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Sylvester v. State

Court of Appeals of Mississippi

December 9, 2014

DONNIE SYLVESTER, APPELLANT
v.
STATE OF MISSISSIPPI, APPELLEE

Page 530

[Copyrighted Material Omitted]

Page 531

COURT FROM WHICH APPEALED: PERRY COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 07/18/2013. TRIAL JUDGE: HON. ROBERT B. HELFRICH. TRIAL COURT DISPOSITION: MOTION FOR POST-CONVICTION RELIEF DENIED.

AFFIRMED.

DONNIE SYLVESTER, APPELLANT, Pro se.

FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA WAKELAND BYRD.

BEFORE LEE, C.J., ROBERTS, CARLTON AND MAXWELL, JJ. LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, ROBERTS, CARLTON, FAIR AND JAMES, JJ., CONCUR.

OPINION

Page 532

MAXWELL, J.

[¶1] After pleading guilty to drive-by shooting and aggravated assault, Donnie Sylvester raised ineffective-assistance-of-counsel and involuntary-plea claims in a post-conviction relief (PCR) action. Sylvester's chief argument is that his trial attorney wrongly advised him he would be released from the Mississippi Department of Corrections (MDOC) early because of earned-time allowances. But Sylvester's trial lawyer testified he does not make earnedtime projections for clients since these allowances are by no means guaranteed and are within MDOC's sole discretion.

[¶2] The circuit judge found the lawyer's testimony more credible than the contradictory allegations in Sylvester's and his sister's affidavits. The judge also noted that Sylvester's representations during his plea colloquy about his understanding of the sentences he faced refuted his main PCR claims. After review, we find no error in the trial judge's denial of Sylvester's PCR claims. We affirm.

Facts and Procedural History

[¶3] On September 2, 2009, Sylvester entered guilty pleas to drive-by shooting[1] and aggravated assault.[2] The court sentenced him to thirty years, with fifteen years to serve and fifteen suspended and five years of post-release supervision, for drive-by shooting. Sylvester received fifteen concurrent years for aggravated assault.

[¶4] He later filed a PCR motion alleging his plea was involuntary and his attorney was ineffective. The gist of Sylvester's voluntariness and ineffective-assistance-of-counsel arguments is that he would not have pled guilty had he been advised he would have to actually serve more than five years. He claimed his attorney incorrectly told him he would receive earned-time, trusty-earned-time, and meritorious-earned-time allowances and would be released on post-release supervision after serving just five years. His motion was supported by an affidavit from his sister saying essentially the same thing.

[¶5] Though the circuit judge summarily dismissed Sylvester's PCR motion, this court reversed and remanded for an evidentiary hearing on the merits because his sister's third-party affidavit created a factual question. Sylvester v. State, 113 So.3d 618, 623-24 (¶ ¶ 19-20) (Miss.Ct.App. 2013). At the hearing on remand, Sylvester's trial attorney, Eric Tiebauer, maintained he did not tell Sylvester he would get earned time because he always counsels his clients that these allowances are regulated by the MDOC. The circuit judge considered Sylvester's and his sister's competing affidavits, ultimately finding Tiebauer's

Page 533

testimony more credible. Thus, the judge denied Sylvester's PCR motion.

[¶6] Sylvester appealed, again raising the same issues as his earlier motion, along with other supposed errors he claimed ...


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