Karriem v. State
| Docket Number: | 2009-CA-01583-COA | |
| Court of Appeals: |
Opinion Link Opinion Date: 03-15-2011 Opinion Author: Ishee, J. Holding: Affirmed. |
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| Additional Case Information: |
Topic: Post-conviction relief - Voluntariness of plea - Section 99-15-26 - Ineffective assistance of counsel - Cruel and unusual punishment Judge(s) Concurring: Lee, C.J., Irving, P.J., Griffis, P.J., Myers, Barnes, Roberts, Carlton and Maxwell, JJ. Procedural History: PCR Nature of the Case: PCR |
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| Trial Court: |
Date of Trial Judgment: 08-31-2009 Appealed from: Lowndes County Circuit Court Judge: James T. Kitchens, Jr. Disposition: Motion for Post-Conviction Relief Denied Case Number: 2008-0149-CV1 |
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| Party Name: | Attorney Name: | Brief(s) Available: | ||
| Appellant: | Kamal Karriem, Jr. |
T.K. MOFFETT, W. BRENT MCBRIDE |
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| Appellee: | State of Mississippi | OFFICE OF THE ATTORNEY GENERAL: LAURA H. TEDDER | ||
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 - Voluntariness of plea - Section 99-15-26 - Ineffective assistance of counsel - Cruel and unusual punishment |
| Summary of the Facts: | Kamal Karriem Jr. was sentenced to ten years with ten years suspended and five years of probation following his entrance of a guilty plea to the charge of embezzlement by a public official. Several years later, the circuit court revoked his probation and ordered that he serve his original ten-year sentence due to his violation of the terms and conditions of his probation. Karriem contested the sentence in a motion for post-conviction relief which the court denied. Karriem appeals. |
| Summary of Opinion Analysis: | Issue 1: Voluntariness of plea Karriem argues that he only agreed to plead guilty to the offense of embezzlement by a public official because he was informed that he would be sentenced under the non-adjudication statute, section 99-15-26. Application of the statute would have allowed for Karriem’s arrest and felony conviction to be erased from his record. The record shows that Karriem received a letter from his counsel which indicated that the State would not oppose application of the statute and would affirmatively recommend probation. The letter went on to explain that if Karriem successfully completed his probation and the statute were applied, then there would be no record of Karriem’s arrest or felony conviction. Nonetheless, the record also demonstrates that prior to his guilty plea, Karriem was aware that the State’s sentence recommendation to the circuit court was ten years suspended with five years of probation and that it was the court’s ultimate decision whether or not to enforce the State’s recommendation and to apply the statute. When Karriem’s counsel broached the subject of the statute with the court, the State responded that such a recommendation was not an explicit part of their plea agreement. Karriem’s counsel failed to contest the State’s remarks regarding the plea agreement and further stated that she had advised her client that application of the statute was entirely at the discretion of the court. Thus, this issue is without merit. Issue 2: Ineffective assistance of counsel The record shows that Karriem’s counsel wrote him a letter advising him of the proposed plea agreement. Within the letter, she told Karriem that she would ask for the statute to be applied to his case and that the State had agreed not to oppose the recommendation. However, the letter also showed that the State did not agree to recommend application of the statute. The letter indicates that the State only agreed to recommend that Karriem be given ten years suspended with five years of probation. Karriem’s counsel failed to petition the court strongly or contest the State’s remarks regarding application of the statute. However, application of the statute could not be guaranteed by Karriem’s counsel, as that decision rested firmly with the circuit court. Karriem stated that he understood the petition. An attorney’s prediction, prognosis, or statement of probabilities fails to surmount the formidable barrier presented by a defendant’s open court assertions that there are no promises about his sentence. Issue 3: Cruel and unusual punishment When sentences are within the limits of the statute, the imposition of such sentences is within the sound discretion of the trial court, and an appellate court will not reverse them. Karriem argues that the ten-year sentence imposed was disproportionate to the crime committed, especially in light of the minimal amount of the embezzlement – approximately $500. However, the original sentence afforded Karriem suspended jail time with only probation to serve. After testing positive for cocaine during his probation, the circuit court offered him yet another alternative to jail time by ordering him into a one-year drug treatment program as part of his probation. Thereafter, Karriem violated the terms and conditions of his probation once more by testing positive for cocaine again and by failing to complete the drug-treatment program. As noted by the circuit court in its order denying Karriem’s motion for PCR, Karriem was forced to serve actual time in prison on his conviction only after he had violated the terms of his probation on two separate occasions. Thus, the circuit court did not err in its sentencing of Karriem. |
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