DENNIS DARNELL HOWARD A/K/A DENNIS D. HOWARD A/K/A DENNIS HOWARD, APPELLANT
STATE OF MISSISSIPPI, APPELLEE
COURT FROM WHICH APPEALED: ATTALA COUNTY CIRCUIT COURT. DATE OF JUDGMENT: 10/09/2013. TRIAL JUDGE: HON. JOSEPH H. LOPER JR. TRIAL COURT DISPOSITION: DENIED MOTION FOR POST-CONVICTION RELIEF.
DENNIS DARNELL HOWARD, APPELLANT, Pro se.
FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL, BY: LAURA HOGAN TEDDER.
FAIR, J. LEE, C.J., GRIFFIS, P.J., ISHEE, ROBERTS, CARLTON AND MAXWELL, JJ., CONCUR. BARNES, J., CONCURS IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN OPINION. JAMES, J., CONCURS IN PART WITHOUT SEPARATE WRITTEN OPINION. IRVING, P.J., DISSENTS WITH SEPARATE WRITTEN OPINION, JOINED IN PART BY JAMES, J.
[¶1] In 2008, this Court affirmed Dennis Howard's conviction of armed robbery. See Howard v. State, 2 So.3d 669 (Miss.Ct.App. 2008), cert. denied, 999 So.2d 1280 (Miss. 2008). Howard subsequently requested and received permission from the Mississippi Supreme Court to file a post-conviction relief (PCR) motion on the question of whether his trial counsel had prevented him from testifying in his own defense.
[¶2] At the evidentiary hearing, Howard testified that he had told his trial attorney he wanted to testify, but the attorney just ignored him and rested the case without calling Howard to the stand. Howard claimed he was ignorant of the trial process and did not realize anything was amiss until it was too late. The circuit court found that Howard's story was not credible. It denied Howard's PCR motion, and he appeals.
STANDARD OF REVIEW
[¶3] When reviewing the denial of a PCR motion, an appellate court " will not disturb the trial court's factual findings unless they are found to be clearly erroneous." Callins v. State, 975 So.2d 219, 222 (¶ 8) (Miss. 2008).
[¶4] The supreme court granted Howard permission for an evidentiary hearing based on his claims that he " was not permitted to testify on his own behalf" and " that his trial counsel prevented him from doing so." After the evidentiary hearing, the trial court found these allegations baseless. Howard enumerates five issues relating to procedural aspects of the hearing, which we have reorganized and consolidated into four issues for our analysis. We also address the dissent's concerns relating to the underlying merits of Howard's
claim, although we find that issue procedurally barred because Howard does not argue it in his brief on appeal. We find no error and affirm.
1. Sua Sponte Subpoenas
[¶5] Howard admits he did not subpoena his trial attorney to testify at the evidentiary hearing. He argues that the trial court should have subpoenaed the attorney for him on its own initiative, since the attorney would have been the only person able to confirm or deny Howard's most important claims, specifically that the attorney never asked Howard whether he wanted to testify at his trial.
[¶6] Howard cites no authority placing the responsibility for securing his witnesses on the trial court, nor are we aware of any. Instead, Howard had to call his own witnesses and prove his own case; " the burden of proof is on the petitioner to show by a preponderance of the evidence that he is entitled to relief." Roach v. State, 116 So.3d 126, 131 (¶ 15) (Miss. 2013) (citations and internal quotation marks omitted); see also Miss. Code Ann. § 99-39-23(7) (Supp. 2014). Howard was entitled to subpoena witnesses, or he could have offered " proof by affidavits, depositions, oral testimony or other evidence." § 99-39-23(3)-(4).
[¶7] Howard also should have, at the very least, made some effort to secure a statement from the attorney and presented it (or an explanation why he could not do so) with a motion for a new trial following the evidentiary hearing. See King v. State, 251 Miss. 161, 171-72, 168 So.2d 637, 641 (1964).
[¶8] It is true that Howard was pro se, but " [w]hile pro se litigants are afforded some leniency, they must be held to substantially the same standards of litigation conduct as members of the bar." Hardison v. State, 94 So.3d 1092, 1106 (¶ 48) (Miss. 2012) (citation and internal quotation marks omitted). We find no merit to this issue.
2. Scope of the Hearing
[¶9] The Mississippi Supreme Court granted Howard leave to file his proposed PCR motion in the trial court. The supreme court's order specifically limited Howard's permission to file a PCR motion to those " claims raised in his application [to the supreme court] and [proposed] motion." After Howard filed the motion, as proposed, he sought to amend it to include additional claims for relief -- including challenges to jury instructions, the amendment of his indictment, ineffective assistance of counsel, and others. The trial court refused to allow these amendments and limited the evidentiary hearing to the claims made in the motion approved by the supreme court.
[¶10] Howard was convicted after a trial, and his conviction was affirmed by this Court on appeal. " When a case is affirmed on direct appeal, permission from the Mississippi Supreme Court must be obtained in order to seek post-conviction relief in the circuit court." Campbell v. State, 75 So.3d 1160, 1161-62 (¶ 7) (Miss.Ct.App. 2011) (citing Miss. Code Ann. § 99-39-7 (Supp. 2013)).
[¶11] Howard contends that these issues are not subject to procedural bars because they implicate fundamental constitutional rights. Even if that were the case, the absence of leave from the supreme court is not a mere procedural bar; it is jurisdictional. Id. at 1162 (¶ 7). The trial court correctly found that it had no authority to go beyond the supreme court's order and consider Howard's additional issues. This issue is without merit.
3. Motions " to be Moved," for Appointment of Counsel, and for Continuance
[¶12] Howard filed a motion " to be moved" to the Attala County Jail from the Mississippi State Penitentiary, where he was under " lockdown" for disciplinary infractions. According to Howard, his phone and visitation privileges had been revoked, and this impeded his ability to prepare for the PCR hearing. But Howard does not specify anyone he was unable to contact or what he wanted to investigate. Instead, he seems to admit that the only other relevant witness would have been his attorney, whom Howard apparently did not pursue (supposedly under the mistaken belief that the trial judge would secure his appearance). Moreover, this claim does not appear to have been properly before the circuit court because there is no indication Howard had exhausted his administrative remedies with the Mississippi Department of Corrections. See Miss. Code Ann. § 47-5-803 (Rev. 2011). Howard has not shown that he could not prepare for the hearing from prison. We find no error in denying this motion.
[¶13] Howard also requested appointed counsel. He acknowledges that there is no state or federal constitutional right to appointed counsel in post-conviction proceedings. Moore v. State, 587 So.2d 1193, 1195 (Miss. 1991). Nonetheless, the trial court may appoint counsel to an indigent petitioner when an evidentiary hearing is required, but it is in the trial judge's discretion. Id. at 1195-96.
[¶14] Howard might have benefitted from the presence of an attorney, but his claim was not particularly novel or complicated, nor did it require extensive investigation. Howard has failed to show the trial judge abused his discretion in denying the motion for appointed counsel.
[¶15] Finally, Howard contends the trial court erred in denying his motion for a continuance. At the beginning of the hearing, Howard stated that he was ready to proceed. After some argument and testimony, however, Howard asked the circuit court for a continuance to secure counsel. The court denied the request. On appeal, Howard contends that this was error. He faults the circuit court for waiting too long to deny his motion for appointment of counsel, and he complains of his difficulty investigating his case because of his discipline-related restrictions in prison.
[¶16] " The denial of a last minute request for a continuance to retain new counsel is within the trial court's discretion." Atterberry v. State, 667 So.2d 622, 629 (Miss. 1995). It will not be reversed on appeal unless the denial resulted in a " manifest injustice." Stack v. State, 860 So.2d 687, 691 (¶ 7) (Miss. 2003). Moreover, the burden of showing a manifest injustice cannot be satisfied by conclusory arguments, but instead must be shown by " concrete facts" that " demonstrate . . . particular prejudice." Id. at 691-92 (¶ 7).
[¶17] Howard has been seeking post-conviction relief for years. His PCR petition was filed with the circuit court more than four months before the hearing, and Howard had about ten days' notice before the hearing that the trial court had denied his request for a court-appointed attorney. After all that, Howard waited until the middle of the hearing to request a continuance. He has not shown any particular prejudice, much less a manifest injustice. We find no abuse of discretion.
4. Right to Appeal
[¶18] Howard next contends that the trial court erred in not informing him he had a right to appeal its denial of his motion for post-conviction relief. Since
Howard did appeal that judgment, anyway, this issue is moot.
5. The Underlying Merits
[¶19] Although Howard obviously does not agree with the circuit court's decision on the merits of his claim, he does not identify this as a separate issue or attack the merits directly in his brief on appeal. We are mindful that the Mississippi Supreme Court has " held that where a prisoner is proceeding pro se, we will take that into account and, in our discretion, credit not so well pleaded allegations so that a prisoner's meritorious complaint may not be lost because inartfully drafted." Corrothers v. State, 148 So.3d 278, 314 (¶ 94) (Miss. 2014). But the issue here is substance, not drafting. Howard has not raised this issue, and thus it is waived.
[¶20] And even if there was no waiver, the circuit court was acting well within its discretion when it denied Howard's PCR motion on its merits. Howard's claim is that he intended to testify in his own defense, but his attorney prevented him from doing so. This allegation was supported only by Howard's own testimony, and the trial judge found that Howard was not credible. This was within the court's discretion as the finder of fact. See, e.g., City of Jackson v. Lipsey, 834 So.2d 687, 691 (¶ 14) (Miss. 2003). Since Howard bore the burden of proof, but presented no credible evidence, his claim was properly denied on the merits.
[¶21] The dissent acknowledges that the circuit court, as the finder of fact, was entitled to reject Howard's testimony entirely. Yet it would reverse his conviction anyway, finding that there must be " affirmative proof" Howard had waived his right to testify.
[¶22] With respect to the dissent, there is affirmative proof in the record -- Howard's attorney rested the case without calling Howard to testify. This occurred immediately after the trial judge explained to Howard, at length, that only he had the right to decide whether he would testify. The judge then allowed Howard and his attorney a private conference, after which Howard's attorney rested the case. The inference, which surely the trial court must be allowed to make, is that counsel was acting competently and faithfully. It is axiomatic that it must be presumed that counsel is competent and that his actions fall within the broad range of reasonable professional assistance. See, e.g., Sea v. State, 49 So.3d 614, 628 (¶ 40) (Miss. 2010).
[¶23] While we would concede that Howard's silence should not amount to an absolute waiver of his claim, the fact that Howard first made these allegations years after the trial was properly considered in deciding whether they were credible. The judge advised Howard of his right to testify, at great length and on the record:
Q. You are Dennis Darnell Howard, the defendant in this case today, and, Mr. Howard, I want to advise you that under the Constitution -- you can put your hand down now -- under the Constitution of the United States and of the State of Mississippi, you've got a constitutional right to testify as a witness on your own behalf if you chose to do so. Do you understand that?
A. Yes, sir.
Q. Do you understand also that you've got the constitutional right to not testify if you choose not to testify?
A. Yes, sir.
Q. And do you understand that the decision as to whether to testify or not to testify is your decision and yours alone?
A. Yes, sir.
Q. Do you understand if your lawyer wanted you to testify and you didn't
want to, your lawyer could not force you ...