McKinney v. State
| Docket Number: | 2007-CP-01377-COA Linked Case(s): 2007-CP-01377-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 10-14-2008 Opinion Author: CHANDLER, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Ineffective assistance of counsel - Illegal sentence - Right to appeal - Evidentiary hearing Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts, and Carlton, JJ. Concurs in Result Only: Barnes, J. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 07-27-2007 Appealed from: Clay County Circuit Court Judge: James T. Kitchens, Jr. Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: 2007-0121 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JERMAINE MCKINNEY |
JERMAINE MCKINNEY (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: JOHN R. HENRY | ||
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 - Ineffective assistance of counsel - Illegal sentence - Right to appeal - Evidentiary hearing |
| Summary of the Facts: | Jermaine McKinney pled guilty to attempted burglary of a dwelling and was sentenced to eight years in prison with five years of post-release supervision. McKinney filed a motion for post-conviction relief which was dismissed. McKinney appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel McKinney argues that he received ineffective assistance of counsel, because his counsel failed to object to an allegedly defective multi-count indictment. There is nothing in the record to support any of his allegations of ineffective assistance of counsel. Issue 2: Illegal sentence McKinney argues that his sentence was illegal because the circuit court sentenced him to five years of post-release supervision, but the court did not order any portion of his eight-year sentence to be suspended. Pursuant to section 47-7-34(1), as long as the total number of years of McKinney’s incarceration plus the total number of his years on post-release supervision do not exceed the maximum sentence authorized for attempted burglary of a dwelling, his sentence is not illegal. McKinney’s sentence of eight years of incarceration and five years of post-release supervision was within the statutory limits. Issue 3: Right to appeal McKinney argues that the circuit court incorrectly informed him that upon pleading guilty, he could not appeal to the supreme court. It is proper to inform a defendant that by pleading guilty and forgoing a jury trial, he waives his right to appeal his conviction. The circuit court did inform McKinney that his guilty plea waived his right to appeal. There is nothing in the record indicating that the circuit court misinformed McKinney by telling him that he could not appeal an illegal sentence. Issue 4: Evidentiary hearing McKinney argues that the circuit court erred when it dismissed his motion for post-conviction relief without conducting an evidentiary hearing. Because the circuit court correctly determined that McKinney's PCR motion did not make a substantial showing of the denial of a state or a federal right and was plainly without merit, the circuit court appropriately dismissed the PCR motion without an evidentiary hearing. |
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