IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI NO. 2013-CA-02008-COA JAMES THOMAS A/K/A JAMES D. THOMAS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 11/05/2013 TRIAL JUDGE: HON. LEE J. HOW ARD COURT FROM W HICH APPEALED: OKTIBBEHA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: JIM DAVIS ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: LISA L. BLOUNT NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 04/21/2015 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND MAX WELL, JJ. LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY ¶1. On April 17, 2012, J am es D. Thom as pleaded guilty in the Oktibbeha C ounty Circuit
Court to sexual b attery

. Thom a s was sentenced to twenty -seven y ears to serve in the custody of the Mississippi Departm ent of Corrections (MDOC). On April 4, 2013, Thom as f iled a

m otion f or post-conviction relief ( PCR). A f ter an e v identiary hearing, the trial court denied his P C R motion. Thom as now appeals, asserting the f ollowing issues, which we have reordered f

or clarity : ( 1) t here was no f a c t u a l b a sis to support his plea, (2) his plea wasinvoluntary , (3) he m et his b u r den of proof , (4) his counsel was inef f ective, and (5) trial

courts have a duty to inf

o rm crim inal def

endants of their parole eligibility bef ore accepting pleas.
S TANDARD OF REVIEW ¶2. W h en re v i e w i n g a trial court’s denial or dism issal of a PCR m otion, we will only disturb the trial c ourt’s d ecision i f it is clearly erroneous; however, we review the trial court’s legal conclusions under a d e novo standard of review. H ughes v. S tate , 106 So. 3d 836, 838 (¶4) (Miss. Ct. App. 2012).
DISCUSSION
I. FACTUAL BASIS ¶3. Thom as argues that ther e w a s n o f a c t u a l basis t o support his sexual-battery plea because there was no evidence o f p e n e t ration. According to Unif orm Rule of Circuit and County Court Practice 8.04(A)(3), “[ b]ef ore the trial court m a y accept a plea of guilty , the

court m ust determ ine

. . . that there is a f actual basis f

or the plea.” T he trial court m ust be able to “ say with conf

idence [ t hat] the prosecution could prove the accused guilt y of the crim e charged . . . .” Corley v. State , 585 So. 2d 765, 767 (Miss. 1991). ¶4. “Penetration is the very essence of t he crim e of sexual battery .” J ohnson v. State , 626
So. 2d 631, 632 (Miss. 1993) (citations om itt ed). Mississippi Code Annotated section 97-3-95(1)(d) (Rev. 2014) states that “[ a] person is guilty of sexual battery if he or she
engages i n sexual penetration with

. . . [ a] child u nder the a g e o f f ourteen (14) y ears of age, if the person i s t w e n t y - f

our (24) or m ore m onths o lder t han the child.” Mississippi Code

2Annotated sec tion 97-3-97 (Rev. 2014) def ines “sexual penetration” f or the purposes of section 97-3-95 as “cunnilingus, f e llatio, buggery or p ederasty , any penetration of the genital

or anal o pening s o f a nother person’s body by any part of a person’s body , and insertion of
any object into the genital or anal openings of another person’s body .” ¶5. At Thom as’s plea colloquy , the trial court read the indictm ent as f ollows: [ Y]ou, Jam es D. T hom as, a person above the age of 18 y ears on or about the 18th day of July , 2003, in Oktibbeha County , M ississippi, d i d w i l lf ully , unlawf u lly a nd f eloniously engage in sexual penetration with [ D.D. 1 ], a child of the age o f 11 y ears; and t hat y ou, Jam e s D. Thom as, were at least 2 4 m onths older than [ D.D.], her date of birth being July the 22nd o f 1991 and y our date of birth being Septem

ber the 19th of

1937, by licking her private parts.
W h en t he trial court f

inished, he asked i f Thom as was g uilty of this of f ense, to which Thom a s replied he was. The trial c ourt then asked the State f or the f actual b asis f

or the plea. The State stated: [ I]n the event o f a trial, the State would of f er evidence to show that on t he date alleged in the indictm ent, the 18th of July , 2003, [ D.D.], who was 11 y e a rs old at the tim e, was living here in Oktibbeha County , Mississippi, with her p arents and sisters. Her grandparents were in t o wn f or several weeks helping the f am ily o u t a f

ter her m other had had s o m e surgery . On the 18th of July , 2003, late i n the evening, she wen t into her parents’[ ] bedroom and told them t hat her grandf

ather, who was Mr. Jam es D. T hom as, had licked her vagina. The police were called. They responded to the s cene. Mr. T hom as gave a statem ent to the respon d i n g o f f icer that he h ad com m itted a bad act. He did not get terribly specif

i c but said he had put his m outh in a n inappropriate place on [ D.D.] He was later t ransported to the police departm ent where Detective Henry Stewart t ook a d etailed statem ent f r o m h i m i n which h e conf essed to licking the vagina of [ D.D.] At the tim e that this o ccurred, he was over the age of 18; was m ore than 24 m onths older than [ D.D.] and was not her spouse. The trial court f

ound that the S tate had provided a s uf f icient f actual b a s i s t o s u p port the

1 W e u se in itials to p ro tect th e id en t ity o f t h e mi n o r v ictim

. T h e ch ild ’s f am ily m em b ers w ill b e id e n tif

ied o n ly b y f irst n am es. 3charges contained in the indictm ent and accepted Thom as’s guilty plea. ¶6. In Thom as’s plea petition, he adm itted t hat he licked his granddaughter’s vagina. On appeal, Thom as does not c hallenge the v alidity of h is a dm ission. He m erely a r g u e s t h a t licking his granddaughter’s vagina does not constitute sexual p enetration. “In its true sense, ‘cunnilingus’ m e ans stim ulation by tong u e o r l i p s of a ny part of a wom an’s genitalia and does not require actual penetration.” Johnson , 6 26 So. 2d a t 6 33 (citation om itted). “Under

our sexual battery statutes,

. . . union or contact between a person’s m outh an d t h e g enital opening of a wo ma n i s t he equivalent of ‘sexual penetration.’” Id

. T heref ore, “proof of contact, s kin to skin, between a person’s m o uth, lips, or t ongue and the g e n i t a l opening of

a wom an’s body , whether by kissing, lick i n g , o r s u c king, is suf f icient proof of ‘sexual penetration’ through the act of ‘cun n i l i n g u s ’ within the m eaning and purview of [ section] 97-3-97(a)[ .]” I

d

. a t 6 33-34. S ince Thom as adm i tted to licking h is granddaughter’s vagina, there was suf

f i cient proof

of sexual penetration. ¶7. Thom as points out that i n D.D.’s statem ent to the police, she stated that Thom as never penetrated her. D.D.’s m ed i c a l r e c o rds also indicate t hat she told hospital staf f that no penetration occurred. W hile D.D. m ay have said t hat, she was an eleven-y ear-old girl who could n ot have been e xpected t o k now that cunnilingus constitutes sexual penetration. This issue is without m erit.
II. VOLUNTARINESS OF PLEA
III. BURDEN OF PROOF ¶8. T h o ma s a r g u e s his plea was i nvoluntary because his counsel mi s i n f o r me d h i m

4regarding his p arole eligibility , and he relied on this inf orm ation w hen he p leaded guilty

. He
argues that he m e t his b urden of proof at the evidentiary hearing by showing the f acts
necessary f or relief by a preponderance of

the evidence. ¶9. “A plea of guilty i s n o t b i n d i n g u p on a crim inal def endant unless i t is entered voluntarily and intelligently .” Alexander v. S tate , 605 So. 2d 1 1 70, 1172 (Miss. 1992) (citation om itted). “A plea is deem ed ‘voluntary and intelligent’ only where the def endant is advised concerning the nature of the charge against him and the consequences of the plea.” Id

. “Early release and parole are m atters of legislative grace and are n ot consequences o f a guilty plea.” R o binson v
. State , 9 64 So. 2d 6 09, 613 ( ¶16 ) (Miss. Ct. App. 2007) (citing Shanks v
. State , 672 So. 2d 1207, 1208 (Miss. 1996)). “However, a plea is involuntary if a def endant is af

f irm atively m isinf

orm ed regarding the possibility of p arole and pleads guilty in reliance on the m isinf

orm ation.” T

homas v
. S

tate , 881 So. 2d 912, 916 (¶10) (Miss. Ct. App. 2004) (citing Fairley v. State , 834 So. 2 d 704, 706 ( ¶8) (Miss. 2003)). “The burden of proving that a guilty plea is involuntary is on t he def endant and mu s t b e p r o ven by preponderance of the evidence.” House v. State , 7 54 So. 2d 1147, 1152 (¶25) (Miss. 1999).
W e “ m ust exam ine the entire record and accept ‘that evidence which supports or reasonably tends to support the f

indings of f

act m ade below, together w i t h a l l reasonable i nf erences which m ay be drawn theref rom and which f

a vor the lower court’s f

inding of f

act.’” Goodin

v
. S t a t e , 102 So. 3d 1102, 1111 (¶30) (Miss. 2012) (citations o m i tted). “That inc l u d e s def erence to the [ trial] judge as the sole authority f or determ ining credibil i t y of the witnesses.” Id. (citations and internal quotation m arks om itted).

5¶10. In T hom a s’s af f idavit, w hich was attached to h is P CR m o tion as an exhibit, Thom a s stated that his trial counsel, Rodney Ray , advised him

that he was going to walk out of the

courtroom a f

ree m a n and that he believed Ray when he told him t hat. Thom as stated that Ray told h im he could go to trial and receive a ten-y ear sentence or enter an open plea and receive two to f

our y ears. Thom as stated that Ray told him that b e c ause of his m edical condition, he would b e eligible f or early release, and since he had already served two and a half y ears, he wo uld probably be released the day of sentencing. Thom as’s wif e and daughter, Katherine and Mi c h e l e , r e s p e c t i v e l y , b o t h subm itted af

f idavits. Katherine m et with Ray the day bef

ore s entencing, and both m et with Ray the d ay of sentencing. They b o th stated in their af

f idavits that Ray a dvised them that he expected Thom a s to receive a two-to f our-y ear sentence. Michele also stated in h er af f idavit that Ray

told her he m ight even be released the day of s entencing. She stated that Ray said that, at worst, Thom a s could receive up to seven y ears. ¶11. Thom as testif

ied to the sam e a t a n e v i d e n t i a r y h e a r ing held f or the purpose of determ ining whether counsel m isinf orm ed Thom as r e g a r d i n g p arole and whether Thom as relied on that m isinf

orm ation. W hen a sked if he relied on the m isinf orm ation, Thom as answered af

f irm atively and said he would not have entered a guilty plea if he h ad known he

was not parole eligible. He testif ied that the only r eason he entered a guilty plea was because he believed he would b e getting out o f jail shortly thereaf te r . Thom as testif

ied he never thought he would get a lif e sentence and that he thought thirty y ears was t he m axim um . 2 He

2 A s ex u a l-b attery co n v ictio n carries a m in imu m sen ten ce o f tw en ty y e ars an d a m ax im u m sen ten ce o f lif

e im p riso n m en t. M iss. C o d e A n n . § 9 7 -3 -1 0 1 (3 ) (R ev . 2 0 1 4 ).

6testif

i ed that he did not recall the trial court inf orm ing him

of the m inim

um and m axim

um
sentences and that he was only cognizant of the f a ct that he was pleading guilty to the crim e of sexual batte r y . K a t h e rine and Michele also testif ied a t t he evidentiary hearing. They testif i ed t hat R ay told them that, at best, Thom as would receive a two-to f our-y ear sentence

or tim e served and that, at worst, he could r eceive u p to seven y ears, but would be released within a f ew m onths on parole because o f his age and health. They testif ied that they talked with Ray about g etting Thom a s into a trustee progra m t hat would allow him to spend weekends at hom e out on parole. ¶12. At Thom as’s plea colloquy , the trial court asked Thom as if he understood that it m ust

s e n t ence him to n o less than twenty y ears nor m ore than lif e im p risonm ent, to whi c h h e answered y es. The trial court queried T h o m a s about his written petition to e nter a plea of guilty : [ Trial court]: There is a written p e t i t i o n t o e nter a plea of g uilty in the court

f ile. You say

Mr. Ray f i lled this out f

or y ou?

[ Thom as]: Yes.

[ Trial court]: Did he go over it with y o u and explain it to y ou?

[ Thom as]: Yes.

[ Trial court]: D o y o u h a v e a n y q u e stions about any thing contained in t h e petition t hat y ou did not understand that y ou w i s h f o r m e to explain to y o u?

7[ Thom as]: No.

He w as a lso asked i f any one prom ised him any thing or threatened him to get him to sign the petition or enter a plea of guilty , to which he answered no. ¶13. T h o ma s’s plea petition, which was signed and sworn to, stated the m in i mu m a n d

m axim u m sentences he could receive. The plea petition also stated the f ollowing: My l awy er has advised m e as t o t h e p r o babilities of m y conviction on the charges with which I am charged and thoroughly discussed all aspects of m y case w ith m e . My lawy er h as m ade no threats or prom ises of a ny ty pe or kind to induce m e to enter this plea of guilty , however; and the decision to s eek the entry of this plea was m y o wn and m i ne alone, based on m y own reasons and f ree f rom any outside coercive inf

luences.

. . . . I believe that m y lawy er has done a ll that any one c o uld d o to counsel and assist m e. I AM SATISFIED W ITH THE ADVICE AN D H E L P H E /SHE HAS GIVEN M E; I r e c o gnize that I have been told by m y lawy er that I m ight receive probation or a lighter sentence[ ;] that is m e r ely his/her prediction and is not binding on this Court. ¶14. At his sentencing hearing, Thom as g ave three reasons f o r pleading guilty to the crim e of sexual b attery

. First, Thom as stated he wanted t o take responsibility f or what he had done

to h is g randdaughter. Second, he wanted t o “try t o heal t hings u p . ” A n d t h i r d , he did not
want to f urther traum atize his granddaughter by g oi n g t o trial. Thom as w as a sked about having f led the country the night bef ore his trial in October 2004. Thom as testif ied that when he was unable to get in c ontact with his attorney , h e panicked. He testif i ed, “I was f

acing the possible lif

e sentence. It was 30 to lif e.” ¶15. P rior to a ccepting h is p lea, the trial court f ound that Thom a s understood t he n a t u r e and consequences of his plea, including the m axim um and m i nim

um sentences required by

8law. It also f ound that Thom a s’s guilty plea was f

r eely and voluntarily

m ade. ¶16. Ray testif

ied a t the evidenti a r y h e a r i ng. He testif ied that prior t o rendering legal services, h e inf

orm ed Thom a s that he could not guarantee an outcom e. This language also
appears in the contract f

or legal services, w h ich was signed by Thom as. Ray testif ied that

as t hey were preparing f

or trial, he m et with the prosecutor and learned how a rticulate D.D.

was . Wh e n R a y r elay ed that inf orm ation to Thom as, he asked Ray what kind of a deal he could get him

. Ray a dvised Thom as that h e would not want what t he p rosecutor had to of f er and that it would be best to enter an open p lea and ask f or leniency

. R a y a d v i s e d Thom as that the best way

to ask f or leniency

was to apologize and ask the court to consider his age and health. Ray testif

i ed that h e told Thom a s t h e r e w e r e no guarantees o f leniency

. Ray specif ically denied telling Thom as that he would receive a m inim um of t wo to f

our y ears and

a m axim um of seven. He testif

ied that he did t ell Thom as he would get credit f or tim e served and that, hopef

u lly , af ter asking f

or leniency , he woul d g e t “seven, ten, f ourteen y ears.”
W h en asked a

bout having said “seven, t en, f ourteen y ears” on cross-exam in a t i o n , all of which are under the statutory m inim um , Ray answered that part of the se n t e n c e c o u l d be suspended. H e test i f

ied t hat he did not believe he would h ave told Thom as two y ears becau s e h e h a d never seen the trial court give any one two y ears f or the crim e of sexual battery

. ¶17. Ray t estif

ied that he explained every t hing in Thom as’s plea petition to him , including the m inim um and m axim

u m sentences he could receive and what was m eant by an open plea.
He testif ied there w as nothing to indicate Thom as did n ot u nderstand the statutory m inim um

9and m axim um . Ray testif ied that he told Thom as that s entencing was up to the trial court, and that the trial court was not bound by any recom m endation, e v e n i f t h e r e was one. He testif i ed that not only did he t e l l T hom as the m i nim um a n d m axim

um sentences he could receive, but Thom as was also inf o rm ed of the statutory m inim um and m axim

um by the trial

court d uring his p l ea colloquy

. Again, Ray t estif ied that there was nothing to indicate Thom a s d id not understand what the trial court said. Ray testif ied that he n ever told Thom as

or his f am ily that sexual battery was a parolable of f e nse, and specif

ically den i e d u s ing the words parole or e arly release when discussing the m itigating f actors of age a nd h ealth. W hen asked if he inf

orm ed Thom as that sexual battery was a nonparolable of f ense, Ray answered, “[ I a m ] sure I did.” He testif ied t hat he told Thom as that he m ight get to the M DOC and f ind that MDOC would not want to deal with him given his age a nd health, and release him

. Ray testif i ed h e told Thom as: “ Hopef u lly y our sickness would m ake them want to g et rid of y ou
at som e point. I [ did n ot] guarantee or tell him t h a t that would happen. I said his health would help both in the m itigation, in the hearing, as well as any thing down the road.” ¶18. Ray testif

ied that h e d i d n o t r e m e mb e r me e t i ng with Katherine the day bef ore sentencing. He testif

ied that he m et with Katherine and Michele the m orning of sentencing, but denied telling them that the worst sentence Thom as c ould receive was seven y ears. Ray testif i ed that he m et with Katherine and Michele af ter sentencing and that h e t o l d t h e m he

was going t o try to g et Thom as m oved to another f acility so he c o u ld be a trustee. He testif i ed that he had a couple of other s ex-of f ender clients who are trustees. Ray testif ied that he called the sherif

f of Clay County about m ovin g T hom as to his f acility , but nothing

1 0resulted f

rom that phone call. ¶19. Af ter a review of the record and having considered the testim ony and dem eanor of all of the w itnesses at the evidentiary hearing, the trial court f ound Ray ’s testim ony to be highly

com pelling, reliable, and supported by the contract f or legal services, the sworn plea petition, and the plea colloquy . The trial c ourt f ound that Ray did not m isinf o rm Thom as about his eligibility f

or parole, and b ecause Ray did not m isinf orm Thom as, Thom as could not have relied on the alleged m i sinf orm ation when he pleaded guilty

. T he trial court m ade note of Thom a s’s conf

licting testim ony regarding h is reasons f or pleading g uilty , t he possibility of parole not being one o f them , at the original sentencing hearing. I t also f ound it highly unlikely t hat Thom a s, a Doctor o f Philosophy in m a them a tics, would sign docum e n ts without reading them , as was his testim ony a t the e videntiary hearing. Thom a s testif ied at the evidentiary hearing that he did not read the plea petition and t hat he did not read the contract f or legal services caref

u lly

. ¶20. W e cannot say the trial court’s f actual f i ndings were clearly erroneous. T he trial court f ound Ray ’s testim ony to b e c r e d i b l e and supported by the contract f or legal s e rvices, the

sworn plea petition, and the plea colloq u y . Wh i l e T hom as’s wif e’s and daughter’s testim o nies corroborated Thom as’s, Thom as’s testim ony at t he eviden t i ary hearing of ten

cam e i nto direct conf

lict w ith his testim ony at his plea colloquy

. He g ave conf licting reasons f or pleading guilty a nd t estif ied at t he evidentiary hearing that h e thought thirty y ears was the

m axim u m sentence he could receive. During his plea c olloquy t h o ugh, h e s tated that he understood the statutory m inim um and m axim

um , a nd e ven stated at sentencing that the

1 1reason he f le d t h e country in 2004 was because he was f acing a possible lif

e sentence. “Solem n declarations in open court carry a strong presum ption o f v e rity

. ” Richardson v. State , 7 69 So. 2d 230, 234 (¶6) ( Miss. Ct. App. 2000) (citation o m itted). “[ P]lea p etition[ s], sim ilarly to statem ents in open court, m ay b e used to discredit post-plea allegations.” W ard

v. State , 879 S o . 2 d 4 5 2 , 4 55 (¶11) (Miss. Ct. App. 2 003). By signing his p lea petition, Thom a s a cknowledged the m i n i m u m and m axim um s e ntences he c o uld receive. He also acknowledged that while his attorney m ay h ave said h e m ight receive probation or a lighter sentence, that was m e rely a prediction, and the trial c ourt was not bound by this. The trial

court f ound that given Thom as’s educational b ackground, i t was highly unlikely he did not read t he plea petit i o n b e f o r e s i g ning it. The trial c ourt a lso f ound that Thom as’s level of involvem e nt in f

iling pro se m otions in his original c r im inal cause was “inconsiste n t with

som eone w ho would sign legally binding docum e nts without f irst reading them .” W e cannot
say the trial court’s f

indings were clearly

erroneous. This issue is without m erit.
IV. INEFFECTIVE ASSISTANCE OF COUNSEL ¶21. Thom as also argues that because he was m isinf orm ed regarding his p arole eligibility , he received inef

f ective assistance of counsel. In order to succeed on a claim of inef f ective assistance of counsel, the def e ndant m ust prove that counsel’s p e r f o rm ance was def

icient and that the def

icient p e rf

orm ance prejudiced the def ense. Strickland v. W

a shington , 466 U.S. 668, 687 (1984). “In the context of guilty pleas, this m eans the def e ndant m u st s how that, were it not f

or counsel’s errors, he would not have pleaded g uilty a nd would have insisted

on going to trial.” Burrough v. State , 9 So. 3 d 368, 375 (¶22) (Miss. 2009) (citation om itted).

1 2Having f

ound that the trial court did not err in f inding that Ray did not m isinf o rm Thom as regarding hi s p a r o l e e ligibility , Ray ’s perf orm ance was not def

icient. W ithout a def

icient perf orm ance, it could not have prejudiced the def ense. This issue is without m e rit.
V. TRIAL COURT’S DUTY TO INFORM OF PAROLE ELIGIBILITY ¶22. W e note that Thom as contends that trial courts should be required to inf orm crim inal def endants if they will not be e ligible f or parole bef

ore ac c e pting their guilty pleas. However, the law is well settled that a trial c ourt i s not r equired to inf orm a def endant of parole eligibility

. Stewart v. State , 845 So. 2 d 744, 747 (¶11) (Miss. Ct. App. 2003) (citing
W are v. State , 379 So. 2d 904, 907 (Miss. 1980)). This issue is without m erit. ¶23. THE JUDGM E N T O F T H E O K T I B B E H A C O U N T Y C I R C UIT COURT D E N Y ING THE MOTION FOR P O S T
- C O N V I C T I O N R E L I E F I S A F F I R M E D . A L L COSTS OF THIS APPEAL ARE ASSESSED TO THE APPELLANT. IRVING A ND GRIFFIS, P.JJ., B A RNES, ISHEE, ROBERTS, CARLTON, MAX W ELL, FAIR AND JAMES, JJ., CONCUR.

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