and a few other things." He now alleges that some or all of this property was not returned.
¶ 4. Knight argues that the failure to return the property allows him to withdraw his plea, citing an opinion of this Court as authority: Myers v. State, 770 So. 2d 542 (Miss.Ct.App. 2000). In Myers, the trial court's denial of post-conviction relief was reversed due to the failure of the State to adhere to a plea bargain. The State agreed to recommend a twenty-five year sentence in exchange for a guilty plea, then at the hearing recommended a thirty-year sentence. Id. at 544. Despite the discretion of the trial judge on sentencing, we held that the State's ignoring of its agreement allowed the defendant to withdraw his plea. Id. at 549-50. As to Knight, there is no proof that the recommendation was not honored. Defense counsel mentioned the issue of the personal property to the trial judge during sentencing, and the State did nothing at the hearing to undermine the defense effort to have the property returned.
¶ 5. Even if the property was not returned, there was not a failure by the State at the sentencing hearing as in Myers to honor the agreement on what sentence to recommend to the trial judge. If Knight or his family believe the county or other authorities have retained property that should be delivered to them, there are means to seek its return. The plea is valid regardless of what happened to the computer and other items.
Issue 2: Ineffective assistance of counsel
¶ 6. Knight alleges ineffective assistance in the motion for post-conviction relief and now on appeal. More important than his present assertions, though, is that he made no complaints about the effectiveness of counsel at his sentencing hearing.
THE COURT: All right. Now, the petition here shows that you're pleading guilty to four separate charges, manslaughter and the three waivers; do you understand that?
DEFENDANT KNIGHT: Yes, sir.
THE COURT: Are you satisfied with your lawyer?
DEFENDANT KNIGHT: Yeah. Yes, I am.
THE COURT: Are you satisfied he's taken enough time to acquaint himself with your case?
DEFENDANT KNIGHT: Yes, sir.
THE COURT: Has anyone threatened you in any way to cause you to plead guilty or promised you a reward in return for pleading guilty?
DEFENDANT KNIGHT: No.
THE COURT: Well, why are you pleading guilty then?
DEFENDANT KNIGHT: Because I am guilty, Your Honor.
THE COURT: Very well. You're saying you're pleading guilty to these — all of these charges, because you're, in fact, guilty.
DEFENDANT KNIGHT: Yes, sir.
¶ 7. Knight's testimony at his sentencing hearing does not indicate any confusion as to the result of his guilty plea. It also does not indicate any dissatisfaction with counsel. Knight's forty-eight page post-conviction motion containing a litany of complaints about counsel presents a much different story, one which we hardly find too little but certainly too late.
¶ 8. Mississippi has determined to follow without expanding the United States Supreme Court's stated measure of constitutional ineffectiveness of counsel. Coleman v. State, 483 So. 2d 680, 682-83 (Miss. 1986) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). The two-part Strickland test requires that Knight show counsel's representation was deficient to a point of having prejudiced the defense, and there exists a reasonable probability that, but for counsel's errors, the outcome of the proceedings would have been different. Id. This standard for proving ineffective assistance of counsel is "difficult to establish and appropriately so." Knox v. State, 502 So. 2d 672, 676 (Miss. 1987). The burden is on Knight to show ineffective assistance by showing that both Strickland tests have been met. Leatherwood v. State, 473 So. 2d 964, 968 (Miss. 1985).
¶ 9. Knight did not allege at the hearing and despite the volume of his efforts now does not demonstrate that his counsel failed to perform at the constitutional minimum.
Issue 3: Evidentiary hearing
¶ 10. Knight seeks reversal because the trial court did not give him an evidentiary hearing on his post-conviction relief motion. A defendant alleging ineffective assistance of counsel is entitled to an evidentiary hearing when he has established a prima facie claim on both elements of the Strickland test. Cole v. State, 666 So. 2d 767, 775 (Miss. 1995). There is no evidence in the record other than Knight's bald assertions that counsel performed inadequately. Mere allegations of ineffective assistance will not suffice. Johnston v. State, 730 So. 2d 534, 538 (Miss. 1997).
¶ 11. An evidentiary hearing is not required where "it appears beyond doubt that the petitioner can prove no set of facts in support of his claim which would entitle him to relief." Marshall v. State, 680 So. 2d 794, 795 (Miss. 1996). That standard arises from the statutory guidance to trial judges that when it is obvious from the face of the petition or any exhibits, as well as the prior proceedings, that the petition is not entitled to any relief, the judge may order its dismissal without a hearing. Miss. Code Ann. § 99-39-11(2) (Rev. 2000).
¶ 12. We find nothing in the issues we have reviewed here, or in the miscellaneous other errors alleged, to justify the withdrawal of Knight's plea or any alteration in his sentence.
¶ 13 THE JUDGMENT OF THE CIRCUIT COURT OF HARRISON COUNTY DENYING POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO HARRISON COUNTY. KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ., CONCUR.