Preview:

IN THE SUPREME COURT OF MISSISSIPPI NO. 96-KP-00504-SCT EMMITT RICE a/k/a EMMITT RICE, JR. v. STATE OF MISSISSIPPI THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-A DATE OF JUDGMENT: TRIAL JUDGE: COURT FROM WHICH APPEALED: ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE: 08/29/95 HON. LEE J. HOWARD LOWNDES COUNTY CIRCUIT COURT PRO SE OFFICE OF THE ATTORNEY GENERAL BY: BILLY L. GORE FORREST ALLGOOD CRIMINAL - POST CONVICTION RELIEF AFFIRMED - 08/14/97 9/5/97

DISTRICT ATTORNEY: NATURE OF THE CASE: DISPOSITION: MOTION FOR REHEARING FILED: MANDATE ISSUED:

BEFORE SULLIVAN, P.J., PITTMAN AND BANKS, JJ. SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

STATEMENT OF THE CASE AND FACTS Emmitt Rice was indicted on August 10, 1992, by the Lowndes County Grand Jury for the murder of Ricky Hill. Rice initially pleaded not guilty, but after reaching an agreement with the State, he filed a petition to enter a plea of guilty. The petition set out the plea bargain between Rice and the State under which Rice would plead guilty to the murder of Ricky Hill. In return the State would refrain from prosecuting Rice for two charges of sale of cocaine and retire its case against Rice for simple assault on a law enforcement officer. In the petition, Rice also stated that he was not pleading guilty as a result of any threat or inducement, and that he understood the nature and consequences of the plea and the mandatory penalty. Rice's petition also said that he understood that by pleading guilty he would waive his constitutional rights, including the right to trial by jury, the right to confront and

cross-examine adverse witnesses, and "the right to take the witness stand at my sole option." On August 31, 1992, Circuit Court Judge Lee J. Howard held a hearing on Rice's petition to enter a guilty plea. The judge informed Rice of his constitutional rights, determined that Rice's guilty plea was not induced by threat or force, determined that there was a factual basis to support the guilty plea, and thoroughly explained the charge, effects of pleading guilty, and the mandatory sentence involved. That same day, Judge Howard entered an order stating that Rice's guilty plea was accepted after determining that it was knowingly and voluntarily entered. The judge sentenced Rice to the mandatory term of life imprisonment. Rice filed his Petition for Post Conviction Relief (PCR motion) in the Lowndes County Circuit Court on July 7, 1994. In his PCR motion, Rice alleged that he was misled by his attorney into pleading guilty and that his guilty plea was not knowingly and voluntarily made. Judge Howard issued an order denying Rice's PCR motion on August 29, 1995, finding that a hearing was unnecessary. On October 19, Rice filed his Motion to Proceed on Out-of-Time Appeal with the circuit court, asserting that he had not received a copy of Judge Howard's order until September 11. He also filed a motion for appointment of counsel. Judge Howard issued an order on November 15 granting Rice's motion for an out-of-time appeal, but denying his motion for appointment of counsel. Aggrieved with the trial judge's denial of his PCR motion, Rice perfected an appeal to this Court. STATEMENT OF THE LAW I. DID EMMITT RICE'S ATTORNEY RENDER CONSTITUTIONALLY INEFFECTIVE ASSISTANCE OF COUNSEL? Rice argues that his attorney's performance was deficient, because he misadvised Rice that if he proceeded to trial, he would be convicted as a habitual offender and have to serve the mandatory life sentence. He also states that his attorney wrongfully advised him to plead guilty in light of the fact that others charged with the same offense had agreed to plead guilty. Rice asserts that his attorney misinformed him that he was pleading guilty to manslaughter and failed to inform him of his right against self-incrimination. He claims that he would never have pleaded guilty had it not been for his attorney's deficient performance. In order to make a successful argument for ineffective assistance of counsel, the criminal defendant must show that 1) his attorney's performance was deficient, and 2) that but for the attorney's deficiency, the outcome of the proceedings would have been different. Wiley v. State, 517 So.2d 1373, 1378 (Miss. 1987) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)). In Hill v. Lockhart, 474 U.S. 52, 56 (1985), the United States Supreme Court determined that the Strickland test for determining ineffective assistance of counsel applies to the challenge of a guilty plea based upon ineffective assistance. Hill, 474 U.S. at 58. In order to prove that a guilty plea was rendered involuntary based upon ineffective assistance of counsel, a defendant must first show that his attorney's advice on entering the guilty plea was outside of the realm of competence expected of criminal attorneys. Id. at 56-59. "Trial counsel is presumed to be competent." Brooks v. State, 573 So.2d 1350, 1353 (Miss. 1990) (citing Johnson v. State, 476 So.2d 1195, 1204 (Miss. 1985)). The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's

constitutionally ineffective performance affected the outcome of the plea process. In other words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a reasonable probability that, but for counsel's errors, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59. Rice had already been indicted on a charge of simple assault on a law enforcement officer and was currently being prosecuted before the grand jury on two counts of sale of cocaine. His argument is that he could not be prosecuted for murder as a habitual offender, because he had not yet been convicted of these three felonies. However, it is possible that the State could have dismissed the murder indictment, proceeded with the other three felony charges, and then reindicted Rice for murder by a habitual offender. As a result, even if Rice's attorney advised him that he could be tried as a habitual offender and sentenced to life imprisonment, such advice would not necessarily have been wrong. Furthermore, Rice could not have been prejudiced by this alleged misinformation, because the mandatory sentence for murder under Miss. Code Ann.

Download Emmitt Rice v. State of Mississippi.pdf

Mississippi Law