Russell v. State
| Docket Number: | 2009-CP-01428-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 09-21-2010 Opinion Author: King, C.J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Dismissal of motion - Evidentiary hearing - Ineffective assistance of counsel Judge(s) Concurring: Lee and Myers, P.JJ., Irving, Griffis, Barnes, 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: 08-11-2009 Appealed from: WAYNE COUNTY CIRCUIT COURT Judge: Robert Bailey Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED Case Number: 2007-211-B |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Fredrick Russell |
PRO SE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: 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 - Dismissal of motion - Evidentiary hearing - Ineffective assistance of counsel |
| Summary of the Facts: | Fredrick Russell pled guilty to possession of marijuana over one ounce with intent to sell. He was sentenced to eight years. He filed a motion for post-conviction relief which was denied. He appeals. |
| Summary of Opinion Analysis: | Issue 1: Dismissal of motion In situations where the trial court can make a determination that a factual assertion in a post-conviction-relief proceeding is belied by unimpeachable evidence in the transcript of the case that led to conviction, a hearing is not required, and the trial court may summarily dismiss the motion. In this case, Russell was informed by a court official that at that particular time he did not have a pending motion for post-conviction relief. Further investigation by the trial court revealed that Russell had in fact filed two motions for post-conviction relief and had petitioned the court to only dismiss one, which pertained to cause no. 2007-171-B. In its August 11, 2009, order denying Russell’s motion to vacate the March 13, 2009, order which denied Russell’s motion for post-conviction relief, the trial court stated that Russell had been misinformed. That misinformation had been communicated to Russell in the February 23, 2009, letter. The trial court explained that the misinformation was the result of a docketing error and, thus, provided clarity as to the miscommunication. The trial court also stated the docketing error presented no obstacle to Russell in seeking post-conviction relief and ruled on the merits of the motion. The trial court’s failure to grant an evidentiary hearing was not error. An evidentiary hearing would not have revealed any additional evidence that Russell’s motion did not adequately present within the motion. Issue 2: Ineffective assistance of counsel Russell argues that he received ineffective assistance from his counsel, because counsel coerced him into entering a guilty plea informing him that he would only serve three-and-a-half years of an eight-year sentence due to newly passed legislation, which gave him thirty-days credit for every thirty days served. Russell failed to provide a copy of the transcript of his plea hearing in support of his claim. In making a determination as to whether the trial court was proper in denying a defendant’s motion for post-conviction relief, absent a transcript, the trial court’s findings are entitled to a degree of deference. However, the record does include a written opinion by the trial court which references relevant portions of the plea colloquy, which supports the trial court’s finding of fact. In its written opinion, the trial court indicated that Russell in his sworn testimony during the plea hearing acknowledged that he was aware that any opinion given by his attorney or anyone else as to the amount of time he would actually be incarcerated was merely an opinion and that the ultimate decision as to the amount of time he served was left to the MDOC and the Mississippi Parole Board and that those entities were not bound by the opinions of others. Russell also claims that his counsel was ineffective because counsel was aware of his mental disability and did not request a competency examination. Although Russell made the trial court aware that he suffered from a brain injury, there was no indication that his brain injury affected his ability to understand the consequences of entering a guilty plea. The trial court’s opinion indicated that when the trial judge asked Russell whether he had read and understood the plea petition, Russell answered affirmatively. Russell argues that because he was erroneously advised by counsel and lacked the mental capacity to enter a valid plea, his plea was involuntarily and unintelligently entered. The record clearly indicates that Russell was correctly advised of his sentence by the trial court. Russell also acknowledged that he understood that according to the plea agreement he signed under oath, he would be sentenced to eight years. Although Russell made the court aware that he was disabled because of seizures, he did not offer any evidence of any type of mental impairment or disability that would have affected his capacity to voluntarily enter a guilty plea. The record indicates that the trial court questioned Russell about his mental capability and thoroughly informed Russell of the consequences of his guilty plea during the plea colloquy. |
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