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WALTER O'NEAL JACKSON v. STATE OF MISSISSIPPI

FEBRUARY 01, 1989

WALTER O'NEAL JACKSON
v.
STATE OF MISSISSIPPI



BEFORE ROY NOBLE LEE, C.J.; ROBERTSON AND ANDERSON, JJ.

ROBERTSON, JUSTICE, FOR THE COURT:

I.

This appeal of a conviction of sale of an illegal controlled substance presents a somewhat novel juxtaposition of two familiar issues in criminal procedural jurisprudence: the charges that the accused was unfairly denied a continuance of his trial, resulting in ineffective assistance of counsel. The factual predicate for the two claims is identical. Because the accused wholly failed to assist counsel in assisting him in preparation for trial and because the accused has wholly failed to demonstrate any legally cognizable prejudice in spite of being given full opportunity to show such, we affirm.

 II.

 Walter O'Neal Jackson, late of Harrison County, Mississippi, was on August 15, 1985, some thirty-one years of age. On that date, Jackson was the star of four photographs taken in front of Tim's Motel, Highway 49 in Gulfport, Mississippi. Rather than a screen test, however, the shots were apparently taken to record an undercover drug sting, with Jackson providing two sets of T's and Blues, and Officers J. Kuhn, Greg Richardson and "Jerry Curl" Langford buying the sets and snapping the photos.

 Jackson was formally charged with sale of pentazocine, a Schedule II controlled substance, Miss. Code Ann. 41-29-115 (A)(d)(6) and -139 (a)(1) (Supp.1988), in an indictment returned by the Harrison County Grand Jury on May 7, 1986. The indictment further charged that Jackson was an habitual offender by reason of two previous felony convictions. On May 30, 1986, Jackson appeared in Circuit Court for arraignment. Upon finding Jackson indigent, the Court appointed counsel to represent him on the pending charge. Jackson entered a plea of not guilty and signed an acknowledgment that he understood that his trial was scheduled for June 16, 1986. On June 11, 1986, Jackson, acting through counsel, moved for a continuance. The motion was denied on the morning of June 16, 1986. That same date the case proceeded to trial, at the conclusion of which the jury returned a verdict that Jackson

 was guilty as charged.

 At the recidivism hearing thereafter, the evidence reflected that on October 21, 1983, Jackson had been convicted in the Circuit Court of Jackson County, Mississippi, of the crime of felonious shoplifting, and that on May 17, 1983, he had been convicted in the Circuit Court of the Second Judicial District of Harrison County, Mississippi, of grand larceny. Jackson was sentenced as an habitual offender to serve a term of thirty (30) years in the custody of the Mississippi Department of Corrections without eligibility for parole or probation. See Miss. Code Ann. 41-29-139 (b)(1) and 99-19-81 (1972 and Supp.1988). In addition, the Court fined Jackson One Million Dollars ($1,000,000.00) and immediately thereafter suspended the fine.

 Jackson timely moved for a new trial, complaining of denial of his request for a continuance and ineffective assistance of counsel at his trial. He was afforded a full evidentiary hearing on September 29, 1986, at which he Appeared with new counsel. In the end, the motion was denied. Jackson now appeals to this Court.

 III.

 On this appeal Jackson argues that the Circuit Court abused its discretion when it denied his motion for a continuance and that he was denied effective assistance of counsel at his trial. The factual basis for the two points is essentially the same.

 A.

 On Friday, May 30, 1986, Jackson appeared in Circuit Court for arraignment. At that time the Court appointed Raiford L. Pittman, Esq., of Gulfport, Mississippi, to defend him. Pittman conferred briefly with his newly acquired client, whereupon Jackson entered a plea of not guilty to the charge. So far, so good. Immediately thereafter, Pittman advised Jackson to come by his office on Monday or Tuesday of the following week to confer further about preparation for trial. At the time Jackson was at liberty on a property bond. There is no question but that at that time both Jackson and Pittman knew that the case was set for trial on June 16, 1986.

 Jackson did not appear at Pittman's office during the following week. In fact, Pittman and Jackson did not see each other or talk again until a few minutes before the trial commenced on Monday morning, June 16. It appears that ...


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