Phillip Fredenburg v. State of Mississippi , 203 So. 3d 638 ( 2016 )

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2015-CP-01072-COA
PHILLIP FREDENBURG A/K/A PHILLIP C. APPELLANT
FREDENBURG
v.
STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 06/22/2015
TRIAL JUDGE: HON. WILLIAM A. GOWAN JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT,
FIRST JUDICIAL DISTRICT
ATTORNEY FOR APPELLANT: PHILLIP FREDENBURG (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: LADONNA C. HOLLAND
NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF
TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION
RELIEF
DISPOSITION: AFFIRMED - 10/25/2016
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
BEFORE IRVING, P.J., CARLTON AND GREENLEE, JJ.
CARLTON, J., FOR THE COURT:
¶1. On August 11, 2008, Phillip Fredenburg pleaded guilty to armed robbery. The trial
court sentenced him to serve twenty years in the custody of the Mississippi Department of
Corrections (MDOC), with five years suspended. On June 11, 2015, Fredenburg filed a
motion for postconviction relief (PCR), claiming: (1) his plea was involuntarily and
unknowingly entered; (2) ineffective assistance of counsel; and (3) a Brady1 violation. The
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Brady v. Maryland, 373 U.S. 83, 87 (1963).
trial court summarily denied Fredenburg’s motion. Fredenburg now appeals. Finding no
error, we affirm.
FACTS
¶2. On October 3, 2007, Elsie Echols reported an armed robbery outside of the Star Food
Market on Bailey Avenue in Jackson, Mississippi. Echols alerted the police and provided
a description of the three men who held her up at gunpoint and stole her purse. Officers with
the Jackson Police Department (JPD) then spotted two men matching Echols’s description.
JPD officers eventually apprehended the two men, Fredenburg and Cage Wright, and took
them into custody. Fredenburg declined to give a statement, but Wright provided the police
with a statement implicating Fredenburg in the robbery. Wright also told police that he did
not know that Fredenburg was planning to commit an armed robbery.
¶3. Echols later identified Fredenburg and Wright from a photo lineup as two of the three
men who robbed her. Echols specifically identified Fredenburg as the male who held the gun
and grabbed her purse.
¶4. At his August 11, 2008 plea hearing, Fredenburg affirmed under oath that his defense
counsel had explained to him all of the facts and circumstances of the offense charged and
discussed any potential defenses. Fredenburg also swore that he had read and understood his
plea petition. The transcript of the plea hearing reflects that the State recited into the record
the underlying facts it would prove to support an armed-robbery conviction in the event
Fredenburg elected to proceed to trial. Fredenburg testified that he did not disagree with the
State’s factual basis. At the plea hearing, Fredenburg also denied being on any medication
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or having any mental illness that would impair his ability to plead guilty.
¶5. The trial court accepted Fredenburg’s guilty plea and advised Fredenburg of the
minimum and maximum sentences for armed robbery. The trial court also advised
Fredenburg of the rights he would waive by entering a guilty plea. The trial court then
determined that Fredenburg entered his plea freely, intelligently, and voluntarily, and
sentenced Fredenburg to serve twenty years in the custody of the MDOC, with five years
suspended.
¶6. On June 11, 2015, nearly seven years after pleading guilty to armed robbery,
Fredenburg filed a PCR motion in the trial court. The trial court summarily denied the PCR
motion on June 22, 2015. Fredenburg now appeals.
STANDARD OF REVIEW
¶7. “We review a circuit court's denial of a PCR motion under a clearly-erroneous
standard of review.” Vanwey v. State, 147 So. 3d 367, 369 (¶8) (Miss. Ct. App. 2014) (citing
McLaurin v. State, 114 So. 3d 811, 813 (¶4) (Miss. Ct. App. 2013)).
DISCUSSION
¶8. Fredenburg acknowledges that he filed his PCR motion outside of the three-year
statute of limitations. However, to explain his delay, Fredenburg claims that he only recently
became stabilized on his medication, and he maintains that this resulted in the delay in
perfecting his appeal.
¶9. Fredenburg also raises other claims in support of his PCR motion. Fredenburg claims
that he only pleaded guilty because he was threatened by his co-indictees, Cage Wright and
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Eric James. Fredenburg further alleges that his constitutional rights were violated when he
learned after pleading guilty that his co-indictees entered pleas to lesser charges “only
minutes” after Fredenburg entered his plea. Fredenburg states that prior to entering his guilty
plea, he was entitled to know of any leniency agreement entered into by his co-indictees. He
also claims that if the trial court would have required the State to establish a factual basis for
his plea, the trial court would have determined that Fredenburg did not commit the crime of
armed robbery. Finally, Fredenburg argues that he was denied effective assistance of
counsel, in violation of his constitutional rights.
¶10. In applying the applicable law to this case, we find Fredenburg’s claims barred by the
three -year statute of limitations of the Mississippi Uniform Postconviction Collateral Relief
Act (UPCCRA). The record reflects that Fredenburg pleaded guilty to armed robbery on
August 11, 2008, yet failed to file a PCR motion until June 11, 2015. Mississippi Code
Annotated section 99-39-5(2) (Rev. 2015) provides that in the case of guilty plea, “[a] motion
for relief under this article shall be made . . . within three (3) years after entry of the judgment
of conviction.” We acknowledge that the UPCCRA has provided certain exceptions from
this three-year statute of limitations in cases where the petitioner can demonstrate the
following:
(a)(i) That there has been an intervening decision of the Supreme Court of
either the State of Mississippi or the United States which would have actually
adversely affected the outcome of his conviction or sentence or that he has
evidence, not reasonably discoverable at the time of trial, which is of such
nature that it would be practically conclusive that had such been introduced at
trial it would have caused a different result in the conviction or sentence; or
(ii) That, even if the petitioner pled guilty or nolo contendere, or confessed
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or admitted to a crime, there exists biological evidence not tested, or, if
previously tested, that can be subjected to additional DNA testing that would
provide a reasonable likelihood of more probative results, and that testing
would demonstrate by reasonable probability that the petitioner would not have
been convicted or would have received a lesser sentence if favorable results
had been obtained through such forensic DNA testing at the time of the
original prosecution.
(b) Likewise excepted are those cases in which the petitioner claims that his
sentence has expired or his probation, parole or conditional release has been
unlawfully revoked. Likewise excepted are filings for post-conviction relief
in capital cases which shall be made within one (1) year after conviction.
Miss. Code Ann. § 99-39-5(2). We further acknowledge errors affecting a defendant's
fundamental constitutional rights are also exceptions to this time-bar. Blount v. State, 126
So. 3d 927, 931 (¶13) (Miss. Ct. App. 2013).
¶11. In evaluating the application of the statute of limitations to this case, we note that the
record reflects that the trial court entered its judgment of conviction in 2008, and Fredenburg
failed to file his PCR motion until 2015. As a result, Fredenburg’s PCR motion is clearly
untimely. However, Fredenburg asserts that his counsel’s assistance was ineffective and
violated his fundamental constitutional rights. Fredenburg claims that based on this
assertion, his motion is thus excepted from the three-year statute of limitations under the
UPCCRA.
¶12. We recognize that the Mississippi Supreme Court has held that claims of ineffective
assistance of counsel are subject to the procedural bars of the UPCCRA. Salter v. State, 64
So. 3d 514, 518 (¶14) (Miss. Ct. App. 2010) (citing Kirk v. State, 798 So. 2d 345, 346 (¶6)
(Miss. 2000)). Jurisprudence reflects that “merely raising the claim of ineffective assistance
of counsel is insufficient to surmount the procedural bar[.]” Thomas v. State, 933 So. 2d 995,
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997 (¶5) (Miss. Ct. App. 2006). Accordingly, this Court must review Fredenburg’s
ineffective-assistance-of-counsel claim to determine whether it is sufficient to invoke the
fundamental-rights exception. We recognize that “[t]he burden is on the PCR movant to
show he . . . is entitled to relief by a preponderance of the evidence.” Smith v. State, 129 So.
3d 243, 245 (¶5) (Miss. Ct. App. 2013).
¶13. The supreme court has explained that in order to prevail on a claim of ineffective
assistance of counsel, a petitioner “must demonstrate two things: (1) that his counsel’s
representation fell below an objective standard of reasonableness; and (2) that but for
counsel’s errors, there is a reasonable probability that the outcome of the proceeding would
have been different.” Avery v. State, 179 So. 3d 1182, 1188 (¶13) (Miss. Ct. App. 2015)
(internal quotation marks omitted) (citing Hannah v. State, 943 So. 2d 20, 24 (¶6) (Miss.
2006)); see Strickland v. Washington, 466 U.S. 668, 687-88 (1984).
¶14. In Avery, 179 So. 3d at 1188 (¶13), this Court recognized that with regard to guilty
pleas, a petitioner “must show that there is a reasonable probability that, but for counsel’s
errors, [he] would not have pleaded guilty, would have insisted on going to trial, and the
outcome would have been different.” We further acknowledged that “a defendant must plead
claims of ineffective assistance of counsel with specificity, and the claim must be supported
by affidavits other than his own.” Id. at 1188-89 (¶13). “When a movant fails to attach any
supporting affidavits and relies solely on his own sworn motion, his ineffective-assistance
claim must fail.” Id. at 189 (¶13).
¶15. In support of his claim of ineffective assistance, Fredenburg claims that his attorney
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should have used Fredenburg’s alleged mental illness as a defense for the charges against
him. Fredenburg asserts that he informed his counsel of his history of mental illness.
Fredenburg suggests that a psychiatric assessment would have shed light on his “capacity to
appreciate the criminality” of his conduct as well as his competency to enter a guilty plea.
Fredenburg further claims that his counsel also filled out his plea petition for him and
asserted “complete falsities.”
¶16. Fredenburg also argues that his counsel failed to interview various witnesses who
could have corroborated Fredenburg’s story that he was framed. Fredenburg claims that his
defense counsel could have interviewed the employees and customers at the supermarket at
the time of the robbery, claiming that “their testimony could have been highly probative of
my innocence.” In his brief, Fredenburg also mentions a man named “Frank,” whom he
alleges his co-indictee, Eric James, mentioned in his statement to the police. Fredenburg
alleges that Frank told James’s sister that he observed police “beating up” on a white boy
who Frank thought was James. Fredenburg claims that “Frank witnessed me getting beat up
by the police. [Frank’s] testimony would have been very persuasive evidence of me being
framed for the armed robbery.”
¶17. After our review of the record, we find that Fredenburg’s claims lack sufficient
evidentiary support. Fredenburg provides only his own assertions to support his claims.
Moreover, the record reflects that Fredenburg submitted his plea to the trial court under oath
wherein he acknowledged that he understood the meaning and effect of his guilty plea, as
well as the offenses to which he pleaded guilty. Fredenburg also stated under oath that he
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was satisfied with his defense counsel’s service. Thus, Fredenburg has not sufficiently
alleged that his counsel’s performance fell below an objective standard of reasonableness.
Accordingly, Fredenburg failed to prove the first part of the Strickland analysis.
¶18. Additionally, the record reflects that at his plea hearing, Fredenburg swore under oath
that his defense counsel had advised him of the nature of the offense and discussed possible
defenses. The record also shows that Fredenburg failed to provide any other information
about Frank, including how to contact him. We find that Fredenburg failed to demonstrate
a reasonable probability that the outcome of the proceeding would have been different if his
defense counsel had interviewed Frank or the employees and customers at the supermarket.
See Avery, 179 So. 3d at 1188 (¶13).
¶19. Regarding Fredenburg’s claim of mental incapacity that impaired his ability to make
a knowing, voluntary, and intelligent plea, we recognize that “it is the petitioner, not the
State, who bears the burden of proving by a preponderance of evidence that the guilty plea
was involuntary.” Timmons v. State, 176 So. 3d 168, 171-72 (¶9) (Miss. Ct. App. 2015).
Despite Fredenburg’s claim to the contrary, the record reflects that the trial court found that
the guilty-plea colloquy herein reflects that Fredenburg’s guilty plea was knowing,
intelligent, and voluntary. No lack-of-competency issues arose before the trial court upon
accepting Fredenburg’s plea, and Fredenburg has failed to provide evidence to support a
showing of any subsequent onset of mental incapacity upon submission of his PCR motion
herein. The trial court’s order denying Fredenburg’s PCR motion reflects that the trial court
reviewed the guilty-plea transcript, which shows that Fredenburg denied under oath being
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on any medications or having mental illness that would impair his ability to enter his guilty
plea.
¶20. The trial court also found that the medical records submitted by Fredenburg with his
PCR motion were inapplicable and insufficient to support his claim for relief. The record
shows that, in support of his claim that his plea was involuntary and unknowing, Fredenburg
submitted medical records showing his prior diagnosis for attention deficit hyperactivity
disorder (ADHD) and conduct disorder. In its order denying PCR, the trial court stated that
none of the medical records provided by Fredenburg indicated that he did not understand
right from wrong or lacked competency to enter a guilty plea. Specifically, the trial court
recognized that
[Fredenburg] states, and medical records confirm, he suffered from ADHD and
conduct disorder with “sociopathic and psychopathic personality traits.”
Different records describe him as antisocial with impulse control issues.
However, the last medical records provided were in 2005, two years prior
to the crime. Further, no medical records indicate [Fredenburg] did not
understand right from wrong or would be impaired to enter a guilty plea.
He states he was in “delusional states of mind” when he met with his attorney;
however, his attorney’s notes, which he attached to his petition, do not indicate
this and no medical records from 2008 have been submitted. His attorney
did note he was prescribed Ritalin.
(Emphasis added). The trial court also found that Fredenburg “failed to attach an affidavit
from his former attorney or from anyone else that could verify his illness at the time of the
crime and plea.” The trial court observed that the attorney’s notes reflected that Fredenburg
confessed to his attorney.
¶21. Fredenburg also alleges that his constitutional rights were violated when he learned
after pleading guilty that his co-indictees entered pleas to lesser charges “only minutes” after
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Fredenburg entered his plea. Fredenburg states that he was entitled to know of any leniency
agreement entered into by his co-indictees. In Brady v. Maryland, 373 U.S. 83, 87 (1963),
the United States Supreme Court held “that the suppression by the prosecution of evidence
favorable to an accused upon request violates due process where the evidence is material
either to guilt or to punishment, irrespective of the good faith or bad faith of the
prosecution.” In order to establish a Brady violation, Fredenburg must show: “(1) the
evidence at issue is favorable to the accused, either because it is exculpatory, or because it
is impeaching; (2) the State suppressed the evidence, either willfully or inadvertently; and
(3) prejudice ensued.” Davis v. State, 174 So. 3d 299, 306 (¶22) (Miss. Ct. App. 2015)
(citing Skinner v. Switzer, 562 U.S. 521 (2011)). We find, however, that Fredenburg’s guilty
plea precludes him from now asserting a Brady violation. See United States v. Ruiz, 536 U.S.
622, 628 (2002); United States v. Conroy, 567 F.3d 174, 178 (5th Cir. 2009); Matthew v.
Johnson, 201 F.3d 353, 362-64 (5th Cir. 2000); Walton v. State, 165 So. 3d 516, 524-25
(¶¶30-33) (Miss. Ct. App. 2015). See also URCCC 8.04.2 Furthermore, Fredenburg
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Uniform Rule of Circuit and County Court 8.04(A)(4)(c) provides in pertinent part:
When the defendant is arraigned and wishes to plead guilty to the offense
charged, it is the duty of the trial court to address the defendant personally and
to inquire and determine:
....
c. That the accused understands that by pleading guilty (s)he
waives his/her constitutional rights of trial by jury, the right to
confront and cross-examine adverse witnesses, and the right
against self-incrimination; if the accused is not represented by
an attorney, that (s)he is aware of his/her right to an attorney at
every stage of the proceeding and that one will be appointed to
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provided no evidence in the record regarding any leniency agreement between the State and
his co-indictees. We find that Fredenburg “failed to show the evidence was favorable to his
defense or that the outcome of the proceedings would have been different had he been shown
the evidence.” Davis, 174 So. 3d at 306 (¶23).
¶22. We find no abuse of discretion in the trial court’s denial of Fredenburg’s PCR motion.
The record reflects that Fredenburg’s claims are time-barred pursuant to section 99-39-5(2).
Based on our review of the record, we find no error in the trial court’s finding that
Fredenburg failed to present sufficient evidence in support of his claims to overcome the
procedural bar. We therefore affirm.
¶23. THE JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT, FIRST
JUDICIAL DISTRICT, DENYING THE MOTION FOR POSTCONVICTION
RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO
HINDS COUNTY.
LEE, C.J., IRVING AND GRIFFIS, P.JJ., BARNES, ISHEE, FAIR, JAMES,
WILSON AND GREENLEE, JJ., CONCUR.
represent him/her if (s)he is indigent.
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