IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2016-CA-01647-COA REGINALD DESMOND WALLACE A/K/A REGINALD WALLACE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 10/31/2016 TRIAL JUDGE: HON. W ILLIAM E. CHAPMAN III COURT FROM W HICH APPEALED: MADISON COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JANE E. TUCKER ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: ABBIE EASON KOONCE NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF DISPOSITION: AFFIRMED: 07/24/2018 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. TINDELL, J., FOR THE COURT: ¶1. Reginald W a llace pled guilty to arm ed robbery , k idna p p i n g , a n d c o n spiracy to com m it

arm ed robbery

. The trial court sentenced Reginald to thirty y e a rs f or the arm e d robbery , thirty y ears f

or the kidnapping, and f

ive y ears f

or the conspiracy

. The trial court set the three
sentences to run concurrently

. Reginald initiall y f i l e d f or post-conviction relief (PCR) in 2014. On appeal, this Court f ound no error i n the t rial court’s resolution o f the issues originally raised in Re g inald’s PCR m o tion. W allace v
. State , 184 So. 3d 993, 1003 (¶32) (Miss. Ct. App. 2016). However, we reversed the t rial court’s dism issal and r em anded the

case f or f urther p r o c eedings upon f

inding that Reginald was entitled to an e videntiary hearingon whether h is trial counsel f ailed to ef f ectively com m

u nicate an of

f er to plead guilty to the l e s s e r of f ense of robbery

. Id. On rem and, the trial court held the evidentiary hearin g a n d denied R eginald’s PCR m otion. Reginald now appeals a rguing the trial court erred in f inding that his a ttorney ef

f ectively com m

unicated t he p lea of

f er to him

. W hile w e disagree with the trial judge’s evidentiary f indin g t h a t the plea of

f er was e f

f e ctively com m

unicated to Reginald, we nonetheless af f irm t he trial court’s judgm ent deny ing R eginald’s PCR m otion f or the reasons set f

orth in this opinion. FACTS ¶2. Antonio W allace, Dem arcus Tim m o ns, Kim berly Gates, Kenisa Rush, a nd Reginald
W a llace each acted i n som e m easure in the robbery of a Sand Dollar store and t he k idnapping

o f i ts em ploy ee. They planned to take the store’s deposit bags f rom a store e mp l o y e e , Kim berly Lewis, when she lef t the store to m ake a bank deposit. On Novem be r 2 8 , 2011, Tim m ons, Gates, and R eginald, in a car o w n e d b y Gates, parked next to Lewis’s car and waited. Antonio d

rove R ush, also a Sand Dollar em ploy ee, to the store. S hortly af ter Rush reported to w ork, she alerted Antonio in a text m essage that Lewis had lef t the Sand Dollar
store. Af ter Lewis got in her c ar w ith t he bank deposit, Tim m ons e ntered on t he passenger side, p ointed a g un at her, and m ade her drive to the E m b a s s y S u i t e s . Reginald and Gates f ollowed in Gates’s car. At the Em bassy S uites, Tim m ons took the deposit b ags and Lewis’s cell phone, tossed Lewis’s car key s, and returned to Gates’s car. ¶3. On April 4 , 2 0 1 2 , t h e g r a n d j ury indicted Antonio, Tim m ons, G a t es, Rush, and

2Reginald on charges of k idnapping, arm e d robbery , and con s p i r a c y t o c o m m i t a rm ed robbery

. All but Antonio pled g uilty

. Gates, the o wner of t he getaway car, pled guilty to robbery and received a sentence of twenty y ears with ten y ears suspended. Rush, the coworker who sent the text m essage, pled guilty to robbery and received a sentence of twenty y ears with thirteen suspended. Tim m ons, the gunm an, pled g uilty to arm ed robbery and was sentenced to thirty

two y ears. Antonio, who both planned and participated i n the robbery , went to trial and was sentenced to thirty -f

our y ears each f

or the arm ed r obbery and k idnapping and f ive y ears f

or the conspiracy

. ¶4. On the day

bef ore his trial date, Reginald entered an open plea, one m ade without a sentencing recom m endation f rom the State, to arm e d robbery , kidnapping, a nd conspiracy

. As s tated p reviously , the t rial c ourt sentenced Reginald to serve concurrently thirty y ears f or the arm e d robbery , thirty

y ears f or the kidnapping, and f

ive y ears f

or the conspiracy

. ¶5. A f t e r b e i n g sentenced Reginald f iled a m otion f

or PCR. In response to Reginald’s initial PCR m otion, the State a ttached an af f idavit of Ottawa Carter. Carter w as Reginald’s attorney du ring the plea-bargaining process. In that a f f idavit, C arter stated t hat Reginald turned d own an of

f er f rom the prosecutor f

or Reginald to plead guilty to t he l esser charge of sim ple robbery

. 1 Carter f

urther s t ated that Reginald and Reginald’s m other, Patricia Greer,

1 In M ississip p i, th ere is n o o f f en s e t itled “sim

p le” ro b b ery . O n rem an d , w e ex p ressed o u r u n d erstan d in g t o b e th at th e ch ara c t e r i z a t io n in C arter’s af f id av it ref ers to ro b b ery as set f

o r th in M ississip p i C o d e A n n o t a t e d sectio n 9 7 -3 -7 3 (R ev . 2 0 1 4 ). T h e m ax im u m sen ten ce f

o r ro b b ery is f

if teen y ears in th e c u s to d y o f th e M ississip p i D ep artm en t o f C o rrectio n s. 3ref

used to consider the of

f er. R eginald and Greer replied that t hey f irst learned of the of

f er
to plead to the lesser c harge of robbery i n Carter’s p osttrial af f i davit. Reginald asserted that Carter’s f a ilure to com m

u nicate that m o re f

avorable o f

f er to h im violated his right to ef f ective assistance of counsel. ¶6. W e f

ound in W

a llace , 184 So. 3d a t 1 0 0 3 ( ¶ 32), that the initial p oints o f error in Reginald’s PCR m otion lacked m erit. Lef t o n l y w ith t he question of whether Carter

com m unicated the f

avorable plea of

f er t o Reginald, we directed the trial court on rem and to hold an evidentiary h e aring on the issue. The evidentiary hearing we ordered was Reginald’s opportunity to p resent and supp l em ent the record on his only rem aining PCR claim of inef f ective assistance of

counsel. ¶7. In October 2016, t he trial court held t h a t h e a r ing. At the hearing, Reginald and his

m other testif

ied that Carter n ever presented the plea of f er to either o f them

. Carter testif ied that he sim

ply c ould not recall if he had or had not presented the o f f er to Reginald. However, af ter reviewing Carter’s earlie r a f f idavit, the trial court f

ound Carter’s af

f idavit and his knowledge of Carter’s reputation to be controlling. As such, the t rial court f ound that Carter had c om m

un i c a t e d the plea of

f e r of t he l esser of

f ense of robbery to R eginald and denied Reginald’s PCR m o tion. Reginald appeals. STANDARD OF REVIEW ¶8. Inef

f ective-assistance-of

- cou n s e l c laim s are evaluated by the s t andards set f orth in Strickland v. W

ashington , 466 U .S. 668 (1984). The S trickland s tandard applies to guilty

4pleas. W

ashington v. State , 620 So. 2d 966, 970 (Miss. 1993). “W hethe r a def endant has received inef

f ective a ssistance of counsel is a question of law reviewed de novo u nder two
prongs: ‘f irst, the def

endant m ust show that counsel’s p erf orm ance w as def

icient. Second, the def endant m ust show that t he def

icient perf

orm ance prejudiced the def ense.’” Taylor v. State , 167 So. 3d 1143, 1146 (¶5) (Miss. 2015) (quoting Strickland , 466 U.S. at 687). ANALYSIS ¶9. Reginald m a kes only one a rgum ent on a p p e a l

— t h a t the t rial judge erred in f inding that his lawy er ef

f ectively com m

unicated an of

f er that would a llow R eginald to plead guilty
to sim p le r obbery

. Our de novo review allows c onsideration o f all evidentiary m atters bef ore

us in the record, which includes the 2014 af f i davit, and the s worn testim o ny presented at the evidentiary hearing. Brown ex re l

. F o r d v
. J.J. F

erguson Sand & G ravel Co. , 858 So. 2d 129, 130 (¶5) (Miss. 2003). ¶10. The July

2014 af f idavit of Carter states: [ A]t a p roceeding prior to the trial date, [ the prosecution] of f er e d t o allow Reginald t o plead guilty to sim ple robbery i f he would d o so that day

. Rather th a n d o so, however, Reginald and his m other ref used to even consider the of f er, stating that they

could not plead today

. In his sworn testi mo n y , Carter testif ied that he did not recall com m unicating the sim

plerobbery of

f e r t o Reginald, but that it would have b een his norm al practice to do so. W hat Carter d oes recall is s peaking to R eginald’s m other about the plea of f er. H owever, Carter adm itted i t was possible h e did n o t a c t u a l l y com m unicate the of

f er to Reginald. Carter f urther adm itted that based on what Reginald’s m other t old him , he m ay not h ave seen the
5need to talk to R eginald about the p lea of f er. The plea of

f er, if accepted, w as som ething that had to be done that day a nd was s om ething, Carter agreed, t hat should have been im m ediately disclosed t o his client. I nstead, the of f e r lapsed and Reginald later pled to kidnapping, arm ed robbery , and conspiracy

. Both Reginald and his m other t estif ied that t hey were n ever m ade aware of an of f er f or Reginald to plead guilty to robbery

. ¶11. The trial court gave def erence to Carter’s 2014 af f idavit and Carter’s reputation and experience as an attorney r ather than the sworn t estim ony presented at the hearing. On this,

we m ust disagree. “[ W ]e ref

rain f rom reweighing o r m aking credibility a ssessm e nts, since credibility determ inations are within the sole province of t h e trial judges—not appellate judges.” Culpepper v. S

t ate , 148 So. 3d 386, 390 (¶16) (Miss. Ct. App. 2014). However, in

a b ench trial, those f

indings are only “saf

e on appeal where they are supported b y substantial, credible, and reasonable e v i d e n c e . ” City of Jackson v. Lipsey , 834 So. 2d 687, 6 93 (¶25) (Miss. 2003) (quoting City of Jackson v. Perry , 764 So. 2d 373, 376 (¶9) (Miss. 2000)). ¶12. C a r t e r ’ s a f

f idavit is the only record evidence upon which to base a f in d i n g t h a t Reginald’s counsel com m unicated the opportunity f or Reginald to plead guilty to the lesser charge of robbery

. However, this evidence is c alled into question and is essentially recanted by Carter in Carter’s o w n sworn t estim ony taken d uring the hearing. And on this, we agree that “[ s]olem n declarations in open court carry a strong presum ption of ver i t y . ” B a ker v. S t a t e , 358 So. 2 d 401, 403 (Miss. 1978) ( quoting Blackledge v. Allison , 431 U.S. 6 3 , 7 4 (1977)). Our review leads u s t o conclude that Carter’s sworn testim ony at the h earing, if not

6a recantation of the af f idavit, provided at the very least a m ore detailed explanation of the f acts surrounding com m

unication of the lesser-c h a r g e p l e a of f er. As s u ch, the sworn testim o ny elicited at t he evidentiary hearing do e s n o t s u p p ort the trial court’s f inding that Reginald’s attorney

ef f ectively com m

unicated the plea of

f er to Reginald. ¶13. If c ounsel’s perf

orm ance during the plea-bargaining process is f ound t o be def

icient,

our a naly s is then t

urns to the prejudice, if

any , that resulted. Culpepper , 148 So. 3d at 390 (¶12). The petitioner bears the burden to prove both counsel’s def icient perf

or m ance and prejudice to the def

ense. M cQuarte r v. State , 5 74 S o. 2d 685, 6 87 (Miss. 1990). In other words, Reginald m

ust also prove that “he would h ave accepted the of f er to plead pursuant to the term s earlier proposed.” Missouri v. Frye , 566 U.S. 134, 148 (2012). ¶14. Under t hi s s e c o n d p r o n g , Reginald testif i ed that he im

plored Carter to discuss the opportunity f

or a f avorable plea of

f er with the prosecutor. Reginald testif ied that if of

f ered the chance, he would have pled guilty to sim ple robbery

. On t his point, the burden of proof

rem ains o n Reginald to s how that he would have “accepted the of f er to plea[ d ] p ursuant to the term s earlier proposed.” Id

. ¶15. W e f

ind R e g i n a ld f

ailed to dem onstrate that he would have accepted the com plete
term s of any plea agreem ent, wh i ch included im plicating his brother and cooperating with

t h e State. Reginald’s def ense c ounsel and the prosecutor agree that m u ch o f Reginald’s dif f iculty i n accepting any plea of f er stem m e d f

rom his ref

usal to im plicate his older brother, Antonio, in the crim e s. In f act, Reginald only

agreed to plead guilty

to kidnapping, arm ed

7robbery , and conspiracy af te r t h e State agreed to rem o ve any m ention of his brother’s possible involvem ent f

r om t he p r osecution’s on-the-record f actual basis f

or his plea. Reginald, against h is attorney ’s advice, even testif ied on behalf of h is older brother in Antonio’s trial. Therei n , R e ginald adm itted to his own guilt and wholly d enied Antonio’s involvem e nt in the crim es. ¶16. A f

air reading of the record ref lects that R eginald conditioned any plea deal upon a

r e c itation of f

acts that excluded any involvem e n t by Antonio in the crim e s. W h i l e t w o o f
R e g i n a ld’s codef

endants accepted of

f ers to p lead guilty to sim ple robbery and receive d sentences allowing them to s erve only seven and ten y ears, those c odef endants cooperated with t he S tate and testif

ied a gainst Antonio. Obviously the sam e would have been required f r o m R e g i n a l d

. I t is Reginald’s duty to point with particularity to the f acts in the recor d which support his claim of error. L ittle v. State , 744 So. 2d 339, 346 ( ¶28) (Miss. 1999). On appeal, Reginald provides no evidence that he w ould have been willing to t estif y against his brother. W e theref

ore f ind Reginald f

a iled to m eet his burden. See M.R.A.P. 22(b). CONCLUSION ¶17. The evidentiary hearing the trial cour t h e l d o n r e ma n d d oes not support the trial court’s f inding that trial counsel convey ed the sim p le-robbery pl ea o f

f er to Reginald. However, as to t he s econd p r ong of the standard, Reginald f ailed to show that he would have accepted the t erm s of the earlier plea of f er. He t heref

o re f a i l s t o s h ow prejudice to his def ense.

8¶18. This Court m ay “af f irm the lower court w here the right result is reached, even though

we d isagree with the [ lower court’s] reason f or the result.” Kirksey v
. Dye , 564 So. 2d 1333, 1 3 3 6

- 3 7 (Miss. 1990). Theref ore, while we disagree with t he t rial court’s f inding tha t t h e sim ple-robbery plea of

f er was com m

unicated to Reginald, we nonetheless af f irm the trial court’s denial of

Reginald’s PCR m otion f or the reasons set f

orth in this opinion. ¶19. AFFIRMED. LEE, C .J., AND CARLTON, J . , C O NCUR. GREENLEE, J., CONCURS IN PART A N D IN T HE RESULT WITHOUT SEPARATE WRITTEN OPINION. WILSON, J., CONCURS I N R E SULT ONLY W ITH SEPARATE WRITTEN OPINION, JOINED B Y GRIFFIS, P.J., F AIR AND GREENLEE, JJ. BARNES, J., CONCURS IN PART AND DISSENTS I N PART WITH SEPARATE WRITTEN OPINION, JOINED BY IRVING, P.J., AND WESTBROOKS, J. WILSON, J., CONCURRING IN RESULT ONLY: ¶20. I would af

f irm t he circuit judge’s denial of post-conviction relief based on the circuit judge’s f inding of f

act that Carter com m

unicated t he p lea of

f er t o Reginald. Carter testif ied that he rem em

bered com m

unicating the plea of

f er to Reginald’s m other and that his standard practice would h ave b een to com m unicate the of

f er to Reginald as well. Carter testif ied at the post-conviction hearing—whic h w a s h eld m ore than f our y e ars a f

t er Reginald pled guilty —that he no longer had a “specif ic recollection” of that conversation with Reginald. However, Carter testif

ied t hat it had been his standard p ractice t h r o u g h o u t his t wenty -f ive
y ear career t o c om m

unicate all w ritten or oral plea o f f ers to his clients, and he “believe[ d] that’s what [ he] did” in this case. ¶21. The circuit judge evaluated the witnesses’ credibility and f ound that Reginald had not
9m et his burden o f proving that Carter f ailed to com m

unicate t he plea of

f er. See Miss. Code Ann. § 99-39-23(7) (Rev. 2015) (“No [ post-conviction] relief shall be granted

. . . unless the petitioner proves b y a preponderance of the evidence that h e is entitled to relief .”); Manning

v. S tate , 158 So. 3d 302, 304 (¶4) (Miss. 2015). The sim ple issue f

o r this Court is whether the circuit judge’s f

inding is “clearly e rroneous.” Brown v. State , 7 31 So. 3d 595, 598 (¶6) (Miss. 1999) (“W hen reviewing a lower cou r t ’ s d e c ision to d eny a petition f or post conviction relief this Court will not disturb the trial court’s f actual f indings unless they are f ound to be clearly erroneous.”). The f inding w as not clearly erroneous, and I would af f irm on that basis. ¶22. “Evidence of a person’s habit

. . . m ay be a d m i t t e d t o prove t hat o n a particular occasion the person . . . acted in accordance with the habit

. . . . The c o urt m ay adm it this evidence regardless of whether i t is corroborated or w hether t here was an ey e w i t n ess.”
M.R.E. 4 0 6

. “ H a b i t is

. . . an individual’s usual m ethod or m anner of d oing things.” Id. , Advisory Com m i ttee Note. Evidence o f h a b i t i s relevant evidence u nder appropriate circum stances. Id. “Under Rule 406, evidence of habit

. . . ca n be u sed as circum stantial evidence. A party m a y i ntroduce evidence of a person’s habit to im ply that he probably acted in this instance i n c onf

o rm ity with his habit.” Id. Theref ore , C a r t er’s testim ony

—that his longstanding, standard p r a c t i c e i s to com m unicate all written or oral plea of f e rs to his clients

— w a s relevant and c om petent evidence that h e com m unicated the plea of

f er to Reginal d on this particular occasion. The circuit judge was entitled to credit Carter’s

1 0testim o ny and f ind, by a m ere preponderance o f t h e e v i dence, that the plea of f er was

com m unicated. ¶23. M o r e o v e r , t h e circuit judge was b y no m eans required to accept Reginald’s sel f

serving denial that t he p lea of f er was com m

u nicated to him

. There were suf f icient reasons f or the judge to f

ind that Reginald was n o t a c redible witness. The judge believed that Reginald had been untruthf ul on prior occasions, and the jury in Reginald’s brother’s trial also f ound that his testim ony was not credible. See W a llace v. State , 160 So. 3d 1184, 1185- 86 (¶¶1, 7) (Miss. C t. App. 2014) (noting that a j ury f o und R eginald’s brother g uilty of arm ed robbery despite Reginald’s testim o ny that his brother “was not involved in the robbery ”). In addition, w hile Reginald’s m other denied a ny prior knowledge of the plea of f e r, C arter directly contradicted her testim ony . It was f or t h e c i r c u i t j udge to evaluate the witnesses’ credibility

and sort out the conf

licts in the evidence. ¶24. In U

nited States v. A rredondo , 349 F.3d 310 ( 6th Cir. 2003), the United States Court of Appeals f

or the Sixth Circui t a d d r e s s e d a sim ilar f act dispute in a post-conviction case. In A rredondo , it was undisputed t hat the prosecutor m ade one plea of f er to def e nse counsel (Plachta) prior t o the plea-bargain deadline, b u t there was a f actual dispute as to whether Plachta com m

unicated the of

f er to the def

endant (Arredondo). Id. at 313. “Plachta did not squarely deny Arredondo’s claim that Plachta h ad f ailed to com m

unicate the

. . . of

f er.” Id. “Instead, P lachta f

iled a n af f i davit stating that he could not specif ically rem em

ber the events of that d a y , b ut that ‘m y practice has alway s been to com m unicate any plea of

f er m ade by the

1 1prosecution to m y client regardless of

m y personal view as to the m erits of the of f er.’” Id. The district judge f

ound that Plachta com m

unicated the of

f e r , and the Sixth Circuit af f irm ed. Id. at 3 15. The court held that “[ w ]hile the evidence f or this conclusion was controverted, it was s uf f icient to support the district court’s f inding.” Id. The court reasoned that Plachta’s testim o ny that his practice was to com m unicate all plea of

f ers t o his clients was adm issible under Federal Rule of Evidence 406 and suf f icient “to show t hat he acted in conf o rm ity with that habit in [ Arredondo’s] case.” Id. ; accord Carrion v. Smith , 549 F.3d 583, 590 (2d Cir. 2008) (holding that a j udge, as f act-f inder in a f

ederal habeas case, could credit an attorney ’s testim o ny about his “established” or “usual practice” of a d v i s ing clients about potential
sentences—even though the attorney could not recall t he specif i cs of his conversations with

t h e h a beas petitioner; also, observing that “tim e inevitably f ogs the m em ory of bus y attorney s” (brackets om itted)). ¶25. For the sam e reasons, I would hold that the circuit judge in this case was entitled to credit C arter’s testim ony about his standard practices and t o f ind that Carter com m

unicated the plea of

f er to Reginald. The circuit judge w as not “ required to” r each t hat conclusion, but “it was p erm i ssible f

o r [ him ] to do so.” Carrion , 549 F.3d at 5 90. A ccordingly , I would af f irm the circuit judge’s ruling f or the reasons given by

the circuit judge. GRIFFIS, P.J., FAIR AND GREENLEE, JJ., JOIN THIS OPINION. BARNES, J., CONCURRING IN PART AND DISSENTING IN PART: ¶26. I concur with the lead opinion that the testim ony p resented a t the evidentiary hearing

1 2f

ailed t o support the trial court’s determ ination that C arter, Reginald’s trial attorney , “ef f e ctively com m

unicated t he plea of

f er to R eginald.” However, I respectf ully dissent f

rom its f inding that R eginald did not dem onstrate that, h ad he b een i nf orm ed of the plea of

f er, he would have accepted the term s. Accordingly , I would r everse and render the circuit court’s judgm ent and vacate Reginald’s guilty pleas. ¶27. In Missouri v. F

rye , 566 U.S. 134, 145 (2012), the United S tates Suprem e Court held that “as a general r

ule, def ense c ounsel h as the d

uty to com m

unicate f orm a l o f f ers f rom the prosecution to accept a plea on term s and conditions that m ay be f avorable t o the accused.” If def ense counsel f

a ils to c om m

unicate a plea o f

f er, and it l apses, c ounsel’s perf orm ance is deem ed def

icient, and the question becom e s what p rejudice, if any , resulted under the second
prong of Strickland v. W

ashington , 466 U.S. 668 (1984)

. Frye , 566 U .S. at 147. Carter told the trial court t hat h e rem em b e red the prosecutor m aking a plea of f er in t he courtroom

. He consistently told the trial court that he did not recall c om m un i c ating the plea of

f er to Reg i nald. Although Carter acknowledged that it w as his norm a l practice to relate such an of f er to a def

endant, he very

f rankly told the trial court that “it was a crazy situation at that tim e” and that he could n ot r e c a l l r e l a t ing the p lea of f er t o Reginald in this instance. The
prose c u t o r a l s o never denied that any such p lea of f e r was m ade by the S tate. He sim ply stated that he had no personal “recollection of what happened in court that day on any oral of f ers to [ Cart e r ]

. ” T h e r e f ore, I agree with the l ead opinion that “the sworn testim ony elicited at the evidentiary hearing does not support the trial court’s f inding that [ Carter]

1 3ef

f ectively com m unicated the plea of

f e r to Reginald.” ¶28. However, the lead opinion concludes that Reginald f ailed to m eet the burden of proof that he would h a v e a c c e pted the plea of f er pursuant to its term s, r easoning that “[ a] f air reading of the record ref

lects that Reginald conditioned any plea dea l u p o n a r ecitation of f acts that excluded any involvem e nt by [ his brother] in the crim es.” (Em phas i s a d d e d )

. I f ind nothing in t he record t o s u pport this conclusion. According to Carter, Reginald did not
agree with the S tate’s initial recitation of f acts at the p lea hearing because i t im plicated Antonio, his brother. Carter explained:
W e ll, I knew that [ Reginald] and his brother were very c lose, and I knew

. . . that Antonio was g o ing to t rial. And s o when

– w hen we cam e up f o r the plea and [ the State] and the court asked, y ou know, what [ it] would prove at trial, there was s om e statem ent that was m ade about Antonio’s guilt or whatever. And I wanted to m a ke s ure I objected[ , ] or I said we did not agree with what it was that [ the State] convey ed [ it] would prove if [ the case] went to trial. And so we went through a back and f orth, because

. . . I knew that [ Reginald] wasn’t going to say that. He wasn’t going to incrim ina t e h i s brother, and so that’s a bout all I rem em

ber about that. I knew I did not want him to testif y in [ Antonio’s] trial, but I knew that h e was becau se [ of ] h is brother. And I wanted to m a ke sure that – that there was n othing on the record he could c om e and testif y to, and then he would be c h arged with perjury or the d eal could be taken of f the table or whatever. But the lead opinion’s determ i nation that Reginald w ould not have accepted the p lea of f er of s im ple robbery without this condition being m et i s speculative a t b est, as is its conclusion that Reginald would have been required to testif y against Antonio as a condition of entering

a guilty p lea to sim

ple robbery

. Moreover, a s the lead opinion notes, when asked by counsel if he would have taken the plea if h e had known about it, Reginald responded af f irm atively

. 1 4¶29. I f

ind the trial court e rred i n deny ing Reginald’s m otion f or p ost-conviction relief

, and
I would reverse and render the judgm ent. Reginald should b e a llowed to withdraw his guilty plea, and the case should be rem anded t o the trial c o u rt’s active docket f or f urther proceedings. S

e e Henderson v. State , 170 So. 3d 547, 554 (¶24) (Miss. Ct. App. 2014). IRVING, P.J., AND WESTBROOKS, J., JOIN THIS OPINION.

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