Billy M Cruse v. State of Mississippi ( 1995 )


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  •                          IN THE SUPREME COURT OF MISSISSIPPI
    NO. 95-KP-01311-SCT
    BILLY M. CRUSE
    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:                               11/15/95
    TRIAL JUDGE:                                    HON. THOMAS J. GARDNER III
    COURT FROM WHICH APPEALED:                      TISHOMINGO COUNTY CIRCUIT COURT
    ATTORNEY FOR APPELLANT:                         PRO SE
    ATTORNEY FOR APPELLEE:                          OFFICE OF THE ATTORNEY GENERAL
    BY: JEFFERY A. KLINGFUSS
    DISTRICT ATTORNEY                               JOHN R. YOUNG
    NATURE OF THE CASE:                             CRIMINAL - POST CONVICTION RELIEF
    DISPOSITION:                                    AFFIRMED - 6/26/97
    MOTION FOR REHEARING FILED:
    MANDATE ISSUED:
    BEFORE PRATHER, P.J., BANKS AND SMITH, JJ.
    SMITH, JUSTICE, FOR THE COURT:
    Billy M. Cruse pled guilty to two counts of burglary of a building and one count of possession of
    burglary tools. Cruse pled guilty to these charges but later filed a petition for post-conviction relief
    wherein he alleged that he was unlawfully sentenced as a habitual offender; the State failed to honor a
    promise made by the Sheriff of Tishomingo County; and the sentences imposed by the trial court
    were ambiguous. The trial court summarily dismissed the petition and denied all relief. Cruse now
    appeals to this Court.
    STATEMENT OF FACTS
    On February 15, 1992, Cruse was arrested and charged with two counts of business burglary and one
    count of possession of burglary tools. Cruse later pled guilty to all counts and was sentenced to serve
    seven years as a habitual offender on Count I of the indictment; seven years (non-habitual) on Count
    II to run consecutively with Counts I and III; and five years on Count III of the indictment. The trial
    court conditionally suspended the five-year sentence on Count III.
    Cruse later filed a Motion for Post-Conviction Relief wherein he alleged that he should not have been
    sentenced as a habitual offender because he did not specifically plead guilty to the habitual charge of
    the indictment; the State failed to honor a promise made to Cruse by the Sheriff of Tishomingo
    County; and that an ambiguity exists in the sentences imposed by the trial court. The trial court
    summarily dismissed the petition and denied all relief. Aggrieved, Cruse now appeals to this Court,
    citing the following issues:
    I. WHETHER CRUSE WAS ENTITLED TO AN EVIDENTIARY HEARING.
    II. WHETHER CRUSE WAS PROPERLY SENTENCED AS A HABITUAL
    OFFENDER.
    III. WHETHER THE SENTENCES IMPOSED BY THE TRIAL COURT WERE
    AMBIGUOUS.
    DISCUSSION OF LAW
    I. WHETHER CRUSE WAS ENTITLED TO AN EVIDENTIARY HEARING.
    Cruse now argues that the trial court erred in refusing to conduct an evidentiary hearing to determine
    whether Johnny Nunley, former Sheriff of Tishomingo County, made certain promises regarding
    Cruse's sentences. Cruse alleges that Nunley promised that he would receive five-year sentences on
    each count if he would aid law enforcement in making drug arrests. Nunley allegedly promised that
    the sentences would be suspended if Cruse agreed to banish himself from Tishomingo County.
    However, while Cruse was out on bond on the initial three charges, he was arrested on four
    additional burglary charges. Cruse argues that he again agreed to cooperate and Nunley promised
    that the four additional charges would be dismissed. Cruse alleges that the second promise was made
    in the presence of Chief Deputy Bob McCarthy, Deputy Ricky Brazil, and Investigator Terry Jones.
    Nunley later denied making the promises. As a result, defense counsel advised Cruse that it would be
    "futile to try to get the deputies and investigator to testify against the Sheriff"and therefore advised
    Cruse to accept the plea offer by the State.
    In Milam v. State, 
    578 So. 2d 272
    , 273 (Miss.1991), this Court held that no evidentiary hearing is
    required for post-conviction cases involving "pure questions of law" or "where there are no facts
    disputed or disputable." See also, Brooks v. State, 
    573 So. 2d 1350
    , 1352 (Miss.1990); Jordan v.
    State, 
    577 So. 2d 368
    , 369 (Miss.1990); Garlotte v.State, 
    530 So. 2d 693
    , 694 (Miss.1988), rev'd on
    other grounds, 
    115 S. Ct. 1948
     (1995). Miss. Code Ann. § 99-39-11 (2)(1972) states:
    (2) if it plainly appears from the face of the motion, any annexed exhibits and the prior
    proceedings in the case that the movant is not entitled to any relief, the judge may make an
    order for its dismissal and cause the petitioner to be notified.
    However, "if the application meets [the] pleading requirements and presents a claim procedurally
    alive 'substantial[ly] showing denial of a state or federal right' the petitioner is entitled to an in court
    opportunity to prove his claims." Jordan v. State , 
    577 So. 2d 368
    , 369 (Miss.1990). Although Cruse
    alleges that promises were made by Nunley, the trial court had only Cruse's affidavit. Cruse,
    however, has included the affidavit of Bob McCarley, Chief Deputy Sheriff of Tishomingo County
    with his appellate brief. McCarley alleges that he "was aware that Nunley did make a plea promise to
    . . . Cruse if he would cooperate in certain situations." McCarley states that he did not remember who
    was present when the promise was made, but indicated that to his knowledge the promise was not
    kept. Attached to Cruse's rebuttal brief is the affidavit of James D. Logan wherein Logan alleges
    Chief Deputy McCarley told him that Nunley had made promises to Cruse. Logan also alleges that
    Investigator Terry Jones acknowledged that he was present when the promises were made and knows
    of the exact terms of the promises made to Cruse.
    These affidavits, however, were not presented to the trial court. Moreover, during the guilty plea
    hearing, Cruse specifically stated that no promises or threats had been made to him. This Court has
    repeatedly held that "a trial court cannot be put in error on a matter not presented to the court for
    decision." Chase v. State, 
    645 So. 2d 829
    , 846 (Miss.1994), cert. denied, 
    115 S. Ct. 2279
     (1995),
    reh'g denied, 
    116 S. Ct. 20
     (1995); Jones v. State, 
    606 So. 2d 1051
    , 1058 (Miss.1992); Crenshaw v.
    State, 
    520 So. 2d 131
    , 134-35 (Miss.1988). Cruse and his attorney were aware of the alleged
    promises at the time of the guilty plea, yet neither brought this matter to the attention of the trial
    court. This issue is therefore waived.
    Notwithstanding the failure of Cruse to present affidavits to the trial court, this Court is faced with
    two affidavits which allege that Nunley made certain promises. In seeking enforcement of those
    promises, Cruse relies on Santobello v. New York, 
    404 U.S. 257
     (1971), wherein the Supreme Court
    held:
    . . . when a plea rests in any significant degree on a promise or agreement of the prosecutor, so
    that it can be said to be a part of the inducement or consideration, such promise must be
    fulfilled.
    Id. at 433.
    However, Cruse alleges not that he was involved with plea negotiations with the District Attorney's
    office, but rather with the Sheriff of Tishomingo County. Cruse also relies on the analysis set forth in
    United States v. Kettering, 
    861 F.2d 675
     (11th Cir. 1988), where the defendant sought to enforce a
    plea agreement made by a DEA agent. That court conducted the following two-pronged inquiry to
    ascertain whether the plea agreement was enforceable:
    . . . [The general rule requiring governmental adherence to promises made during plea
    negotiations is subject to two conditions. First, the agent making the promise must be
    authorized to do so, and second, the defendant must detrimentally rely on the promise. If either
    condition is lacking, then the agreement is unenforceable and the government may withdraw its
    offer.
    Id. at 677 (quoting Johnson v. Lumpkin, 
    769 F.2d 630
     (9th Cir. 1985)).
    The initial issue under the Kettering analysis is whether Nunley possessed the authority to conduct
    plea negotiations with criminal defendants. A review of URCCC 8.04 (1996) does not indicate that
    law enforcement officers possess such authority. The only government officer addressed by the rule is
    the prosecuting attorney. Therefore, the initial issue is whether the Sheriff possessed the authority to
    enter into plea negotiations.
    In Boyington v. State, 
    389 So. 2d 485
     (Miss.1980), MBN Agent Pierce and the District Attorney
    agreed to recommend that Boyington receive probation after he agreed to work as an undercover
    informant. Although the circuit court was aware of the agreement, the trial judge refused to accept
    the recommendation. Thereafter, Boyington proceeded to trial and following conviction received an
    eight-year sentence. After review, this Court held that "justice requires that the judgment of the lower
    court . . . be vacated . . . and that the appellant be placed on probation." Id. at 491.
    Boyington, however, is clearly distinguishable from the case sub judice. In Boyington, as in
    Santobello, the prosecuting attorney was involved in the plea negotiations. Here, there is no
    indication that the district attorney's office was involved or approved the alleged promises made by
    Nunley.
    Moreover, under the analysis utilized in Kettering and San Pedro v. United States, 
    79 F.3d 1065
    (11th Cir.1996), cert. denied, 
    117 S. Ct. 431
     (1996), an appellant must demonstrate detrimental
    reliance. However, in Kettering, the court held that "a detrimental reliance argument is inappropriate
    when the defendant learns of the change in the proposed agreement prior to entry of the plea since
    then, he still has the option of pleading not guilty and proceeding to trial." Id. (quoting United States
    v. Coon, 
    805 F.2d 822
    , 824-25 (8th Cir. 1986)). Cruse admits that he was informed prior to the
    guilty plea hearing that Nunley denied making the alleged promises and upon the advice of counsel,
    elected to accept the plea offer by the State. As in Kettering, Cruse was aware that the government
    did not intend to abide by the alleged promises made by Nunley. Therefore, Cruse's guilty plea was
    "wholly voluntary and not contingent upon [Sheriff Nunley's promises]."
    In Mabry v. Johnson, 
    467 U.S. 504
     (1984), the Court held that as long as the defendant is not in a
    worse position, there is no detrimental reliance. There, the prosecutor withdrew his first offer and
    made a second less favorable offer to the defendant. The Court held that the defendant's guilty plea
    was not induced by the withdrawn offer because the defendant was aware that the second agreement
    controlled when the guilty plea was entered. Id. at 510. Here, as in Mabry, Cruse was aware that the
    plea offer extended by the assistant district attorney, not the alleged promises by Nunley, controlled.
    Therefore, even if this Court were to remand for an evidentiary hearing and utilized the two-pronged
    Kettering inquiry, Cruse would not prevail. Regardless of Nunley's alleged promises, Cruse failed to
    bring this matter to the attention of the trial court. Moreover, Cruse affirmatively indicated that no
    promises had been made to him and elected to accept the plea offer extended by the prosecution. This
    issue is without merit.
    II. WHETHER CRUSE WAS PROPERLY SENTENCED AS A HABITUAL
    OFFENDER.
    Cruse next argues that he was not properly sentenced as a habitual offender because the trial court
    failed to advise him that he had a right to plead separately to the enhanced charge; that he had a right
    to challenge the prior convictions contained in the indictment; that it is the burden of the prosecution
    to prove prior convictions beyond a reasonable doubt; or require him to plead "guilty" or "true" to
    the prior convictions.
    Cruse admits that he was unable to locate Mississippi authority to support the argument that a
    separate Boykin examination is required to be conducted with regard to an enhanced charge. Cruse,
    however, relies on Government of Virgin Islands v. George, 
    741 F.2d 643
     (3d Cir. 1984) and Long
    v. McCotter, 
    792 F.2d 1338
     (5th Cir. 1986).
    In George, the Court held that under the Virgin Islands Habitual Criminals Statute, before a
    defendant is asked to admit to previous convictions, the court must personally address the defendant
    to determine whether the consequences of such an admission are understood. 
    741 F.2d 643
    , 649 (3rd
    Cir. 1984). However, in Long, the Fifth Circuit noted that in Neyland v. Blackburn, 
    785 F.2d 1283
    (5th Cir. 1986), cert. denied, 
    479 U.S. 930
     (1986), it had considered, but did not decide, whether
    Boykin requires an affirmative showing in the trial court record that a defendant knowingly and
    intelligently entered an enhancement plea. In Neyland, that Court chose rather to utilize "an approach
    . . . which resolves the validity of such admissions under an effective assistance of counsel analysis
    rather than under the standards ordinarily applicable to accepting guilty pleas." The Neyland court
    examined the totality of the circumstances to ascertain whether the petitioner was aware of the
    consequences of his counsel's admissions.
    In Keyes v. State, 
    549 So. 2d 949
     (Miss.1989), the defendant pled guilty to six separate charges.
    During the guilty plea hearing, the circuit court determined that the pleas were voluntary and
    sentenced Keyes as a habitual offender. However, Keyes argued that he should have been given a
    separate hearing on his habitual offender status. This Court held:
    Where the defendant has been convicted after jury trial, the recidivism hearing will indeed be
    separate and subsequent. But, where the defendant enters a plea of guilty, nothing in the rule
    mandates a separate hearing. The rule provides only that, after entry of the plea, "a hearing . . .
    will then be conducted . . . ."
    In the case sub judice, four prior convictions were set forth in the indictment to meet the
    requirements of Miss. Code Ann. § 99-19-81 (1972). During the guilty plea hearing, Cruse indicated
    that he had been provided with a copy of the indictment and had read or had the indictment read to
    him. Cruse was specifically questioned by the trial court about the habitual portion of the indictment
    and indicated that he understood this portion of his sentence.
    Although Cruse did not specifically plead "true" to the four prior convictions used to enhance his
    sentence on Count I, nothing requires him to do so. URCCC 11.03 (1996)(1) requires the following:
    3. If the defendant is convicted or enters a plea of guilty on the principal charge, a hearing
    before the court without a jury will then be conducted on the previous convictions.
    Cruse voluntarily entered his guilty plea and was advised of the consequences of doing so. Moreover,
    Cruse was specifically advised by the trial court of the consequences of the habitual enhancement and
    chose not to challenge the prior convictions or object to their use. There is nothing in this record to
    indicate that Cruse did not understand the nature or the consequences of his guilty plea. This issue is
    without merit.
    III. WHETHER THE SENTENCES IMPOSED BY THE TRIAL COURT WERE
    AMBIGUOUS.
    This Court has repeatedly held that an ambiguity in criminal sentencing "must be resolved in favor of
    the accused." State v. Willis, 
    539 So. 2d 1043
    , 1045 (Miss.1989); Johnson v. State, 
    260 So. 2d 436
    (Miss.1972); Anderson v. State, 
    288 So. 2d 852
    , 855 (Miss.1974). However, an examination of the
    sentences imposed by the trial court in the present case reflects no ambiguity.
    During the guilty plea hearing, the trial court sentenced Cruse to serve seven years on Count I as a
    habitual offender pursuant to Miss. Code Ann. § 99-19-81 and therefore imposed the maximum term
    of imprisonment without benefit of probation or parole. On Count II of the indictment, Cruse was
    sentenced to serve seven years to run consecutive to the sentence in Count I. On Count III of the
    indictment, Cruse was sentenced to serve a five-year term to run consecutive to the sentences
    imposed on Counts I and II. The five-year sentence for Count III was subsequently suspended by the
    trial court upon recommendation by the State.
    After sentencing, the trial court made several comments regarding the actual amount of time Cruse
    would be required to serve. Cruse, however, argues that these statements rendered the sentences
    ambiguous. Presented in a disjointed fashion these comments appear to present somewhat of an
    ambiguous picture regarding the actual time Cruse would serve. However, when placed in proper
    context, it is clear that the trial court was merely estimating the amount of time Cruse would actually
    serve given current parole policy.
    Despite the statements by the trial judge, the sentences remained the same. There is simply nothing
    ambiguous about the sentences imposed by the trial court during the guilty plea hearing or in the
    sentencing order. This issue is without merit.
    CONCLUSION
    Cruse challenges the entry of his guilty plea on several bases. However, no evidentiary hearing is
    warranted; Cruse was properly sentenced as a habitual offender; and the sentences imposed were
    unambiguous. Cruse is therefore not entitled to any relief from his voluntary and intelligent guilty
    plea.
    DENIAL OF POST-CONVICTION RELIEF AFFIRMED.
    LEE, C.J., PRATHER AND SULLIVAN, P.JJ., PITTMAN, BANKS, McRAE AND
    ROBERTS, JJ., CONCUR. MILLS, J., NOT PARTICIPATING.
    1. Formerly Rule 6.04 of the Mississippi Uniform Rules of Circuit Court Practice.