IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2014-CA-01285-COA SHERAL LEE SMITH A/K/A SHERAL SMITH APPELLANT

v. STATE OF MISSISSIPPI APPELLEE
DATE OF JUDGMENT: 08/18/2014 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: RANKIN COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: W I LLIAM B. KIRKSEY NATHAN H. ELMORE BRUCE L. BARKER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: BARBARA BYRD NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 05/24/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE GRIFFIS, P.J., ISHEE AND FAIR, JJ. ISHEE, J., FOR THE COURT: ¶1. In 2010, Sheral Sm ith pleaded guilty i n the Rankin County Circui t C o u r t t o f our
counts o f statutory rape. Af ter plea negotiations, the State recom m e n ded tha t Sm ith be sentenced on each count to t wenty y ears, with thirteen y ears s uspended a nd seven y ears to
serve, with the sentences to run concurrently , all i n the custody o f the Mississippi D epartm ent of Corrections (MDOC). The c ircuit court f ollowed the State’s recom m e ndation and f urther

m andated that Sm ith r egister as a s ex of f ender u pon h er r elease and pay a $10,000 f ine. Them axim

u m sentence Sm ith w a s f acing was 120 y ears in the custody o f the MDOC and a $40,000 f ine. A ggrieved, Sm ith f

iled a m otion f

or postconviction relief (PCR). Therein, Sm ith claim ed that she had received inef f e c tive assistance of counsel because she was given

m isinf orm ation regarding the severity of h er s entence a f ter negotiations and she was f orced into taking t he plea bargain by her attorney

. Sm ith also requested an eviden t i ary hearing regarding the voluntariness of her guilty plea. The request f or a hearing was d enied, and the circuit court likewise denied the PCR m otion. Sm ith no w a p peals. Finding no error, we af f irm

. S TATEMENT OF FACTS ¶2. In 2008, Sm ith was indicted on f our counts o f

statutory rape af ter it was discovered that she had sex with her son’s f o u r t e e n - y e a r - o l d f

riend a t the boy ’ s hom e a nd at her own hom e between June 2008 and August 2008. Af t er her arrest, the circuit c ourt ordered Sm ith
to s ubm it to a psy chological evaluation to determ i ne i f s h e was f it to stand trial. Sm ith resided at the Mississippi State Hospital at W hitf ield (W hitf

ield) f or n ine m o nths thereaf

ter. ¶3. W h ile there, Sm ith was ob s e r v e d b y n u m e r o u s d o c tors, including Dr. Reb McMichael.
D r. McMichael was the chief o f f orensic services at W hitf i eld, and h a d s e r v e d in that position f or twenty y e ars at the tim e he evaluated Sm ith. Dr. M cMichael testif ied at Sm ith’s

com petency hearing as an expert i n f orensic psy chology

. He noted that i n h is i nitial report, he advised that Sm ith was l ikely not com petent to stand trial. However, in that sam e report, he requested f

urther e valuation b a sed on her “sustained lack of cooperation

. . . and her

. . . f aking sy m ptom s of cognitive im

pairm ent, m ostly m em ory im pairm ent.” Four m o nths later,

2Dr. McMichael issued a f o llow-up report wherein he determ ined that S m ith was com petent
to stand trial based on his conclusion that she was not suf f ering f rom any m ental illness but was f aking num e rous conditions, including m em ory im pairm ent. ¶4. Dr. McMichael testif i ed that he ultim ately d eterm i ned that Sm ith was not m entally ill and w as f aking m ental illness based on several f actors. One of the key f

a c to r s r e l ated to Sm ith’s absence of m em ory . Dr. McMichael s tated that although S m ith appeared to have no recollection of any eve n t s af ter May 2008

– the period o f tim e im m ediately preceding the illegal acts – she was able to r em em ber tim e-specif

ic restrictions that a f

f ected her during her hospital s tay

. For instance, Sm i th knew when she was scheduled to have personal tim e and
t h e t i me s during which W hitf ield staf f m em bers could not request that she participate i n therapy

. Another f

actor c entered on S m i t h ’ s f a i lure of a m em o ry test. Dr. McMichael explained that f

or Sm ith to m ake such a poor s core on one of the m e m ory t ests, she had to have known enough of the right answers to purposef ully p ick the w r o n g a n swer. Furtherm o re, Dr. McMichael ref u ted anothe r phy sician’s p rior diagnosis that Sm ith had Bipolar I disorder. ¶5. Dr. McMichael was the o n l y e x p e r t t o testif y at the com

petency hearing. Several opinions f

rom other p sy chologis t s w e re introduced, all of which indicated that Sm ith was

m entally ill a n d unf

it to stand trial. Sm ith’s attorney , John Collette, cross-exam ined Dr. McMichael using the contrary opinions. S m ith’s husband, Jam es Steven Sm ith, also testif ied that Sm ith f

ell prior to h er stay in W hitf ield and hit her head, causing her to be hospitalized f or three weeks. Jam es testif ied that af ter Sm ith’s f

all and her tim e in W hitf

ield, S m ith did

3not understand what was h appening around her. S m ith also testif ied, a nd appeared to have trouble rem em

bering certain events. ¶6. A t t h e c l o s e o f the com petency hearing, the circuit judge determ ined t hat Sm i t h appeared to have “ selective m em ory ” in that “she rem e m bers what s he wants to a n d doesn’t

rem em b er any thing that she doesn’t want to.” The circuit j u d g e f o u n d that Sm ith was

com petent to stand trial, and ordered that the trial begin the f o llowing d ay . Collette stated that he was prepared to begin trial the next day

. ¶7. Thereaf

ter, Collette bro k e r e d a plea bargain with the State. I n exchange f or Sm ith pleading guilty , the State agreed to recom m end that Sm ith be sentenced to twenty y ears, with thirteen y ears suspended, seven y ears to serve, and a $ 10,000 f ine, as o pposed to the potential

m axim u m of 120 y ears to s erve and $40,000 in f ines. Sm i th agreed to take t he plea bargain. However, Jam es asserts t hat Sm ith was advised by C ollette that although the State of f ered her seven y ears, she s hould be o ut of jail in about a y ear, and that if J am es ever wanted to have Sm i th hom e again, Jam es should convince her to tak e t h e plea deal. S m ith’s sister, Denise Sinclair, also claim s that Collette told her that the State was g oing to recom m end a f ive-y ear sentence and Sm ith would be h o me i n three y ears due t o t im e served. Likewise, Sm ith’s other sister, Sherry B ry an, states that Collette t old h er he could get Sm ith a f ive-y ear
sentence if s he would plead guilty

. Sm ith and her f am i ly all presented af

f idavits regarding the dif f ering sentences Collette allegedly convey ed t o them . All of the af f idavits note that Col l e t t e s t a t e d that the plea bargain was S m ith’s best option and, if Sm ith did not take the plea deal, he was not going to represent her at trial.

4¶8. S mi t h t h e n s i g ned a p lea petition that acknowledged the State was p lann i n g t o

recom m end that Sm ith receive a sentence of twenty y ears, with thirteen suspended a nd seven
to serve. At the plea hearing, the State m ade i ts p romised r ecom m e ndation. The circuit judge stated that he was inclined to f ollow the State’s recom m endation, and went over the
sentence w ith S mith again. During this dialogue, the circuit judge em phasized t hat Sm ith would have to s e rve seven y ears in the custody of the M DOC and that sex o f f enders were not eligible f or early r elease, nor would Sm ith be able to r eceive credit f or tim e served under house arrest. ¶9. S mi t h c o n t i n u o u s l y a c k n o w l e dged that sh e u n d e r s t o o d w h a t h e r s e n t e n c e specif ications would be. She also noted that s he did not have a ny com plaints with respect
to the se rvices rendered by Collette. Sm i th stated that h er guilty plea was not t he result of f orce, duress, or t hreat s , a n d t h a t she was f ully aware of the decision s he was m aking. As such, the circuit judge accepted Sm ith’s g u i lty plea and sentenced her to the State’s

recom m endation. ¶10. Sm ith f

iled a PCR m otion claim ing her guilty plea w as not voluntarily and knowingly

m ade due to i n e f

f ective assistance of counsel. T he circuit judge reviewed the transcripts f rom Sm ith’s guilty -plea hearin g , h er sentencing hearing, and her com petency hearing, as well as her crim i nal f

ile, a nd determ ined t hat an e v identiary hearing was n ot necessary . He ultim ately

denied her PCR m otion. Aggrieved, she appeals. DISCUSSION I. Evidentiary Hearing

5¶11. On appeal, Smi t h a s s e r t s t hat the trial court e rred i n f ailing to grant a n evidentiary hearing o n her PCR m o t ion bef ore deny ing the m otion. I t is well s e t t l e d t hat “[ a]n evidentiary h earing is not necessary where the allegations in a [ P CR m otion] are specif ic and conclusory .” Russell v. State , 44 S o. 3d 431, 434 (¶6) (Miss. Ct. App. 2010) (citing Cole v. State , 666 So. 2d 767, 7 7 7 ( Miss. 1995)). “The trial court is no t r equired to grant an evidentiary hearing on every [ m otio n ] it entertains.” Byrne v. State , 30 So. 3d 1264, 1266 (¶7) (Miss. Ct. App. 2010) (citation om itted). ¶12. In its order, the c ircuit court stated that, in addition to t h e P C R mo t i o n – which included num erous af

f idavits – and the State’s response, it had analy zed “t h e t r a n s c r i pt of [ the] petitioner’s guilty

plea and sentencing hearing

. . . , the transcript of [ the] petitioner’s

com petency hearing

. . . , the e vidence entered at such h earing [ , ] a nd

. . . [ the] petitioner’s crim inal f ile” prior to deny ing Sm ith’s PCR m otion. Sm ith’s argum ent i n her PCR m otion centered on an allegation o f inef f ective assistance of counsel. Given the am ple am ount of evidence and other docum entation bef ore the circuit court, we a gree that t h e c o u r t w as suf f i ciently able to determ ine whether Sm ith’s c l aim held m erit without holding an evidentiary

hearing. ¶13. That said, we have held that when a m ovant purports to have been “given erroneous advice by his attorney as to his eligibility f or . . . earned tim e and t hat erroneous advice goes uncorrected, and h e p r o v i des e vidence other than his own statem ent (such as a sworn af f idavit f rom a third party ), he i s e ntitled to an evidentiary hearing.” S ylvester v. State , 113 So. 3d 618, 623 (¶19) (M i s s . C t

. A pp. 2013). Sm i th’s allegations regarding the

6m isinf

orm ation she allegedly received f rom Collette did not go uncorrected. The transcript of t he plea hearing s hows that the term s of S m ith’s sentence were listed in h er plea petition, which she signed, and the circuit judge reviewed the term s of t he sentence w ith Sm ith, af ter which she stated that she u nderstood and accepted t hem

. S pecif ically , the circuit j udge stated

on the record to Sm ith that she would not b e eligible f or e arned tim e or f

or early release af

ter she was sentenced. H e asked her if she understood these t erm s, and she s tated t hat she did. As such, an evidentiary

hearing was not required, and this issue is m e r itless.
II. Ineffective Assistance of Counsel ¶14. W i th regard to Sm ith’s inef f ective-assistance-of

-counsel claim , i t is w ell-settled law that f or her to prevail, she m

ust “show by a preponderance o f t he evidence (1) that counsel’s
p e rf orm ance w as def

icient, and (2) but f

or the def iciencies, the t rial court outc o me w o u l d have been dif

f erent.” Jones v. State , 976 So. 2d 407, 410-11 (¶6) ( M i s s . Ct. App. 2008) (quotation o m itted)). Additionally , under Strickland v. W ashington , 466 U

. S

. 668, 687 (1984), a m ovant m

ust show “ that counsel’s errors were so seriou s a s t o deprive the def endant of a f

a ir t rial.” F inally , “[ a] presump t i o n e x i s ts that the a ttorney ’ s conduct was adequate.” H

ull v. S tate , 983 So. 2d 331, 333-34 (¶11) (Miss. Ct. App. 2007) (citing Burns v. State , 813 So. 2d 668, 673 (¶14) (Miss. 2001)). ¶15. W h en reviewing the vo l u n tariness of guilty p leas, an appellate court “ will not set aside f indings of a trial court sitting w ithout a jury u n l e s s s u c h f indings are c learly erroneous.”
W alton v. State , 1 6 S o. 3d 66, 70 (¶8) (Miss. Ct. App. 2009) (quoting House v. State, 754 So. 2d 1147, 1152 (¶24) (Miss. 1999)). Additionally , “[ t]he b urden of proving that a guilty plea

7was involuntary is on the def endant and m

ust b e proven by a preponderance of t he evidence.” Id. (citation om itted). ¶16. H e r e , S mi t h a n d h e r f a mi ly m em

bers h ave p resented af

f idavits wi t h v a r y i n g testim o nies r egarding Collette’s alleged f aulty advice. T he af

f idavits v ary w ith recollections of Collette purportedly advising Sm ith that s he would b e released f rom jail within one y ear
to three y ears a nd would receive between f ive a nd seven y ears of total j ail tim e. Likewise, S mi t h c o ntends that she was not f ully aware of the sentence to which she was pleading. Nonetheless, the transcript of t he plea hearing shows that Sm ith was advised by the trial court of the exact term s of h e r s e n t e n c e . The plea petition that Sm ith signed also o utlined the
proper term s o f her sentence. At no point during the plea hearing or in the plea petition did
any one n ote that Sm ith would be e ligible f or early release or earned tim e. The circuit judge specif ically stated t hat Sm ith would not be eligible f or tim e-served credit since the crim e f or which she was being convicted was a sex crim e. ¶17. Sm ith was also explicitly told the l ength of her sentence. The circuit judge reviewed the State’s recom m endation, a s it was expressed in S mith’s plea petition. The

recom m endation was twenty y ears, with thirteen y ears suspended and seven y ears to serve,

w i th a $10,000 f

ine. T he plea petition and the circuit judge both r eiterated these term s . W h en asked i f she u nderstood t he term s, Sm ith clearly i ndicated that s he understood t hem and acc e p t e d t hem

. She also i ndicated that s he had no c om plaints or problem s with Collette’s representation of her and that she was f ully satisf ied with his services. ¶18. Nonetheless, Sm ith now contends that she lied to the circuit court, a nd that she was

8coerced into taking a plea deal that was n ot properly expl ained t o her by Collette.

Specif ically , Sm ith alleges the f ollowing:
W h ile it is true that

. . . Sm ith took part in the c olloquy with [ the circuit judge], and recited t hat s h e was m aking the plea voluntarily , and understood that the crim es carried a day -f

or-day penalty , she d id so at the instr u c t i o n and under threats f rom her attorney that if answered in a way that dif f ered f r om w hat he instructed h er, the plea process would be upset, and she would go to prison f or thirty y ears or m ore. ¶19. First, we have previously a ddressed th e c o n u n d r um of an appellant claim ing that a prior version o f his te s tim ony under oath was u ntrue but t hat the version on appeal is true. See Boyd v. Smith , 797 So. 2d 356, 363 (¶17) (Miss. Ct. App. 2001) (citation om itted). W e have h eld that a m ovant who em ploy s this reasoning has “been glaringly untruthf ul to at least

one court of law[ , t hereby rendering him ] com pletely without credibility .” Id

. at (¶16). More specif ically , we stated: If a m ovant could, at a later da t e , s u c c essf ully contradict his own assertions made under oath at his p l ea[ -]acceptance h earing, then there would b e n o pur p o s e i n conducting the hearing at all. “Truth” would becom e a n illusory concept m eaning n o thing m ore than what the declarant asserted it t o be at any particular point in tim e. Id. (citation om itted). ¶20. Such is the case at hand. Sm ith stated on t he record that she understood the term s to which s he was pleading and that she was pleased with Collette’s assistance. The sentence itself was written v erbatim in the plea petition and reiterated num erous tim es d uring the plea hearing. W hile S m i th and her f am ily take particular issue with C ollette’s alleged threat that she m ay never see her h om e again if she did not take the p lea d eal, such a statem ent does not constitute inef

f ective assistance of counsel if it is true. W e note that Sm i th was f a cing u p to

9120 y ears in prison since each of t he f our c o unts carried a

m axim um of thirty y ears. W ith

sex crim es being served day -f o r-day , Sm ith w ould not have seen her hom e f or at least thirty
y ears had she received a m axim um punishm ent on any of

the f our counts. ¶21. W e have held that “ counsel has a duty to f airly , even i f t h a t m e ans pessim istically , inf orm the client of t he likely o utcom e of a trial b ased u pon t he f

acts o f the case.” Middlebrook v. State , 964 So. 2 d 6 3 8 , 640 (¶9) ( Miss. Ct. App. 2007) (citation om itted).
H e nce, Collette’s recom m e ndation f or Sm ith to accept a sentence wherein s he would only

serve seven y ears, as opposed to 1 20 y e ars, was n ot im proper. His assertion regarding the possibility that she would never see her hom e again was also not im proper since it was true. Sm ith’s claim s o f inef

f ective assistance o f counsel and an involuntary g uilty plea are without

m erit. As such, we af

f irm the judgm e nt of

the circuit court. ¶22. T H E J U D G M E N T O F T H E R A N K I N COUNTY C IRCUIT C OURT DEN Y I N G THE MOTION FOR POSTCONVICTION R E L I E F I S A F F I R MED. A LL C OSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. LEE, C .J., IRVING A ND GRIFFIS, P.JJ., BARNES, CARLTON, FAIR, JAMES, WILSON AND GREENLEE, JJ., CONCUR.

1 0