DATE OF JUDGMENT: 01/29/96 TRIAL JUDGE: HON. HENRY LAFAYETTE LACKEY COURT FROM WHICH APPEALED: CHICKASAW COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: PRO SE ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: WAYNE SNUGGS BY: DEWITT T. ALLRED, III DISTRICT ATTORNEY: JIM HOOD NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION REVERSED - 1/29/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:
The opinion of the court was delivered by: Banks, Justice, For The Court:
1. This appeal challenges the validity of two guilty pleas to sale of cocaine and escape from jail, as well as the sentence imposed for the escape charge. After careful review of the circuit court proceedings, we find that Ronnie Ward received an illegal sentence on the escape charge, received ineffective assistance of counsel, and entered guilty pleas without being made aware of the range of punishment for the crimes charged. Accordingly, we vacate the convictions.
2. On September 23, 1993, an informant approached Ward to purchase cocaine from him. Ward told the informant that he did not have any cocaine, but that he could obtain the cocaine elsewhere. The agent gave Ward money, that Ward took and used to buy cocaine from a friend loitering nearby. Ward then took the cocaine to the agent who gave Ward five dollars for his assistance.
3. On April 13, 1994, Ward was indicted for sale of cocaine. Upon being arrested, he was held without bond in Chickasaw County, Mississippi. On July 01, 1994 while awaiting trial, Ward was given a deal by the local sheriff's department whereby Ward would be released from jail to participate in an undercover drug deal. On the designated date, Ward did not appear as agreed, nor did he return to jail. In fact, he left the state for four days, but was then apprehended and returned to custody. Consequently, Ward was charged with escape from jail via an information, upon his waiver of indictment.
4. On July 27, 1994, Ward pled guilty to sale of cocaine and escape from jail. He was sentenced to fifteen years on the sale charge and five years on the escape charge, to be served concurrently. On December 1, 1995, Ward petitioned for post-conviction relief from both convictions and sentences. In his petition, Ward presented several grounds for relief including: (1) that he was not guilty of sale of cocaine; (2) that he only pled guilty because his attorney insisted he do so; (3) that his plea was involuntary because he was led to believe he would receive five years on both counts, to run concurrently; (4) that he escaped because he had learned he was being set up to be killed and therefore fled for his safety; and (5) that his attorney was unconstitutionally ineffective in his failure to advise Ward of his rights, his failure to protect Ward's interests by encouraging him to plead guilty to the escape charge even before an indictment existed, and by advising him to plead guilty when there was no factual basis for the guilty pleas.
5. On January 29, 1996, the circuit court held a hearing on the petition. Ward's attorney, the jailer, the sheriff who arranged the second undercover deal, and the sheriff who re-arrested Ward after his escape presented testimony. There was no apparent connection between the testimony presented at the hearing and the issues Ward urged in his petition. The circuit court denied the petition for relief, finding the guilty pleas voluntarily and intelligently given. The court did not address any of the other issues raised by Ward.
6. On appeal, Ward argues the lower court erroneously ruled that he entered his pleas of guilt voluntarily, knowingly, and intelligently. He further argues he received ineffective assistance of counsel. Specifically, Ward alleges the trial court failed to advise him of the minimum sentence he could receive for the escape conviction (six months). While Ward concedes that during the plea hearing he told the trial court that he had in fact been advised of the minimum and maximum sentences for both offenses, he presently argues that the transcript fails to show what the range of punishment was for the offenses. In addition, Ward argues that his plea was involuntary as he was led to believe that he would be sentenced to five years for both offenses, to be served concurrently.
7. In opposing the claims raised by Ward, the State argues the transcript and petition to enter the guilty plea both indicate that Ward was aware of his constitutional rights, as well as the range of punishment for the offense. Moreover, the State proclaims "his PCR action is as frivolous as they come." Contrary to the State's proclamation of frivolity, we find Ward's claims meritorious and warranting reversal.
8. Ward received a sentence of five (5) years on the escape conviction. As Ward puts it, this sentence is simply "erroneous" for the following reason. Under Miss. Code Ann. § 97-9-49(2) (1994), if an individual who is in custody is released by an authorized person but subsequently fails to return at the designated time, then that person is considered an escapee and may be punished by the addition of a period not exceeding six (6) months to his original sentence.
9. As the statute makes clear, the maximum sentence possible is six months. In this case, Ward was sentenced to five years on the escape charge, which is ten times longer than the maximum allowed under the statute. Subsection (1) of § 97-9-49 does, in fact, allow up to five years for forcible or violent escape; however the record evidence clearly indicates that Ward was pleading guilty to escape from an ...