Before Bridges, C.j., Hinkebein, And King, JJ.
The opinion of the court was delivered by: Bridges, C.j.,
DATE OF JUDGMENT: 07/14/97
TRIAL JUDGE: HON. LAMAR PICKARD
COURT FROM WHICH APPEALED: COPIAH COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
TRIAL COURT DISPOSITION: POST-CONVICTION RELIEF DENIED
DISPOSITION: AFFIRMED - 12/18/98
¶1. Sherman Tobias pled guilty to the crime of uttering forgery in the Circuit Court of Copiah County and was sentenced as a habitual offender to fifteen years in the custody of the Mississippi Department of Corrections, without the possibility of parole. Tobias appeals from a denial of his motion for post-conviction relief raising the following issues: (1) his guilty plea was not intelligently, knowingly and voluntarily made; (2) his counsel was ineffective; and (3) Tobias was improperly sentenced as an habitual offender.
¶2. Finding the issues raised procedurally barred and/or without merit, we affirm the trial court's denial of post-conviction relief.
¶3. On November 10, 1995, Sherman Tobias was indicted for uttering forgery as a habitual offender. Tobias waived arraignment and entered a plea of not guilty. On March 20, 1996, before voir dire, defense counsel advised the lower court that Tobias did not want to go to trial. In an on-the-record Discussion, the trial Judge told Tobias that if Tobias pled guilty and the court accepted his plea, the court was statutorily required to sentence Tobias to the maximum sentence for uttering forgery as he was an habitual offender. The trial Judge twice announced Tobias would be sentenced to fifteen years without the possibility of parole. Tobias decided to go to trial.
¶4. During voir dire, a prospective juror stated he could not be a fair juror because he had "some stuff stolen by one of the Tobias[es] there in Crystal Springs." The court asked, "Of course, you're not saying that has anything to do with this defendant?" The prospective juror responded, "No. I just don't feel like I could made a fair decision." Defense counsel asserted the prospective juror had tainted the jury. The court disagreed.
¶5. Thereafter, Tobias entered his plea of guilty with the understanding that if his plea were accepted, the court would be required to sentence him to fifteen years without eligibility of parole due to his habitual offender status.
¶6. During the plea colloquy the trial Judge again stated that the court was not bound by nor would it consider any plea bargain agreement. Tobias answered affirmatively that he understood if the court accepted his guilty plea Tobias would be sentenced to fifteen years without the possibility of parole. Tobias withdrew his not-guilty plea to the crime of uttering forgery, pled guilty, and was sentenced as an habitual offender to fifteen years in the custody of the Mississippi Department of Corrections without parole.
¶7. On April 21, 1997, Tobias filed a pro se petition for post-conviction relief under Miss. Code Ann. § 99-39-5 (Supp. 1998), asserting (1) his plea of guilty was involuntary because he had been promised a sentence of five years with parole eligibility, (2) his attorney was ineffective, (3) his conviction was illegal because it was based on a statement by a witness who was a mental patient, and (4) the jury was tainted during voir dire.
¶8. The circuit Judge summarily denied the petition for post conviction relief on July 14, 1997. Tobias appeals the denial of his motion for post-conviction collateral relief.
ARGUMENT AND DISCUSSION OF THE LAW
I. WHETHER TOBIAS INTELLIGENTLY, KNOWINGLY AND VOLUNTARILY ENTERED HIS PLEA OF GUILTY
¶9. Tobias argues on appeal that the trial court erred in finding that he intelligently, knowingly and voluntarily entered the guilty plea. ¶10. As the Supreme Court stated in Brady v. U.S., 397 U.S. 742, 748 (1970):
[T]he plea is more than an admission [in open court that the defendant committed the acts charged in the indictment]; it is the defendant's consent that judgment of conviction may be entered without a trial--a waiver of his right to trial before a jury or a Judge. Waivers of constitutional rights not only must be voluntary but must be knowing, intelligent acts done with sufficient awareness of the relevant circumstances and likely consequences.
¶11. In Wilson v. State, 577 So. 2d 394, 396-97 (Miss. 1991), the supreme court held that "a guilty plea must be made voluntarily in order to satisfy the defendant's constitutional rights." A plea is considered voluntary if the defendant knows the elements in the charge against him, including an understanding of the charge, the effect of the plea, and the possible sentence. Taylor v. State, 682 So. 2d 359, 362 (Miss. 1996). There should be a complete record of the plea to ensure the defendant's plea was voluntary. Id.
¶12. Tobias argues that his plea of guilty to the charge of uttering forgery as an habitual offender was not voluntary because the trial Judge did not honor the plea bargain agreement offered by the State. However, the record reveals the trial Judge advised Tobias repeatedly that no plea bargain agreement with the State would be considered and Tobias would be sentenced to fifteen years as an habitual offender if Tobias pled guilty.
¶13. Upon confirmation that Tobias wished to enter a guilty plea, the trial Judge interrogated Tobias thoroughly and carefully explained to him the full gamut of constitutional protections available to him as well as the ramifications of entering a guilty plea. Again, the trial Judge made sure Tobias understood the plea bargain agreement would not be considered:
THE COURT: You realize that the Court is not bound by any type of plea bargain agreement that your lawyer and the State may have entered into. In fact, I told you in this case I'm not going to consider any plea bargain agreement; do you understand that? You're pleading without the effect of any type of recommendation from the State; do you understand that?
THE DEFENDANT: I understand.
THE COURT: And you understand that I'm going to sentence you according to what I want to sentence you to without regard to any recommendation from the State, and what the State recommended is past ...