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Ware v. State

Court of Appeals of Mississippi

September 4, 2018

BARRY D. WARE A/K/A BARRY DEWAYNE WARE A/K/A BARRY WARE APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 05/11/2017

          ATTALA COUNTY CIRCUIT COURT HON. JOSEPH H. LOPER JR. JUDGE

          ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER VALERIE MOSS ANDREWS

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN

          BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.

          IRVING, P.J.

         ¶1. 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 evidence.

         ¶2. We find no error; therefore, we affirm.

         FACTS

         ¶3. 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.

         ¶4. 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.

         ¶5. 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.

         ¶6. On May 11, 2017, the court issued a detailed opinion and separate order denying ...


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