Minchew v. State


<- Return to Search Results


Docket Number: 2006-CP-00485-COA
Linked Case(s): 2006-CP-00485-COA

Court of Appeals: Opinion Link
Opinion Date: 04-24-2007
Opinion Author: CARLTON, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Jurisdiction - M.R.A.P. 2(c) - M.R.A.P. 4 - Due process - Ineffective assistance of counsel - Voluntariness of plea - Breached plea agreement - Ambiguous sentence
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, GRIFFIS, BARNES, ISHEE AND ROBERTS, JJ.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 02-10-2006
Appealed from: Harrison County Circuit Court
Judge: Roger T. Clark
Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED
Case Number: A2401-2005-00273

  Party Name: Attorney Name:  
Appellant: LAWRENCE WAYNE MINCHEW




LAWRENCE WAYNE MINCHEW (PRO SE)



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: JEFFREY A. KLINGFUSS  

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.

Topic: Post-conviction relief - Jurisdiction - M.R.A.P. 2(c) - M.R.A.P. 4 - Due process - Ineffective assistance of counsel - Voluntariness of plea - Breached plea agreement - Ambiguous sentence

Summary of the Facts: Lawrence Minchew entered a plea of guilty to possession of pseudoephedrine and possession of a controlled substance with intent. He was sentenced to concurrent sentences of seventeen years. He filed a motion for post-conviction relief which was denied. He appeals.

Summary of Opinion Analysis: Issue 1: Jurisdiction The State argues that Minchew’s notice of appeal was untimely filed. The order denying Minchew’s motion for post-conviction relief was entered on February 10, 2006. The thirty-day period for filing would have run on March 12, 2006, a Sunday. Consequently, he had until March 13, 2006 to timely file his appeal. Minchew’s notice of appeal was received and filed by the circuit court on March 23, 2006, ten days late. Further, as indicated in his certificate of service, Minchew did not cause his notice of appeal to be mailed until March 20, 2006, seven days after the expiration of his thirty-day deadline. Thus, Minchew’s appeal was not timely filed under the prison mailbox rule, because, by his own admission, Minchew did not deliver his appeal to the prison authorities for mailing prior to the expiration of his thirty-day deadline. The Court has the authority under M.R.A.P. 2© and 4 to suspend the thirty-day time requirement in the interest of expediting decision or for other good cause shown. Minchew argues that the law clerk at Marshall County Correctional told him that the thirty days started to run from the day he received notice of the order and that this constitutes good cause. Under M.R.A.P. 4(h), reopening may be ordered only upon a motion filed within 180 days of the entry of a judgment or order or within 7 days of receipt of notice of such entry, whichever is earlier. According to his own statements, Minchew received notice within twenty-one days of the entry of the order, and, in any event, filed no motion to reopen the time for appeal with the trial court. Minchew also failed to file a motion for extension under Rule 4 (g). Because Minchew failed to utilize the options available to him and has not made a showing of good cause, the Court will not suspend the time-requirement of Rule 4. Issue 2: Due process Minchew argues that he was denied due process of law because he was not given a separate recidivism hearing and that, as a result, he was improperly sentenced as an habitual offender. A separate recidivism hearing is required where the defendant is convicted by jury trial; however, a defendant who enters a plea of guilty is not entitled to a separate hearing. Minchew was properly indicted as an habitual, he had ample opportunity to challenge the validity of his prior convictions yet declined to do so. Minchew’s argument also fails because the sentence he received was illegally lenient. Issue 3: Ineffective assistance of counsel Minchew argues that his attorney induced him to plead guilty by misrepresentations which led him to believe that, if he pled guilty, the habitual portion of the indictment against him would be dropped and he would only receive a sentence of five years. Minchew also argues that his attorney’s performance was ineffective because he failed to subpoena witnesses and evidence. Minchew provided no affidavits or proposed testimony of other witnesses to support his contentions. Post-conviction claims of ineffective assistance are properly dismissed where the defendant offers only his affidavit in support of his allegations. In addition, Minchew faced a maximum sentence of life imprisonment, yet under the advice and direction of his attorney, he was able to plead guilty and receive a sentence of only seventeen years. Minchew’s attorney also managed to get four charges retired to the files. Issue 4: Voluntariness of plea Minchew argues that his plea was involuntarily entered due to the erroneous advice of his attorney. Minchew signed a petition to plead guilty in which he acknowledged that he knew what the maximum sentence was for each crime. The petition further acknowledged that Minchew was indicted as an habitual offender which carried a maximum sentence of life. His claim is directly contradicted by his petition to plead guilty and thus was properly dismissed by the trial court. Issue 5: Breached plea agreement Minchew argues that his plea agreement was breached. Minchew has failed to show that there was any agreement under which he would not be sentenced as an habitual. Issue 6: Ambiguous sentence Minchew argues that the sentencing order was ambiguous. Although the trial court could have possibly been more consistent in the wording of the sentencing order, the order was abundantly clear that Minchew would be incarcerated.


Home | Terms of Use | About the JDP | Feedback | Using JDP | MC Law Library | Mississippi Supreme Court