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Duncan v. State

June 11, 1998

WENDELL AVERY DUNCAN
v.
STATE OF MISSISSIPPI



Before Sullivan, P.j., McRAE And Smith, JJ.

The opinion of the court was delivered by: Sullivan, Presiding Justice, For The Court:

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A

DATE OF JUDGMENT: 07/29/96

TRIAL JUDGE: HON. WARREN ASHLEY HINES

COURT FROM WHICH APPEALED: WASHINGTON COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

Wendell Avery Duncan was indicted along with two co-defendants in Cause No. 23,995 in Washington County during the September Term, 1994, for conspiracy and burglary of a business. Duncan was charged as a habitual offender, based upon two prior felony convictions, one for shooting into an occupied dwelling, and the other for aggravated assault. On November 30, 1994, the jury convicted him on both counts. Circuit Court Judge Eugene Bogen sentenced Duncan as a habitual offender on December 20, 1994, to serve five years for the conspiracy conviction and seven years for the burglary conviction, the sentences to run consecutively.

Judge Bogen denied Duncan's petition for an out-of-time appeal to challenge the December 20 sentence on April 19, 1995. Instead, Judge Bogen granted Duncan leave to file a post conviction relief motion. Duncan filed his PCR motion on January 17, 1996, alleging that he was denied his right to an appeal, that his multiple count indictment was invalid, and that his conviction and sentence as a habitual offender were improper, because the two felonies upon which the sentencing enhancement was based arose out of the same incident. Circuit Court Judge Warren Ashley Hines overruled Duncan's motion for a trial transcript § under Miss. Code Ann. 99-39-1 et seq. After considering Duncan's PCR motion and the court-ordered response from the State, Judge Hines denied Duncan post conviction relief on July 29, 1996. The Judge specifically found that Duncan voluntarily admitted the habitual offender portion of the indictment in Cause No. 23,995. Judge Hines also denied Duncan's motion for reconsideration after reviewing the trial transcript to be sure that he had confessed the habitual offender portion of the indictment. Duncan filed his notice of appeal to this Court on August 29, 1996, seeking reversal of the lower court's denial of post conviction relief.

I.

WHETHER DUNCAN RECEIVED INEFFECTIVE ASSISTANCE OF COUNSEL.

On appeal to this Court, Duncan claims that he received ineffective assistance at trial, because his attorney failed to interview any defense witnesses. He alleges that this omission removed his attorney from "the wide range of reasonable professional assistance." Strickland v. Washington , 466 U.S. 668, 689 (1984).

As the State points out in its brief, Duncan is precluded from raising this issue on appeal, because he failed to present it to the lower court in his PCR motion. Fuselier v. State , 654 So.2d 519, 521-22 (Miss. 1995); Gardner v. State , 531 So.2d 805, 808-09 (Miss. 1988). Alternatively, Duncan has failed to sufficiently support his claim. "In determining effectiveness of counsel issues, we must consider whether the overall performance was deficient and whether the defense was prejudiced by any such deficiencies. Moore v. State , 676 So.2d 244, 246 (Miss. 1996). It is true that Duncan's attorney had a duty to reasonably investigate the law and facts of his case to prepare adequately for trial. Strickland , 466 U.S. at 690-91; Ferguson v. State , 507 So.2d 94, 95 (Miss. 1987); Turner v. State , 383 So.2d 489, 493 (Miss. 1980) (Bowling, J., Dissenting); Martin v. State , 312 So.2d 5, 6 (Miss. 1975). However, Duncan provides no evidence to support his claim of ineffective assistance of counsel other than his own affidavit. "This Court has implicitly recognized in the post-conviction relief context that where a party offers only his affidavit, then his ineffective assistance of counsel claim is without merit." Vielee v. State , 653 So.2d 920, 922 (Miss. 1995); Smith v. State , 490 So.2d 860, 860 (Miss.1986). "[T]he burden is on the appellant to make sure ...


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