Shorter v. State


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Docket Number: 2005-CA-01458-COA

Court of Appeals: Opinion Link
Opinion Date: 01-02-2007
Opinion Author: GRIFFIS, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Defective indictment - Ineffective assistance of counsel
Judge(s) Concurring: KING, C.J., LEE AND MYERS, P.JJ., IRVING, CHANDLER, BARNES, ISHEE AND ROBERTS, JJ.
Non Participating Judge(s): CARLTON, J.
Procedural History: PCR
Nature of the Case: CIVIL - POST-CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 06-06-2005
Appealed from: Claiborne County Circuit Court
Judge: Lamar Pickard
Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED
Case Number: 2005-97

  Party Name: Attorney Name:  
Appellant: ALONZO SHORTER




WILLIAM L. BAMBACH



 

Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: SCOTT STUART  

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Topic: Post-conviction relief - Defective indictment - Ineffective assistance of counsel

Summary of the Facts: Alonzo Shorter was tried and convicted of the sale of cocaine. The same day of his sentencing, Shorter pled guilty to another charge of the sale of cocaine. He was sentenced to twelve years for each charge, with the sentences to run concurrently. Shorter did not appeal his jury conviction but filed one petition for post-conviction collateral relief for both convictions. The court denied the petition, and Shorter appeals.

Summary of Opinion Analysis: Shorter’s petition attacks both judgments. Because section 99-39-9(2) limits the Court’s consideration to one judgment, only the issues that relate to the denial of the petition for post-conviction collateral relief as to the jury trial will be considered. Should Shorter seek to attack the merits of the guilty plea, he must file a separate petition for post-conviction collateral relief regarding that judgment. Shorter argues that he was indicted during the grand jury term in May, which was prior to the date of the offense charged. The State supplemented the record and included the back page of the indictment, where the indictment was stamped filed. Based upon this supplementation, it is clear that the indictment was filed over four months after the occurrence of the event. Shorter alleges a total of six different examples of ineffective assistance of counsel. Shorter argues that his counsel was ineffective because he failed to call Shorter’s brother-in-law as a defense witness. The decision of whether to call a witness to the stand falls within the ambit of trial strategy. In addition, it was permissible not to call this witness since he would not have offered an independent alibi. Shorter argues that his attorney advised him to forego an appeal. The State points to Shorter’s guilty plea petition, which was signed by Shorter and his attorney, that clearly indicates that Shorter was informed of his right to an appeal. Shorter argues that his counsel was ineffective because she was trying to prevent herself from being charged with gross incompetency. It appears that defense counsel, as part of her strategy, chose not to bring into question Shorter’s misconduct. She felt that the State was short on evidence and it would be prejudicial to allow the State to use additional evidence of crimes not before the jury. Therefore, it was part of her trial strategy, not fear of incompetency, to prevent any such evidence from being presented. Shorter argues that his defense counsel performed ineffective discovery in that she did not know of evidence regarding the confidential informant. While counsel has a duty to make reasonable investigations, they do not, by any means, have to be completely exhaustive. The record shows that counsel did make at least reasonable investigations. Shorter argues that his counsel was ineffective because she failed to develop an entrapment defense. Counsel used the defense theory that the confidential informant did not in fact buy the cocaine from Shorter. Instead, counsel appeared to suggest that the informant obtained the cocaine from elsewhere and merely claimed Shorter had sold it to him. This was a reasonable strategic decision by trial counsel. Shorter argues that counsel was ineffective since she did not request a jury instruction regarding entrapment. There was no evidentiary basis for requesting such a jury instruction as shown by the record.


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