IN THE SUPREME COURT OF MISSISSIPPI

NO. 97-CA-00265-SCT

STATE OF MISSISSIPPI

v.

WILLIAM HENRY PITTMAN a/k/a WILLIAM H. PITTMAN, JR.

ON MOTION FOR REHEARING

09/09/99

DATE OF JUDGMENT: 01/22/97

TRIAL JUDGE: HON. T. FRED WICKER

COURT FROM WHICH APPEALED: RANKIN COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: OFFICE OF THE ATTORNEY GENERAL

BY: WAYNE SNUGGS

ATTORNEY FOR APPELLEE: MERRIDA COXWELL

DISTRICT ATTORNEY: JOHN KITCHENS

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

DISPOSITION: AFFIRMED - 9/2/1999

MOTION FOR REHEARING FILED: 09/10/1998

MANDATE ISSUED:

EN BANC.

BANKS, JUSTICE, FOR THE COURT:

¶1. The present case was considered by this Court in State v. William Henry

Pittman, No. 97-CA-00265-SCT (decided August 27, 1998). After full consideration,

we grant Pittman's Motion for Rehearing. The original opinions are withdrawn, and this

opinion is substituted therefor.

¶2. In this case we are asked to consider the issues of whether the trial court exceeded

the scope of its subject matter jurisdiction on remand, whether the doctrine of res

judicata would bar a State claim of ineffective assistance of counsel where a similar

claim failed in a federal court, and whether the trial court erred in finding that the
defendant was in fact provided ineffective assistance of counsel. We conclude that the

trial court properly defined the issues on remand, that the State claim of ineffective

assistance of counsel was not barred under the doctrine of res judicata, and that the

trial court was not clearly erroneous in finding ineffective assistance of counsel.

Accordingly, we affirm.

I.

¶3. On July 7, 1989, William Henry Pittman pled guilty in the Circuit Court of Rankin

County to five charges of photographing minors for the purpose of sexual

gratification. Pittman was sentenced to five concurrent twenty-year sentences on these

state charges. In addition, he was sentenced to concurrently serve a forty-one month

sentence he had received on separate federal charges.

¶4. After serving his federal sentence, Pittman sought to have his guilty pleas set aside

in both federal and state courts. The federal district court and the Fifth Circuit Court

of Appeals rejected his claim.(1) However, the Rankin County Circuit Court granted

Pittman's motion for summary judgment on May 27, 1992, based upon two separate

grounds. The circuit court first found Pittman's pleas were not entered consistent with

the procedure demanded by then Rule 3.03 of the Uniform Rules of Circuit Court

Practice (now Rule 8.04), and therefore, were involuntary as a matter of law. Secondly,

the circuit court found that Pittman was entitled to relief because he was advised by the

presiding judge at the plea hearing, that a person pleading guilty to a "sex crime" had to

be certified by a psychologist before being released on parole.

¶5. The State responded to the grant of relief by filing a motion for summary judgment

on the issues of res judicata and collateral estoppel. The trial judge denied the State's

motion. The State thereafter assigned three primary issues to this Court as error

committed by the trial judge.

¶6. The first issue specifically dealt with whether a trial judge must verbally ask and

receive a response to each and every question required by Uniform Criminal Rule of

Circuit Practice 3.03. The second issue concerned whether a defendant who enters a

guilty plea is entitled to parole information at or before entry of his plea. We reversed

the summary judgment granted to Pittman on these two issues. We found "it [was]

clear from the record that the defendant was fully advised of all elements of Rule

3.03(4) via a signed petition, and the judge discussed with the defendant his

understanding of the petition...." State v. Pittman, 671 So. 2d 62, 64-65 (Miss.1996).

Concerning issue two, we found that "[t]he State [was] further correct that a defendant

who enters a guilty plea is not entitled to parole information at or before the entry of his

plea." Id. at 65. We thereafter remanded the case "for a hearing on the remaining

issues." Id. at 65. In doing so, we left undecided the third issue of whether the
principles of res judicata or collateral estoppel apply in this case.

¶7. On September 24-25, 1996, the Honorable T. Fred Wicker, sitting as special judge

for the Rankin County Circuit Court, conducted an evidentiary hearing on what he

perceived to be "the remaining issues." As a result of the evidentiary hearing, the trial

court determined that Pittman received ineffective assistance of counsel when he

entered his five guilty pleas and granted Pittman's Petition for Post-Conviction

Collateral Relief. Aggrieved, the State perfected this appeal.

II.

a.

¶8. The State raises the issue of whether the trial court had jurisdiction to rule upon

matters other than res judicata, and whether the trial court erred in refusing to rule on

the issue of res judicata. According to Pittman, the trial court's ruling was consistent

with this Court's mandate to conduct an evidentiary hearing concerning "the remaining

issues" contained within his Petition for Post Conviction Relief that had not previously

been ruled upon by the trial judge. Pittman is correct. A lower court's duty upon

remand is to conduct further proceedings consistent with our opinion keeping in mind

"the usual caveat that nothing said here [in this Court] should be taken as implying any

view how the matter ought ultimately be decided." Cooper v. Crabb, 587 So. 2d 236,

244 (Miss.1991).

¶9. The State's right to appeal, however, was not forfeited by this Court's decision not

to address the res judicata issue in Pittman I. The record reflects that the trial judge

made two clearly reasoned rulings adverse to the State's res judicata claims prior to

remand.(2) Any error contained within these rulings has clearly been preserved in the

record for our review in this second appeal.

b.

¶10. The State next raises the issue of whether Pittman is barred from relief by the

principles of res judicata. This Court outlined the principles of res judicata and

collateral estoppel in Marcum v. Mississippi Valley Gas Co., 672 So. 2d 730

(Miss.1996). We revisited these same principles in Norman v. Bucklew, 684 So. 2d

1246, 1253 (Miss.1996), wherein we stated:

The requirements for both collateral estoppel and its sister doctrine res judicata

are found in Dunaway v. W.H. Hopper and Associates, Inc., 422 So. 2d 749

(Miss. 1982): Generally, four identities must be present before the doctrine of res

judicata will be applicable: (1) identity of the subject matter of the action, (2)

identity of the cause of action, (3) identity of the parties to the cause of action,

and (4) identity of the quality or character of a person against whom the claim is
made....

Norman, 684 So. 2d at 1253 (quoting Marcum, 672 So. 2d at 751).

1. The Identity of the Subject Matter

¶11. The subject matter of this suit centers around the effectiveness of Pittman's trial

counsel in his state and federal plea agreements. Pittman was prosecuted in state and

federal court for similar yet separate crimes. While Pittman was represented in both

cases by the same attorney during his plea bargain negotiations, the charges were

distinct. The federal charges involved transporting a female over state lines for an

immoral purpose. The state charges dealt with photographing a juvenile during sexual

intercourse or simulation of intercourse. Since the charges are separate, claim

preclusion should not be applicable in this case.

2. The Identity of the Cause of Action

¶12. An identity among causes of action exists when there is a commonality in the

"'underlying facts and circumstances upon which a claim is asserted and relief sought

from the two actions.'" City of Jackson v. Lakeland Lounge of Jackson, Inc., 688

So. 2d 742, 749 (Miss. 1996) (quoting Riley v. Moreland, 537 So. 2d 1348, 1354

(Miss. 1989)).

¶13. As discussed earlier, the claims against Pittman in federal court were separate and

distinct from the state court claims. Ineffective assistance under the state claims should

not have been argued in federal court since the charges, though similar, were separate

in fact.

3. The Identity of the Parties

¶14. Res judicata applies only when the parties are "substantially identical." Aetna

Cas. & Sur. Co. v. Berry, 669 So. 2d 56, 72 (Miss. 1996)(citing Cherry v. Anthony,

Gibbs, Sage, 501 So. 2d 416 (Miss. 1987)). The state urges us to apply the privity

analysis adopted in the civil case of Little v. V & G Welding Supply, Inc., 704 So.

2d 1336 (Miss. 1997). Little quotes the comment to Section 83 of the Restatement of

Judgments as follows:

Privity is a word which expresses the idea that as to certain matters and in certain

circumstances persons who are not parties to an action but who are connected

with it in their interests are affected by the judgment with reference to interests

involved in the action, as if they were parties. The statement that a person is

bound . . . as a privy is a short method of stating that under the circumstances and

for the purpose of the case at hand he is bound by . . . all or some of the rules of

res judicata by way of merger, bar or collateral estoppel.
Little, 704 So. 2d at 1339 (quoting Restatement of Judgments § 83 cmt. (1942)).

¶15. The Fifth Circuit Court of Appeals' finding that the plea agreements were "interrelated" is insufficient to justify claim preclusion in this cause. For the purpose of

stating our jurisprudence regarding party identity, the fact that these pleas were "interrelated" has no rational bearing on the determination of whether the parties were in

privity. In Little, we found Mid-South, the defendant in the state action, and V & G,

the defendant in the federal action, were both privies to a common bulk distributor.

The manufacturer sold to a bulk distributor who repackaged and sold to Mid-South

who in turn sold to V & G. Little, 704 So. 2d at 1339.

¶16. In the instant case, Pittman was charged with separate crimes, one a state crime

and one a uniquely federal crime. The only common denominator was the defendant.

The State of Mississippi was of course not involved in the federal prosecution of

Pittman. It is apparent that the governmental interest in this case is being asserted by

the State of Mississippi, as opposed to the federal government. While the state and

federal governments cooperated in an attempt to secure Pittman's conviction, it is

obvious the parties here were not identical. We find no privity here between the state

and federal governments.

4. Identity of the Person

¶17. The focal point of Pittman's claim in this case and in federal court is the quality of

representation afforded him by his attorney. It is therefore quite clear that the only

persons subject to the dispute in both courts are Pittman and his attorney, Weaver

Gore. However, further analysis of this issue is not essential due to our finding that the

identity of the subject matter has not been met.

¶18. Having found that Pittman's claim is not precluded, we address the merits.

c.

¶19. The State next raises the issue of whether the trial court erred by ruling that

Pittman had been denied effective assistance of counsel. To determine if Gore's

representation was ineffective, we must consider the two-prong test of Strickland v.

Washington, 466 U.S. 668 (1984). Strickland requires that the defendant show: (1)

specific acts and omissions evincing counsel's deficient performance and (2) prejudice

to the defendant affecting the outcome of the proceedings. Wiley v. State, 517 So. 2d

1373, 1378 (Miss. 1987) (citing Strickland, 466 U.S. at 687). Strickland mandates

analysis of the totality of the circumstances. Wiley, 517 So. 2d at 1378. And a strong

but rebuttable presumption exists that counsel's conduct constituted reasonable

professional assistance. Frierson v. State, 606 So. 2d 604, 608 (Miss. 1992). In a plea

agreement, "[I]n 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." Hill v. Lockhart, 474 U.S.

52, 59 (1985).

¶20. When reviewing an ineffective assistance of counsel claim, we will not set aside

the finding of the lower court unless it is clearly erroneous. Merritt v. State, 517 So.

2d 517, 520 (Miss. 1987)(citing Gavin v. State, 473 So. 2d 952, 955 (Miss. 1985);

Neal v. State, 451 So. 2d 743, 753 (Miss. 1984)). We review findings of evidentiary

fact under the same standard. Id. (citing Norris v. Norris, 498 So. 2d 809, 814 (Miss.

1986); Carr v. Carr, 480 So. 2d 1120, 1122 (Miss. 1985)).

¶21. Here, the trial court found that Pittman's attorney felt that the case was hopeless

and therefore put all of his efforts into getting the best deal he could and advised

Pittman that he had no defenses to the charges. The trial court stated that "[e]vidently

Mr. Gore was convinced that Judge Goza had already made up his mind influenced by

a media onslaught and political considerations." As a result of Gore's opinion that the

case was hopeless, suppression and change of venue hearings which were commenced

by Gore, were never completed. Gore failed to add a police officer's statement which

may have bolstered his suppression argument and failed to hire a statistician, as

suggested by Pittman, to legitimize his change of venue request.

¶22. The post-plea record is instructive regarding Gore's outlook on the chances of

success, as communicated to Pittman. Direct examination was as follows:

Q: You said you told Mr. Pittman that you saw Judge Goza was going to overrule

your motion to suppress. Did you talk to Judge Goza about overruling the motion

to suppress?

A: I can't recall whether I did or not.

Q: Well, you did say that you told Mr. Pittman, 'I saw Judge Goza was going to

overrule my motion to suppress.'

A: Yes, sir.

Q: Was that just a feeling that you had?

A: The way he was ruling during the - we spent about a half of day, I think, in the

board of supervisors' room, as I recall. It's coming back, somebody got some

third-hand information that said that Judge Goza said that he was going to overrule

my motion, but I don't know whether that - maybe that's some -

* * *
Q: That is something that was communicated to Mr. Pittman at that time?

A: Yeah, I think Mr. Pittman told me that he had gotten information, maybe, from

Sam Wilkins or something. I don't know. I have always considered Judge Goza

one of the best, better circuit judges.

The discussion continued on cross-examination:

Q: Now did you not tell Mr. Pittman at some time during the change of venue or

the suppression hearing that political pressure was one of the reasons why Judge

Goza was ruling the way he was?

A: It was election year and I sort of had that in my mind.

Q: So you told that to Mr. Pittman?

A: Yes, sir.

Pittman testified that Gore's statements contributed to his decision to enter a guilty plea

rather than face trial.

¶23. The trial court further found that Pittman's attorney provided ineffective

assistance of counsel by advising Pittman, without doing any research on the issue,

that he could not raise "mistake of age" as a defense. Gore admitted that he did not

think that "mistake of age" was a defense, that he did not research the issue, and that

he was unaware of United States v. United States District Court, 858 F.2d 534, 542-

44 (9th Cir. 1988), which held that "mistake of age" could be raised as a defense to a

federal charge of photographing minors involved in sexually explicit conduct. The trial

court found that Pittman entered a guilty plea in substantial reliance on erroneous

advice of counsel, and that, absent such erroneous advice, Pittman would have insisted

on going to trial.

¶24. Pittman suggests the "mistake of age" defense could have been successfully

pursued, and Gore's failure to explore this defense prejudiced him. The Supreme

Court has previously addressed the issue in regard to the Protection of Children

Against Sexual Exploitation Act, 18 U.S.C. § 2252. United States v. X-Citement

Video, Inc., 513 U.S. 64 (1994). Upon concluding that knowledge that the

pornographic performer was a minor was an element to be proved under the Act, the

Supreme Court held:

Our reluctance to simply follow the most grammatical reading of the statute is

heightened by our cases interpreting criminal statutes to include broadly applicable

scienter requirements, even where the statute by its terms does not contain them.

Id. at 70. See Anderson v. State, 381 So. 2d 1019, 1023 (Miss. 1980) (indicating that
knowledge of the victim's mental condition is an element of the crime of rape of a

mentally incompetent female); Norman v. State, 385 So. 2d 1298, 1301 (Miss. 1980);

Dotson v. State, 358 So. 2d 1321, 1322 (Miss. 1978) (reading a scienter requirement

into Miss. Code Ann. § 97-3-7(1)(c) (Supp.1974)). The Supreme Court, in XCitement Video, further held that prior case law suggests "that a statute completely

bereft of a scienter requirement as to the age of the performers would raise serious

constitutional doubts." 513 U.S. at 78.

¶25. On the other hand, while other jurisdictions have accepted the mistake of age

defense, Mississippi has rejected this defense in the only case in which it has been

raised. Collins v. State, 691 So. 2d 918, 922-24 (Miss. 1997). Collins, however,

involved a charge of capital rape, not the specific crime with which Pittman was

charged. Thus, the "mistake of age" defense certainly was not a frivolous one. While

we do not intimate here an ultimate ruling on the issue, it should suffice to say that

counsel's performance with regard to the issue was a legitimate source of concern for

the circuit court in its effectiveness determination.

¶26. Pittman argues that he felt he had no choice but to enter a guilty plea because

counsel advised him that he had no defenses, and that without a plea he could be

spending seventy years or more in prison. By accepting the plea agreement, Pittman

could minimize his sentence and avoid going to Parchman where he believed he would

be raped and most likely killed. A belief which Pittman claims was shared by his

counsel. Pittman testified that he would have elected to go to trial if he had known

about the "mistake of age" defense. The trial court was entitled to accept that

testimony.

¶27. The trial court also found that Pittman's attorney provided ineffective assistance

of counsel by leading him to believe that he was only to serve five years. Pittman states

that he was shocked when a parole official came to visit him shortly before sentencing.

He alleges he thought there would be no parole since he would serve only five years in

a federal prison.

¶28. Although Pittman testified at the plea hearing that he understood that he was being

sentenced to more than five years, Pittman also testified at the hearing on his petition

for post-conviction relief that his attorney encouraged him to commit perjury during

the plea hearing. In making its determination, the trial court, having the opportunity to

observe the witnesses, found that Pittman and the witnesses who testified on his behalf

were more believable on this point. See Reddix v. State, 381 So. 2d 999, 1007 (Miss.

1980). The trial court found that Pittman believed he was only to serve five years.

¶29. The findings of the trial court are not clearly erroneous and should not be

disturbed on appeal.
CONCLUSION

¶30. For the above and foregoing reasons, we affirm the grant of post-conviction relief

by the Rankin County Circuit Court.

¶31. AFFIRMED.

 PRATHER, C.J., SULLIVAN, P.J., McRAE, MILLS AND COBB, JJ.,

CONCUR. PITTMAN, P.J., SMITH AND WALLER, JJ., NOT

PARTICIPATING.

1. See United States v. Pittman, 909 F.2d 1481 (5th Cir.1990)(mem.).

2. The State first raised its res judicata argument in its May 27, 1992, motion for

summary judgment. The trial judge overruled the motion finding:

It appears to the Court that these were different charges. I believe one was in

federal court, was transporting a female across state lines for immoral purposes,

and the ones in state court had to do with the photographing of a female juvenile

while in the act of either having intercourse or simulating intercourse. It appears to

the court that these were different pleas at different times with respect to different

charges dealing with different sovereignties, and I'm going to and do hereby

overrule the motion of the state.

 The State made a second motion to dismiss based upon res judicata principles

during Pittman's post conviction relief hearing. Once again, the trial judge ruled that

Pittman was not barred from bringing his claims.