Wallace v. State


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Docket Number: 2007-CP-00766-COA

Court of Appeals: Opinion Link
Opinion Date: 05-27-2008
Opinion Author: ROBERTS, J.
Holding: Affirmed

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

Trial Court: Date of Trial Judgment: 03-29-2007
Appealed from: Harrison County Circuit Court
Judge: Jerry O. Terry, Sr.
Disposition: PETITION FOR POST-CONVICTION RELIEF DENIED
Case Number: A2401-06-42

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: JOHN PAUL WALLACE




JOHN PAUL WALLACE (PRO SE)



 
  • Appellant #1 Brief
  • Appellant #1 Reply Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE  

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    Topic: Post-conviction relief - Ineffective assistance of counsel

    Summary of the Facts: John Wallace pled guilty to two counts of exploitation of a child. The court sentenced Wallace to two concurrent ten-year sentences with ten years suspended and five years probation. Wallace tested positive for marijuana, but the circuit court did not revoke Wallace’s probation. After Wallace tested positive for marijuana again, the circuit court revoked Wallace’s probation and reinstated Wallace’s two previously-suspended concurrent ten-year sentences. Wallace filed a petition for post-conviction collateral relief which the court denied. He appeals.

    Summary of Opinion Analysis: Wallace argues that the performance of his attorney was deficient, because he failed to call an expert witness who would have testified that the levels of marijuana in Wallace’s system indicated Wallace had not smoked marijuana for some time. Wallace has not demonstrated a sufficient probability that the outcome would have been different had the attorney called an expert witness. A drug assay technician employed by the Mississippi Department of Corrections testified that a heavy smoker who stopped using marijuana would not test positive after twenty-one to thirty days. Even Wallace’s expert stated that the time period between Wallace’s first and second positive test results was on the outside edge of the envelope for a positive test reading. Wallace also argues that his attorney was ineffective because he elicited harmful testimony from the technician during cross-examination. There is a presumption that counsel’s actions were strategic. In addition, the attorney could have been trying to demonstrate that given Wallace’s body weight and fat content, marijuana would have remained in his system longer than it would have remained in another person’s system. Wallace argues that his attorney was ineffective because he did not file a timely motion for reconsideration. The record does not contain a motion for reconsideration or an order finding that such a motion was untimely. Assuming that the attorney had filed a timely motion for reconsideration, there is no reason to assume that there is a sufficient probability that the circuit court would have reversed itself.


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