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FEBRUARY 22, 1989




Michael Dale Leatherwood pled guilty on December 8, 1981, to capital murder, and was sentenced by a jury on December 9, 1981, to suffer the death penalty. Following affirmance by this Court on direct appeal, *fn1 Leatherwood

sought relief pursuant to the" Mississippi Uniform Post-Conviction Collateral Relief Act, "Miss. Code Ann., 99-39-1, et. seq. (Supp. 1988). In consequence, this Court remanded Leatherwood's case to the Hinds County Circuit Court, First Judicial District, with directions to consider whether Leatherwood received effective assistance of counsel prior to his plea of guilty, and also during the sentencing phase of his trial. *fn2

 On January 12, 1987, the Hinds County Circuit Court entered an opinion and order holding that, as to the guilt phase, Leatherwood received constitutionally effective assistance of counsel; as to the sentencing phase, a new trial was ordered because of the ineffective assistance of

 The State of Mississippi originally filed a notice of appeal from the above order, but later dismissed its appeal. Leatherwood, therefore, prosecutes the only appeal from the above opinion and order, and has set forth the following issues:

 1. Whether the trial court erred in holding that appellant was not prejudiced in entering his guilty plea upon counsel's unreasonable advice; and

 2. Whether counsel's ineffective assistance at sentencing rendered the record of that proceeding unreliable for purposes of this Court's appellate review of appellant's death sentence on direct appeal.

 Michael Dale Leatherwood pled guilty in December, 1981, to the capital murder of a Jackson, Mississippi, cab driver. The underlying facts of the crime are set forth in" Leatherwood I "and need not be repeated here. Prior to entering this guilty plea, Leatherwood was represented by counsel who had been retained by Leatherwood's father on or about February 23, 1981. From the outset, counsel envisioned a plea bargain between his client and the State whereby the possibility of the death penalty could be avoided. Approximately three weeks before the scheduled trial date, in mid-November 1981, counsel informed Leatherwood's parents that plea negotiations had failed, and that the case against their son would have to go to trial instead. Notwithstanding, counsel continued to negotiate" up until the last minute. "Trial was scheduled for December 7, 1981. It wasn't until November 4, 1981, that Michael Leatherwood was first interviewed in depth, and this interview was conducted by counsel's associate. In fact, the lower court found that no meaningful preparation or investigation commenced until

 early November, 1981, approximately one month prior to trial. The records from the Hinds County Jail established, and the lower court found, that lead counsel spent no more than 37 minutes with his client prior to the trial.

 On December 7, 1981, counsel advised Michael Leatherwood to plead guilty to the charge of capital murder. The next day, Leatherwood entered his plea of guilty, and after a sentencing hearing, was duly sentenced to suffer the penalty of death for his crime. It appears that Michael Dale Leatherwood entered his plea of guilty based solely on the advice and consent of his counsel, aided in his decision by his parents, who also relied exclusively on the advice of counsel.

 On this appeal pursuant to the" Mississippi Uniform Post-Conviction Collateral Relief Act, "our standard of review is as follows:

 Here we are reviewing a finding of ultimate fact [that Leatherwood enjoyed effective assistance of counsel as to guilt phase, and ineffective assistance as to sentencing phase] made by a trial court sitting without a jury. We will not set aside such a finding unless it is clearly erroneous. Put otherwise, we will not vacate such a finding unless, although there is evidence to support it, we are on the entire evidence left with the definite and firm conviction that a mistake has been made.

 Merritt v. State, 517 So. 2d 517, 520 (Miss. 1987).




 On remand from this Court, Leatherwood's allegations of constitutionally ineffective assistance of counsel were judged according to the two part formula originally set forth in Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L.Ed.2d 674 (1984); see Leatherwood v. State, 473 So. 2d 964 (Miss. 1985). This now familiar test places upon the defendant the burden of proving *fn4 that (1) his

 counsel's performance was deficient, and that (2) but for counsel's deficient performance, the result of the proceeding would probably have been different. Leatherwood, 473 So. 2d at 968; see also, Marks v. State, 532 So. 2d 976, 978-80 (Miss. 1988).

 We made clear in" Leatherwood II "that the two part test of Strickland v. Washington would guide the lower court's inquiry. 473 So. 2d at 968-70. This is undoubtedly the law, for the test in Strickland v. Washington" applies to challenges to guilty pleas based on ineffective assistance of counsel. "Hill v. Lockhart, 474 U.S. 52, 58, 106 S. Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985); accord Reynolds v. State, 521 So. 2d 914, 918 (Miss. 1988); Odom v. State, 498 So. 2d 331, 333-34 (Miss. 1986); Coleman v. State, 483 So. 2d 680, 683 (Miss. 1986). The application of the Strickland test in this context is wholly consistent with our justifiable concern over the" constitutional soundness "of guilty pleas, and our long standing test for determining that soundness, which is" whether the plea represents a voluntary and intelligent choice among the alternative courses of action open to the defendant. "See Reynolds v. State, 521 So. 2d at 916; Odom v. State, 498 So. 2d at 333; Coleman v. State, 483 So. 2d at 682; Hill v. Lockhart, 474 U.S. at 56, 106 S. Ct. at 369, 88 L.Ed.2d at 208, quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970).

 All the cases agree further that, in the context of guilty pleas, the" first half of the Strickland v. Washington test is nothing more than a restatement "of familiar standards. Hill, 474 U.S. at 58, 106 S. Ct. at 370, 88 L.Ed.2d at 210 (question is whether" counsel's representation fell below an objective standard of reasonableness. "); see also, Reynolds, 521 So. 2d at 918 (must show" unprofessional errors of substantial gravity. "); Odom v. State, 498 So. 2d at 334 (must show that" counsel committed errors so serious that counsel was not functioning as counsel guaranteed by the Sixth Amendment . . . "). These statements are merely different ways of saying the same thing, and as will be shown the lower court did not err in finding that Leatherwood had satisfied the first prong.

 The trial judge found as a fact under the first prong that Michael Dale Leatherwood was advised to, and did, plead guilty in primary reliance on counsel's advice that a guilty plea would prohibit the State from presenting any evidence concerning the details of the murder during the sentencing hearing. Counsel felt that by pleading guilty

 they would give themselves a better chance of avoiding the death penalty since the prosecution would thus" be prevented from presenting the horrible facts of the murder to the jury at both the guilt and sentencing phases of the bifurcated trial. "This finding by the trial judge is supported by substantial evidence in the record, and therefore, is not manifestly wrong.

 The trial judge then concluded that the defendant met his burden of satisfying the first prong of Strickland because counsel misread Coleman v. State, 378 So. 2d 640 (Miss. 1979), and" counsel failed to . . . obtain a ruling on the law pertaining to the limitation of evidence "following entry of a guilty plea in a capital case; and also because" investigation of other capital murder cases previously tried before [Judge Coleman] would have revealed that [Judge Coleman] had ruled contrary to counsel's opinion and would probably do so in [Leatherwood's] trial. "Thus, counsel's performance in this regard was deficient.

 As to the second prong, the trial judge held that Leatherwood did not meet his burden. The court found that the evidence against Leatherwood was overwhelming, that there was no reasonable doubt of his guilt, and that no prejudice resulted to the defendant by counsel advising him to plead guilty. Leatherwood challenges the holding that he suffered no prejudice, and did not, therefore, receive constitutionally ineffective assistance of counsel during the guilt phase.

 Before reaching Leatherwood's challenge, however, it should be pointed out that the State seeks in its brief to make an issue out of the trial judge's holding that counsel's performance during the guilt phase was deficient. We will address that issue in order to make clear the correctness of the trial judge's disposition.



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