IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2017-KA-00855-COA

SIDNEY KEITH AUSTIN FERGUSON A/K/A SIDNEY KEITH AUSTIN A/K/A SIDNEY KEITH FERGUSON A/K/A SYDNEY FERGUSON APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 01/27/2017 TRIAL JUDGE: HON. JOSEPH H. LOPER JR. COURT FROM W HICH APPEALED: GRENADA COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANT: JOHN THOMAS LAMAR III MARK KEVIN HORAN BRADLEY DAVID DAIGNEAULT TAYLOR ALLISON HECK ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LAURA HOGAN TEDDER DISTRICT ATTORNEY: DOUG EVANS NATURE OF THE CASE: CRIMINAL - FELONY DISPOSITION: AFFIRMED - 12/17/2019 MOTION FOR REHEARING FILED: MANDATE ISSUED: EN BANC. WESTBROOKS, J., FOR THE COURT: ¶1. Sidney Keith Austin Ferguson was c o nvicted of touching a child f o r l ustf ul purposes in violation of Mississippi Code Annotated section 97-5-23 (Rev. 201 4 ) i n t he Grenada County Circuit Court. Af ter a jury trial, Ferguson was s ent e n ced to f if teen y ears in the custody o f t h e Mississippi Departm ent of Corrections, with f ive y e ars suspended and ten
y ears to serve, and placed on f i ve y e ars’ probation. T h e c i r c u it c ourt denied Ferguson’sm otion f

o r a judgm e nt notwithstanding the verdict or, alternatively , n ew trial, and the court dism issed his second m otion f o r a n ew trial f

or lack o f jurisdiction. Aggrieved, Ferguson appealed to this Court. FACTS AND PROCEDURAL HISTORY ¶2. In August 2016, Ferguson appeared bef ore t he G r e n a d a C o u n t y J u stice Court on charges of touching a child f or lustf ul purposes. At that tim e , public def ender Neal Marlow

was a ppointed to r epresent him

. On or about Decem ber 13, 2016, Ferguson was i ndicted f or

one count of t o uching a c hild f o r lustf ul purposes. Ferguson appeared bef ore the Grenada County Circuit Court, and the sam e court-ap p o i nted attorney w as ordered t o continue his representation. O n January 26, 2017, af ter a two-hour jury t rial, Ferguson was c onvicted and sentenced to f

i f teen y ears, with f

ive y ears suspended and ten y ears t o serve, and placed on f ive y ears’ probation. Ferguson was also required t o register a s a sex o f f ender. On January 30, 2017, Ferguson f

iled a m otion f

or a judgm ent n otw i t h s t a n d i ng the verdict or, alternatively , a n ew trial, arguing that the verdict was contrary to the law and the w eight of the evidence. The circuit court denied his m otion. ¶3. Af ter the denial of Ferguson’s m otion, M arlow w ithdrew, and Ferguson r etained new counsel. W i th new c ounsel, Ferguson f iled a notice o f a

ppeal with the Mississippi Suprem e Court o n February 17, 2017. Af ter the notice was f

iled, Ferguson’s new counsel withdrew, and he obtained a third attorney

. W ith h is third attorney , Ferguson f iled a second m otion f

or

a new t rial on June 27, 2017, in the Grenada County Circuit C ourt, alleging inef f ective assi s t ance of counsel by his trial attorney

. The m otion specif ically alleged t hat his court2appointed counsel had told him that he provides b etter representation f or his paid c lients than his court-appointed clients. Ferguson also asserted that the a p p o inted c ounsel had told Ferguson h e needed to b e paid to properly represent him

. T hese issues were not raised during the course of t he trial proceedings. The circuit court dism i ssed Ferguson’s m otion, stating that the court no longer had jurisdiction ov e r the case once Ferguson had f iled his notice of appeal. ¶4. On appeal, this Court grant e d o r a l a r g u me n t , a n d F e rguson only addressed his inef f ective-assistance-of

-counsel a l legations against h is c ourt-appointed attorney

. 1 Upon hearing the argum ents o f Ferguson and the State, this Court suspended its rules under Rule
2 o f t h e Mississippi Rules o f Appellate Procedure, 2 held t he appeal in abey ance , a n d

rem anded the case back to the circuit court f or a lim ited r

uling on Ferguson’s second m otion f or a new trial. On lim i t e d rem and, the circuit c ourt d enied Ferguson’s m o tion f or a new trial. Af ter h earing testim ony f

rom Ferguson, Marlow, and o thers, the circuit court f ound no

m erit to any of Ferguson’s i nef f ective-assistance-of

-co u n s e l allegations. Now that this

1 Ferguson ef

f ectively abandoned his f

irst m otion f

or a new trial alleging the verdict was against the o v erwhelm ing weight of the evidence. He did not argue i t in his appellate brief , and he d id n ot m ention it during o ral argum ent. Arrington v. S tate , 2 67 S o. 3d 753, 756 (¶8) (Miss. 2019); see M.R.A.P. 28.

2 Mississippi Rule of Appellate Procedure 2(c) states: Suspension of Rules. I n the interest of e xpediting decision, or f or o ther good cause s h o w n , the S uprem e Court or the Court of Appeals m ay suspend the requirem ents or p rovi s ions of any of these rules in a particular case on appli c a t i on of a party or on its own m otion and m ay order proceedings in accordance with its direction. The tim e f o r taking a n a

ppeal under Rules 4 or 5 m ay be extended in c rim inal a nd p ost-conviction cases, but not in civil cases. 3m atter is appropriately bef o r e this Court, we will address Ferguson’s grievances. STANDARD OF REVIEW ¶5. T h i s C o u r t h a s held that “[ w]hen exam ining a c l aim of inef f ective assistanc e o f counsel, we conduct a de novo review of the record as a whole to determ ine whether there is a def i ciency in the trial counsel’s perf orm ance, a n d if so, whether the def i ciency prejudiced the def e n dant.” Blunt v. State , 55 So. 3d 207, 210 (¶12) ( Miss. Ct. App. 2 011). In reviewing the denial of a m otion f

or a new trial, we m

ust “ accept as true the evidence which supports the verdict and to reverse only when convinced t hat the circuit c o urt has abused i ts discretion in f a i ling t o grant a n ew trial. A new trial will not be ordered unless the verdict is so contrary
to the o verwhelm ing weight of t he evidence that to allow it to stand would sanction an ‘unconscionable injustice.’” N elson v. State , 222 So. 3 d 318, 322-23 (¶9) (Miss. C t

. A p p . 2017) (citation and internal quotation m arks om i tted). DISCUSSION I. Six th Am endm ent Right to Counsel ¶6. Ferguson asserts t ha t h e w a s denied his Sixth Am endm ent r ight to counsel because his trial counsel was constitutionally inef f ective. The Mississippi Suprem e Court generally holds that “inef

f ective-assistance-of

-counsel claim s a re m ore appropriately brought during post[

- ]conviction proceedings.” W illiams v. State , 228 S o. 3d 949, 952 ( ¶12) (Miss. Ct. App. 2017). But the Suprem e Court and t his Court h ave held that “an inef f ective- a s s i s t a nceof -counsel claim can be addressed on direct appeal when (1) t he record af f irm atively shows inef f ectiveness of c onstitutional dim ensions, or (2) the parties stipulate t hat the record is

4adequate to a l l o w the appellate court to m a k e the f inding without consideration of the f indings of f

act of the trial judge.” Id. (internal q uotation m arks om itted). To s ucceed on an inef f ecti v e - a s sistance-of

- counsel claim , the “def endant m ust prove t hat h is attorney ’s perf orm ance was def

icient, a nd that the def

iciency was so substantial a s t o d eprive the def endant of a f

air t rial.” Id. at (¶13); see also S trickland v. W

ashington , 466 U.S. 668, 687 (1984). The def

endant m ust show that the def

iciency prejudiced his def ense. Nelson , 222 So. 3d a t 322 (¶5). U nder Strickland , “[ t]he touchstone f or testing a c l aim o f inef

f e ctiveness of c ounsel m

ust be ‘whether counsel’s conduct so underm i ned the proper f unctioning of the adversarial process that the t rial cannot b e relied on a s h aving produced a just result.’” Irby v. State , 893 So. 2d 1042, 1048 (¶25) (Miss. 2004) (quoting Strickland , 466 U.S. at 686). ¶7. The crux of Ferguson’s claim states that his court-appointed public def ender told him that he provides better representation to his paid clients versus his c ourt-appointed clients,

a nd, as a result of F erguson not pay ing him , h e d id n ot provide Ferguson w i t h a d e q u a t e representation. T his Court believed that this claim po t e ntially gave rise t o a claim of inef f ectiveness of constitutional dim ensions such t h a t a lim i ted rem and was necessary to give the circuit court an opportunity to f ully address it. ¶8. The trial j udge conducted an evidentiary h earing o n or about May 16, 2019. 3 He heard testim o ny f

rom Ferguson, Marlow, and R enae Fra n k l i n , F erguson’s f orm er f iancée.

3 During the hearing on lim ited rem a n d, F e r g u son raised f ive additional allegations f or the f irst tim e, including his trial counsel’s alleged f ailure to introduce certain e vidence, f ailure to m ake a prof

f er of certain testim ony , and f ailure to r a i s e c l a i ms under Brady v. Maryland , 373 U .S. 83 ( 1963), and Batson v. Kentucky , 476 U.S. 79 (1986). These issues were outside the scope of the lim ited rem and o rdered by t his Court a n d are not ripe f or this Court’s review. 5According to the record, Ferguson contacted Marlow once he was served with his indictm ent

in Decem ber 2 016. Renae testif

ied that during a m eeting f or trial preparations, Marlow told them his pay ing clients got better r epresentation than court-appointed clients. Ferguson adm itted a tape recording of a conversation he h ad with Marlow to s u pport his assertion that Marlow attem

pted t o request pay

m ent. During the recording, Marlow returned Ferguson’s phone c all and s eem ingly did not rem em ber h im o r any previous c o n v e r s a t i on w ith him

. During the phone call, Marlow did say , “Until y ou hire m e, I’m not really on t he case,” and
“I d on’t even m ake a m ental note until som ebody pay s m e som e m oney .” Both Marlow and Ferguson laughed, and Ferguson said, “I don’t know how the whole court appointed th i ng works.” T he tape also reveals that Marlow c o uld n ot f ind a list of nam e s of people who were appointed to him , and he a sked Ferguson w hen d id his c ase com e up bef o re the city court. During t he c onversation, Marlow convey ed to Ferguson that he would be glad to represent him but only if he p a id. T he two even discussed a retainer f e e . A t t h e hearing, Marlow vehem ently

denied the claim s m ade by Ferguson and Renae. ¶9. At the evidentiary

hearing, Ferguson testif

ied that he did not advise Marlow that he h a d been previously appointed by the justice court to represent him

. During cro s s exam ination, Ferguson adm itted that he had no other recording of Marlow say ing any thing about getting paid. The circuit court questioned Ferguson af t er he rested his case: [ THE COURT]: But I m ean, y ou know, it, to m e, sounds like that he t hought y ou were s o m ebody that was just calling f acing indictm ent and arraignm ent wanting to hire him . Is that what y ou thought? THE DEFENDANT: It does sound that way . You are right.

6[ THE COURT]: So, y ou know, y ou m a de a bi g i s s u e a b o u t h i m asking y ou f

or m oney af

ter he was appointed, but it didn’t s ound like h e even realized that he was y our lawy er to m e. [ THE DEFENDANT]: I don’t think he realized he was. And in addition to that, I m ean he knows of m e. H e knew m y , m y nam e. He knew why I w as calling. To m e it just seem ed like, y ou know, Austin, if y ou’d have g ive m e m oney , we can get right on this. [ THE COURT]: But that -- he didn’t say that on the phone call or any thing. As I say , it sounded like he was just -- in f a c t , even, y ou know, had gotten a stack of indic t ments a nd had looked through them and I m ean based on -- [ THE DEFENDANT]: Yeah. [ THE C OURT]: -- what it sounds like f rom t he conversation, t hat, that h e absolutely d idn’t know any thing about y ou or y our case or any

thing else when y ou were talking. [ THE DEFENDANT]: He has m ade i t c lear in h is of f ice, y ou know, that he would h ave rem e mb e r e d if I was pay ing him

. I just -- [ THE COURT]: I a m t a l k i n g a b o u t o n t h i s p h o n e c a l l i n Decem b er. [ THE DEFENDANT]: Y e s, sir. You a r e right. Y ou are right

. O n t h e phone call, y es, it, it could go both w a y s , I guess, but I understand y o ur point. [ THE COURT]: You are thinking that he probably didn’t k now on the 19th that he had been appointed. [ THE DEFENDANT]: I do think y ou are right. It’s possible. ¶10. Based on the evidence presented, the ci r c u i t c o u r t f o u n d t h a t M a r l o w did not

7recognize Ferguson’s nam e and m istakenly thought that Ferguson called seeking t o hire him

.

The circuit court went on to f ind that Ferguson, at no tim e, previously advised counsel that he had b een appointed to represent him

. The circuit court weighed t he credibility of the witnesses and f

ound Marlow’s testim ony to be m ore credible. W e f ind this issue is without

m erit. ¶11. The circuit court f

ound that Marlow d id not engage i n im perm issible conduct relative

to him allegedly attem

pting t o obtain m oney f

rom Fe r g u s o n e v e n though he was court appointed. F urther, t he trial record shows that Ferguson’s trial counsel appeared with him dur i n g h i s j u s tice court and circuit court proceedings, called a witness during trial, crossexam ined three witnesses, and f iled the f i rst m o tion f

or a new t rial. Th e c i r c u i t c o urt also f ound that Marlow had no c ontrol over the length of the trial. W e agree with the circuit court and f ind that Ferguson has not shown that his trial counsel was def icient. ¶12. In addition t o F erguson u nsuc c e ssf ully establishing Marlow’s c onduct a s def icient, he a lso f ai l e d t o show how t he def i ciency prejudiced him

. Ferguson was convicted of touching a child f

or lustf ul purposes. The evidence at trial established that Erin, 4 age nine,

was at hom e with her little brother and Ferguson, who was baby sitting them while her m other

was at work. Erin testif

ied that af ter a bath she w ent to h er bedroom to get a toy f or her little brother. W h en s he g o t to her room , Ferguson was on the bed with his pants and underwear pulled down. Erin t estif

ied that he grabbed her hand and f orced her t o touch his “privates.” According to Erin, that was n o t t he f irst tim e , as it had happened on another occasion in the

4 A pseudony

m is used to protect the m inor victim ’s identity

. 8living room . Of f icer S onja W i llis, an e m

ploy ee of the G renada County S herif f ’s Departm ent, interviewed Erin and testif i ed that b ased on her e x perience, sh e d id n ot believe she was coached. Erin’s grandm o ther testif ied f or the def ense. Although she said Erin did not say that Ferguson m ade her do a ny thing, she did testif

y that E rin told her that when she went into the bedroom , Ferguson was on the bed “helping hisself [ sic].” Af

t er hearing the evidence, the jury f ound Ferguson g uilty

. In l i g h t o f the evidence presented at trial a nd during the lim i t e d -rem and hearing, Ferguson f ailed to show how Marlow’s c onduct af f ected the

outcom e of

his trial. ¶13. Notwithstanding, Ferguson asks this Court to apply the law i n Kiker v
. State , 55 So. 3d 1060 (Miss. 2011), and f ind that prejudice t o his d ef ense can be presum ed based on his trial c ounsel’s f

ailure to show “ undivided loy alty .” In Kiker , the Mississippi Suprem e Court f ound that the “constitutional guarantees of d ue process of law r equire undivided loy alty of def ense counsel,” and t hat representation by an a ttorney with an actual conf lict of interest is
presum ptively prejudici a l a

n d results in “inef

f ective assistance of counsel as a m atter of law,” unless the client knowingly and intelligently consented to the conf lict. Id. a t 1 065-66 (¶¶13- 16). Kiker is not analogous to the p resent case. The def ense attorney in K

iker h ad c oncurrent
repre s e n t a t i o n with a State’s witness, and the def endant did not waive t hat conf lict of interest. Id. at 1064 (¶¶7, 9). The court held that o nce a c onf lict of i nterest is d em onstrated,

a showing of specif

i c prejudice is not necessary to e s tablish a claim of inef f e ctive assistance of counsel. Id. at 1066 ( ¶16). I f a n attorney tried to obtain m oney f rom a court-appointed client t o p rovide “better” legal s ervices, that m ay dem onstrate an actual conf lict of interest.

9However, Ferguson’s own testim o ny def lates that contention. ¶14. W e agree with the circuit court’s f inding t hat Ferguson’s t r i a l c o u n s e l w a s not constitutionally inef

f ective. This issue is without m e rit.
II. Right to Testify ¶15. Ferguson also asserts that h e was d enied t he right to testif y in his own def

ense. “The denial of t he right of an accused to testif y is a violation of his constitutional right regardless of whether the denial stem s f rom the ref

usal of t he c o u r t to let a def endant t estif

y . . . or whether t he denial stem s f rom the f ailure of the accused’s counsel to p erm it him to testif y .” Culberson v. State , 412 S o . 2 d 1 1 8 4 , 1186 (Miss. 1982) (citing Miss. Const. a rt. 3, § 26). The Mississippi Constitution g rants the accused in a ll crim inal proceedings t he “right to be heard by him self

. . . .” Miss. Const. art. 3, § 26. ¶16. However, t he record d o e s n o t support F erguson’s claim s of being denied this right. During his trial, the c ircuit court clearly inquired whether Ferguson was a ware that he had the right to testif

y , and Ferguson responded in the af f irm ative.
BY THE COURT:

. . . [ Y ]ou’ve got the right to t estif y as a witness in this case. Do y ou understand that? BY THE DEFENDANT: Yes, sir. BY THE COURT: A n d y o u ’ v e g o t t h e r i g h t n o t t o t e s t i f y i f y o u choose not to. BY THE DEFENDANT: Yes, sir. BY THE COURT: Wh e t h e r y o u t e s t i f y o r n o t , i t ’ s s t r i c t l y y o u r decision a n d y o u rs alone. Do y ou understand that?

10BY THE DEFENDANT: Yes, sir.

BY THE COURT: So if y o u r l a w y e r w a n t e d y ou to testif y and y ou didn’t want to, y ou couldn’t be f o rced to. By the sam e token, if y ou w anted to tes t if y and h e said, “I d on’t think y ou should,” y o u could override his judgm ent and testif

y . BY THE DEFENDANT: All right. BY THE COURT: A n d s o i f t h e s i t u ation were to a rise where y o u want to testif

y , then y ou need to m ake that k nown to the Court. BY THE DEFENDANT: Yes, sir. ¶17. Ferguson, however, states that his trial counsel did n ot advise h im that h e could testif y in his o w n d e f

e n s e. He avers t hat Marlow told him t hat he did not need to testif y because there w as nothing he could o f f er oth er than sim

p ly d eny ing the a llegations. H owever, the record d oes not dem onstrate that Ferguson e v er m ade his desire to t estif y known to the court

even af ter the court told h i m he c ould, contrary to t h e a d v ice of c o unsel. S ee Arrington v. State , 69 So. 3d 29, 31 (¶4) (Miss. Ct. App. 2011). ¶18. In A rrington , t he d ef endant vacillated on d eciding w hether to t estif y . Id. Outside of the presence of

the jury , Arrington took the stand, and h is def ense counsel questioned him

on the record about h i s right to testif y . Id. Arrington had i nitially wanted t o testif y . Id. The circuit c ourt asked his a ttorney if Arrington understood he w ould b e s u b j e c t to crossexam ination. Id. Arrington declared he did and still wanted to testif y . Id. Af ter the judge told hi m to step down f

rom the w itness stand and ordered the jury to r eturn, Arrington’s def ense counsel stated to the court, “W e’ve reconsidered and he’s not going to testif y .” Id.

11Arrington claim ed that when his attorney t old the court h e was not going to testif y , the circuit

court should have questioned him on the record again. Id. at ( ¶5). This Court held that the circuit court was under no obligation to advise the d ef endant of his right to testif y a second tim e a f ter the def

e ndant c hanged his m ind and indicated t hat he d id not want to testif y , and the def e n dant did not express a desire to t estif y af ter def ense counsel i ndicated to the court that the def

endant had decided n o t t o t e stif y at trial. Id. at (¶6). The nexus between Arrington and Ferguson is the def endant’s f ailure to express to the court a desire to testif y in his own def

ense. Accordingly , we f

ind this issue without m erit. CONCLUSION ¶19. In f

inding that Ferguson f

ailed t o establish that he received inef f e ctive assistance of

c o u n sel o r t hat he was n ot advised of his right to testif y , we af f i rm t he con v i c t i o n a n d sentence and the circuit court’s decision deny ing the post-trial m otions. ¶20. AFFIRMED. BARNES, C .J., GREENLEE, TINDELL, McDONALD, LAWRENC E AND McCARTY, JJ., CONCUR. C A R L TON, P.J., CONCURS IN RESULT ONLY WITHOUT SEPARATE WRITTEN OPINION. J. WILSON, P.J., AND C . WILSON, J., CONCUR IN PART AND IN THE RESULT WITHOUT S EPARATE WRITTEN OPINION.

12