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SYLVESTER SANDERS v. STATE OF MISSISSIPPI

SEPTEMBER 21, 1983

SYLVESTER SANDERS
v.
STATE OF MISSISSIPPI



EN BANC

ROBERTSON, JUSTICE, FOR THE COURT:

I.

Sylvester Sanders brings this appeal from the Circuit Court's refusal to allow him to withdraw guilty pleas entered to two separate charges of aggravated assault. Miss. Code Ann. 97-3-7 (2) (1982 Supp.). Upon those pleas the Circuit Court had sentenced Sanders to two, consecutive 17 year terms. In an affidavit filed in support of his application, Sanders charges that he entered the pleas in reliance upon his lawyer's assurances that he would receive two, consecutive five year sentences. His lawyer advised that he lie at the plea hearing, telling the trial judge that his plea was not induced by promise of preferred sentencing treatment - or so Sanders says. All of this, he argues, rendered his pleas involuntary and unknowing and thus constitutionally infirm.

 The Circuit Court denied Sanders' application for an evidentiary hearing and dismissed his petition. Because the papers make out a prime facie case for relief, thus entitling Sanders to the opportunity to establish his claims, if he can, at an evidentiary hearing held in open court, we reverse.

 II.

 A.

 In an indictment returned by the Coahoma County Grand Jury, Sylvester Sanders was charged with aggravated assault committed on January 8, 1981, when he fired a .38 caliber pistol at Charles Wells. In a companion indictment, Sanders was charged with a similar aggravated assault on one Betty Hudd, also committed on January 8, 1981. From the record before us it is apparent that Sanders shot and seriously wounded Wells and Hudd.

 Upon arraignment on each of the two charges of aggravated assault, Sanders entered a plea of not guilty. Two competent and reputable attorneys from Clarksdale, Mississippi, were appointed to represent him.

 On August 11, 1981, Sanders appeared before the Circuit Court of Coahoma County with his two attorneys. At that time he announced in open court that he wished to withdraw his not guilty pleas and enter a plea of guilty to each charge. One of Sanders' attorneys likewise announced to the Court that Sanders wished to withdraw the previously entered pleas of not guilty and in lieu thereof enter a plea of guilty to each charge.

 At this time, the Circuit Judge carefully and meticulously interrogated Sanders to ascertain whether the pleas of guilty being tendered were "knowingly, understandingly, freely and voluntarily [being] made" . Under oath and in the presence of his attorneys, Sanders acknowledged that he had committed each of the aggravated assaults with which he had been charged. In the course of his interrogation, the following colloquy took place between the Circuit Judge and Sanders:

 BY THE COURT: Mr. Sanders, you've heard Mr. Beckham, the Assistant District Attorney, advise the Court his office does not make any recommendation as to a specific sentence you will receive. Has anybody led you to expect the State would recommend a particular sentence if you entered a plea of guilty?

 BY THE DEFENDANT: No, sir.

 BY THE COURT: Has anyone led you to expect the State would recommend to the Court any specific number of years if you entered a plea of guilty?

 BY THE DEFENDANT: No, sir.

 BY THE COURT: Do you understand that the maximum sentence that can be imposed on your plea of guilty in each one of these cases is twenty years in each case? That is, the Court could impose a maximum of twenty years on you in each case without suspending any portion of this sentence and the Court could require the sentences to run consecutive; that is, one following the other or a total of forty years. Do you understand that?

 BY THE DEFENDANT: Yes, sir.

 BY THE COURT: Do you understand that even though a recommendation may later be made, the Court is not bound by any recommendation made but the Court itself will decide what sentence you will receive? Do you understand that? BY THE DEFENDANT: Yes, sir.

 BY THE COURT: Knowing these things, are you sure you still want to enter a plea of guilty in each of these cases?

 BY THE DEFENDANT: Yes, sir.

 * * * * *

 BY THE COURT: Has anyone promised you anything in order to get you to plead guilty?

 BY THE DEFENDANT: No, sir.

 BY THE COURT: Have your attorneys or any other officers of this Court made any threats or promises to you in any case on the docket of this Court?

 BY THE DEFENDANT: No, sir.

 BY THE COURT: Has anyone told you that the Court; that is, I would be any lighter on you simply because you entered a plea of guilty?

 BY THE DEFENDANT: No, sir.

 * * * * *

 BY THE COURT: Mr. Sanders, are you satisfied with the services of your attorneys?

 BY THE DEFENDANT: Yes.

 BY THE COURT: Have either of them threatened you in any manner or promised you anything in order to get you to plead guilty?

 BY THE DEFENDANT: No, sir.

 BY THE COURT: Do you believe they have given you good advice on entering these pleas of guilty at this time?

 BY THE DEFENDANT: Yes, sir.

 BY THE COURT: Do you believe they have properly represented you in these cases and in all stages and phases of this case?

 BY THE DEFENDANT: Yes, sir.

 BY THE COURT: I have attempted to question you thoroughly about your plea of guilty in both of these cases to be satisfied that you're fully acquainted with your rights. Do you still wish to plead guilty?

 BY THE DEFENDANT: Yes, sir.

 BY THE COURT: The Court finds in Case Number 6351 that the plea of guilty of the Defendant, Sylvester Sanders, is intelligently, understandingly, freely and voluntarily made. The plea of guilty is accepted.

 On August 12, 1981, the Circuit Court sentenced Sanders to a term of 17 years for the aggravated assault committed on Charles Wells. Immediately thereafter, the Court sentenced Sanders to a separate term of 17 years for the aggravated assault committed on Betty Hudd, the second 17 year sentence to run consecutively with the first. The net effect of the sentences imposed was that Sanders stood committed to the custody of the Mississippi Department of Corrections for an aggregate term of 34 years.

 B.

 On May 17, 1982, Sanders brought the present proceedings in the Circuit Court of Coahoma County. He charged that each plea had been induced by fear, coercion, inadvertence, promise and persuasion of his attorney and that he lacked a full understanding of the consequences of his guilty pleas. *fn1 In his affidavit supporting his

 application Sanders specifically charged

 Petitioner states that his attorney persuaded him to enter a plea of guilty, to two (2) counts of aggravated assault by promising him that he would receive two (2) five (5) year sentences; rather than face the threat of two (2) forty (40) year sentences, if he did not plead guilty.

 On June 22, 1982, the Circuit Court summarily denied Sanders' application without a hearing, stating:

 "That the Petitioner apparently now claims (under oath) that he committed perjury before this Court on the date his plea of guilty to the subject charges was accepted as reflected in said Transcript of Proceedings. The Court finds such claim to be without merit and unacceptable. The Transcript of Proceedings taken down by the court reporter in open court clearly reflects that the motion and affidavit in support of motion now before the Court are without merit and should be denied" .

 This appeal has followed.

 III.

 A brief summary of the applicable substantive law is appropriate. A plea of guilty constitutes a waiver of some of the most basic rights of free Americans, those secured by the Fifth, Sixth and Fourteenth Amendments to the Constitution of the United States, as well as those comparable rights secured by Sections 14 and 26, Article 3, of the Mississippi Constitution of 1890. See Boykin v. Alabama, 395 U.S. 238, 243, 89 S. Ct. 1709, 1712, 23 L.Ed.2d 274, 279 (1969); Phillips v. State, 421 So. 2d 476, 479 (Miss. 1982).

 Where a plea of guilty has been intelligently and voluntarily entered, it is sufficient to undergird an unassailable final judgment of conviction. North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L.Ed.2d 162 (1970). On the other hand, where the plea is involuntary any judgment of conviction entered thereon is subject to collateral attack. Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L.Ed.2d 274 (1969).

 The question whether a plea of guilty was a voluntary and knowing one necessarily involves issues of fact. *fn2 Advice received by the defendant from his attorney and relied upon by him in tendering his plea is a major area of factual inquiry. Chavez v. Wilson, 417 F.2d 584, 586 (9th Cir. 1969). For example, counsel's representation to the defendant that he will receive a specified minimal sentence may render a guilty plea involuntary. Mosher v. Lavallee, 491 F.2d 1346 (2d Cir.) cert. denied, 416 U.S. 906 (1974). Where defense counsel lies to the defendant regarding the sentence he will receive, the plea may be subject to collateral attack. Where defense counsel advises the defendant to lie and tell the court that the guilty plea has not been induced by promises of leniency (when in fact it has), the plea may be attacked. *fn3 The law is clear that where the defendant receives any such advice of counsel, and relies on it, the plea has not been knowingly and intelligently made and is thus subject to attack. Burgin v. State, 522 S.W.2d 159 (Mo. App. 1975).

 This Court has gone further and has recognized that mistaken advice of counsel may in some cases vitiate a guilty plea. In Baker v. State, 358 So. 2d 401 (Miss. 1978), this Court stated:

 If, as alleged, appellants pleaded guilty under the mistaken advice that they could be subject to capital punishment if convicted at trial, this then, is a factor which may make appropriate a collateral attack. . . Such allegation, if true, indicates that defendants were not fully aware of the implications of their plea nor of the true consequences of a trial by jury. Such a circumstance, if properly pleaded and supported by sufficient facts, makes out a case where relief . . . may be appropriate. 358 So. 2d at 403. [Emphasis added].

 Under the rule embodied in a combined reading of these cases, Sanders is entitled to relief if he can prove his claims.

 IV.

 A.

 The question before this Court, however, is not whether Sanders is entitled to relief on the merits.

 What - and all - we are asked to decide is whether Sanders is entitled to an evidentiary hearing where he will be entitled to the opportunity to prove his factual allegation that his guilty pleas were not voluntarily and knowingly entered.

 Our inquiry is controlled by the provisions of Rule 8.07 of the Uniform Rules of Circuit Court Practice. That rule, in pertinent part, provides as follows:

 (1) The petition for the writ of habeas corpus shall be in writing, sworn to and signed by the person for whose relief it is intended, or by someone in his behalf, and shall contain the following matters:

 (a) A description of where and by whom the petitioner is deprived of his liberty, and

 (b) the facts and circumstances of the restraint, and

 (c) the form of the relief sought, and

 (d) the grounds upon which relief is sought.

 The motion and affidavit filed in the Circuit Court by Sylvester Sanders meet these tests.

 Rule 8.07 adopts a manifestly-without-merit standard for testing petitioner's papers. The rule requires that the circuit judge immediately examine same and that

 (3) if from the showing made by the petition it is manifest that the person whom, or on whose behalf, it is presented is not entitled to any relief, the court can refuse to grant the writ and enter an appropriate order.

 On the other hand, unless the application is so lacking in merit as to justify summary dismissal under the standards just noted, the petitioner is entitled to an evidentiary hearing. More specifically, Rule 8.07 goes on to provide for an answer by the respondent, discovery, the hearing itself, and appeal. Sanders' papers urge that he was told by his

 lawyer that, if he would enter a plea of guilty on each charge, he would receive two separate five year sentences, or an aggregate of a ten year sentence. Sanders by clear implication charges that he relied on this advice by his lawyer in entering his plea. Beyond that Sanders' papers unmistakeably charge that his lawyer suggested that he lie to the trial judge by stating that no one had promised him any lighter sentence or preferred treatment as an inducement to secure his guilty plea.

 Under these circumstances, Sanders was entitled to a hearing. From a review of the papers filed by Sanders and the transcript of the original plea proceedings, it is not manifest that Sanders' petition is without merit. If he can prove the allegations he has made, he will be entitled to relief.

 Even our pre-Rule 8.07 case of Dunn v. Reed, 309 So. 2d 516 (Miss. 1975) holds that such allegations will entitle a petitioner to an evidentiary hearing. See also, Fondren v. State, 187 So. 2d 327 (Miss. 1966), on appeal from den. of writ of error coram nobis, 199 So. 2d 625 (1967); Thornhill v. State, 246 Miss. 312, 149 So. 2d 27 (1963); Rogers v. State, 241 Miss. 593, 130 So. 2d 856 (1961).

 B.

 Undergirding Rule 8.07 and its manifestly-without-merit standard is Blackledge v. Allison, 431 U.S. 63, 97 S. Ct. 1621, 52 L.Ed.2d 136 (1977). Blackledge is concerned with the criteria for determining whether a state prisoner (situated as is Sanders) is entitled to an evidentiary hearing in federal court where he challenges the voluntariness of his plea. Blackledge holds that the prisoner's petition should be dismissed summarily only where it is "palpably incredible" or "patently frivolous or ...


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