IN THE SUPREME COURT OF MISSISSIPPI

NO. 95-KP-00346-SCT

TROY COOK a/k/a TROY E. COOK

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: 03/12/95

TRIAL JUDGE: HON. R. KENNETH COLEMAN

COURT FROM WHICH APPEALED: UNION COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: SCOTT STUART

DISTRICT ATTORNEY LAWRENCE L. LITTLE

NATURE OF THE CASE: CRIMINAL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 6/5/97

MOTION FOR REHEARING FILED:

MANDATE ISSUED: 6/26/97

BEFORE SULLIVAN, P.J., McRAE AND MILLS, JJ.

SULLIVAN, PRESIDING JUSTICE, FOR THE COURT:

Troy Cook was indicted during the September 1992 Term of the Union County Circuit Court for

burglary of an inhabited dwelling with the intent to commit an assault as a habitual offender under

Miss. Code Ann. § 99-19-83. The indictment charged that Cook broke into Ozelia Eslinger's home

on July 3, 1992, with the intent to assault her. On September 10, 1992, Cook pled guilty to the

reduced habitual offender charge under Miss. Code Ann. § 99-19-81, reducing the mandatory

sentence from life imprisonment without parole to a mandatory fifteen-year sentence without parole.

Circuit Court Judge William R. Lamb accepted Cook's guilty plea, and sentenced him to serve the

mandatory fifteen-year term with the Mississippi Department of Corrections, without possibility of

parole.

On April 15, 1994, Cook filed his Petition for Post-Conviction Collateral Relief in the Circuit Court
of Union County. In his petition, Cook claimed that his guilty plea was not entered knowingly and

voluntarily due to ineffective assistance of counsel. He also asserted that his attorney's performance

was deficient due to the lack of a habitual offender hearing and because he failed to file a motion to

dismiss due to pre-trial publicity released by Union County Police Chief David Grisham. Cook filed a

petition for writ of mandamus with this Court on September 27, 1994, requesting that the Circuit

Court of Union County be ordered to issue a ruling on his petition for post-conviction collateral

relief. Finding that it was manifest that Cook was not entitled to any relief, Circuit Judge R. Kenneth

Coleman ordered that Cook's petition be denied pursuant to Miss. Code Ann. § 99-39-11(2) on

March 12, 1995. This Court then issued its order dismissing Cook's petition for writ of mandamus as

moot on March 27, 1995. Cook filed his notice of appeal to this Court on March 31, 1995.

STATEMENT OF THE LAW

I.

WHETHER THE CIRCUIT COURT ERRED IN FAILING TO PROVIDE APPELLANT

WITH A COPY OF THE PLEA HEARING TRANSCRIPT.

Cook first argues that the trial court's denial of his request for a free copy of his plea transcript denied

him due process, because it deprived him of the ability to properly present his claims in his petition

for post-conviction relief. He cites Britt v. North Carolina, 404 U.S. 226 (1971), in support of this

proposition. In that opinion, the United States Supreme Court stated:

Griffin v. Illinois and its progeny establish the principle that the State must, as a matter of

equal protection, provide indigent prisoners with the basic tools of an adequate defense or

appeal, when those tools are available for a price to other prisoners. While the outer limits of

that principle are not clear, there can be no doubt that the State must provide an indigent

defendant with a transcript of prior proceedings when that transcript is needed for an effective

defense or appeal. . . . In prior cases involving an indigent defendant's claim of right to a free

transcript, this Court has identified two factors that are relevant to the determination of need:

(1) the value of the transcript to the defendant in connection with the appeal or trial for which it

is sought, and (2) the availability of alternative devices that would fulfill the same functions as a

transcript.

Britt, 404 U.S. at 227 (citing Griffin v. Illinois, 351 U.S. 12 (1956); Williams v. Oklahoma City,

395 U.S. 458 (1969); Gardner v. California, 393 U.S. 367 (1969); Roberts v. LaVallee, 389 U.S.

40 (1967); Long v. District Court of Iowa, 385 U.S. 192 (1966); Draper v. Washington, 372 U.S.

487 (1963); Eskridge v. Washington State Bd. of Prison Terms and Paroles, 357 U.S. 214 (1958)).

The Mississippi Uniform Post-Conviction Collateral Relief Act controls the procedure for appellate

review via a post-conviction relief motion in this state. Miss. Code Ann. § 99-39-1 et seq. "A

prisoner who has filed a proper motion pursuant to this Act, and whose motion has withstood

summary dismissal under § 99-39-11(2), may be entitled to trial transcripts or other relevant

documents under the discovery provisions of § 99-39-15, upon good cause shown and in the

discretion of the trial judge." Fleming v. State, 553 So.2d 505, 506 (Miss. 1989).

Under 28 U.S.C. § 753, an indigent prisoner is entitled to a free transcript in pursuit of post-
conviction collateral relief if a judge certifies that the claim is 'not frivolous' and that the

transcript is 'needed to decide the issue presented.' The United States Supreme Court held that

requiring the prisoner to satisfy these conditions at the collateral review stage did not violate

either the due process or equal protection guarantees of the U.S. Constitution.

Id. at 507 (citing U.S. v. MacCollom, 426 U.S. 317, 325 (1976)). "The state has a serious obligation

to assist an indigent in getting a fair trial but it is under no duty to subsidize fishing expeditions."

Fisher v. State, 532 So.2d 992, 999 (Miss. 1988).

The record in this case does not reflect any denied request for a free transcript by Cook. However,

even if Cook did make a request for a copy of his plea transcript and it was denied, the trial judge in

this case properly found that Cook's petition for post-conviction relief was frivolous. In his petition,

Cook first claimed that his guilty plea was not knowingly and voluntarily entered because of failure to

hold a habitual offender hearing. However, in Keyes v. State, 549 So.2d 949 (Miss. 1989), this Court

held that a separate habitual offender hearing is not necessary when the defendant enters a guilty plea

and his habitual offender status is established at the plea hearing. Keyes, 549 So.2d at 951. Here, the

State presented the court files from Cook's previous convictions at his plea hearing, and Cook himself

testified that he had pled guilty to the previous three charges, two for burglary and one for simple

assault on a law enforcement officer. As a result, Cook was not entitled to a separate habitual

offender hearing.

Cook's petition also alleged that his guilty plea was rendered involuntary due to ineffective assistance

of counsel, but he did not provide any set of facts to show how his attorney was deficient other than

the assertion regarding pre-trial publicity by the chief of police. Cook did not make any evidentiary

showing of what the statement was or how it was prejudicial to his case, in light of his guilty plea

which waived any right to change of venue. See Banana v. State, 635 So.2d 851, 853-54 (Miss.

1994). Because Cook was plainly not entitled to any relief based upon the face of his petition, the

trial judge properly dismissed the petition pursuant to Miss. Code Ann. § 99-39-11(2). As a result,

Cook was not entitled to receive a free copy of his plea transcript.

II.

WHETHER THE CIRCUIT COURT COMMITTED ERROR IN NOT ALLOWING

APPELLANT AN EVIDENTIARY HEARING.

"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 prisoner to be notified." Miss. Code Ann. § 99-39-11(2). Even if the trial judge does

not dismiss the motion, he may decide that an evidentiary hearing is not required. Miss. Code Ann. §

99-39-19.

This Court has previously stated:

We adhere to the principle that a post-conviction collateral relief petition which meets basic

pleading requirements is sufficient to mandate an evidentiary hearing unless it appears beyond

doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him

to relief.
In Moore v. Ruth, 556 So.2d 1059, 1061 (Miss. 1990) we held that where a prisoner is

proceeding pro se, we take that fact into account and, in our discretion, credit not so well pled

allegations.

Turner v. State, 590 So.2d 871, 874 (Miss. 1991) (internal citations omitted).

Even taking into consideration Cook's pro se status, his petition failed to meet the basic pleading

requirements. As previously discussed, none of Cook's allegations presented claims entitling him to

post-conviction relief. The trial judge properly dismissed Cook's petition pursuant to Miss. Code

Ann. § 99-39-11(2), finding that it was manifest that Cook was not entitled to any relief. No

evidentiary hearing is required under these circumstances.

III.

WHETHER APPELLANT'S GUILTY PLEA WAS RENDERED INVOLUNTARY AND

UNKNOWING DUE TO INEFFECTIVE ASSISTANCE OF COUNSEL.

In order to make a successful argument for ineffective assistance of counsel, the criminal defendant

must show that 1) his attorney's performance was deficient, and 2) that but for the attorney's

deficiency, the outcome of the proceedings would have been different. Wiley v. State, 517 So.2d

1373, 1378 (Miss. 1987) (citing Strickland v. Washington, 466 U.S. 668, 687 (1984)).

Cook argues that his attorney's performance was deficient, because he gave Cook misinformation

regarding his guilty plea. In Hill v. Lockhart, 474 U.S. 52, 56 (1985), the United States Supreme

Court determined that the Strickland test for determining ineffective assistance of counsel applies to

the challenge of a guilty plea based upon ineffective assistance. Hill, 474 U.S. at 58. In order to

prove that a guilty plea was rendered involuntary based upon ineffective assistance of counsel, a

defendant must first show that his attorney's advice on entering the guilty plea was outside of the

realm of competence expected of criminal attorneys. Id. at 56-59.

The second, or "prejudice," requirement, on the other hand, focuses on whether counsel's

constitutionally ineffective performance affected the outcome of the plea process. In other

words, in order to satisfy the "prejudice" requirement, the defendant must show that there is a

reasonable probability that, but for counsel's errors, he would not have pleaded guilty and

would have insisted on going to trial.

Id. at 59. Cook does not specifically say how his attorney misled him into pleading guilty. The record

does not reflect any improper or incorrect statements made by his attorney at the plea hearing. Judge

Lamb satisfied the requirements under U.R.C.C.C. 8.04, Gilliard v. State, 462 So.2d 710, 712 (Miss.

1985) (citing Henderson v. Morgan, 426 U.S. 637 (1976)), and Boykin v. Alabama, 395 U.S. 238

(1969), for ensuring that a guilty plea is made knowingly and voluntarily. The judge informed Cook

of his constitutional rights, determined that Cook's guilty plea was not induced by threat or force, and

thoroughly explained the charge, effects of pleading guilty, the sentencing phase, and the mandatory

sentence involved. The judge also determined that there was a factual basis to support the guilty plea.

The record reflects no deficiency by Cook's attorney, but instead shows that Cook knowingly and

voluntarily entered his guilty plea.
Cook also points to the fact that he did not admit to committing the burglary as evidence that his

guilty plea was not knowing and voluntary. However, it is well-settled that a guilty plea may be

properly accepted, even though it is accompanied by a protestation of innocence, so long as there is

an evidentiary basis for the defendant's guilt. North Carolina v. Alford, 400 U.S. 25, 37-39 (1970);

Lott v. State, 597 So.2d 627, 628-31 (Miss. 1992) ; Corley v. State, 585 So.2d 765, 766 (Miss.

1991); Reynolds v. State, 521 So.2d 914, 916 (Miss. 1988). In this case, Cook denied ever breaking

into Ozelia Eslinger's house, but testified at his plea hearing that he wanted to plead guilty, because

he believed that the jury would find him guilty based upon his prior record of burglary. Before

accepting his guilty plea, the trial court heard the factual basis offered by the State that Mrs.

Eslinger's daughter, Ruby, saw Cook exiting her mother's home immediately before finding her

mother, who had been physically assaulted, inside the front door. Ruby knew Cook from living in his

neighborhood, and was able to identify him as the person she observed leaving her mother's home

after the break-in and assault. Based upon this factual showing by the State, the trial court properly

found that sufficient evidence existed to support Cook's guilty plea.

CONCLUSION

Cook has failed to make an convincing argument for unknowing, unintelligent, involuntary guilty plea

or for ineffective assistance of counsel. Because the claims set out in his petition for post-conviction

relief were properly dismissed by the trial court pursuant to Miss. Code Ann. § 99-39-11(2), Cook

was not entitled to either a free copy of his plea transcript or an evidentiary hearing. We therefore

affirm the trial court's dismissal of Cook's petition for post-conviction relief.

LOWER COURT'S DENIAL OF POST CONVICTION RELIEF AFFIRMED.

LEE, C.J., PRATHER, P.J., PITTMAN, BANKS, McRAE, ROBERTS, SMITH AND MILLS,

JJ., CONCUR.