Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Austin Ferguson v. State

Court of Appeals of Mississippi

December 17, 2019

SIDNEY KEITH AUSTIN FERGUSON A/K/A SIDNEY KEITH AUSTIN A/K/A SIDNEY KEITH FERGUSON A/K/A SYDNEY FERGUSON APPELLANT
v.
STATE OF MISSISSIPPI APPELLEE

          DATE OF JUDGMENT: 01/27/2017

          GRENADA COUNTY CIRCUIT COURT. HON. JOSEPH H. LOPER JR. TRIAL JUDGE.

          ATTORNEYS FOR APPELLANT: JOHN THOMAS LAMAR III MARK KEVIN HORAN BRADLEY DAVID DAIGNEAULT TAYLOR ALLISON HECK

          ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER

          DISTRICT ATTORNEY: DOUG EVANS

         EN BANC.

          WESTBROOKS, J.

         ¶1. Sidney Keith Austin Ferguson was convicted of touching a child for lustful purposes in violation of Mississippi Code Annotated section 97-5-23 (Rev. 2014) in the Grenada County Circuit Court. After a jury trial, Ferguson was sentenced to fifteen years in the custody of the Mississippi Department of Corrections, with five years suspended and ten years to serve, and placed on five years' probation. The circuit court denied Ferguson's motion for a judgment notwithstanding the verdict or, alternatively, new trial, and the court dismissed his second motion for a new trial for lack of jurisdiction. Aggrieved, Ferguson appealed to this Court.

         FACTS AND PROCEDURAL HISTORY

         ¶2. In August 2016, Ferguson appeared before the Grenada County Justice Court on charges of touching a child for lustful purposes. At that time, public defender Neal Marlow was appointed to represent him. On or about December 13, 2016, Ferguson was indicted for one count of touching a child for lustful purposes. Ferguson appeared before the Grenada County Circuit Court, and the same court-appointed attorney was ordered to continue his representation. On January 26, 2017, after a two-hour jury trial, Ferguson was convicted and sentenced to fifteen years, with five years suspended and ten years to serve, and placed on five years' probation. Ferguson was also required to register as a sex offender. On January 30, 2017, Ferguson filed a motion for a judgment notwithstanding the verdict or, alternatively, a new trial, arguing that the verdict was contrary to the law and the weight of the evidence. The circuit court denied his motion.

         ¶3. After the denial of Ferguson's motion, Marlow withdrew, and Ferguson retained new counsel. With new counsel, Ferguson filed a notice of appeal with the Mississippi Supreme Court on February 17, 2017. After the notice was filed, Ferguson's new counsel withdrew, and he obtained a third attorney. With his third attorney, Ferguson filed a second motion for a new trial on June 27, 2017, in the Grenada County Circuit Court, alleging ineffective assistance of counsel by his trial attorney. The motion specifically alleged that his court- appointed counsel had told him that he provides better representation for his paid clients than his court-appointed clients. Ferguson also asserted that the appointed counsel had told Ferguson he needed to be paid to properly represent him. These issues were not raised during the course of the trial proceedings. The circuit court dismissed Ferguson's motion, stating that the court no longer had jurisdiction over the case once Ferguson had filed his notice of appeal.

         ¶4. On appeal, this Court granted oral argument, and Ferguson only addressed his ineffective-assistance-of-counsel allegations against his court-appointed attorney.[1] Upon hearing the arguments of Ferguson and the State, this Court suspended its rules under Rule 2 of the Mississippi Rules of Appellate Procedure, [2] held the appeal in abeyance, and remanded the case back to the circuit court for a limited ruling on Ferguson's second motion for a new trial. On limited remand, the circuit court denied Ferguson's motion for a new trial. After hearing testimony from Ferguson, Marlow, and others, the circuit court found no merit to any of Ferguson's ineffective-assistance-of-counsel allegations. Now that this matter is appropriately before this Court, we will address Ferguson's grievances.

         STANDARD OF REVIEW

         ¶5. This Court has held that "[w]hen examining a claim of ineffective assistance of counsel, we conduct a de novo review of the record as a whole to determine whether there is a deficiency in the trial counsel's performance, and if so, whether the deficiency prejudiced the defendant." Blunt v. State, 55 So.3d 207, 210 (¶12) (Miss. Ct. App. 2011). In reviewing the denial of a motion for a new trial, we must "accept as true the evidence which supports the verdict and to reverse only when convinced that the circuit court has abused its discretion in failing to grant a new trial. A new trial will not be ordered unless the verdict is so contrary to the overwhelming weight of the evidence that to allow it to stand would sanction an 'unconscionable injustice.'" Nelson v. State, 222 So.3d 318, 322-23 (¶9) (Miss. Ct. App. 2017) (citation and internal quotation marks omitted).

         DISCUSSION

         I. Sixth Amendment Right to Counsel

         ¶6. Ferguson asserts that he was denied his Sixth Amendment right to counsel because his trial counsel was constitutionally ineffective. The Mississippi Supreme Court generally holds that "ineffective-assistance-of-counsel claims are more appropriately brought during post[-]conviction proceedings." Williams v. State, 228 So.3d 949, 952 (¶12) (Miss. Ct. App. 2017). But the Supreme Court and this Court have held that "an ineffective-assistance-of-counsel claim can be addressed on direct appeal when (1) the record affirmatively shows ineffectiveness of constitutional dimensions, or (2) the parties stipulate that the record is adequate to allow the appellate court to make the finding without consideration of the findings of fact of the trial judge." Id. (internal quotation marks omitted). To succeed on an ineffective-assistance-of-counsel claim, the "defendant must prove that his attorney's performance was deficient, and that the deficiency was so substantial as to deprive the defendant of a fair trial." Id. at (¶13); see also Strickland v. Washington, 466 U.S. 668, 687 (1984). The defendant must show that the deficiency prejudiced his defense. Nelson, 222 So.3d at 322 (¶5). Under Strickland, "[t]he touchstone for testing a claim of ineffectiveness of counsel must be 'whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.'" Irby v. State, 893 So.2d 1042, 1048 (¶25) (Miss. 2004) (quoting Strickland, 466 U.S. at 686).

         ¶7. The crux of Ferguson's claim states that his court-appointed public defender told him that he provides better representation to his paid clients versus his court-appointed clients, and, as a result of Ferguson not paying him, he did not provide Ferguson with adequate representation. This Court believed that this claim potentially gave rise to a claim of ineffectiveness of constitutional dimensions such that a limited remand was necessary to give the circuit court an opportunity to fully address it.

         ¶8. The trial judge conducted an evidentiary hearing on or about May 16, 2019.[3] He heard testimony from Ferguson, Marlow, and Renae Franklin, Ferguson's former fiancĂ©e. According to the record, Ferguson contacted Marlow once he was served with his indictment in December 2016. Renae testified that during a meeting for trial preparations, Marlow told them his paying clients got better representation than court-appointed clients. Ferguson admitted a tape recording of a conversation he had with Marlow to support his assertion that Marlow attempted to request payment. During the recording, Marlow returned Ferguson's phone call and seemingly did not remember him or any previous conversation with him. During the phone call, Marlow did say, "Until you hire me, I'm not really on the case," and "I don't even make a mental note until somebody pays me some money." Both Marlow and Ferguson laughed, and Ferguson said, "I don't know how the whole court appointed thing works." The tape also reveals that Marlow could not find a list of names of people who were appointed to him, and he asked Ferguson when did his ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.