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Kinney v. State

February 23, 1999

JAMES HAROLD KINNEY A/K/A JAMES HAROLD MCKINNEY APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE



Before Thomas, P.j., Lee, And Southwick, JJ.

The opinion of the court was delivered by: Lee, J.

DATE OF JUDGMENT: 03/06/1998 TRIAL JUDGE: HON. C. E. MORGAN III COURT FROM WHICH APPEALED: CARROLL COUNTY CIRCUIT COURT

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

TRIAL COURT DISPOSITION: 03/06/1998: POST-CONVICTION RELIEF DENIED

DISPOSITION: AFFIRMED - 02/23/1999

¶1. James Kinney appeals the denial of his motion for post-conviction relief. Aggrieved of this ruling, Kinney presents for our review and resolution two issues, which we quote verbatim from his brief:

I. WHETHER THE PLEA BARGAIN WAS BREACHED WHEN THE STATE DID NOT HOLD-UP TO ITS END OF THE BARGAIN AS PROMISED TO A FIVE (5) YEAR SENTENCE IN EXCHANGE FOR APPELLANT'S GUILTY PLEA AND WHETHER APPELLANT'S CONSTITUTIONAL RIGHTS TO DUE PROCESS WERE VIOLATED UNDER THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION.

II. INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENT OF THE UNITED STATES CONSTITUTION.

¶2. We find that the circuit court correctly overruled Kinney's motion for post-conviction relief and therefore affirm.

FACTS

¶3. In May 1995, Kinney was indicted for the crime of murder. On June 26, 1995, Kinney plead guilty to the lesser-included-crime of manslaughter and was sentenced to serve a term of twenty years in the custody of the Mississippi Department of Corrections. On March 2, 1998, Kinney filed a motion for post-conviction relief in the Circuit Court of Carroll County. The circuit court denied Kinney's motion, without a hearing, on March 6, 1998. Kinney appeals the dismissal.

ANALYSIS

I.

ΒΆ4. Kinney asserts that the district attorney of Carroll County offered him a plea bargain of five years; he and his defense counsel discussed this recommendation; he signed a plea petition agreeing to accept this recommendation; the trial court accepted the five-year recommendation and sentenced him to five years imprisonment. Kinney argues that he "learned when he received his M.D.O.C. time sheet from records that the five (5) year sentence he agreed on . . . had mistakenly been changed to a twenty (20) year sentence without his knowledge." He asserts that the plea petition he signed and agreed to has been altered and has now disappeared from the ...


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