Gavin v. State


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Docket Number: 2010-CP-01601-COA

Court of Appeals: Opinion Link
Opinion Date: 10-18-2011
Opinion Author: Carlton, J.
Holding: Affirmed

Additional Case Information: Topic: Post-conviction relief - Constitutionality of sentence - Section 97-3-21 - Ineffective assistance of counsel - Aggravated assault sentence - Evidentiary hearing - Section 99-39-9
Judge(s) Concurring: Lee, C.J., Irving and Griffis, P.JJ., Myers, Ishee, Roberts, Maxwell and Russell, JJ.
Concur in Part, Concur in Result 1: Barnes, J., concurs in part and in the result
Procedural History: PCR
Nature of the Case: PCR

Trial Court: Date of Trial Judgment: 08-30-2010
Appealed from: Jones County Circuit Court
Judge: Billy Joe Landrum
Disposition: MOTION FOR POST-CONVICTION RELIEF DENIED
Case Number: 2010-38-CV4

  Party Name: Attorney Name:  
Appellant: Ricky Gavin




PRO SE



 

Appellee: State of Mississippi OFFICE OF THE ATTORNEY GENERAL: DEIRDRE MCCRORY  

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Topic: Post-conviction relief - Constitutionality of sentence - Section 97-3-21 - Ineffective assistance of counsel - Aggravated assault sentence - Evidentiary hearing - Section 99-39-9

Summary of the Facts: Ricky Gavin pled guilty to capital murder and was sentenced to life without the benefit of parole. He filed a motion for post-conviction relief which was denied. He appeals.

Summary of Opinion Analysis: Issue 1: Constitutionality of sentence Gavin argues that the trial court violated the Eighth Amendment in imposing his sentence of life without benefit of parole. He argues that the Eighth Amendment does not permit the imposition of the death penalty on a defendant who aids and abets a felony in the course of which a murder is committed by others, where the defendant did not himself kill, attempt to kill, or intend the killing to take place. However, the evidence provided at the plea hearing proved that Gavin went with his co-defendant to the victim’s house with the intention of robbing her. Furthermore, the State also presented Gavin’s confession that he participated in the crime and struck the victim, knocking her down. The plea colloquy shows that Gavin explained under oath that he understood that he faced the possibility of being sentenced to the death penalty if he went to trial. The plea colloquy further indicates that Gavin acknowledged under oath that he understood that if he went to trial and the jury did not impose the death penalty, then he would be sentenced to serve the same term that he agreed to at the plea hearing – that is, life without parole. Additionally, at the plea hearing, after the State had informed the trial court of the underlying factual basis for accepting Gavin’s plea of guilty to capital murder, Gavin agreed that a factual and legal basis existed for the court’s acceptance of his guilty plea. Accordingly, this issue is without merit. Gavin also argues that the trial court erred in sentencing him to life without parole. Gavin contends that life imprisonment without the possibility of parole fails to constitute a sentencing option unless the convict is adjudged a habitual offender. The punishment imposed upon Gavin for the offense to which he pled guilty clearly falls within the sentencing guidelines set forth in section 97-3-21. Issue 2: Ineffective assistance of counsel Gavin argues that his attorneys were prejudiced against him. Gavin argues that his attorneys told him that going to trial was a waste of time and that the district attorney knew who had committed the actual murder so no reason existed to investigate the theory that Gavin had told his attorneys. Additionally, Gavin claims that his attorneys were deficient for failing to attack the statement he had given to the detective. Gavin failed to meet his evidentiary burden of establishing any deficiency in his attorneys’ performances. Moreover, a review of the record shows that Gavin offered only his own affidavit in support of his claims, which fails to meet the requirements of section 99-39-9. Issue 3: Aggravated assault Gavin argues that he is entitled to a new sentencing on the crime of aggravated assault, rather than capital murder. This issue is procedurally barred since Gavin failed to raise it in his PCR motion. In addition, this issue is also without merit since the evidentiary issues asserted by Gavin were waived by his guilty plea. Issue 4: Evidentiary hearing Gavin argues that he was entitled to an evidentiary hearing because his guilty plea was involuntary due to ineffective assistance of counsel. Further, Gavin seeks relief in the vacation of his plea agreement and remand of his case for an evidentiary hearing. Gavin failed to meet the statutory requirements for PCR motions as required by section 99-39-9 by failing to incorporate an affidavit, other than his own, to support his claims. A post-conviction-relief motion supported by the affidavit of the accused alone fails to meet the pleading requirements of section 99-39-9; therefore, it is deficient on its face and properly dismissed without an evidentiary hearing.


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