McNickles v. State
| Docket Number: | 2006-CA-00023-COA Linked Case(s): 2006-CA-00023-COA ; 2006-CT-00023-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 05-22-2007 Opinion Author: IRVING, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Voluntariness of plea - Illegal sentence - Evidentiary hearing - Ineffective assistance of counsel Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., CHANDLER, GRIFFIS, BARNES, ISHEE AND CARLTON, JJ. Non Participating Judge(s): ROBERTS, J. Procedural History: PCR; Dismissal Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 01-27-2006 Appealed from: WAYNE COUNTY CIRCUIT COURT Judge: Robert Bailey Disposition: POST-CONVICTION RELIEF DISMISSED. Case Number: CV-2005-82(R) |
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| Party Name: | Attorney Name: | |||
| Appellant: | MARSHALL MCNICKLES, JR., A/K/A MARSHALL ANTONIO MCNICKLES, JR. |
SYLVIA S. OWEN |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE |
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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 - Voluntariness of plea - Illegal sentence - Evidentiary hearing - Ineffective assistance of counsel |
| Summary of the Facts: | Marshall McNickles, Jr. pled guilty to possession of a firearm by a convicted felon. He was sentenced to thirteen years. He filed a motion for post-conviction relief which was dismissed. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Voluntariness of plea McNickles argues that the court erred in accepting his guilty plea, because he entered the plea while proclaiming his innocence. It is clear from the record that, in light of the evidence that the State was prepared to present at trial, McNickles concluded that it was in his best interest to plead guilty instead of going to trial, where, if convicted, he would have faced a life sentence. The State was prepared to prove that McNickles, a convicted felon, was in possession of a firearm. Thus, there was a factual basis to support the plea, and the trial court did not err in accepting McNickles’guilty plea. Issue 2: Illegal sentence McNickles argues that his sentence of thirteen years, pursuant to section 99-19-83, is illegal because defendants convicted under section 99-19-83 must be sentenced to life. It is well established in Mississippi that an individual may not plead guilty to a crime, receive a lesser sentence than what is prescribed by statute, and then use the more lenient sentence as a sword to attack the entire sentence as illegal. McNickles also argues that the trial court erred in finding that he is a habitual offender without presenting this issue to a jury. The determination of whether a defendant is a habitual offender is a non-jury issue. Issue 3: Evidentiary hearing McNickles argues that the court erred in failing to conduct an evidentiary hearing because he provided the court with a sworn affidavit from his brother, the person whom McNickles contends owned the firearm found in his truck. Notwithstanding the information contained in the affidavit, the court committed no error in refusing to grant McNickles an evidentiary hearing because, based on the record of the plea hearing, McNickles is not entitled to any relief. Issue 4: Ineffective assistance of counsel McNickles failed to argue that his counsel was ineffective in his PCR, and this claim was not distinctly assigned as error in his brief. Therefore, this issue is procedurally barred. In addition, the record belies this allegation of error. |
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