Swindle v. State


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Docket Number: 2001-CP-01668-COA
Linked Case(s): 2001-CT-01668-SCT ; 2001-CT-01668-SCT ; 2001-CT-01668-SCT ; 2001-CT-01668-SCT ; 2001-CP-01668-COA

Court of Appeals: Opinion Link
Opinion Date: 11-18-2003
Opinion Author: McMillin, C.J.
Holding: Reversed and Remanded

Additional Case Information: Topic: Post-conviction relief - Length of sentence - Direct appeal - Ineffective assistance of counsel - Victim impact statement - Section 99-19-155(b) - Section 99-19-159(1)
Judge(s) Concurring: King and Southwick, P.JJ., Bridges, Thomas, Lee, Irving, Myers and Chandler, JJ.
Non Participating Judge(s): Griffis, J.
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 07-27-2001
Appealed from: Pearl River County Circuit Court
Judge: Keith Starrett
Disposition: THE PETITION FOR POST-CONVICTION RELIEF FILED HEREIN IS DENIED AND DISMISSED.
District Attorney: Manya Creel
Case Number: 2001-0145

Note: Motion for Rehearing denied.

  Party Name: Attorney Name:  
Appellant: Darrell Swindle




PRO SE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL BY: CHARLES W. MARIS  

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Topic: Post-conviction relief - Length of sentence - Direct appeal - Ineffective assistance of counsel - Victim impact statement - Section 99-19-155(b) - Section 99-19-159(1)

Summary of the Facts: The motion for rehearing is denied, and this opinion is substituted for the original opinion. Darrell Swindle pled guilty to two counts of uttering a forgery and was sentenced to two consecutive terms of fifteen years each, with five years suspended. He filed a motion for post-conviction relief which was denied. He appeals.

Summary of Opinion Analysis: Issue 1: Sentence Swindle appeals a number of issues dealing with the length of his sentence. Even when a defendant pleads guilty to a crime, if he is aggrieved as to the sentence imposed by the court for any reason cognizable under the law, the defendant is entitled to have the sentence reviewed by a direct appeal. Because Swindle’s direct complaints regarding the manner in which he was sentenced could and should have been the subject of a direct appeal, the issues are barred from consideration in a post-conviction relief proceeding. Issue 2: Ineffective assistance of counsel Swindle argues that he was denied effective assistance of counsel because of his counsel’s failure to object to the improper victim impact statement or to provide competent evidence to contradict the court’s erroneous understanding of Swindle’s prior criminal record. To prove his claim, he must show his attorney’s conduct was deficient and prejudicial. Section 99-19-155(b) permits a statement from the victim that is intended to provide information about the financial, emotional and physical effects of the crime on the victim and the circumstances surrounding the crime and the manner in which it was perpetrated. The only victim impact statement in this case was by the person on whose account the checks were written. The statement did not inform the court of the financial, emotional and physical effects on her of having two forged checks issued on her bank account, but instead recited as fact a number of allegations concerning threats of death or physical harm against her and her family allegedly made by Swindle ten years before the forgeries occurred. This information far exceeds the limited purposes for which such statements may be offered as a part of the sentencing process. However, defense counsel did nothing to object to the introduction of the statement or offer any evidence to deny its accuracy or otherwise lessen its impact as a reasonably competent attorney would done. At a bare minimum, Swindle was entitled to a full evidentiary hearing on his motion to determine whether some appropriate post-conviction relief from his judgment of sentence was in order because of the inflammatory victim impact statement. This decision does nothing to limit the gathering of pertinent information to be compiled into a presentence report for the trial court’s enlightenment in determining appropriate sanctions against a convicted defendant. Section 99-19-159(1) requires that the statement be submitted at least forty eight hours in advance of the sentencing date to the defendant and to defendant’s counsel. It is unclear from the present record whether Swindle and his attorney were furnished the statement as required by statute. The trial court obtained a pre-sentence report on Swindle before imposing his sentence which had a substantial effect on the court’s sentencing decision. However, the report is not a part of the record. An effective effort at representation by counsel during the sentencing phase would have ensured that such evidence was in the record for appropriate review. Although Swindle does not directly attack the propriety of his fifteen year sentence on the larger check issued to Wal-Mart, his motion effectively raises a justiciable claim that, at the sentencing phase of his proceeding in the circuit court, he received ineffective assistance of counsel that caused him to be sentenced in a more harsh manner than might otherwise have been the case.


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