GRAHAM v. STATE


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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

Court of Appeals: Opinion Link
Opinion Date: 01-25-2011
Opinion Author: Judge Roberts
Holding: Affirmed in part, reversed and remanded in part.

Additional Case Information: Topic: Post-conviction relief - Jurisdiction - Right to appeal - Defective indictment - Section 41-29-142 - Section 41-29-139 - Illegal sentence - Section 47-7-47(2)(a) - Revocation of suspended sentence - Ineffective assistance of counsel - Voluntariness of plea


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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 47-7-47(2)(a) - Revocation of suspended sentence - Ineffective assistance of counsel - Voluntariness of plea

Summary of the Facts: The Court granted rehearing on its own motion. This opinion is substituted for the original opinion. Ladennis Graham pled guilty to simple possession of 11.59 grams of cocaine. He was sentenced to sixteen years, with fifteen years to be 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. The MDOC’s classification committee found that Graham had violated the terms of house arrest and reclassified Graham and placed him on inmate status. The MDOC required that Graham serve the balance of his entire sixteen-year 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 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 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. 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 pled guilty. He also claims that the indictment did not list the correct judicial district where he was charged. The indictment stated that Graham was indicted in the Second Judicial District of Jones County, Mississippi. The sentencing order also stated that he was in the Second Judicial District of Jones County, Mississippi. Therefore, there is no discrepancy between the indictment and the sentencing order. The statute under which Graham was indicted, section 41-29-142, was a penalty enhancement to the statute under which Graham was ultimately sentenced, section 41-29-139. 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. Regardless, Graham waived any claim of defect with his entry of a guilty plea. Issue 4: Illegal sentence Graham argues that the circuit court’s sentence was illegally vague and indeterminate. There are two reasonable but mutually exclusive ways to interpret the circuit court’s sentence: at the time the circuit court sentenced Graham on March 28, 2006, it sentenced him to sixteen years with the possibility of later having fifteen years suspended if the MDOC found that Graham had completed house arrest; or at the time the circuit court sentenced Graham on March 28, 2006, it suspended fifteen years of Graham’s sixteen-year sentence and made one of the conditions of Graham’s suspension that Graham successfully complete house arrest. Graham claims the first interpretation is correct; and therefore, his sentence is illegal. The confusion hinges on the circuit court’s use of the language, “to be suspended conditioned upon the successful completion of . . . house arrest.” Because the circuit court used the phrase “to be suspended,” the most logical interpretation of the circuit court’s sentence is that it did not suspend Graham’s sentence at the time it executed its sentencing order. However, the circuit court’s sentence, so interpreted, cannot operate within the parameters of the law. The circuit court did not retain sentencing authority over Graham for one year pursuant to section 47-7-47(2)(a). Thus, the court’s authority to modify Graham’s sentence terminated at the expiration of the term of court and the court lacked the authority to defer the question of suspension of part of Graham’s sentence to a later date past the term of court. In addition, such an interpretation would allow the circuit court to impermissibly attempt to delegate its authority to suspend part of Graham’s sentence. Only circuit courts are authorized to sentence individuals who have been convicted of a felony. The circuit court may not delegate its sentencing authority, including the authority to suspend a sentence, to the MDOC. Also, Graham was denied his constitutional rights incident to revocation of a suspended sentence. He has constitutionally protected due-process rights to a hearing before the circuit court prior to the revocation of his suspended sentence. The other reasonable interpretation of the circuit court’s sentencing order is that on March 28, 2006, when the circuit court sentenced Graham, the circuit court suspended fifteen years of Graham’s sixteen-year sentence and made a condition of the suspended sentence that Graham successfully complete house arrest. Graham’s initial charge was reduced from possession of cocaine with intent to simple possession of 11.59 grams of cocaine. Apparently, the charge was reduced to make Graham legally eligible to receive house arrest. A conviction for possession of cocaine with intent pursuant to section 41-29-139(a)(1) would have made Graham ineligible to receive house arrest. Graham pled guilty pursuant to a plea bargain. In Jenkins v. State, 910 So. 2d 23, 24 (¶1) (Miss. Ct. App. 2005) an offender was sentenced to five years in the custody of the MDOC with one year on house arrest with the possibility that the remaining four years would be suspended. It is unclear in the Jenkins opinion whether the circuit court retained sentencing jurisdiction pursuant to section 47-7-47 because the appellate court concluded that “[b]ecause Jenkins did not successfully complete the one year of [house arrest], four years of his sentence were never suspended and he was never placed on probation. Rather, for violating the [house-arrest rules], Jenkins had to serve his entire five[-]year sentence.” To the extent that the Jenkins opinion conflicts with this opinion, Jenkins is overruled. This matter is remanded to the circuit court so the circuit court or the State, if it so chooses, may initiate proceedings for the revocation of Graham’s fifteen-year suspended sentence. Issue 5: Ineffective assistance of counsel Graham argues that his trial counsel failed to render effective assistance of counsel, because he did not make Graham aware of the elements of the crime for which he pled guilty and failed to advise Graham of his right to appeal. Graham was fully advised by the court as to the consequences of his guilty plea. 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. Issue 6: Voluntariness of plea Graham alleges 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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