EVANS v. STATE


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Docket Number: 2009-CP-00524-COA
Linked Case(s): 2009-CP-00524-COA ; 2009-CT-00524-SCT

Court of Appeals: Opinion Link
Opinion Date: 01-25-2011
Opinion Author: Judge Roberts
Holding: Affirmed.

Additional Case Information: Topic: Post-conviction relief - Prosecutorial misconduct - Ineffective assistance of counsel - Withholding of records - Failure to read transcript - Section 99-39-11(2)


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Topic: Post-conviction relief - Prosecutorial misconduct - Ineffective assistance of counsel - Withholding of records - Failure to read transcript - Section 99-39-11(2)

Summary of the Facts: Larry Evans pled guilty to manslaughter and armed robbery. He later filed a motion for post-conviction relief which the court dismissed. He appeals.

Summary of Opinion Analysis: Issue 1: Prosecutorial misconduct Evans argues that the circuit court erred when it summarily dismissed his motion for post-conviction relief because, ten days before his scheduled trial date, the prosecution informed him that his two accomplices would be testifying against him. Evans’s guilty pleas waived any non-jurisdictional rights or defects. This includes any complaints regarding the timing of the prosecution’s disclosure that Evans’s two accomplices would be testifying against him. Also, the record contains no evidence that the prosecution had notice that Evans’s two accomplices would be testifying for the prosecution any earlier than when it disclosed that fact to Evans. Issue 2: Ineffective assistance of counsel Evans argues that he received ineffective assistance of counsel. A claim of ineffective assistance of counsel is meritless when that claim is based solely on the affidavit of the claimant. Evans did not support his claim with an affidavit other than his own. Additionally, during the guilty-plea hearing, the circuit court asked Evans whether he was “completely satisfied” with the performance of his court-appointed attorney and Evans indicated he was. The record does not support Evans’ claims of ineffective assistance of counsel. Issue 3: Withholding of records Evans argues that the circuit court impermissibly denied his request for copies of his transcript and other records. To obtain a free copy of a guilty-plea transcript, a movant has the burden of proving that he has been prejudiced on appeal by not having prior access to such transcript. When Evans requested a copy of his transcript and his other records, he did not list any reasons for his request. Because Evans did not demonstrate a specific need for his request or that the transcript was necessary to decide a specific issue, the State was not required to furnish a free copy of the transcript from the guilty-plea hearing. Issue 4: Failure to read transcript Evans argues that the circuit court erred when it dismissed his motion for post-conviction relief because the circuit court did so without reviewing the transcript of his guilty plea. Although the circuit court’s order stated that Evans’s motion for post-conviction relief was “denied,” the same order also indicated that the circuit court resolved Evans’s motion under section 99-39-11(2), which states that “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior proceedings in the case that the movant is not entitled to any relief, the judge may make an order for its dismissal and cause the prisoner to be notified.” Accordingly, the circuit court was not required to review the transcript of Evans’s guilty plea before it resolved Evans’s motion under section 99-39-11(2).


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