DATE OF JUDGMENT: 12/09/96 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM WHICH APPEALED: GRENADA COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF DISPOSITION AFFIRMED - 2/26/98 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:
¶1. On January 4, 1996, Randy Ford was indicted for the sale of cocaine pursuant to Miss. Code Ann. § 41-29-139, in the Circuit Court of Grenada County, Mississippi. Ford's guilty plea was accepted by Circuit Judge Joseph H. Loper, Jr. on June 3, 1996. Judge Loper sentenced Ford to twenty (20) years in the custody of the Mississippi Department of Corrections, with six (6) years suspended for a period of five (5) years, and fourteen (14) years to serve.
¶2. On October 30, 1996, Ford filed a Request for Information in the Grenada County Circuit Court. By Order dated November 1, 1996, Circuit judge Loper denied Ford's request because Ford failed to demonstrate a specific need for the documents and offered no good cause why he was in need of or entitled to the requested records.
¶3. On December 6, 1996, Ford filed a Motion for Post-Conviction Relief in the Grenada County Circuit Court alleging ineffective assistance of counsel. By Order dated December 9, 1996, Circuit Judge Loper denied Ford's motion on the basis that Ford did not comply with Miss. Code Ann. § 99-39-9 (1994). Specifically, Judge Loper noted that Ford "did not file any supporting affidavits with his motion" and Ford "failed to file under oath a specific statement of the specific facts that are within his personal knowledge."
¶4. Aggrieved by the trial court's decision, Ford appeals pro se to this court, and raises the following issue:
WHETHER THE TRIAL COURT JUDGE ABUSED HIS DISCRETION IN SUMMARILY DISMISSING FORD'S MOTION FOR POST-CONVICTION RELIEF BECAUSE OF OMITTED DOCUMENTS.
¶5. Ford maintains that his Motion should not have been denied on the basis of Miss. Code Ann. § 99-39-9, but should have been returned to him so that he so that he may re-submit his Motion with the required documentation. Ford relies on Miss. Code Ann. § 99-39-9(4) (1994), which states:
If the motion received by the clerk does not substantially comply with the requirements of this section, it shall be returned to the prisoner if a Judge of the court so directs, together with a statement of the reason for its return.. . .
¶6. Conversely, the State maintains that Ford's petition is procedurally barred since post-conviction relief is not granted upon facts and issues which could or should have been litigated at trial. The State further maintains that "his Court may not act upon statements in briefs or arguments which are not reflected by the record" and that "t is the appellant's duty to preserve and prepare the record for appeal." The State then points out that the record in the case at bar contains no transcript of the plea hearing, therefore, this Court should presume that the trial court acted properly.
¶7. The State's argument is supported by case law, but is troublesome under the facts of the case at bar. The State's first argument, that Ford's petition is procedurally barred because he did not raise this issue at trial, does not apply in this case since Ford is alleging ineffective assistance of counsel. "In Read [v. State, 430 So. 2d 832, 837 (Miss. 1983)] this Court `noted that the failure to assign the lack of effective assistance of counsel at trial was not a procedural bar to the subsequent raising of the question of ineffective counsel either on appeal or in subsequent post-conviction relief proceedings.'" Dunn v. State, 693 So. 2d 1333, 1339-40 (Miss. 1997) (quoting Smith v. State, 434 So. 2d 212, 218 (Miss. 1983)) *fn1 . Accordingly, this Court finds that Ford's ineffective assistance of counsel claim is not barred.
¶ ¶8. However, in order to sustain summary dismissal, of the ineffective assistance of counsel claim, under Miss. Code Ann. § 99-39- 11(2) (Supp. 1997), the allegation must be alleged with specificity. "e must specifically allege facts showing that effective assistance of counsel was not in fact rendered, and he must allege with specificity the fact that but for such purported actions by ineffective counsel, the results of the trial court decision would have been different." Smith v. State, 434 So. 2d 212, 219 (Miss. 1983). See also Miss. Code Ann. § 99-39-9(1)(c) (1994). Ford alleges that his attorney coerced him into pleading guilty, did not advise him of any possible defenses, and did not advise him of his right to a speedy trial. However, he does not state the manner in which his attorney coerced him. Therefore, we find that Ford has failed to meet his statutory burden of proof regarding the allegation of ineffective assistance of counsel in that his ...