Miller v. State


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Docket Number: 2009-CP-01907-COA
Linked Case(s): 2009-CP-01907-COA
Court of Appeals: Opinion Link
Opinion Date: 02-15-2011
Opinion Author: Barnes, J.
Holding: Affirmed.
Additional Case Information: Topic: Post-conviction relief - Illegal sentence - Section 99-35-101 - Section 99-19-81 - Section 41-29-147 - Defective indictment - 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; Dismissal
Nature of the Case: CIVIL - POST-CONVICTION RELIEF
Trial Court: Date of Trial Judgment: 06-25-2009
Appealed from: OKTIBBEHA COUNTY CIRCUIT COURT
Judge: LEE J. HOWARD
Disposition: MOTION FOR POST-CONVICTION RELIEF DISMISSED
Case Number: 2009-0141-CV
  Party Name: Attorney Name:   Brief(s) Available:
Appellant: Douglas Miller




 PRO SE



  
  • Appellant #1 Reply Brief
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    Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: STEPHANIE BRELAND WOOD  
    Synopsis provided by:

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    Topic: Post-conviction relief - Illegal sentence - Section 99-35-101 - Section 99-19-81 - Section 41-29-147 - Defective indictment - Ineffective assistance of counsel
    Summary of the Facts: Douglas Miller pled guilty to the sale of marijuana (less than thirty grams) and possession of marijuana. For Count I, the trial court found that Miller was a habitual offender under section 99-19-81 and a prior violator of the Uniform Controlled Substances Act, thereby sentencing him to serve a term of six years. The trial court also ordered Miller to pay a fine of $6,000 and all court costs. For Count II, the trial court sentenced Miller to three years as a habitual offender under section 99-19-81, imposing a fine of $6,000, and all court costs. Neither of Miller’s sentences was to be reduced nor suspended, nor was he eligible for parole, probation, early release, or any good time credit. Miller filed a motion for post-conviction relief which the court denied. Miller appeals.
    Summary of Opinion Analysis: Issue 1: Illegal sentence Generally, Miller argues that an illegal sentence is appealable despite a guilty plea. However, section 99-35-101 was amended and became effective July 1, 2008, one month prior to Miller’s guilty plea. The statute was amended to prohibit any direct appeal upon entry of a guilty plea. Specifically, Miller argues that his sentence is illegal for Count I. The trial court had no discretion due to the effect of section 99-19-81. Accordingly, Miller received the maximum sentence and fine for the offense without eligibility for parole or probation under section 99-19-81, and the sentence was doubled under section 41-29-147. Miller’s sentence and fine for Count I does not violate the statutory maximum and is not illegal. Issue 2: Defective indictment Miller argues his indictment for Count I was defective because in the body of the document the word “cocaine” was crossed out and the word “marijuana” was written above it, and the indictment was never properly amended or presented to the grand jury. The indictment only has an internal inconsistency and does not contain the wrong controlled substance throughout. At the top of the indictment is typed the correct controlled substance of marijuana for both offenses; it is in the body of the indictment that the incorrect substance of cocaine is crossed out and replaced with marijuana. Any amendment not approved by the grand jury must be of form only and must not affect the substance of the charge pending. In order to prove his indictment is defective, Miller must show that the internal correction was made after the grand jury approved the indictment, and the two offenses at the top of the indictment with the correct controlled substance of marijuana were typed in after the grand jury’s approval. Miller, however, offers no such proof. Issue 3: Ineffective assistance of counsel Miller argues that his guilty plea was deceptively induced by his defense counsel; defense counsel should have known and informed Miller that his indictment was defective; and his attorney should have alleged an illegal search and seizure of the drugs. The record does not support any of his allegations of incompetence. The guilty plea petition and transcript of the plea hearing show counsel was competent and gave “reasonable professional assistance” during all stages of the proceedings. Further, Miller did not submit affidavits supporting his allegations, but only offered bare assertions of ineffectiveness, which is insufficient.


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