Atwell v. State
| Docket Number: | 2002-CP-01572-COA Linked Case(s): 2002-CP-01572-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 04-22-2003 Opinion Author: Southwick, P.J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Felony charge - Section 63-11-30(2)(c) - Voluntariness of plea - Revocation hearing - Bail pending appeal Judge(s) Concurring: McMillin, C.J., King, P.J., Bridges, Thomas, Lee, Irving, Myers, Chandler and Griffis, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 09-06-2002 Appealed from: Harrison County Circuit Court Judge: Jerry O. Terry, Sr. Disposition: POST-CONVICTION RELIEF DENIED District Attorney: Cono A. Caranna, II Case Number: A2401-01-0449 |
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| Party Name: | Attorney Name: | |||
| Appellant: | Mel Lindsey Atwell |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL BY: JEAN SMITH VAUGHAN |
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Synopsis provided by:  If you are interested in subscribing to the weekly synopses of all Mississippi Supreme Court and Court of Appeals hand downs please contact Tammy Upton in the MLI Press office. |
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| Topic: | Post-conviction relief - Felony charge - Section 63-11-30(2)(c) - Voluntariness of plea - Revocation hearing - Bail pending appeal |
| Summary of the Facts: | Mel Atwell entered a plea of guilty to a charge of felony driving under the influence and received a five year suspended sentence with two years' post-release supervision. After Atwell failed to report to his probation officer, a revocation hearing was held and his suspension was revoked in its entirety. Atwell filed for post-conviction relief, but the petition was returned to him for failing substantially to comply with the statutory pleading requirements. He also filed for a writ of habeas corpus in federal court which was dismissed. He later filed a civil rights violation suit against the State of Mississippi in the District Court of the Eastern District of Tennessee which was also dismissed. Atwell resubmitted his post-conviction relief petition to the circuit court which dismissed the petition. Atwell appeals. |
| Summary of Opinion Analysis: | Issue 1: Felony charge Atwell argues that he was never charged with a prior felony DUI and should not have been charged with a third-offense felony. Section 63-11-30(2)(c) provides that a person shall be guilty of a felony for any third or subsequent DUI conviction where the offenses have been committed within a period of five years. Atwell had been twice convicted of driving while intoxicated in Georgia within the required five-year period. The fact that the prior convictions occurred in another state does not affect the felony status of his crime. Issue 2: Guilty plea Atwell argues that his plea was not voluntary, because he never entered a guilty plea, the petition to enter the plea was forged by defense counsel, the petition's terms do not correspond with the sentencing order, Atwell was unconstitutionally denied the right to present witnesses to prove his innocence of the crime charged, and the judge who signed the sentencing order was not the judge who presided over the plea hearing. The burden is upon Atwell to prove by a preponderance of the evidence that he is entitled to the requested post-conviction relief. Where, as here, the only evidence supplied by the petitioner is his own affidavit contradicting his prior sworn writing, he has failed to meet this burden. In order for a plea to be voluntary, it cannot be the product of fear, violence, deception, or improper inducements. Atwell's desire to get out of jail does not constitute coercion. With regard to his claim that the judge who signed the sentencing order was not the judge who presided over the plea hearing, Atwell fails to claim any injury. Without injury, there is no relief to be granted. Issue 3: Revocation hearing Atwell argues that the judge lacked jurisdiction to revoke because he was not the sentencing judge; the revocation was improper because he abided by the conditions and returned to Tennessee; the court and probation officers should be held in contempt for failing to return him to Tennessee; and he was tried without counsel at the revocation hearing. It is the Circuit Court of Harrison County which retained jurisdiction over Atwell's suspended sentence, not a particular judge in the circuit. Because transfer is not automatic, Atwell was required to comply with the procedures necessary to make application to Tennessee for transferring his supervision. He provides no evidence that he ever attempted to comply with the procedures necessary or that Tennessee accepted him. Until the transfer was effective, Atwell’s leaving Mississippi constituted a violation of the conditions of his suspended sentence and was a valid ground for revocation. With regard to the right to counsel, the probationer has the right to counsel at a revocation hearing only if the issues are complex and the case difficult to develop. Given the straightforward nature of this case, appointment of counsel was not necessary. Issue 4: Bail pending appeal Atwell argues that he was constitutionally entitled to bail during this appeal. A defendant appealing from his original conviction may petition for bail while his appeal is under review. Since Atwell is pursuing review of the denial of post-conviction relief, bail is not permitted. |
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