COURT FROM WHICH APPEALED: LOWNDES COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 12/03/2012. TRIAL JUDGE: HON. LEE SORRELS COLEMAN. TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED.
FOR APPELLANT: MOSE LEE SUDDUTH JR.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LADONNA C. HOLLAND.
BEFORE GRIFFIS, P.J., ISHEE AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., ISHEE, ROBERTS, CARLTON AND FAIR, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION.
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
¶1. Sherrill Culpepper argues the trial judge wrongly denied her post-conviction challenge to her guilty plea for abusing a vulnerable adult. She suggests that based on her lawyer's alleged failure to relay to her an earlier more favorable plea offer, the judge should have found her attorney's representation was constitutionally ineffective. Culpepper is correct that as a general rule, criminal defense attorneys must communicate formal plea offers from the State to their clients when the offers' terms and conditions may be favorable to the accused. But the failure to do so only gives rise to a valid ineffective-assistance-of-counsel claim if the defendant proves both (1) her attorney failed to communicate the more favorable offer to her, and (2) the defendant was prejudiced by the attorney's inaction.
¶2. While Culpepper and her husband denied being advised of the more favorable plea recommendation, Culpepper's defense attorney attested he did indeed notify her of the plea offer, but she rejected it. After review, we cannot say the trial judge clearly erred in resolving the conflicting evidence against Culpepper. So we find no error in the judge deciding Culpepper failed to prove that, more likely than not, her attorney was deficient.
¶3. Furthermore, even if Culpepper had met her initial Strickland  burden, she did not demonstrate a reasonable probability that the State would not have later withdrawn the offer or the court would have accepted the plea recommendation's terms. Thus, we also find the accompanying prejudice prong was unmet. We affirm.
Facts and Procedural History
¶4. On September 27, 2009, a grand jury charged Culpepper--a nurse--with willfully inflicting physical pain or injury upon a vulnerable adult  by burning the victim, whom she had been hired to care for, with a hot hair flatiron. Culpepper hired Attorney Steven Wallace to defend her.
¶5. On April 1, 2011, Wallace received a letter from Assistant Attorney General Pat McNamara, describing a plea offer. The offer called for Culpepper to plead guilty to abusing a vulnerable adult and recommended a ten-year sentence--with one year to serve and nine years suspended, followed by three years of supervised probation. McNamara wrote that if there was no response by April 11, 2011, he would assume trial was imminent. It is undisputed Culpepper never accepted the plea recommendation. But there is a factual dispute over whether Wallace conveyed the offer to Culpepper.
¶6. The next pertinent record action was Culpepper's August 10, 2011 motion to suppress her videotaped statement to investigators. Wallace argued Miranda  violations and government coercion rendered inadmissible Culpepper's April 27, 2009 statement, in which she had confessed to burning the victim. After a hearing, the circuit court denied the motion and found Culpepper's videotaped confession would be admissible at trial.
¶7. On February 14, 2012, Culpepper filed a petition to enter a guilty plea to abusing a vulnerable adult. There was no recommended sentence. At the plea hearing, Culpepper admitted burning the victim, and the State in its factual basis cited her recorded confession. Culpepper also acknowledged, under oath, she was satisfied with her attorney's service. The circuit judge accepted Culpepper's guilty plea and on a later date sentenced her to ten years in the custody of the Mississippi Department of Corrections (MDOC), five years of post-release supervision, and a fine of $5,000.
¶8. Once designated to a correctional facility, Culpepper filed a motion for post-conviction relief (PCR) alleging ineffective assistance of counsel. She claimed Wallace had not communicated to her the earlier, more favorable plea offer and that she only learned of it when her husband obtained her file from Wallace, after she had already pled guilty. The circuit judge held an evidentiary hearing on Culpepper's PCR motion, during which the prosecutor, Culpepper, and her husband testified. An affidavit from Culpepper's trial attorney, ...