Morgan v. State
| Docket Number: | 2006-CP-01644-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 08-28-2007 Opinion Author: GRIFFIS, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Excessive sentence - Ambiguous statute - Section 41-29-139 - Defective indictment - Voluntariness of plea - Ineffective assistance of counsel Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE, ROBERTS AND CARLTON, JJ. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 08-30-2006 Appealed from: MONROE COUNTY CIRCUIT COURT Judge: Sharion R. Aycock Disposition: POST-CONVICTION RELIEF DENIED Case Number: CV06-028-AM |
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| Party Name: | Attorney Name: | |||
| Appellant: | MARCUS MORGAN A/K/A LIL DUB |
MARCUS MORGAN (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY |
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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 - Excessive sentence - Ambiguous statute - Section 41-29-139 - Defective indictment - Voluntariness of plea - Ineffective assistance of counsel |
| Summary of the Facts: | Marcus Morgan pled guilty to the sale of cocaine and was sentenced to thirty years imprisonment with fifteen years suspended. He filed a motion for post-conviction relief which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Excessive sentence Morgan argues that he was subject to an excessive sentence, because his sentence was much longer than the statutory maximum. He cites section 41-29-139 (c)(1)(B), which prohibits the possession of a controlled substance. Morgan pled guilty to and was convicted of selling cocaine, not possession. While the sentence he received contained the maximum, it was still within the limits provided by the legislature. Issue 2: Ambiguous statute Morgan argues that the statute under which he was sentenced, section 41-29-139, is unconstitutionally ambiguous and subject to more than one interpretation. As stated before, subsection (c) applies only to possession of a controlled substance while, subsection (b) applies to violations of subsection (a). Each subsection clearly states its separate purpose, and a person of ordinary intelligence would understand that he could be subject to up to thirty years imprisonment should he be found guilty of the sale of cocaine. Issue 3: Defective indictment Morgan argues that his indictment was defective, because it was stamped filed before the term of court, it failed to include a sworn affidavit by the foreman of the grand jury, no caption of the minutes was present on the indictment, the indictment is without judicial jurisdiction, and the indictment failed to state the amount of cocaine. The first two errors alleged have been waived. There is no requirement that the indictment include a caption from the minutes. Monroe County only has one judicial district. In counties with one judicial district, the indictment is not required to contain the judicial district. As to the sale of cocaine, which was the crime charged, failure to include the amount sold does not fatally flaw the indictment. Issue 4: Voluntariness of plea Morgan argues that he was threatened with twenty years imprisonment if he did not enter a plea of guilty and that he was never informed of the two to eight years sentence he could have received for possession. The fear of twenty years imprisonment, a punishment below the maximum, does not make the guilty plea involuntary. Issue 5: Ineffective assistance of counsel Morgan argues that his counsel was ineffective when he failed to object to a sentence higher than the statutory maximum and failed to object to a defective indictment. The sentence is within the statutory maximum for the sale of cocaine and the indictment was not fatally defective. Further, Morgan stated under oath he was satisfied with his attorney’s performance and felt that it was effective. |
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