Avant v. State
| Docket Number: | 2009-CP-00680-COA Linked Case(s): 2009-CP-00680-COA ; 2009-CT-00680-SCT |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-14-2010 Opinion Author: Barnes, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Habitual offender status - Section 99-19-83 - Voluntariness of plea - Factual basis for plea - Illegal sentence - Appeal of sentence - Ineffective assistance of counsel Judge(s) Concurring: King, C.J., Lee and Myers, P.JJ., Irving, Griffis, Ishee, Roberts, Carlton and Maxwell, JJ. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 04-15-2009 Appealed from: Leake County Circuit Court Judge: Vernon Cotten Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: 08-CV-378-A-LE-C |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Alan M. Avant |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA HOGAN TEDDER | ||
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 - Habitual offender status - Section 99-19-83 - Voluntariness of plea - Factual basis for plea - Illegal sentence - Appeal of sentence - Ineffective assistance of counsel |
| Summary of the Facts: | Alan Avant pled guilty to armed robbery. He was sentenced to fifteen years. Avant filed a motion for post-conviction relief, which the trial court denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Habitual offender status Avant argues that he was denied due process of law because the prosecution indicted him as a habitual offender solely to force and pressure him to plead guilty to armed robbery when the prosecution knew he was not a habitual offender under the requirements of the habitual statute. On the second page of Avant’s indictment, his two Illinois felony convictions are separately set out by cause number, type of crime, and the time to be served on each conviction. As the language of section 99-19-83 indicates, if a defendant has two prior felony charges, occurring at different times for which he was sentenced to one year or more in prison, and one of the convictions is a crime of violence, then the defendant “shall be sentenced” as a habitual offender. Avant had two prior felony convictions with one, the robbery conviction, being a crime of violence. Additionally, Avant’s argument that he was not a habitual offender is discredited by his own testimony at the plea colloquy that he had not two, but three, felony convictions. Issue 2: Voluntariness of plea Avant argues that his counsel coerced him into entering his guilty plea. If a defendant’s guilty plea is coerced or is otherwise involuntary, the judgment of conviction entered thereon is subject to collateral attack; and to be enforceable, the guilty plea must be the product of the defendant’s informed consent. As a result of Avant’s plea bargain, the prosecution agreed to drop the habitual portion of the indictment and allowed Avant to plead guilty to armed robbery with a recommendation of fifteen years in prison. In receiving the fifteen-year sentence versus life in prison without eligibility for parole or probation, Avant has received a favorable outcome. Thus, his argument is without merit. Issue 3: Factual basis for plea Avant argues that there was no factual basis for the trial court’s acceptance of his guilty plea. The purpose of the factual-basis rule is to make the court delve beyond the admission of guilty lying on the surface and determine for itself whether there is substantial evidence that the petitioner did in fact commit those crimes he is charged with and is not entering the plea for some other reason that the law finds objectionable. The trial court read aloud the indictment and asked Avant if he did the unlawful activity described in the indictment, to which Avant replied, “Yes, sir.” The trial court discussed with Avant all the rights that he was giving up by pleading guilty, and then the judge asked Avant if he understood; Avant answered that he did. Avant further admitted in his petition to plead guilty his guilt to the armed robbery. Thus, there was presented in open court a factual basis for Avant’s plea. Issue 4: Illegal sentence Avant argues that the trial court’s order – that his sentence was to run consecutively to his federal sentence term – was illegal. Avant’s failure to cite any authority to support his argument waives the issue on appeal. In addition, a sentence cannot be disturbed on appeal so long as it does not exceed the maximum term allowed by statute. Further, it is not error for a court to impose a sentence to run consecutively with a federal sentence. Issue 5: Appeal of sentence Avant argues that the trial court committed error by telling him, when accepting his guilty plea, that there could be no appeal. However, the transcript of the guilty plea hearing shows no statement by the court that Avant could not appeal his guilty plea. Issue 6: Ineffective assistance of counsel Avant argues that he received ineffective assistance of counsel. Avant’s allegations are directly contradicted in his sworn plea petition and his statements made under oath before the trial court. Avant agreed that his counsel advised him of the elements of the crime and that his counsel met his expectations in all aspects of his representation. Avant also admitted that the factual basis for the charge, as presented by the State, was correct. |
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