Wilkins v. State
| Docket Number: | 2009-CP-01711-COA Linked Case(s): 2009-CP-01711-COA |
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| Court of Appeals: |
Opinion Link Opinion Date: 09-14-2010 Opinion Author: King, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Ineffective assistance of counsel - Illegal sentence - Voluntariness of plea - Defective indictment - Habitual offender status Judge(s) Concurring: Lee and Myers, P.JJ., Griffis, Barnes, Ishee, Roberts, Carlton and Maxwell, JJ. Concurs in Result Only: Irving, J., concurs in result only without separate written opinion. Procedural History: PCR Nature of the Case: CIVIL - POST-CONVICTION RELIEF |
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| Trial Court: |
Date of Trial Judgment: 07-20-2009 Appealed from: Lafayette County Circuit Court Judge: Andrew K. Howorth Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: L09-186 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Terry Wilkins |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LADONNA C. HOLLAND | ||
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 - Voluntariness of plea - Defective indictment - Habitual offender status |
| Summary of the Facts: | Terry Wilkins pled guilty to burglary of a dwelling and was sentenced to seventeen and a half years. He filed a motion for post-conviction relief which the court denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Ineffective assistance of counsel Wilkins argues that he received ineffective assistance from his trial counsel, because his counsel failed to investigate the facts of the offense charged; his counsel failed to interview witnesses; his counsel failed to call witnesses to rebut the State’s witnesses; his counsel failed to adequately prepare a defense; and his counsel failed to object to the disparity in the sentencing between him and his co-defendant. Wilkins failed to provide any credible proof of his trial counsel’s alleged deficient performance. To support his claim, Wilkins has only provided his self-serving affidavit. In cases involving post-conviction collateral relief, where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit. Additionally, during the plea colloquy, it must be noted that Wilkins swore that he was satisfied with his attorney’s service, and there was no promise of a lighter sentence or any other inducement for his guilty plea. Issue 2: Illegal sentence Wilkins argues that his sentence is unconstitutional because of the disparity between his sentence and his co-defendant’s sentence. This issue is procedurally barred because Wilkins did not present it to the trial court. In addition, it is without merit. Sentencing is within the trial court’s discretion and is not subject to appellate review if the sentence is within statutory limits. Wilkins’s sentence of seventeen and a half years falls within the statutory sentencing guidelines. Issue 3: Voluntariness of plea Wilkins argues that his guilty plea was not voluntarily, knowingly, and intelligently entered, because the trial court did not advise him of the minimum, maximum, or mandatory sentence that he might suffer if he pled guilty to the offense of burglary of a dwelling. The record shows that the trial court did not inform Wilkins of the minimum or maximum sentence to which a guilty plea might subject him. However, Wilkins acknowledged during the plea colloquy that trial counsel had discussed and explained the plea petition. The plea petition set forth the minimum and maximum sentence for the offense of burglary of a dwelling. In addition, during the plea colloquy, the trial judge informed Wilkins that he was to be sentenced as a habitual offender, and as such, he would be required to serve day for day any sentence imposed, without the hope of parole, reduction, or early release. Wilkins affirmatively acknowledged that he understood this and stated he still wished to plead guilty. Issue 4: Defective indictment Wilkins argues that the indictment was defective because the date stated as June 30, 1997, which was given as the date of conviction for one of the prior felony convictions used for enhancement, should have been May 23, 2003. The purpose of an indictment is to inform the defendant with some measure of certainty as to the nature of the charges brought against him so that he may have a reasonable opportunity to prepare an effective defense. An indictment’s failure to list any date for a prior conviction is not fatal to the indictment. The date of June 30, 1997, was merely scrivener’s error in drafting the indictment, which did not render the indictment defective. Issue 5: Habitual offender status Wilkins argues that his prior convictions were not proven by competent evidence. Generally, to sentence a defendant as a habitual offender, the State must prove the prior offenses by competent evidence, and the defendant must be given a reasonable opportunity to challenge the prosecution’s proof. However, where the defendant enters a plea of guilty and admits those facts which establish his habitual status, the State has met its burden of proof. |
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