Before Sullivan, P.j., Banks And Roberts, JJ.
The opinion of the court was delivered by: Banks, Justice,
DATE OF JUDGMENT: 09/08/97 TRIAL JUDGE: HON. R. I. PRICHARD, III COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION: AFFIRMED - 1/14/99
¶1. Kirksey claims that his guilty plea was not voluntarily entered, that the sentence imposed was excessive, and that his attorney rendered ineffective assistance of counsel. We conclude otherwise and affirm the judgment of the circuit court.
¶2. Larry Kirksey ("Kirksey") was indicted on a charge of selling or transferring cocaine on June 10, 1996. Kirksey retained A. Randy Harris to represent him in this matter. On October 16, 1996, the date set for trial, Kirksey petitioned the court to enter a plea of guilty. Later that same day, Kirksey appeared in open court and stated his desire to plead guilty to a charge of selling cocaine.
¶3. The trial court ascertained that Kirksey had only completed the ninth grade and was unable to read or write. The trial court proceeded to question Kirksey at length as to his understanding of the charges against him. Kirksey stated that he understood the trial court's explanations and that he was entering a plea of guilty freely and voluntarily and in the absence of any coercion or threats. During the proceedings Kirksey stated on a number of occasions that he did not want to go to trial.
¶4. During the hearing Kirksey was informed that the State claimed that on April 10, 1996, undercover officer James Kitchens ("Kitchens"), who was wearing a wire, accompanied a confidential informant to Kirksey's house looking to purchase cocaine. Kirksey is then alleged to have taken the two men to another apartment, where Kirksey obtained the cocaine and gave it to Kitchens in exchange for Fifty Dollars. Kirksey, for the most part, agreed with the State's version of events and stated that he did not want to try any of the controverted facts. Kirksey also stated, at the hearing, that he was satisfied that if the case went to trial the State could prove him guilty beyond a reasonable doubt.
¶5. After questioning Kirksey the trial court accepted his plea of guilty and later sentenced Kirksey to serve a term of twenty years, with eight years suspended, in the custody of the Mississippi State Department of Corrections. Kirksey was also ordered to pay a fine of $5,000.00.
¶6. On February 18, 1997, Kirksey filed a petition for post conviction relief claiming that his attorney, Mr. Harris, coerced him into entering a guilty plea, rendering his plea involuntary and amounting to ineffective assistance of counsel. Kirksey alleged that he made several unsuccessful attempts to contact Mr. Harris prior to the October 16, 1996 trial date to discuss possible defenses. He further claims that on the date set for trial he was prepared to go to trial, but Mr. Harris advised him to plead guilty. He states that Mr. Harris informed him that if he chose to go to trial he would be convicted and sentenced to 30 years in prison. Kirksey also claims that Mr. Harris indicated that he was not prepared to go to trial and advised Kirksey to plead guilty in an effort to cover up the fact that he was unprepared. Kirksey claims alternatively that he is entitled to post conviction relief because the sentence imposed was excessive in light of the minimal part he played in the commission of the crime and his lack of prior drug involvement.
¶7. The circuit court denied the petition for post conviction relief on the grounds that the record reflected all the necessary elements to find that Kirksey's plea was given voluntarily and intelligently. As to the ineffective assistance of counsel claim, the circuit court found that Kirksey failed to show that Mr. Harris performed deficiently or that Kirksey was harmed by any deficient performance. The circuit court further found that the sentence imposed was within the statutory maximum of thirty years and was proportional to sentences imposed on other defendants for the same crime. The circuit court also found that the affidavits filed with the petition for post conviction relief were a sham, giving the petitioner no hope of success, and as such the costs of the petition should be assessed against Kirksey.