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.