BARRY D. WARE A/K/A BARRY DEWAYNE WARE A/K/A BARRY WARE APPELLANT
STATE OF MISSISSIPPI APPELLEE
OF JUDGMENT: 05/11/2017
COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER JR. JUDGE
ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER VALERIE MOSS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY:
JOSEPH SCOTT HEMLEBEN
IRVING, P.J., CARLTON AND GREENLEE, JJ.
Barry D. Ware appeals the judgment of the Attala County
Circuit Court, denying his motion for post-conviction relief
(PCR), arguing that: (1) his guilty plea was not entered
voluntarily, intelligently, and knowingly; (2) he received
ineffective assistance of counsel; and, (3) the court abused
its discretion by showing him bias, prejudice, and ignoring
We find no error; therefore, we affirm.
On February 8, 2012, Ware was indicted on a charge of
first-degree murder in Attala County, Mississippi. On August
6, 2013, he filed a petition to enter a plea of guilty to
second-degree murder. The court accepted his plea and
sentenced him to thirty years in the custody of the
Mississippi Department of Corrections. On August 5, 2016,
Ware filed his PCR motion, which is the basis of this appeal,
arguing that his plea was not entered voluntarily,
intelligently, and knowingly because his counsel incorrectly
advised him concerning his parole eligibility. He also
claimed that his counsel was constitutionally ineffective
because he would not have pleaded guilty but for the
erroneous advice of his attorney.
Attached to his PCR motion were affidavits from himself; Pam
Ware, his wife; and Mitchell Hedgepeth, his father-in-law. In
each affidavit, Ware and his witnesses gave an account of
times in which they were allegedly informed by Ware's
attorney and District Attorney Doug Evans of different
scenarios in which Ware would be released without having to
serve his full sentence. Their recollection of the amounts of
time that he would serve differed vastly, but centered on the
fact that they were allegedly told that he would be eligible
for some form of parole. However, after Ware began serving
his sentence, they learned that a second-degree murder
sentence must be served day-for-day.
On March 31, 2017, an evidentiary hearing was held to address
the issues in Ware's motion, and testimony was elicited
from Ware, Pam, Mitchell, Ware's trial attorney, and
District Attorney Evans. Ware, Pam, and Mitchell testified
consistently with their affidavits discussed above. District
Attorney Evans testified that he never informed Ware, Pam, or
Mitchell about Ware's eligibility for parole or early
release. He contended that it was not his responsibility to
do so, and he did not comment on such issues. He further
testified that the charge of second-degree murder was a new
crime recently established by the legislature, so he did not
know what the parameters, if any, would be. Therefore, he
could not have commented on them. Ware's attorney
testified that he was certain that he did not advise Ware on
the issue of parole eligibility, although he did provide
advice to Ware regarding Ware's decision to plead guilty.
According to him, it was not his practice to discuss with his
clients the number of years they may or may not have to serve
on a given sentence before becoming parole eligible because
he never knew how much time the client would have to serve.
He also stated that Ware's decision to accept the plea
offer was based on the insurmountable evidence of guilt
against him, not his ability to get released early.
On May 11, 2017, the court issued a detailed opinion and
separate order denying ...