Cherry v. State


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Docket Number: 2008-CP-01705-COA

Court of Appeals: Opinion Link
Opinion Date: 01-05-2010
Opinion Author: Griffis, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Ineffective assistance of counsel - Factual basis - Voluntariness of plea - Right to appeal - Excessive sentence - Prosecutorial misconduct - Discovery
Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ.
Procedural History: PCR
Nature of the Case: CIVIL - POST- CONVICTION RELIEF

Trial Court: Date of Trial Judgment: 03-19-2008
Appealed from: Bolivar County Circuit Court
Judge: KENNETH L. THOMAS
Disposition: MOTION FOR POST-CONVICTION COLLATERAL RELIEF DENIED
Case Number: 2007-0033KLT

  Party Name: Attorney Name:   Brief(s) Available:
Appellant: WILLIE CHERRY, JR.




WILLIE CHERRY, JR. (PRO SE)



 
  • Appellant #1 Brief

  • Appellee: STATE OF MISSISSIPPI OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND  

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    Topic: Post-conviction relief - Ineffective assistance of counsel - Factual basis - Voluntariness of plea - Right to appeal - Excessive sentence - Prosecutorial misconduct - Discovery

    Summary of the Facts: Willie Cherry, Jr. pled guilty to armed robbery and was sentenced to eight years. He filed a motion for post-conviction relief which was denied. He appeals.

    Summary of Opinion Analysis: Issue 1: Ineffective assistance of counsel Cherry argues that his counsel was ineffective because he failed to know the applicable law, failed to investigate the case, and advised Cherry to plea guilty blindly. Cherry offers only his statements that allege the deficiencies of his counsel. Such allegations are directly contradictory to his statements made under oath. Further, Cherry failed to show his counsel’s inaction prejudiced the result in this case. Issue 2: Factual basis Cherry argues that no factual bases existed for the trial court’s acceptance of his guilty plea. The mere fact that the factual basis does not provide all the details which may be produced at trial does not make the guilty plea invalid. If sufficiently specific, an indictment or information can be used as the sole source of the factual basis for the plea. Here, the indictment was specific as to the crime charged. Cherry’s indictment provided all of the elements of the offense of armed robbery. Issue 3: Voluntariness of plea Cherry argues that his guilty plea was not knowingly and voluntarily entered into because no one explained to him what constitutes a deadly weapon. A plea is voluntary and intelligently made when the defendant is informed of the charges against him and the consequences of his plea. An examination of the plea colloquy shows that the judge informed Cherry of the nature of the charges against him and the consequences of a guilty plea. Cherry’s argument that the plea was not voluntary because no one explained to him what constitutes a deadly weapon fails. Issue 4: Right to appeal Cherry argues that the trial court committed reversible error when it failed to advise him of his right to appeal his sentence through a direct appeal. A trial court is not required to inform the defendant of his right to direct appeal his sentence after he enters a guilty plea. Issue 5: Excessive sentence Cherry argues that he is not guilty of aiding and abetting; instead, he claims he is guilty of being an accessory after the fact. Therefore, his sentence is excessive. Cherry did in fact admit to aiding and abetting an armed robbery with a pistol in his plea colloquy. Since Cherry’s sentence was within the limits of the sentencing guidelines, there is no basis to regard Cherry’s sentence as excessive. Issue 6: Prosecutorial misconduct Cherry argues that the State knowingly used false information and that the State failed to provide the pistol in discovery that was used in the armed robbery. Cherry failed to show that had the B.B. gun been disclosed to the defense and that had the grand jury known that the weapon was a B.B. gun, a reasonable probability exists that the outcome of Cherry’s proceedings would have been different. Thus, he failed to show that the State is guilty of prosecutorial misconduct. Issue 7: Discovery Cherry argues that the circuit court acted arbitrarily and capriciously when it denied his motion for post-conviction discovery. A post conviction relief petitioner is entitled to post-conviction discovery for good cause shown only if his motion withstands summary dismissal. Here, Cherry’s motion did not survive summary dismissal, and he failed to show good cause for the discovery which he sought.


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