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Nalls v. State

August 21, 1998

NALLS
v.
STATE



Before Prather, C.j., Roberts And Mills, JJ.

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

TOMMIE NALLS, JR. v. STATE OF MISSISSIPPI

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

DATE OF JUDGMENT: 03/05/97

TRIAL JUDGE: HON. SHIRLEY C. BYERS

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

STATEMENT OF THE CASE

In June of 1995, Tommie Nalls, Jr. (hereinafter "Nalls") pleaded guilty to grand larceny and escape from the county jail. Nalls was sentenced to serve five (5) years and three (3) years, said sentences to run consecutively. Due to his status as an habitual offender, Nalls was required to serve his eight (8) years without the possibility of probation or parole in the Mississippi Department of Corrections.

On June 13, 1996, approximately one (1) year following his pleas of guilty, Nalls filed in the Circuit Court of Sunflower County, a "Motion to Vacate and Set Aside Habitual Sentence... ," alleging that: (1) his indictment violated McNeal v. State , 658 So. 2d 1345 (Miss. 1995); and (2) his lawyer, the late Cleve McDowell, rendered ineffective assistance of counsel by failing to object to the defective indictment.

Following an evidentiary hearing on February 27, 1997, Gray Evans, Circuit judge of the Circuit Court of Sunflower County, entered an order dismissing the motion filed by Nalls and denied post-conviction collateral relief.

On appeal to this Court, Nalls raises the following issues:

I. THE TRIAL JUDGE IMPROPERLY DISMISSED NALLS' MOTION TO VACATE SENTENCE AS AN HABITUAL OFFENDER BECAUSE HIS INDICTMENT AND BILL OF INFORMATION WERE MCNEAL DEFECTIVE.

II. INEFFECTIVE ASSISTANCE OF COUNSEL

III. NALLS' GUILTY PLEAS WERE NOT KNOWINGLY, INTELLIGENTLY, AND VOLUNTARILY ENTERED WITH A FULL AWARENESS THAT HE WAS PLEADING GUILTY AS AN HABITUAL OFFENDER.

Upon an examination of the record, this Court holds that Nalls' claims are without merit and are denied accordingly. Although the indictment and bill of information were formally defective according to McNeal , the documents were properly amended under our decision in Brandau. As such, Nalls was not prejudiced by the error. Further, Nalls' defense counsel, Cleve McDowell, was not deficient, nor did his representation of Nalls produce an unreliable result. Finally, Nalls' guilty pleas were given willingly, knowingly, and voluntarily, with a full knowledge of the potential consequences of such pleas. Therefore, the lower court's denial of Nalls' request for post-conviction relief is affirmed.

STATEMENT OF FACTS

On June 8, 1995, Nalls was indicted as an habitual offender for grand larceny in the Circuit Court of Sunflower County. Nalls' habitual offender status was the result of a prior conviction in August of 1990 for grand larceny and a prior conviction of burglary in February of 1988. On June 15, 1995, Nalls, who waived indictment, was charged in a bill of information with escape from the county jail, likewise as an habitual offender.

On June 15, 1995, Nalls signed a three (3) page petition to enter a plea of guilty to grand larceny as an habitual offender. A certificate of counsel attached thereto attested to the fact that counsel had, inter alia , "...read and fully explained to the defendant the allegations contained in the indictment or information in this case...," as well as the maximum penalties.

On June 23, 1995, Nalls signed a three (3) page petition to enter a guilty plea for escape as an habitual offender based on his flight from the Sunflower County Jail on June 8, 1995. Again, a certificate of counsel reflects that counsel read and explained to Nalls the allegations contained in the indictment and the maximum and minimum penalties.

During the plea-qualification hearing conducted on June 15, 1995, Nalls told the circuit Judge he was aware that he had been indicted as an habitual offender and would not be eligible for probation or parole. Nalls also informed Judge Byers that no promises had been made to him. In addition, Judge Byers read and fully explained to Nalls his rights as well as the maximum sentences prescribed for the offenses of grand larceny (5 years) and escape (5 years).

The record gives every indication that on June 15, 1995, Nalls knowingly, intelligently, and voluntarily entered pleas of guilty to the charges of grand larceny and escape. On June 13, 1996, one (1) year after his entry of voluntary pleas of guilty, Nalls filed a "Motion to Vacate and Set Aside Habitual Sentence... " The grounds asserted were as follows: (1) there was no habitual language in his indictments, ...


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