IN THE SUPREME COURT OF MISSISSIPPI
NO. 95-CA-01379-SCT
DONALD RAY KING
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: 02/10/94
TRIAL JUDGE: HON. KEITH STARRETT
COURT FROM WHICH APPEALED: LINCOLN COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: PRO SE
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: WAYNE SNUGGS
DISTRICT ATTORNEY: DUNN LAMPTON
NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF
DISPOSITION: AFFIRMED - 2/26/98
MOTION FOR REHEARING FILED:
MANDATE ISSUED: 4/8/98
BEFORE PITTMAN, P.J., McRAE AND ROBERTS, JJ.
PITTMAN, PRESIDING JUSTICE, FOR THE COURT:
This is an appeal from a denial of relief under the Uniform Post Conviction Collateral Relief Act
dated February 18, 1994. On August 6, 1990 Donald Ray King was indicted for capital murder by the
grand jury of Lincoln County. King was arraigned on capital murder on September 6, 1990. On
September 11, 1990, an Order amending indictment to charge one count of murder and one count of
robbery was filed. King pled guilty to the amended indictment on September 11, 1990. The lower
court accepted King's plea along with the State's recommendation on this same day. King was
sentenced to a term of life in prison for the murder charge to run consecutively with fifteen years for
the charge of robbery. On February 3, 1993, King filed a Post Conviction Collateral Relief Motion.
The original "Change of Plea and Sentence" Order stated that the defendant was adjudicated guilty of
murder and burglary. In his Order overruling King's Motion for Post Conviction Relief, Judge
Starrett ordered that the original order be amended to correctly read that the conviction in count two
was for robbery and not burglary. The lower court set February 10, 1994, as the date for an
evidentiary hearing on King's Motion. While there is no transcript of the evidentiary hearing
contained within the designated record, it is apparent from Judge Starrett's order overruling PCR
Motion that an evidentiary hearing was held. The trial court denied King's Motion on February 18,
1994. King timely appealed to this Court raising the following issues: (1) he was denied effective
assistance of counsel; (2) his guilty plea was involuntary as a matter of law because the trial court
failed to advise him of the minimum and maximum sentences as required by Rule 3.03(2),
MUCRCCP; (3) his guilty plea was involuntary because his counsel coerced him to plead guilty by
advising him that he would receive the death penalty if he did not do so; and (4) his sentence for the
crime of burglary was illegal because he was never indicted for said crime.
STATEMENT OF THE FACTS
On February 12, 1990, Donald Ray King used a box cutter and cut the throat of his eighty year old
great aunt, Zadie McNair. King was attempting to rob his aunt of $22.94 at the time of the murder.
At the time of the murder, King had been living with his aunt for approximately eleven years. By
King's own admittance, the victim in this case did nothing to "cause it." King turned himself into the
police station resulting in his indictment and ultimately a sentence of "life plus" in the custody of the
Mississippi Department of Corrections.
ANALYSIS
PROCEDURAL BAR
Prior to addressing the argument on the merits, this Court recognizes the procedural bar affecting this
Motion and ultimately the case sub judice. King asks this Court to"vacate and set aside plea of guilty,
sentence and conviction," but cites no authority. This Court in Johnson v. State, 626 So. 2d 631,
634 (Miss. 1993) held that claims with no citation are not properly before this Court. In order to
meet the burden of proving trial court error, the appellant must make a plausible argument citing
appropriate authorities. Wood v. Gulf States Capital Corp., 217 So. 2d 257, 273 (Miss. 1968).
Where appellant fails to support an issue, the Court presumes the issue to be without merit. Id.
This Court does apply the procedural bar, however, the bar, notwithstanding, the merits of the case
are addressed below.
I. APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL IN
VIOLATION OF THE 6TH AMENDMENT TO THE UNITED STATES
CONSTITUTION AND THE CONSTITUTION OF THE STATE OF MISSISSIPPI.
III. APPELLANT'S PLEA WAS COERCED BY COUNSEL WHERE APPELLANT
WAS ADVISED BY COUNSEL, INTENTIONALLY, THAT HE WOULD BE
SENTENCED TO DEATH IF HE DID NOT PLEAD GUILTY.
King's first and third assignments of error address the actions of his counsel. For that reason, this
Court will address those two issues together. King argues that his attorney "urged and coerced him
to appear before the Circuit Court and enter pleas of guilty to the charges and accept a life sentence."
King contends that he was not guilty of the charges because he did not know what he was doing at
the time of the incident and he was insane. However, the report contained within the record recording
the findings of Dr. Allan K. Hearne, the clinical psychologist who performed a mental examination on
King at the request of King's attorney and as ordered by the lower court, revealed that "he was not
clinically or legally insane at the time of the incident."
King further argues that his attorney never made any effort to investigate his case, possible witnesses,
mitigating circumstances of the crime, his history with the victim, the possibility of the insanity
defense, or to question King himself about the incident. This Court finds that these claims are without
merit. Evidence contained within the designated record in this case makes it perfectly clear that each
of the issues King cites in support of his argument for ineffective assistance of counsel are entirely
unjustified and without merit. In fact, King's attorney, filed seventeen pretrial motions and pleadings.
Moreover, King claims that his attorney told him that "if he did not plead guilty to the crimes, that
the State would take him to trial and sentence him to the death penalty." However, there is nothing
contained within the designated record to support or substantiate such a claim by King. In fact,
King's assertion is the only indication that counsel told him that he would get the death penalty if he
did not plead guilty. As the State points out in its brief, "a plea of guilty entered to avoid the death
penalty is not per se invalid." Hill v. State, 388 So. 2d 143 (Miss. 1980). This Court finds that the
trial judge was careful to explain to King that he was waiving "constitutional rights." Clearly
developed by the judge's questioning of King is the fact that he was not forced or induced to plead
guilty. King clearly stated to the sentencing judge that he freely and voluntarily pleaded guilty, and
this Court finds no reversible error in the record.
Finally King claims that his attorney did not object to the failure of the trial court to advise him of the
mandatory minimum and maximum sentences for the crimes to which he pled guilty.
Ineffective assistance of counsel is reviewed under the standard articulated by the United States
Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by this Court in
Gilliard v. State, 462 So. 2d 710, 714 (Miss. 1985), which states:
(a) The petitioner must show that counsel's conduct was so deficient that he was not
functioning as counsel guaranteed by the Sixth Amendment, and
(b) If the petitioner can show that his counsel was ineffective, then he must show that he was
prejudiced by counsel's mistakes.
As this Court held in Reynolds v. State, 521 So. 2d 914, 918 (Miss. 1988).
[i]n the end, when a convicted defendant challenges his guilty plea on grounds of ineffective
assistance of counsel, he must show unprofessional errors of substantial gravity. Beyond that,
he must show that those errors proximately resulted in his guilty plea and that but for counsel's
errors he would not have entered the plea.
Although King claims ineffective assistance of counsel, as the State points out in its brief, he offers
no evidence other than his own allegation on this issue, nor is there any evidence contained in the
record in this regard. On the contrary, as stated above, defense counsel filed a total of seventeen
pretrial motions on behalf of King.
This Court finds that the record speaks for itself on the issue of whether King's attorney's actions
constitute ineffective assistance of counsel. We further find that King has failed to successfully argue
that the trial court was in error in denying his Motion for Post Conviction Relief insofar as it was
based on ineffective assistance of counsel.
King clearly does not meet the burden of proof required to overcome the presumption that his
counsel was reasonably professional. Waldrop v. State, 506 So. 2d 273, 275 (Miss. 1987). Nor does
he show any prejudice arising from the alleged deficiency of counsel. Therefore, this Court has
determined that King's claim of ineffective assistance of counsel is without merit.
II. THE PLEAS OF GUILTY ARE INVOLUNTARY AS A MATTER OF LAW
WHERE THE TRIAL COURT FAILED TO ADVISE APPELLANT OF THE
MINIMUM AND MAXIMUM SENTENCES AS REQUIRED BY RULE 3.03(2), MISS.
UNIFORM CRIM. RULES OF CIR. COURT PRACTICE.
King's next assignment of error is that his pleas are involuntary because the trial judge failed to advise
him of the minimum and maximum sentences for the crimes of murder and robbery. Acceptance of a
guilty plea by a trial judge is a factual finding which the Supreme Court reviews using the clearly
erroneous standard. Schmitt v. State, 560 So. 2d 148, 151 (Miss. 1990).
The trial judge thoroughly advised King that he could be sentenced to life in prison if found guilty of
murder and up to fifteen years in prison if found guilty of robbery. Judge Pigott asked King if he
understood that and he replied that he did. The statutory sentence for murder is life imprisonment,
and there is no minimum sentence. Miss. Cold Ann. § 97-3-21 (1994). The statutory maximum
sentence for robbery is fifteen years, and there is no statutory minimum. Miss. Code Ann. § 97-3-75
(1994).
This Court has ruled on this exact issue in Bevill v. State, 669 So. 2d 14 (Miss. 1996) where we
stated:
We hold that the requirement in Rule 3.03 of the Uniform Rule Circuit Court Practice (and Rule
8.04 of the Uniform Circuit and County Court Rules) that a judge "inquire and determine ...
that the accused understands ... the maximum and minimum penalties provided by law" prior to
accepting a guilty plea means that a judge must advise the defendant of the minimum number of
years of imprisonment specified by the statute pursuant to which he is being sentenced, if any
such minimum number of years is provided. Where the statute specifies no minimum
number of years of imprisonment, the judge is not obliged to inform the defendant that
no minimum sentence is provided, or that the minimum penalty he faces is "zero." To use
an example apart from Bevill's case, the statute pertaining to "Robbery," Miss.Code Ann. § 97-
3-75 (Supp.1995), provides that "[e]very person convicted of robbery shall be punished by
imprisonment in the penitentiary for a term of not more than fifteen years." A defendant
pleading guilty to robbery must, under Rule 3.03 of the Uniform Rule Circuit Court Practice
(and Rule 8.04 of the Uniform Circuit and County Court Rules), be advised that he faces a
maximum sentence of fifteen years; he has no right to be informed that the statute contains no
minimum sentencing requirement. However, if a defendant is facing a charge of armed robbery
under Miss.Code Ann. § 97-3-79, which provides that a jury may sentence the defendant to life
imprisonment, and also provides a minimum sentence of three years imprisonment to be
imposed by the judge if the jury fails to fix the penalty at life imprisonment, the defendant must
be advised of both the minimum and the maximum sentences.
Bevill, 669 So. 2d at 18-19 (emphasis added); See also Simpson v. State, 678 So. 2d 712 (Miss.
1996).
King has failed to meet the burden of proving that his pleas were involuntary based on the fact that
the trial court did not advise him of the statutory minimum and maximum sentences for murder and
robbery.
IV. APPELLANT WAS SENTENCED FOR THE CRIME OF BURGLARY TO
WHICH HE WAS NEVER INDICTED FOR [SIC]. SUCH SENTENCE THEREFORE
WAS ILLEGAL AND VIOLATED APPELLANT'S FUNDAMENTAL
CONSTITUTIONAL RIGHTS.
King's final assignment of error, the most pertinent issue raised, states that the original sentencing
order as unamended stated "burglary" not "robbery" as count two. However, as has been addressed,
supra, Judge Starrett found that "the sentencing order is incorrect and is an obvious error that needs
to be corrected in that the sentencing order reads that the defendant is sentenced on count two for
burglary when in fact count two was robbery and the sentencing order should be corrected to read
'robbery.'" Judge Starrett then ordered that the sentencing dated September 11, 1990,"iis directed to
be and is hereby amended to read that the defendant and petitioner herein is being sentenced for
murder, count one, and 'robbery,' count two." Count two of the indictment is robbery and the change
of plea and sentence should be and is hereby amended. As the State points out in its brief, this Court
has long recognized the right of courts of record to correct clerical errors in judgments rendered at
former terms. Wardlaw v. State, 158 Miss. 400, 403, 130 So. 513, 514 (1930). The power to correct
clerical errors does not depend on statutory authority and applies in criminal as well as civil cases and
can be utilized at any time. Wilson v. Town of Hansboro, 99 Miss. 252, 256, 54 So. 845, 846 (1911)
. See also Williams v. State, 583 So. 2d 620 (Miss. 1991) (holding that when it is obvious from the
record what the true conviction is for, and that the error in the judgment is merely clerical, the error
does not require that the judgment be set aside).
CONCLUSION
All of King's claims are without merit, and as such the denial of his Motion for Post Conviction Relief
is affirmed.
LOWER COURT'S DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
PRATHER, C.J., SULLIVAN, P.J., BANKS, McRAE, ROBERTS, SMITH, MILLS AND
WALLER, JJ., CONCUR.