IN THE SUPREME COURT OF MISSISSIPPI

NO. 2005-CT-00071-SCT

OLAN CALLINS

v.

STATE OF MISSISSIPPI

 ON WRIT OF CERTIORARI

DATE OF JUDGMENT: 09/27/2005

TRIAL JUDGE: HON. PAUL S. FUNDERBURK

COURT FROM WHICH APPEALED: ALCORN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE 

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: CHARLES W. MARIS, JR.

DISTRICT ATTORNEY: JOHN R. YOUNG

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: THE JUDGMENT OF THE COURT OF

APPEALS IS REVERSED. THE JUDGMENT

OF THE ALCORN COUNTY CIRCUIT

COURT DENYING THE MOTION FOR POSTCONVICTION RELIEF IS REINSTATED AND

AFFIRMED - 02/21/2008

MOTION FOR REHEARING FILED:

MANDATE ISSUED:

EN BANC.

CARLSON, JUSTICE, FOR THE COURT:

¶1. Olan Callins appealed the Alcorn County Circuit Court’s judgment denying relief

under the Mississippi Uniform Post-Conviction Collateral Relief Act. The Court of Appeals

reversed the trial court judgment and remanded this case to the trial court for an evidentiary
After indictment, Callins executed a sworn affidavit of indigency stating, inter alia,

1

that he was unemployed and had no real or personal property to employ retained counsel.

The relevance of this fact will become evident later in this opinion.

2

hearing on the issue of whether Callins detrimentally relied on the plea agreement, thus

invalidating the penitentiary sentence imposed upon him. Callins v. State, 2007 Miss. App.

LEXIS 243 (Apr. 17, 2007), r’hg denied, 2007 Miss. App. LEXIS 619 (Sept. 18, 2007).

However, we granted the State’s petition for writ of certiorari. Callins v. State, 2007 Miss.

LEXIS 655 (Nov. 29, 2007). Having now considered the critical issue raised on appeal, we

find that the judgment of the Court of Appeals should be reversed, and the judgment of the

Alcorn County Circuit Court should be reinstated and affirmed. 

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶2. On July 26, 2004, Olan Callins, with his court-appointed counsel, appeared before 1

the Circuit Court of Alcorn County, Judge Sharion R. Aycock, presiding, and offered a plea

of guilty to a grand jury indictment charging him with possession of a quantity of

methamphetamine, a Schedule II controlled substance being more than ten grams but less

than thirty grams, in violation of Mississippi Code Annotated Section 41-29-139(c)(1)(D)

(Rev. 2005). Judge Aycock conducted an exhaustive examination of Callins in the presence

of his attorney and the assistant district attorney concerning the voluntariness of Callins’s

guilty plea. At Judge Aycock’s request, the assistant district attorney announced on the

record the plea agreement reached between the State and the defendant (which provided,

inter alia, for forfeiture of certain items by Callins and a joint sentence recommendation of
Callins likewise filed a pro se motion to withdraw his guilty plea, alleging that he was 2

misled by the prosecutor’s sentence recommendation of a probationary sentence when he

clearly was not entitled to a probationary sentence pursuant to Mississippi Code Annotated

Section 47-7-33 since he had a prior felony conviction. The record does not reflect that the

trial judge ever ruled on Callins’s pro se motion; however, even if we were to consider the

merits of these allegations, the issue raised in Callins’s pro se motion is rendered moot by

this Court’s decision in Johnson v. State, 925 So. 2d 86 (Miss. 2006). 

3

ten years’ imprisonment, but credit for time served in custody and suspension of the balance

of the sentence). Judge Aycock informed Callins that if she accepted his guilty plea,

sentencing would be deferred and another judge would impose the sentence. At the

conclusion of the plea colloquy, Judge Aycock determined that Callins’s guilty plea was

freely and voluntarily offered, and she thus accepted Callins’s plea of guilty and set the case

for subsequent sentencing by a different judge.

¶3. On August 5, 2004, Callins appeared with counsel before the Circuit Court of Alcorn

County, Judge Paul S. Funderburk presiding. Notwithstanding the joint sentence

recommendation which, if accepted, would have allowed Callins to serve his sentence free

from incarceration, Judge Funderburk sentenced Callins to serve a term of twenty years in

the custody of the Mississippi Department of Corrections, with twelve years suspended and

eight years to serve, followed by five years of post-release supervision. Feeling aggrieved

by Judge Funderburk’s failure to sentence him consistent with the joint sentence

recommendation, Callins, through counsel, filed a Motion to Clarify Sentencing Order,

Conduct Due Process Hearing, or in the Alternative, to Grant Relief Under Post Conviction

Relief Act. Judge Funderburk, without conducting an evidentiary hearing, subsequently 2
We feel comfortable in making this statement inasmuch as the dissent addresses only 3

the third issue.

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entered an order denying Callins’s motion, from which Callins appealed. This case was

assigned to the Court of Appeals.

PROCEEDINGS IN THE COURT OF APPEALS

¶4. On appeal, Callins raised issues concerning whether the trial judge erred in (1)

refusing to sentence Callins consistent with the joint sentence recommendation; (2) imposing

a sentence which exceeded the maximum penalty provided by statute; and (3) refusing to

grant an evidentiary hearing on Callins’s post-conviction grievances. The Court of Appeals

appropriately restated the issues to be (1) whether Callins’s guilty plea was freely,

knowingly, and voluntarily entered; (2) whether the trial judge abused his discretion in

imposing sentence; and (3) whether Callins was entitled to an evidentiary hearing on his

motion for post-conviction relief. While there appeared to be no disagreement among the

members of the Court of Appeals on the first two issues, the majority’s treatment of Issue 3

III generated a dissent from Judge Carlton, and her dissent was joined by Presiding Judge

Myers. We agree with the Court of Appeals in its treatment and disposition of the first two

issues; therefore, having granted certiorari, we limit the question on today’s review. Miss.

R. App. P. 17(h).

¶5. In a seven-two opinion (one judge not participating), the Court of Appeals found that

while Callins’s guilty plea was freely, knowingly, and voluntarily entered and that Judge

Funderburk did not abuse his discretion in imposing sentence, Callins was entitled to an
The majority stated that “[i]n order to show detrimental reliance, the defendant must 4

show some ‘additional servitude to the government.’ Callins, 2007 Miss. App. LEXIS 243,

*10, ¶11 (quoting Christie v. State, 915 So. 2d 1073, 1075 (Miss. Ct. App. 2005)). 

5

evidentiary hearing on the issue of whether he detrimentally relied on the joint plea

agreement between himself and the State of Mississippi. The Court of Appeals found that,

even though Callins’s motion for post-conviction relief did not substantially comply with

Mississippi Code Annotated Section 99-39-9 (Rev. 2007), sufficient evidence existed in the

record to warrant affording Callins an evidentiary hearing. Id. at **9-10, ¶10. Specifically,

relying on this Court’s decisions in Moody v. State, 716 So. 2d 592 (Miss. 1998), and

Boyington v. State, 389 So. 2d 485 (Miss. 1980), the Court of Appeals held that an

evidentiary hearing was necessary to determine whether Callins in fact satisfied his

obligation to forfeit the property pursuant to the plea agreement. Id. at **10-11, ¶11. The

Court of Appeals reasoned that if Callins forfeited his property, then he had relied upon the

plea agreement to his disadvantage, since he had been led to believe that the sentencing

recommendation would be accepted. Id. at **10-13, ¶¶11-13. Additionally, the Court of 4

Appeals held that the trial court had knowledge of the plea agreement and allowed a

continuance in order to give Callins additional time to complete the forfeiture, thus

participating in the plea agreement. Id. Accordingly, the Court of Appeals reversed the trial

court judgment denying post-conviction relief, and remanded the case to the trial court,

stating that “if the trial court determines that Callins has substantially complied with his

obligations under the plea agreement to his detriment, then, pursuant to Moody and
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Boyington, the trial court is duty bound to sentence him consistent with his plea bargain.”

Id.

¶6. However, in her dissent, Judge Carlton found that Callins was not entitled to an

evidentiary hearing, stating, inter alia:

I disagree with the majority's determination that Callins is entitled to an

evidentiary hearing on the issue of whether he detrimentally relied upon the

plea agreement by virtue of his cooperation with the forfeiture proceedings. A

trial judge is not bound to accept the sentencing recommendation of the State

where he does not involve himself in the plea bargaining process. Moreover,

Callins's claim was properly dismissed without a hearing as it was unsupported

by the affidavits of others and directly contradicted by his sworn testimony at

the plea hearing.

Callins, 2007 Miss. App. LEXIS 243, *21, ¶22 (Carlton, J., dissenting). 

¶7. After its motion for rehearing was denied by the Court of Appeals, the State of

Mississippi filed with the Court a petition for writ of certiorari, which we granted. We thus

focus our discussion on the crucial issue presented on writ of certiorari. 

DISCUSSION

WHETHER CALLINS WAS ENTITLED TO AN EVIDENTIARY

HEARING ON HIS MOTION FOR POST-CONVICTION RELIEF.

¶8. "When reviewing a lower court's decision to deny a petition for post conviction relief

this Court will not disturb the trial court's factual findings unless they are found to be clearly

erroneous. However, where questions of law are raised the applicable standard of review is

de novo." Lambert v. State, 941 So. 2d 804, 807 (Miss. 2006) (quoting Brown v. State, 731

So. 2d 595, 598 (Miss. 1999); see also Bank of Miss. v. S. Mem'l Park, Inc., 677 So. 2d 186,

191 (Miss. 1996)).
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¶9. Returning to the relevant facts of today’s case concerning the proceedings before the

trial court, a careful review of the transcript of the guilty plea hearing reveals that on July 26,

2004, Judge Aycock conducted an extensive examination of Callins to satisfy herself that

Callins understood his constitutional rights, as well as those constitutional rights he was

giving up with his guilty plea. In each instance, Callins stated that he understood his rights

and that he was giving up his rights by pleading guilty. In open court, Callins was informed

of the minimum and maximum penalties for the methamphetamine possession charge to

which he was pleading guilty, that being a minimum sentence of six years imprisonment, a

maximum sentence of twenty-four years imprisonment, and a maximum fine of $500,000.

Judge Aycock then inquired:

Q. Mr. Callins, do you understand and represent to the Court that you

understand the minimum mandatory sentence as well as the maximum

sentence and fine that this Court could impose?

A. Yes.

Judge Aycock then learned that Callins had engaged in a plea agreement with the State:

THE COURT: Does the State have a recommendation in his case?

[ASSISTANT DISTRICT ATTORNEY]: We do, Your Honor. We are

requesting that sentencing be deferred. As part of the plea agreement, there are

certain items which are being forfeited, and there are individuals not in court

today who have expressed an interest in the items seized; and, therefore, it is

necessary to get their signature on the forfeiture items. But the

recommendation will be, Your Honor, the defendant be sentenced to ten years

with the Mississippi Department of Corrections, that he be given credit for the

time he has already served with the balance suspended and placed on three

years post-release supervision, forfeit those items seized, and it is a sum of

cash and a vehicle, Your Honor, seized on the day of arrest. $100 to the

Mississippi Crime Lab, $100 to the Mississippi Crime Victims Compensation
As part of the plea agreement, Callins agreed to forfeit the property seized. It is 5

apparent from the record that the property had not actually been forfeited at the time of the

sentencing hearing due to the competing interests of other individuals who were also

claiming an interest in the property to be forfeited. However, this fact is of no moment in

the disposition of today’s case. 

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Fund and court costs. We do not request a fine, Your Honor, due to the value

of the items seized.

Judge Aycock again questioned Callins:

Q. Do you understand that even though the State is making a recommendation

that this Court is not bound to accept the State’s recommendation and could

impose the maximum sentence of 24 years, the maximum fine of a half million

dollars and/or both?

A. Yes.

Q. You have heard it announced that sentencing is going to be deferred; is that

correct?

A. Yes.

Q. Mr. Callins, do you understand that that was going to require you to report

back here next week for sentencing?

A. Yes.

. . . . 

Q. Mr. Callins, you’re going to be back before the Court next week as

announced as a condition to your plea here today. I’m asking you do you

understand that another judge will be here next week?

A. Yes, sir (sic).

Q. Do you agree that another judge other than myself – I’ve accepted your

plea. Do you agree that another judge will do the sentencing next week?

A. Yes. 

¶10. On August 5, 2004, the Alcorn County Circuit Court, Judge Paul Funderburk,

presiding, conducted Callins’s sentencing hearing. Judge Funderburk rejected the State’s

recommendation, stating: 5

THE COURT: I note in the court file that he signed an affidavit of indigence

on September 18, 2003, stating that he was unemployed, earned zero dollars

per week, that he didn’t own an automobile, he didn’t own any property, that
When Callins was before Judge Aycock to enter his guilty plea, Judge Aycock

6

requested Callins to reveal “all of your prior felony history.” After conferring with his

counsel, Callins informed Judge Aycock of a 1990 conspiracy conviction in Madison

County, Tennessee, for which he had served time. When Judge Aycock inquired if there

were “[a]ny other felonies,” Callins responded, “No.”

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he had zero dollars in checking, zero dollars in savings. His assets were zero.

And based on that affidavit, which apparently was perjured, he was appointed

counsel, a public defender. I have also reviewed the presentence investigation

on Mr. Callins, which shows that he has six prior felony convictions.[ ]

6

Taking his previous record into consideration and the nature of the charge, the

minimum and maximum penalties, it is the sentence of the Court, Mr. Callins,

that you serve a term of 20 years in the custody of the Mississippi Department

of Corrections. Twelve of those years shall be suspended, leaving you eight

to serve. You are ordered to pay a two thousand dollar fine and all cost of

court. Upon your release you will be on five years post-release supervision.

You will be in custody of the sheriff to await transportation.

¶11. Consistent with the sentence imposed upon Callins in open court, Judge Funderburk

entered an order sentencing Callins to twenty years in the custody of the Mississippi

Department of Corrections, with twelve years suspended, and five years of post-release

supervision. Additionally, Callins was ordered to pay $281 in court costs and a $2,000 fine.

On August 10, 2004, Callins, filed, pro se, a Motion to Withdrawal (sic) Guilty Plea pursuant

to Mississippi Uniform Rule of Circuit and County Court Practice 8.04 (A).

¶12. On October 6, 2004, Callins, through counsel, filed a Motion to Clarify Sentencing

Order, Conduct Due Process Hearing, or in the Alternative, to Grant Relief Under Post

Conviction Relief Act, wherein Callins stated that he, his counsel, and the Assistant District

Attorney all believed that the sentence recommendation would be followed by the sentencing

judge. However, Callins attached no affidavits to his motion. Callins requested that the trial
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court give him a full hearing concerning his sentence and clarify its order concerning that

sentence. On September 30, 2005, Judge Funderburk entered an order entitled “Order

Denying Defendant’s Motion to Clarify Sentencing Order, Conduct Due Process Hearing,

or in the Alternative, To Grant Relief Under Post Conviction Relief Act.”

¶13. In his detailed, three-page order, Judge Funderburk, without a hearing, found from the

record (including the transcript of the guilty plea hearing before Judge Aycock), that his

sentencing order was unambiguous and required no clarification. Judge Funderburk likewise

found, inter alia, that Callins acknowledged the minimum and maximum penalties for the

crime to which he pleaded guilty; that Callins acknowledged that he understood the

sentencing judge was not bound by the sentencing recommendation which had been read in

open court before Judge Aycock; and that Callins had one year of college and certainly

understood his rights and those rights he was giving up by his guilty plea. Judge Funderburk

also stated that a pre-sentence investigation report prepared by an officer with the Mississippi

Department of Corrections showed that Callins had six prior felony convictions, although

Callins had sworn under oath during his plea colloquy with Judge Aycock that he had only

one prior felony conviction. Judge Funderburk further stated in his order that Callins made

yet another perjured statement when he acknowledged before him at the time of sentencing

that he had been “gainfully employed in the used car business,” and when he acknowledged

before Judge Aycock that he had been employed at Millennium Cars, Inc., for seven years.

On the other hand, in order to secure a public defender at the time of arraignment, Callins

signed a sworn affidavit of indigence stating that he was unemployed with no income and
11

had no real or personal property. Finally, in his order denying post-conviction relief, Judge

Funderburk stated:

In arriving at a sentence, the Court took into consideration the nature of the

charge against Callins, the minimum and maximum sentences provided by

statute for the crime to which he pled guilty and his previous felony history.

The trial judge is “solely responsible for determining the appropriate sentence.

The trial judge does not have to accept any sentence recommendation made

during plea negotiations.” Robinson v. State, 836 So. 2d 747, 751 (Miss.

200[2]).

Allegations by a movant in post-conviction pleadings that are completely

contradicted by his sworn testimony in the record, as in this case, do not

require a hearing. Dawkins v. State, 2005 WL 1384335 (Miss. Ct. App. 2005),

citing Taylor v. State, 682 So. 2d 359, 364 (Miss. 1996). Therefore, Callins’

motion shall be, and the same is hereby, denied and dismissed for this reason.

Furthermore, Callins’ motion does not substantially comply with the

requirements of Miss. Code, 1972, Ann., Section 99-39-9, and the same is

hereby, denied and dismissed for this reason also.

¶14. On this record, the Court of Appeals, in reliance on this Court’s decisions in

Boyington and Moody, determined that Callins was entitled to an evidentiary hearing before

the trial judge to determine (1) if Callins had satisfied his part of the plea agreement by doing

all he could do to forfeit certain personal property and, if so, (2) whether Callins had

detrimentally relied on the provisions of the joint plea agreement between himself and the

State, thus requiring the trial court to sentence Callins pursuant to the plea agreement.

Callins v. State, 2007 Miss. App. LEXIS 243, **10-13, ¶¶11-13.

¶15. In her dissent, Judge Carlton thoroughly discussed and distinguished both Boyington

and Moody, finding instead that the case sub judice was more akin to Martin v. State, 635
However, we stay focused on the fact that Boyington ultimately did not plead guilty, 7

but instead put his case before a jury, which found him guilty.

12

So. 2d 1352 (Miss. 1994). Callins, 2007 Miss. App. LEXIS 243, **21-39, ¶¶22-44 (Carlton,

J., dissenting). We agree with Judge Carlton’s analysis.

¶16. In Boyington, the defendant was indicted for the crime of selling less than one

kilogram of marihuana and later apprehended in the state of Pennsylvania. Boyington, 389

So. 2d at 487. Boyington waived extradition and en route back to Mississippi, he informed

an agent with the Mississippi Bureau of Narcotics (MBN) that he wanted to try to “help

himself.” As a result, in exchange for a recommendation of probation, Boyington worked

undercover with the MBN and developed about ten drug cases. Id. at 487-88. With both the

district attorney and the circuit judge having knowledge of Boyington’s undercover work

with the MBN, and at the request of the MBN agent, the district attorney informed the circuit

judge, prior to the trial date, of the proposed plea agreement, which included a sentence

recommendation of probation. However, the circuit judge informed the district attorney that

this recommendation was not agreeable with him, whereupon the district attorney made an

alternative proposal to the circuit judge that he (the district attorney) would recommend a

two-year penitentiary sentence in return for the defendant’s guilty plea. This proposal was

agreeable to the circuit judge. Id. at 488. However, Boyington declined the alternative

proposed plea agreement, and the case ultimately went to trial, resulting in a jury verdict of

guilty. The trial judge sentenced Boyington to a term of eight years in the state penitentiary.

Id. at 488-90. This Court acknowledged, inter alia, that plea bargaining was an essential 7
The majority’s opinion generated a dissent from Justice Broom, joined by Justice 8

Walker, wherein Justice Broom stated, inter alia, “I am not willing that we should for the

first time ever, absent any statutory authority, where no reversible error is found, vacate a

trial judge’s order and tell him he must place on probation one found guilty by a jury.”

Boyington, 389 So. 2d at 493. In making this statement, Justice Broom emphasized that

Boyington had initiated the plea bargaining process; there was an alternative

recommendation for either a light sentence or probation; no one reneged on a promise;

Boyington rejected the proffered two-year sentence; and even after a jury trial and verdict

of guilty, the trial judge sentenced Boyington to a penitentiary term which was less than half

the maximum sentence provided by statute. Id. 

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part of the criminal justice system and that the imposition of a sentence upon a criminal

defendant is within the sound discretion of the trial judge, and such sentence will not be

reversed or otherwise disturbed if the sentence is within the statutory limits. Id. at 491

(citations omitted). Notwithstanding this Court’s acknowledgment of these basic precepts,

and without any citation to relevant authority, this Court concluded:

However, under the peculiar facts of this case, where we do not find error

which requires reversal for a new trial, but where the appellant, with the

knowledge of the trial court, worked for the Mississippi Bureau of Narcotics

as an undercover informant, and was promised by the Bureau and district

attorney that they would recommend probation, which led appellant to believe

he would be placed on probation, we hold justice requires that the judgment

of the lower court sentencing appellant to eight (8) years in the Mississippi

State Penitentiary be vacated and that the case be remanded to the lower court,

with instructions that appellant be placed on probation under such terms and

conditions as the lower court may prescribe.[ ] 8

Id.

¶17. As Judge Carlton pointed out in her dissent, Boyington is distinguishable for several

reasons, including the fact that, contrary to the conduct of the trial judge in Boyington, Judge

Aycock and Judge Funderburk, in the case sub judice, in no way involved themselves in the
The Court of Appeals opined that since Judge Aycock was aware of the plea

9

agreement at the plea hearing and continued the case for a subsequent sentencing hearing in

order to allow Callins additional time to forfeit the subject property consistent with the plea

agreement, “the trial court also involved itself in the [plea bargaining] process.” Callins,

2007 Miss. App. LEXIS 243, **12-13, ¶13. Like Judge Carlton, we disagree that merely

continuing the sentencing hearing until a future date somehow caused Judge Aycock to

become a part of the plea bargaining process to justify the “detrimental reliance” argument.

In fact, a continuance of the sentencing hearing allowed the sentencing judge to receive a

pre-sentence investigation report on which the sentencing judge heavily relied in arriving at

his sentence. 

14

plea bargaining process between the State and Callins and his attorney. Callins, 2007 Miss.

App. LEXIS 243, *28, ¶31 (Carlton, J., dissenting). In fact, at the plea hearing, Judge

Aycock unequivocally informed Callins that the court was not bound by the State’s

recommendation of a sentence to time served, and that the court could instead impose the

maximum twenty-four-year sentence. Callins clearly stated that he understood what Judge

Aycock was saying to him.9

¶18. The Court of Appeals also cited this Court’s decision in Moody to undergird its

decision in the case sub judice. In Moody, the defendant was charged in a multi-count

indictment on two counts of capital murder and one count of simple murder, meaning that

if he went to trial and was found guilty of capital murder, he stood the possibility of being

sentenced to death by the sentencing jury. Moody, 716 So. 2d at 593. In order to avoid the

death penalty, Moody entered into a Memorandum of Understanding (MOU) whereby, in

return for his guilty pleas and his cooperation to fully reveal his knowledge of the crimes for

which he was indicted as well as an unsolved, unrelated murder and other crimes, the State

would recommend to the trial judge that Moody receive two life sentences to run
15

consecutively. Id. Also, pursuant to the MOU, Moody agreed to testify truthfully against his

co-defendants at their trials. Moody’s subsequent polygraph examinations concerning the

facts and circumstances surrounding the murders suggested that Moody was indeed being

truthful with law enforcement officials. Id. Notwithstanding this MOU and Moody’s actions

taken in reliance upon it, the trial judge refused at the plea hearing to accept Moody’s guilty

pleas, reasoning, inter alia, that the MOU had been entered into by a district attorney who

was no longer serving; that the district attorney entered into the MOU without consulting the

trial judge; that the district attorney should have “gotten authority” from the trial judge to

enter into the MOU; that he “would hope that [the district attorney] would have consulted

the alleged victim’s family members,” and that the “heinousness” of the crimes dictated that

Moody should not be able to escape the death penalty. Id.

¶19. After granting Moody’s petition for interlocutory appeal, this Court addressed the

single issue of whether the MOU incorporating the plea agreement between Moody and the

State should be enforced. Moody asserted that the MOU should be enforced because he was

improperly induced to plead guilty by the State’s promise that he would not be subjected to

the death penalty. Further, he said he detrimentally relied on the MOU by (1) providing

information on his involvement and the involvement of others in the murders, (2) disclosing

fully all information within his knowledge concerning the murders for which he was indicted

and another separate murder, (3) submitting to and passing polygraph examinations

concerning his statements, and (4) agreeing to testify against his co-defendants. Id. at 593-

94. This Court reversed and remanded for further proceedings, stating, inter alia:
16

One, the trial court clearly abused its discretion in flatly refusing to accept

Moody’s pleas of guilt based solely upon the reasons indicated in the record.

Two, Moody did indeed detrimentally rely on the [MOU] by substantially

performing many of the terms of the [MOU] before the trial court refused to

accept the guilty pleas and enforce the [MOU].

Id. at 594 (emphasis in original). In finding that, on remand, the trial court must enforce the

MOU, in toto, we stated:

However this Court has never held that a trial court may decline to accept a

proffered guilty plea to capital murder simply because the court does not wish

to see the defendant sentenced to something less than death in exchange for

valuable information about the charged offenses and other crimes. Moreover,

no authority exists to support the trial court's other reasons for rejecting

Moody's guilty pleas, such as his vague concern that the victims' families had

not been consulted and his erroneous assertion that the district attorney

exceeded its [sic] discretion in entering the [MOU] with Moody. To the

contrary, the special prosecutor in this case, stated in response to Moody's

petition for interlocutory appeal that his file reflected that the family members

were consulted prior to the execution of the [MOU]. In addition, the special

prosecutor noted that the trial court did not have the authority to enter into plea

negotiations and that the prosecuting office, not the trial court, decides whether

to seek the death penalty even in the most heinous capital murder cases.

Id. at 594-95 (emphasis in original).

¶20. Likewise, as noted by this Court, since Moody was indicted for capital murder, the

trial court had no sentencing options under Mississippi Code Annotated Section 99-19-101,

since only a jury could make the determination that Moody should suffer the death penalty.

If the sentencing jury was unable unanimously to agree on a sentence of either death, life

without parole, or life, the trial judge would be mandated by statute to sentence the defendant

to life imprisonment. Id. at 595. Also, we agreed with the State’s assertion that it was an

appropriate function of the prosecution, and not of the court, to decide whether the death
17

penalty would be sought in a capital murder case. Id. This Court likewise relied on Edwards

v. State, 465 So. 2d 1085 (Miss. 1985), and Boyington to find that Moody had, in fact,

detrimentally relied on the MOU, thus requiring its enforcement. Id.

¶21. Again, we agree with Judge Carlton that Moody is distinguishable from the case sub

judice. Callins, 2007 Miss. App. LEXIS 243, *23, ¶24 (Carlton, J., dissenting). In today’s

case, Judge Funderburk, as the sentencing judge, focused on Callins’s criminal history (six

prior felony convictions) and Callins’s untruthfulness with the court concerning his financial

ability to hire a lawyer and his criminal history (stating under oath in open court that he had

only one prior felony conviction). In arriving at his sentence, Judge Funderburk addressed

in open court his reliance on the probation officer’s pre-sentence report and the fact that

Callins had lied under oath both to him and to Judge Aycock about his employment status

and that he had lied to Judge Aycock when he stated to her under oath that he had only one

prior felony conviction. Callins informed Judge Aycock at the plea hearing that he knew the

court was not bound by any sentencing recommendation, and in the end, Judge Funderburk

imposed a sentence of eight years to serve by way of imprisonment, which sentence was only

one-third of the maximum statutory sentence which could have been imposed. See Miss.

Code Ann. § 41-29-139(c)(1)(D) (Rev. 2005). Thus Judge Funderburk’s actions are a far cry

from the actions of the trial judge in Moody.

¶22. Finally, as Judge Carlton noted in her dissent, the facts and circumstances peculiar to

the case sub judice are more akin to those set out in Martin v. State, 635 So. 2d 1352 (Miss.

1994). See Callins, 2007 Miss. App. LEXIS 243, **29-31, ¶¶33-35 (Carlton, J., dissenting).
18

In Martin, the defendant pleaded guilty to the crime of armed robbery on the day his case

was set for trial in the Circuit Court for the Second Judicial District of Harrison County.

During the plea colloquy, the trial judge informed Martin, inter alia, that: (1) armed robbery

carried a mandatory minimum statutory penalty of three years; (2) since the State had

abandoned its effort to seek the maximum penalty of life imprisonment, the trial judge had

authority to sentence Martin to a term of imprisonment deemed to be less than Martin’s life

expectancy; (3) the then-applicable statute provided for no parole eligibility until the

defendant had served at least ten years of a sentence of more than ten years; and (4) on a

sentence of ten years or less, the defendant was required by statute to serve the sentence, dayfor-day, without the possibility of parole. Id. at 1353. Upon the request of the trial judge, the

prosecution informed the court that the plea agreement reached among the State, Martin, and

Martin’s counsel was that, in exchange for Martin’s testimony against his co-defendants, the

State would recommend a sentence of five years to run concurrently with a three-year

sentence imposed by the Jackson County Circuit Court. Id. On at least three occasions, the

trial judge informed Martin that he was not bound by the sentence recommendation and that

he could impose upon Martin a sentence of up to thirty years, and Martin stated he

understood. The trial court deferred sentencing in order to receive a “full-blown” presentence report, stating, “I don’t know whether or not I’ll follow the recommendation.” Id.

At the sentencing hearing, the trial judge opined that Martin and his two co-defendants

collectively had committed more than one hundred juvenile/adult misdemeanor/felony
Normally a defendant has no right to a direct appeal after pleading guilty in the trial

10

court, having instead to seek relief via the Mississippi Uniform Post-Conviction Collateral

Relief Act, Miss. Code Ann. §§ 99-39-1, et seq. (Rev. 2007). However, a defendant such

as Martin may directly appeal from the trial court after a guilty plea when the only issue on

appeal is the length of the sentence, and the defendant is not attacking the guilty plea itself.

Johnson v. State, 925 So. 2d 86, 88 n1 (Miss. 2006) (citations omitted).

19

crimes, and thus sentenced each defendant to a term of eight years, three years more than the

bargained-for sentence. Id. at 1353-54.

¶23. On appeal, Martin argued that the trial court was bound by the plea agreement since

the plea agreement involved not only a recommended sentence, but also a provision that

Martin would testify against his co-defendants; however, this Court affirmed the trial judge’s

eight-year sentence imposed upon Martin. Id. at 1354. Citing Moore v. State, 394 So. 2d 10

1336 (Miss. 1981), we stated that if, during the plea colloquy, the trial court has informed the

defendant that the court is not bound by any sentence recommendation, and if the record

reflects that the trial court is not involved in the plea bargaining process and the prosecutor

makes the recommended sentence pursuant to the plea agreement, the trial court commits no

error by not following the State’s sentencing recommendation, so long as the sentence

imposed is within the maximum limits prescribed by the applicable statute. Martin, 635 So.

2d at 1355. In Martin, this Court distinguished both Boyington and Salter v. State, 387 So.

2d 81 (Miss. 1980). Id. at 1354-55.

¶24. With the facts of Martin and the case sub judice in mind, Judge Carlton stated in her

dissent, inter alia, that Callins was informed of the plea agreement during the plea colloquy

and the fact that the trial court was not bound by the State’s recommendation; that Callins
20

had the opportunity to inform the trial court of any perceived belief that the trial court would

be bound by the sentence recommendation, and yet he not only failed to avail himself of this

opportunity, but he instead clearly stated that he understood the trial court was not bound by

the State’s sentence recommendation; that Martin is consistent with the provisions of

URCCC 8.04(B)(2) and URCCC 8.04(B)(4); that the State fulfilled its responsibility by

making the agreed-upon sentence recommendation; and that Callins understandably

“possessed a hope of leniency,” but the sentencing judge, relying on the presentence

investigation report and Callins’s untruthful written and oral statements to both judges before

whom he appeared, did not abuse his discretion in refusing to follow the joint sentence

recommendation in imposing sentence. Thus, Judge Carlton “reject[ed] the majority’s

determination that the trial court may be bound to sentence Callins in accordance with the

State’s recommendation.” Id. at **30-32, ¶¶34-36 (Carlton, J., dissenting). We thus find

that Martin is applicable to the case sub judice, as opposed to Boyington and Moody. In

other words, our cases discussing detrimental reliance are not applicable to today’s case.

¶25. In sum, Judge Funderburk did not commit error by summarily denying and dismissing

Callins’s motion for post-conviction relief. Mississippi Code Annotated Section 99-39-11(2)

(Rev. 2007) provides that the trial judge may summarily dismiss a motion for post-conviction

relief “[i]f it plainly appears from the face of the motion, any annexed exhibits and the prior

proceedings in the case that the [prisoner] is not entitled to any relief.” Indeed, Judge

Funderburk found that the allegations contained in Callins’s post-conviction relief motion

were contradicted by Callins’s sworn testimony at the plea hearing before Judge Aycock, as
21

revealed in the transcript of the plea hearing. Therefore, pursuant to the statute and case law,

Judge Funderburk was not required to conduct an evidentiary hearing on Callins’s postconviction relief motion. Taylor v. State, 682 So. 2d 359, 363-66 (Miss. 1996); Harris v.

State, 578 So. 2d 617, 620 (Miss. 1991). See also King v. State, 679 So. 2d 208, 210-11

(Miss. 1996); Smith v. State, 636 So. 2d 1220, 1224 (Miss. 1994).

¶26. Having fully addressed the issue before us, we feel compelled to address certain

language contained in the Court of Appeals’ opinion in the case sub judice. That court

stated, inter alia:

While Callins did respond affirmatively when asked if he understood that the

trial court was not bound by the State's recommendation, it is of no moment.

The same may well be a misstatement of the law where detrimental reliance

exists and a defendant has performed his part of the plea agreement.

Additionally, inherent in the question itself are two logical interpretations.

First, "I understand that the judge is not a 'rubber stamp' for the district

attorney in sentencing." Second, "Even though I understand the judge is not a

'rubber stamp' for the district attorney in sentencing, I truly believe the judge

will honor his request, and this belief is a significant inducement to my plea

of guilt." Each interpretation is equally logical.

A circuit judge has the most solemn duty to make absolutely certain, to the

very best of his or her ability, that a defendant is making a truly free and

voluntary plea. A much more telling colloquy of the impact the plea bargain

recommendation had on Callins's, or would have on any defendant's, decision

to plead guilty would be, "Mr. Callins, I do not intend to honor your plea

bargain with the State. I do not care if you have agreed to forfeit your claim to

$30,000 worth of property. At your sentencing hearing, I do not intend to

suspend your sentence and place you on post-release supervision. Instead, I

intend to sentence you to serve twenty years in the penitentiary. Mr. Callins,

do you still wish to plead guilty?" It is only when we can say with confidence

from the record before us that Callins's answer would have been 'yes,' evincing

a lack of detrimental reliance upon the recommendation, should we deny an

evidentiary hearing. Today, we are not so prepared.
22

Callins v. State, 2007 Miss. App. LEXIS 243, **19-20, ¶¶19-20. 

¶27. With the utmost respect for our learned colleagues on the Court of Appeals, we reject

this analysis. We can interpret their language but one way. The Court of Appeals suggests

trial judges, at the time of the guilty plea colloquy, declare that he/she does not intend to

accept the sentence recommendation; and the trial judge must declare the specific sentence

he/she intends to impose, without taking the matter under advisement and, many times,

without the benefit of a presentence investigation report. According to the Court of Appeals,

this information must be revealed to the defendant at the time of the plea hearing.

¶28. First of all, the revised guilty plea colloquy suggested by the Court of Appeals would

judicially abrogate the provisions of Rule 11.02 of the Mississippi Uniform Rules of Circuit

and County Court Practice. URCCC 11.02 affords our trial judges the opportunity to direct,

prior to sentencing, that a presentence investigation be conducted and a report submitted

pursuant to the investigation. Such a presentence report usually will contain vital

information to aid the trial judge concerning sentencing. According to URCCC 11.02, the

presentence report may contain such information as the defendant’s criminal history;

financial condition; educational background; employment background and military record;

social record regarding family relationships, marital status and residence history; and the

environment to which the defendant would return if given probation. URCCC 11.02 also

provides that the presentence investigation can focus on gathering information about special

resources available to assist the defendant if he/she is in need of rehabilitative programs or

vocational programs, and/or a physical and mental examination.
23

¶29. We pose this question: What if, at the time of the plea hearing, the trial judge has no

clue as to whether he/she might later decide not to accept the sentence recommendation

because of what the trial judge will learn after receiving a presentence report and/or at a later

sentencing hearing, where evidence of aggravating and mitigating circumstances will be

received? The practical effect of the Court of Appeals’ approach via this revised plea

colloquy would be that sentencing hearings after guilty pleas in which there exist sentence

recommendations would become obsolete. The trial judge would be compelled to inform the

defendant at the plea hearing as to whether he/she intended to accept the sentence

recommendation.

¶30. Recently, in Taggart v. State, 957 So. 2d 981, 994 (Miss. 2007), this Court stated:

We also take this opportunity to make a few additional observations about

sentencing in general. There are at least four generally recognized factors that

any sentencing judge should consider in the exercise of discretionary

sentencing of any defendant who stands before the court for imposition of

sentence: (1) Rehabilitation; (2) Retribution; (3) Separation from society; and

(4) Deterrence, both general and specific.

Id. at 994. We then proceeded to discuss in more detail the importance of the trial judge’s

consideration of these well-recognized sentencing factors. Id. at 994-95. However, based

on what the Court of Appeals would now require of a judge during the guilty plea colloquy,

our trial judges no longer would be able to consider these factors in cases involving a plea

agreement, because the trial judge would be unable to defer sentencing to gather additional

information. According to the Court of Appeals, the trial judge would have to tell the
24

defendant at the time of the plea hearing what specific sentence he/she intends to impose

upon the defendant.

¶31. Also, it is hardly an uncommon occurrence that one judge in the judicial district would

conduct a plea colloquy with a defendant and accept a negotiated guilty plea (or an open

plea), and another judge in the judicial district would impose sentence upon the defendant

at a later date. This is exactly what happened in today’s case. We thus state the obvious.

Based on the Court of Appeals’ revised plea colloquy, Judge Aycock was required to inform

Callins at the plea hearing that Judge Funderburk was not going to accept the State’s plea

recommendation. Not only that, Judge Aycock was required to inform Callins as to the

specific sentence Judge Funderburk would later impose upon Callins, even before Judge

Funderburk received the presentence report that revealed that Callins had not one prior

felony conviction (as he stated under oath to Judge Aycock), but six prior felony convictions.

¶32. Judge Carlton succinctly analyzed the majority’s opinion:

The majority’s holding undermines the purpose and validity of the guilty plea

colloquy. Where the transcript of the plea colloquy reflects that a defendant

was fully informed regarding a certain consequence of his guilty plea, he

should not later be heard to claim that he was unaware of the consequence. 

Callins, 2007 Miss. App. LEXIS 243, **38-39, ¶44 (Carlton, J., dissenting). 

¶33. We thus reject the notion that our trial judges, at the time of the guilty plea colloquy

in cases involving plea agreements, must be required to declare: (1) that they do not intend

to accept the sentence recommendation; and (2) the specific sentence they intend to impose;
25

so that this information can be conveyed to the defendant before accepting the defendant’s

guilty plea.

¶34. In sum, we find this issue raised by the State of Mississippi in its petition for writ of

certiorari meritorious.

CONCLUSION

¶35. For the foregoing reasons, we reverse the judgment of the Court of Appeals and

reinstate and affirm the Alcorn County Circuit Court’s judgment denying Callins’s motion

for post-conviction relief.

¶36. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED. THE

JUDGMENT OF THE ALCORN COUNTY CIRCUIT COURT DENYING THE

MOTION FOR POST-CONVICTION RELIEF IS REINSTATED AND AFFIRMED.

SMITH, C.J., WALLER, P.J., EASLEY, DICKINSON, RANDOLPH AND

LAMAR, JJ., CONCUR. DIAZ, P.J., AND GRAVES, J., DISSENT WITHOUT

SEPARATE WRITTEN OPINION.