Graham v. State
| Docket Number: | 2007-CP-01576-COA Linked Case(s): 2007-CP-01576-COA ; 2007-CP-01576-COA ; 2007-CP-01576-COA ; 2007-CT-01576-SCT ; 2007-CT-01576-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 03-09-2010 Opinion Author: Barnes, J. Holding: Affirmed |
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| Additional Case Information: |
Topic: Post-conviction relief - Jurisdiction - Right to appeal - Defective indictment - Section 41-29-142 - Section 41-29-139 - Illegal sentence - Section 47-5-1003(1) - Ineffective assistance of counsel - Voluntariness of plea Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Ishee and Maxwell, JJ. Non Participating Judge(s): Carlton, J. Concur in Part, Dissent in Part 1: Roberts, J. with separate written opinion. Concur in Part, Dissent in Part Joined By 1: Griffis, J. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF Appealed from Court of Appeals |
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| Trial Court: |
Date of Trial Judgment: 08-20-2007 Appealed from: Jones County Circuit Court Judge: Billy Joe Landrum Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: 2007-83-CV7 |
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| Note: | Due to a military leave of absence, Hon. Virginia C. Carlton did not participate in this hand down. This decision was vacated by the Supreme Court on April 12, 2012, and its decision can be found at http://courts.ms.gov/Images/Opinions/CO75972.pdf | |
| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | LADENNIS GRAHAM |
PRO SE |
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| Appellee: | STATE OF MISSISSIPPI | OFFICE OF THE ATTORNEY GENERAL: BILLY L. GORE | ||
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 - Jurisdiction - Right to appeal - Defective indictment - Section 41-29-142 - Section 41-29-139 - Illegal sentence - Section 47-5-1003(1) - Ineffective assistance of counsel - Voluntariness of plea |
| Summary of the Facts: | LaDennis Graham pled guilty to possession of 11.59 grams of cocaine with the intent to distribute and was sentenced to sixteen years, with fifteen years conditionally suspended upon the successful completion of twelve months of house arrest, four years of supervised post-release supervision, and the successful completion of the Circuit Court Community Service Program. Graham violated the terms of his house arrest and is currently serving the rest of his sentence. Graham filed a motion for post-conviction relief which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Jurisdiction The circuit court erred in determining that it lacked jurisdiction to review Graham’s motion for post-conviction relief. Graham is not attacking his removal from the ISP. Graham’s argument attacks his guilty plea and the original sentence imposed by the circuit court. Therefore, Graham’s motion for post-conviction relief would be subject to review by the circuit court. Issue 2: Right to appeal Graham argues that neither defense counsel, nor the circuit court judge, informed him of his right to appeal his sentence directly to the Mississippi Supreme Court. While it is true that a defendant may appeal the sentence resulting from a plea of guilty independently of the plea itself, there is no corresponding requirement that the circuit court notify the defendant of that right during the plea process. Thus, Graham’s argument regarding the circuit court’s failure to advise him of the right to appeal his sentence is without merit. Issue 3: Defective indictment Graham argues that his original indictment contained a defect because it only referenced the enhancement statute, section 41-29-142, not section 41-29-139, under which he ultimately pleaded guilty and it did not list the correct judicial district where he was charged. There is no error as to the judicial district listed on the indictment, because there is no discrepancy between the indictment and the sentencing order. The reason for the different statute was a result of Graham’s plea agreement with the State in order to receive the more lenient sentence available under section 41-29-139. Consequently, there is no error in the disparity between the indictment and sentencing order. In addition, a guilty plea waives any claim to a defective indictment. Issue 4: Illegal sentence Graham argues that his original sentence was unconstitutionally vague and amounts to an indeterminate term not sanctioned by Mississippi law. The plain meaning of the sentencing order is apparent – that the suspended sentence of fifteen years was conditioned upon Graham’s successful completion of the terms of his house arrest, post-release supervision, and community-service program. Graham also argues that, as he was sentenced under section 41-29-139, he was not subject to the house-arrest program. Although Graham’s sentence was a violation of section 47-5-1003(1), this does not constitute reversible error. Graham did not suffer any prejudice by the imposition of house arrest. Where a defendant is given an illegal sentence that is more favorable than what the legal sentence would have been then he/she is not later entitled to relief through a post-conviction action. Issue 5: Ineffective assistance of counsel Graham argues that his trial counsel failed to render effective assistance of counsel, because his counsel did not make him aware of the elements of the crime for which he pleaded guilty, failed to advise him of his right to appeal, and neglected to investigate facts regarding the arrest prior to advising him to enter a plea of guilty. Although Graham contends that his counsel should have mentioned to him or the circuit court that the elements of possession of cocaine had not been met by the admissions made by Graham, Graham knowingly and intelligently admitted to the charge against him, which included the possession of cocaine. As to his right to appeal his sentence, Graham’s affidavit does not even state that defense counsel failed to advise him of this right. Nor did he show how this alleged error affected his guilty plea. Even if Graham’s counsel failed to advise him of his right to appeal his sentence, Graham has not alleged that he would have appealed his illegally lenient sentence. Thus, Graham has not properly supported his claim of ineffective assistance of counsel. Issue 6: Voluntariness of plea Graham argues that his guilty plea was entered unknowingly and involuntarily. A plea of guilty is binding only if it is entered voluntarily and intelligently, which requires that the defendant be informed of the charges against him and the consequences of his plea. It is apparent that the circuit judge carefully questioned Graham about his ability to understand the charges against him, the repercussions of his guilty plea, and his willingness to enter into the plea arrangement. |
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