DATE OF JUDGMENT: 12/19/96 TRIAL JUDGE: HON. JOHN B. TONEY COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT
The opinion of the court was delivered by: Smith, Justice, For The Court:
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
MOTION FOR REHEARING FILED:
¶1. Billy Joe Templeton sought a plea bargain with the district attorney to avoid the death penalty. Templeton elected to plead guilty to the murder of Martha S. Jones during the commission of burglary in violation of Miss. Code Ann. § 97-3-19(2)(e) in order to receive a sentence of life without parole. During his guilty plea hearing, Templeton admitted that he intended to commit a burglary when he entered the victim's home. He also admitted that he killed Ms. Jones while "engaged in the crime of house burglary." However, Templeton also claims that he was invited into the house by the victim. Templeton, aggrieved, now files for Post-Conviction Relief to this Court from the trial court's summary dismissal of his motion without an evidentiary hearing. Templeton argues that the trial Judge erred in denying him an evidentiary hearing. Templeton also claims that his guilty plea was not knowingly and intelligently made, thus involuntary as a matter of law. He further alleges that the element of "breaking and entering" is not present because the victim invited him into her home. Finally he claims that he was denied effective assistance of counsel during his guilty plea. We combine these issues for Discussion. After thorough examination we find no merit to Templeton's claims and accordingly affirm the trial court.
¶2. The trial Judge could correctly rely upon the complete record before him rather than require an evidentiary hearing. The record before the Court makes clear that Templeton's intent from the beginning was to commit a burglary of Ms. Jones' dwelling house. Templeton's entry into the victim's home was gained by deceit, pretense or fraud, thus constructive breaking and entering occurred in the case at bar. The factual basis for a guilty plea may be established by the actual admission by the defendant. "Admission of guilt is not a constitutional requisite of an enforceable plea." Corley v. State, 585 So. 2d 765, 767 (Miss. 1991)(Robertson, J.)(quoting Reynolds v. State 521 So. 2d 914, 917 (Miss. 1988)). Corley claimed that he advised the trial Judge during a plea colloquy that "`I didn't do the shooting', and that this [was] enough to vitiate his plea." Id. at 767. Nevertheless, Corley also admitted that, "I was there." Corley, 585 So. 2d at 768. Corley clearly admitted to being present while the principal co-defendant, Roger T. White, shot and killed the victim. In as much as Corley was charged as an accessory before the fact, his admission of being present when White shot and killed the victim was clearly a substantial fact that the trial Judge could consider as a factual basis for support of his plea of guilt.
¶3. More to the main point of this issue is Davis v. State, 611 So. 2d 906 (Miss. 1992), where this Court discussed the effect of one owner's consent to enter the premises on a burglary charge. The Court held that "[i]t would be monstrous to hold that Davis had any authority whatever to permit Brown to enter the trailer for the purpose of robbing or raping his wife, and having no such authority, his consent did not prevent Brown's entry from having been burglarous." Id. at 912.
¶4. This Court also discussed the fact that a "breaking" can be actual or constructive in Smith v. State, 499 So. 2d 750 (Miss. 1986). The Court cited State v. Jolly, 297 N.C. 121, 254 S.E.2d 1 (1979) wherein the North Carolina Supreme Court defined breaking as " `. . . any act or force, however, slight, `employed to effect an entrance though any usual or unusual place of ingress, whether open, partly open, or closed.'" Smith, 499 So. 2d at 752. (emphasis added). "The [North Carolina Supreme Court also] noted that a breaking could be actual or constructive" and defined constructive as entry "obtained in consequence of violence commenced or threatened by defendant." Id. at 752-53.
¶5. Similarly, in Alford v. State, 656 So. 2d 1186 (Miss. 1995), this Court stated "[a]ny effort, however slight, such as the turning of a door knob to enter, constitutes a breaking, . . .." Alford, 656 So. 2d at 1190. Additionally, in an earlier case this Court quoted Corpus Juris Secundum for the proposition that constructive breaking can occur where an entry is effected by fraud or intimidation. Holderfield v. State, 215 Miss. 564, 570, 61 So. 2d 385, 386 (1952). Accord State v. Fuller, 296 S.E.2d 871 (S.C. 1982) (holding that entry effected by trickery or deception constitutes a constructive breaking and satisfies the breaking element in the definition of burglary); State v. Ortiz, 584 P.2d 1306 (N.M. Ct. App.1978) (where consent to enter is obtained by fraud, deceit or pretense, the consent is erroneous and is similar to constructive breaking and constitutes an unauthorized entry sufficient to sustain a burglary conviction).
¶6. Even assuming that Templeton's account of the events is true, his act of gaining or enticing an invitation into the Jones' home meets the definition of "breaking and entering" that this Court has followed in previous cases. If the act of turning a door knob constitutes an act or effort sufficient to constitute a "breaking," then surely the act of gaining or enticing an invitation into someone's home with the ultimate intention of committing a burglary once inside, likewise constitutes an act or effort sufficient to constitute a "breaking." We hold that the effort involved in Templeton's act of gaining or enticing an invitation takes more effort, manipulation, incitement, deceit, pretense, etc. and in my view is as fraudulent, if not more fraudulent, than turning a door knob or simply crossing the threshold of someone's front door without the invitation.
¶7. Consequently, where Templeton admits that he intended to commit a burglary upon entering the house, the fact that he may have been invited into the house becomes irrelevant because, as demonstrated by the previously cited cases, there was clearly a constructive breaking. We hold that constructive breaking is present where the invitation is gained by deceit, pretense, or fraud. Inasmuch as an owner would not knowingly grant someone permission to enter his house with the intent to commit the crime of burglary, much less the crime of murder, as was ultimately committed by Templeton in the case at bar, Templeton's entry was obviously gained by deceit, pretense or fraudulent means. As in Davis, here it would be monstrous to think that Ms. Jones granted Templeton permission to enter her home for the purpose of committing a burglary, and certainly would not have invited him in had she known he would kill her. Although in the case at bar it's not clear how Templeton induced the supposed invitation, nevertheless, regardless of the circumstances surrounding Templeton's entry into the house, the fact that he admittedly possessed the intent to commit a burglary and entered the house by an invitation induced by deceit, pretense, or fraud, fulfills the elements of burglary. II.
¶8. Templeton claims that his counsel was ineffective. "Trial counsel is presumed to be competent." Brooks v. State, 573 So. 2d 1350, 1353 (Miss. 1990). Templeton is required to overcome that presumption. To do so, Templeton must meet the two-prong criteria of Strickland v. Washington,466 U.S. 668 (1984). He must demonstrate first, that his attorney's performance was deficient. Second, Templeton must show that counsel's deficient performance prejudiced his defense. The burden is on Templeton to demonstrate both prongs of Strickland. McQuarter v. State, 574 So. 2d 685, 687 (Miss. 1990). Obviously, Templeton's decision to plead guilty was one of trial strategy to negate the possibility of receiving the death penalty. His PCR pleadings contain a statement by his sister allegedly told to him to wit: "Mama's about to have a heart attack worrying about you getting the Death Penalty." The record reflects that trial counsel's overall performance was not deficient and was constitutionally competent and totally lacking of any prejudice to Templeton.
¶9. Templeton's claims that he was mentally confused and he felt that he had no choice but to plead guilty are without merit. Templeton advised the trial Judge that he was not on drugs or alcohol, was not undergoing any mental treatment and that he knew what he was doing. The trial Judge extensively covered this subject. Templeton appeared to know what he was doing, what he was saying, and the ramifications of his plea. He admitted that he entered the victim's home with the intent to commit a house burglary once inside. ...