THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: 02/07/97 TRIAL JUDGE: HON. SHIRLEY C. BYERS COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION AFFIRMED - 2/12/98 MOTION FOR REHEARING FILED: MANDATE ISSUED:
Before Prather, C.j., Smith And Waller, JJ.
The opinion of the court was delivered by: Smith, Justice, For The Court:
On April 22, 1996, the Washington County Grand Jury returned a two count indictment against Marvin Mays, a thirty (30) year old resident of Greenville, Mississippi, charging him with armed burglary of an occupied dwelling at night (Count One) and aggravated assault (Count Two). Both of the charges arose out of one incident which occurred in Greenville, on January 10, 1996. Specifically, after Mays' girlfriend entered into a relationship with someone else, Mays allegedly kicked in the door of Robbie Thomas' home and stabbed Leon Barnett with a knife so badly that his intestines were hanging out. Mays was arraigned and entered a plea of not guilty on May 31, 1996.
However, on July 26, 1996, Mays filed a Petition to Enter Plea of Guilty to the aggravated assault charge (Count Two). In exchange for his guilty plea to aggravated assault, the state agreed to nolle prosequi the remaining charge. On August 2, 1996, a hearing was held in the Washington County Circuit Court before Circuit Judge Ashley Hines, wherein Mays' guilty plea to aggravated assault was accepted. Upon a finding that Mays' plea was knowingly and voluntarily entered, Judge Hines sentenced him to twenty (20) years in the custody of the Department of Corrections.
On August 5, 1996, Mays filed a Motion for Reconsideration alleging that his sentence was excessive given the facts and circumstances surrounding the offense, and that it was contrary to the usual sentences imposed for first offenders committing the same offense in Washington County, Mississippi. Additionally, Mays points out that his sentence was rendered without the benefit of a pre-sentence investigation report. On August 23, 1996, Judge Hines entered an Order denying Mays' Motion to Reconsider noting that Mays was given the maximum sentence after considering the following factors in arriving at defendant's sentence: (1) defendant's age; (2) the particularly vicious and violent nature of the crime; and (3) the fact that the crime was committed during the commission of another crime. Judge Hines also pointed out that "he only factors presented by the defendant in mitigation were that his family and friends felt he should receive a lighter sentence and that his former girlfriend (who is not the victim in this case) desires to continue their relationship."
On August 27, 1996, Mays filed a Motion to Withdraw Guilty Plea alleging that his guilty plea was not voluntarily made because he was nervous, scared, and unable to speak. On August 28, 1996, Judge Hines entered an Order denying Mays' Motion to Withdraw Guilty Plea.
On December 13, 1996, Mays entered a second Motion to Withdraw Guilty Plea, but this time alleged that there was newly discovered evidence in that a non-interested witness who could corroborate Mays' declaration of self-defense had come forth. On December 16, 1996, an evidentiary hearing was held in the Washington County Circuit Court before Circuit judge Gray Evans. At this hearing, Johnny Roberts testified that on the day of the incident he (Roberts) observed the victim come out of the house clenching his stomach with one hand and holding a gun in the other hand. Roberts stated that he decided to come forward with this information after learning that Mays received a 20 year sentence. On February 19, 1997, Judge Evans entered an Order denying Mays' Motion to Withdraw Guilty Plea based on newly discovered evidence. Judge Evans specifically found that the credibility of the non-interested witness, Johnny Roberts, was in serious doubt. Judge Evans further stated "hen coupled with the incredible absence of any mention of self defense or a gun either (a) during the plea, (b) during sentencing, (c) and especially during the hearing on the Motion to Reconsider, by either Defendant or counsel, this Court has such serious reservations about the absence of any believable scenario regarding self defense or the possession of a gun by the victim that this Court can say with all confidence that the presentation of this theory of self defense is not worthy of any consideration whatsoever; it is not true."
Aggrieved by the trial court's decision, Mays appeals pro se to this Court and raises the following issues:
I. WHETHER THE SENTENCE RENDERED BY THE TRIAL COURT WAS EXCESSIVE.
II. WHETHER THE TRIAL COURT ERRED BY RENDERING MAYS' SENTENCE WITHOUT AN ADEQUATE PRE-SENTENCE HEARING.
III WHETHER THE TRIAL COURT VIOLATED UCCCR 3.03 BY STATING THAT "THERE IS NO MINIMUM SENTENCE FOR THIS CRIME."
IV. WHETHER MAYS RECEIVED INEFFECTIVE ASSISTANCE OFCOUNSEL.
V. WHETHER THE TRIAL COURT ERRED BY DENYING MAYS' MOTION TO WITHDRAW GUILTY PLEA DUE TO NEWLY DISCOVERED EVIDENCE.
I. WHETHER THE SENTENCE RENDERED BY THE TRIAL COURT ...