Rehearing Denied Jan. 7, 2014.
[Copyrighted Material Omitted]
Joshua Holliman, appellant, pro se.
Office of the Attorney General by Ladonna C. Holland, attorney for appellee.
Before GRIFFIS, P.J., MAXWELL and FAIR, JJ.
¶ 1. After an evidentiary hearing, during which Joshua Holliman and his former attorney testified, the circuit judge denied Holliman's post-conviction challenges to the voluntariness of his guilty pleas and his negotiated sentences.
¶ 2. Rather than timely appeal the order denying his motion for post-conviction relief (PCR), Holliman sought an out-of-time appeal, which the circuit court denied. While Holliman argues we should ignore this procedural default, we find no good cause to grant an out-of-time appeal. Thus, we dismiss Holliman's untimely appeal for lack of jurisdiction.
Facts and Procedural History
I. Guilty Pleas
¶ 3. The three guilty pleas Holliman attacks were negotiated between his former defense counsel and the State, as part of a package deal, aimed at limiting Holliman's sentencing exposure. At the time of his now-challenged guilty pleas, Holliman faced six pending felony drug counts that contained enhanced and potential consecutive sentences.
¶ 4. Working against the reality that if convicted his client would serve over fifty years' imprisonment, day for day as a habitual offender, Holliman's attorney was able to secure a plea agreement, resulting in considerably more lenient sentences than Holliman faced had he proceeded to trial. Holliman accepted the terms of the agreement and, on November 6, 2006, pled guilty to two counts of sale of a controlled substance— one for selling alprazolam (Xanax), the other for distributing cocaine— as a habitual offender under Mississippi Code Annotated section 99-19-81 (Rev.2007). He also pled guilty to one count of possessing a controlled substance in jail, which had been charged in a separate pending indictment against him. The circuit judge did not perform a proportionality analysis. Yet Holliman accepted the State's sentencing recommendation, which deviated well below the mandatory terms of imprisonment.
¶ 5. On the alprazolam-sale count, the judge sentenced Holliman to ten years' imprisonment and ten years' post-release supervision, instead of the required twenty years. And on the cocaine-sale count, the judge sentenced Holliman to five years' imprisonment and twenty-five years' post-release supervision, rather than the mandatory thirty-year sentence. These sentences were ordered to run concurrently with one another, but consecutively to previous sentences for a methamphetamine-possession conviction and an obtaining-controlled-substances-by-fraud conviction. They were also to be served concurrently with a seven-year sentence— five years to serve, two years' post release supervision— for possessing a controlled substance in jail.
¶ 6. Also as a result of these negotiated pleas, the State agreed to remand to the file a pending marijuana-possession count and two other counts from a separate indictment, each charging possession of drugs in a jail. So Holliman's agreed-upon total time to serve for the alprazolam and cocaine-sale charges and the possession-of-drugs-in-a-jail charge was essentially ten years, instead of fifty-seven as mandated by statute.
II. PCR Motion
¶ 7. Holliman did not indicate any disfavor with his agreed-upon pleas and sentences until almost three years later, when a few weeks before the limitations period had run, he filed a motion for post-conviction relief challenging his alprazolam-sale and cocaine-sale convictions in cause number CR 2005-0775CD. See Miss.Code Ann. § 99-39-5(2) (Supp.2012). The gist of his PCR motion was that his pleas were involuntary because he was coerced or misled to plead guilty. He also argued he was not competent to enter the pleas and that his attorney was constitutionally deficient. The circuit judge ordered an evidentiary hearing to address these issues.
A. Evidentiary Hearing
¶ 8. While Holliman had supported his PCR motion with affidavits from his mother, grandmother, and a bailiff— all attesting his attorney promised him a ten-year sentence, with five years to serve— the only testimony he offered at the hearing was his own. The State, however, called the attorney who had represented Holliman at his plea hearing. And Holliman's
former counsel strongly contradicted Holliman's claim.
¶ 9. When asked about the supposed sentencing guarantee of five years to serve, Holliman's previous counsel made clear his discussions with Holliman " always involved time as a habitual offender under habitual-offender status." Knowing there were certified copies of the prior convictions, the attorney explained, " There would have been no reason for me to have ever told him anything else." He also described his conversations with Holliman's mother and grandmother as " center[ing] around reducing his time ... to the minimum exposure we could get, which was ten years. All of my conversations touched on and addressed very specifically habitual offender status." After the attorney had reviewed discovery and interviewed undercover officers involved in the controlled purchases of drugs from Holliman, it became a matter of " damage control." As the defense attorney saw it, " the best strategy at that time was to reduce [Holliman's] potential exposure."
¶ 10. Though his former attorney had earlier asked for a competency evaluation, no evaluation was conducted. And the record shows Holliman intentionally withdrew or abandoned the request during his plea hearing. When accepting the guilty pleas, the judge thoroughly questioned Holliman and his counsel on the competency issue and found Holliman was competent to waive his right to trial and plead guilty.
¶ 11. In weighing the PCR testimony, the circuit judge found the record contradicted Holliman's claims and that the attorney's testimony was more credible than Holliman's. So on August 26, 2010, the judge entered an order denying Holliman's PCR motion.
B. Untimely Appeal
¶ 12. Holliman did not timely appeal the order within the mandatory thirty days. M.R.A.P. 4(a). Instead, over one year later, on October 17, 2011, Holliman petitioned the circuit court for an out-of-time appeal. His claimed reason for his tardy filing was that he did not receive notice of the entry of the judgment until July 12, 2011. The circuit judge denied Holliman's request, finding that, under Mississippi Rule of Appellate Procedure 4(h), he lacked authority to grant an out-of-time appeal ...