Spencer v. State
| Docket Number: | 2007-CP-01667-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 11-04-2008 Opinion Author: ISHEE, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Amendment of indictment - URCCC 7.09 - Voluntariness of plea - Ineffective assistance of counsel - Evidentiary hearing Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Chandler, Griffis, Barnes, Roberts, and Carlton, JJ. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 09-05-2007 Appealed from: LOWNDES COUNTY CIRCUIT COURT Judge: Lee J. Howard Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED Case Number: 2005-0016-CV1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | JAMES EARL SPENCER A/K/A JAMES EARL HARRIS |
JAMES EARL SPENCER (PRO SE) |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL BY: W. GLENN WATTS | ||
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 - Amendment of indictment - URCCC 7.09 - Voluntariness of plea - Ineffective assistance of counsel - Evidentiary hearing |
| Summary of the Facts: | James Spencer pled guilty to burglary as a habitual offender. Prior to sentencing, Spencer’s indictment was amended to reflect his status as that of a habitual offender. Spencer subsequently filed a pro se motion to withdraw his guilty plea, which the circuit court treated as a motion for post-conviction relief and dismissed. He was sentenced to twenty-five years with no eligibility for parole or early release. Spencer appeals. |
| Summary of Opinion Analysis: | Issue 1: Amendment of indictment Spencer argues that his indictment for burglary was improperly amended to reflect his status as a habitual offender after his guilty plea was accepted. However, URCCC 7.09 expressly permits an indictment to be amended to charge a defendant as a habitual offender. Since the prosecution filed two motions to amend Spencer’s indictment to reflect his status as a habitual offender several months before he was sentenced, he was not unfairly surprised. Issue 2: Voluntariness of plea Spencer argues that he was not adequately informed of the consequences of his plea. The record clearly indicates that the trial judge engaged in a colloquy with Spencer on the nature and consequences of his guilty plea, including the maximum and minimum penalties. Spencer also argues that the records and transcripts the State has provided are forged, and that he never participated in a plea hearing; however, he offers no evidence to support this assertion. It is the duty of an appellant to provide authority and support of an assignment of error. Issue 3: Ineffective assistance of counsel Spencer argues that he received ineffective assistance of counsel during his guilty plea hearing because his attorney failed to object to the State’s amendment of his indictment to reflect his status as a habitual offender, and his counsel failed to inform him that he was subject to a maximum and mandatory sentence of twenty-five years as a habitual offender. Spencer’s indictment was properly amended to reflect his status as a habitual offender. Therefore, the performance of his counsel was not deficient by failing to object to that amendment at trial. In addition, the circuit court clearly informed Spencer of the consequences of his guilty plea before accepting it. As a result of that voluntary plea, Spencer’s counsel apparently had another pending felony charge against Spencer dismissed. Therefore, the performance of Spencer’s counsel was not deficient in this respect either. Issue 4: Evidentiary hearing Spencer argues that the court erred in denying an evidentiary hearing on his motion. The circuit court's dismissal is consistent with the evidence and testimony presented in the record. |
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