IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI N O. 2013-CP-00978-COA TIMMIE BROOKS A/K/A TIMMY BROOKS APPELLANT

v. STATE OF MISSISSIPPI APPELLEE DATE OF JUDGMENT: 04/16/2013 TRIAL JUDGE: HON. JOHNNIE E. W ALLS JR. COURT FROM W HICH APPEALED: COAHOMA COUNTY CIRCUIT COURT ATTORNEY FOR APPELLANT: TIMMIE BROOKS (PRO SE) ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL BY: JOSEPH SCOTT HEMLEBEN NATURE OF THE CASE: CIVIL - POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: DENIED MOTION FOR POSTCONVICTION RELIEF DISPOSITION: AFFIRMED - 01/10/2017 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE LEE, C.J., BARNES AND FAIR, JJ. LEE, C.J., FOR THE COURT:

FACTS AND PROCEDURAL HISTORY ¶1. Tim m ie Brooks was indicted by a Coahom a County grand jury on one count of capital

m urder 1 and one count of f

elon in p ossession of a f

irearm

. Brooks was subsequently indicted in two separate m atters: one count of f elony escape, and one count of m u rder. 2 On February 17, 2010, Brooks, r epresented b y public def ender Ricky Lewis, and Ray Car t e r f rom the

1 T h is ch arg e alleg e d th at B ro o k s h ad m u rd ered O tis L ee.

2 T h is ch arg e alleg e d th at B ro o k s h ad m u rd ered K ev in Jo n es.Of

f ice o f Cap i t a l Def

ense Counsel, f

iled a petition to plead guilty to capital m urder. Brooks’s petition shows that in exchange f or h i s g u i l t y p lea to c a

pital m urder, the State would recom m end that the circuit court sentence Bro oks to l if e in the custody of the Mississippi Departm ent o f Corrections (MDOC) without the possibility of parole. The State also agreed t o r e c o mmend a c oncurrent lif e sentence w ithout the possibility of parole, in

ex c h a n g e f

or Brooks’s g uilty plea to the other m urder charge he f

a ced. Additionally , the State agreed to dism iss the charges of f elon in possession of a f

irearm and another charge of receiving stolen property

. On February 18, 2 010, Brooks pled guilty to both capital m urder and m urder. The circuit court s entenced him to concurrent term s of lif e in M DOC custody without the possibility

of parole. ¶2. On May 16, 2011, Brooks f iled a m otion f

or transcripts and discovery

. H e then f iled

a m otion to s how cause on October 18, 2012, a t tackin g t h e l e g ality of his sentence. Following no response f

rom the circuit court or r eceipt of disc o v e r y inf orm ation, Brooks f iled a p etition f

or a w rit of m andam

us with the Mississippi Suprem e Court. On Decem ber 8, 2012, in response to Brooks’s p etition f or a writ of

m andam u s, t he c ircuit court ordered the circuit clerk to send Brooks a copy o f the c ourt f iles. The circuit c ourt also ordered the district attorney ’s of

f ice to s e n d B r o o k s a copy of the d iscovery inf orm ation. The circuit

c o u rt’s order noted that Karen T anner, the c o urt reporter p resent d uring Br o o k s ’ s a

r r a i g n m e n t

as w ell as his plea and sentencing h earing, was deceased. A new r eporter, Brenda Blackburn, was designated to prepare the transcripts through Tanner’s t apes and send them to Brooks. Brooks’s petition f

or a writ of

m andam us was then dism issed as m oot.

2¶3. On April 3, 2015, Brooks f iled a m otion f

or postconviction relief (PCR) a nd claim ed he received inef

f ective assistance of counsel when he p led g uilty to capital m u rder because he was “ induced, coerced, and threa t e n e d into entering his p lea.” On April 16, 2013, the circuit court denied Brooks’s PCR m otion. Brooks appealed. ¶4. W h ile his appeal was pending, Brooks f i led a m otion w ith th i s Court to com pel the production o f

his guilty -plea-hearing transcript. W e granted Brooks’s m otion and ordered the court reporter to f

ile the transcript. Af

ter Brooks twice renewed his m otion to com pel,

we n oted that the C lerk of Appellate Courts r eceived a letter f rom Blackburn s t ating that she

w a s u n a b l e to f

ind the audio recordings necessary to c o m plete the transcript. W e t h e n ordered the circuit c ourt to determ ine t he status of the t ranscript and whether it could be

com pleted, and if not, ordered the circuit court to hold a hearing on the record to supplem ent the record in accordance with Mississippi Rule of Appellate Procedure 10. ¶5. On February 17, 2015, Brooks f i led a petition f

or a writ of m andam

us, requesting that this Court com

pel the circuit court to pr o v i d e t h e transcript. W e granted Brooks’s m otion and o rdered the c ircuit court to conduct a Rule 10 hearing within f orty -f ive day s. The circuit
court accordingly held a hearing to review the status of t he transcript and determ ine whether the transcript c ould be p roduced. Brooks, Assistant District Attorney W illiam Gresham , and Lewis w ere present at the hearing. The circuit c ourt determ ined that the c o u r t r eporter’s audio tapes and notes needed to p repa r e t h e t ranscript of t he plea and sentencing hearing

were unavailable and w ere not likely t o becom e available. As such, the circuit court stated that an additional hearing should be held in order f o r the parties and witnesses to testif y to

3the f

acts and events surrounding Brooks’s guilty plea. ¶6. The h earing was h eld on August 13, 2015, and October 26, 2 0 1 5 , during which the circuit c ourt heard the testim ony of Lewis; C arter; Regina Curry – a m itigation specialist with the Of f ice of C apital Def

ense who was appointed to assist with Brooks’ s representation; Michael Carr – t he assistant district attorney who prosecuted the case agains t B r o o k s ; the Honorable K enneth L. Thom as – the circuit judge who had presided o ver the case and received Brooks’s guilty pl e a ; T heresa T higpen – Judge Thom as’s f orm er court adm inistrator; and B rooks. A t the beginning of t he hearing, Brooks requested an extension of tim e i n order to obtain counsel. His r equest was denied, and t he hearing was conducted. The parties and w itnesses testif ied concerning the events surrounding Brooks’s guilty -plea and sentencing h earing, and the transcript of the Rule 10 hearing was com pleted and certif

ied as part of the record on appeal. ¶7. In his appeal, Brooks argues that (1) he received inef f ective assistance of counsel, (2) he did not voluntarily plead guilty to capital m urder, and (3) t he c ircuit court erred i n deny ing his request f

or appointed counsel at his Rule 10 hearing.

STANDARD OF REVIEW ¶8. A circuit court ’ s d e n i a l o r d i s mi s s a l o f a PCR m otion is r eviewed f or abuse of discretion, a nd w e will o nly reverse the c i rcuit court if its d ecision is clearly erroneous. Hughes v
. State , 106 So. 3d 836, 838 (¶4) (Miss. C t. App. 201 2 )

. H o w e v e r , t he circuit court’s l egal conclusions are reviewed under a de novo standard. Chaney v. State , 121 So. 3d 306, 308 (¶4) (Miss. Ct. App. 2013).

4DISCUSSION

I. Ineffective Assistance and Voluntariness of Guilty Plea ¶9. Brooks claim ed he received inef f ective assistance of counsel a nd his guilty plea was involuntary

because his lawy er “induced, coerced[ ,] and threatened [ him ] into entering his plea.” O n a p peal, he m aintains that he was “possibly threatened and[ ] intim idated by the threat of the death penalty . . . .” He f

urther contends that because t here is no transcript of the plea and sentencing hearing, there is insuf f i cient evidence to show that his g uilty plea was voluntarily

and intelligently

given. ¶10. To prevail on a c laim of inef f ective assistance of counsel, Brooks m u st show that his attorney ’s perf

orm ance was def

icient a nd t hat it resulted in prejudice. Stri c kland v. W ashington , 4 66 U.S. 668, 687 (1984). Because B rooks pled guilty , h e has “waive[ d] claim s

o f i nef f e ctive assistance of counsel except

. . . as [ they ]

. . . relate[ ] to the voluntariness o f the g i v i n g of the guilty p lea.” Rigdon v. State , 126 So. 3d 931, 936 (¶16) ( Miss. Ct. App. 2013). There i s a p r e s um ption that “counsel’s representation f alls within t he range of reasonable prof

essional a ssistance.” Jackson v. S tate , 178 So. 3d 807, 812 (¶20) (Miss. Ct. App. 2014) (citing S

t rickland , 466 U

. S

. at 689). To rebut this presum ption, Brooks m

ust dem onstrate that a reasonable probability e x ists that “but f or c ounsel’s unprof

essional errors, the result of

the proceeding would have been dif f erent.” Id. ¶11. T h e c i r c u it court did not err in deny ing Brooks’s claims

. A p a r t f r o m h i s o w n assertions, Brooks did not present any evidence to support his claim of inef f ective assistance of counsel. This Court has held in PCR cases t hat “where a party o f f ers only his af f idavit,

5then his inef f ective[ -]assistance claim is without m erit.” Alford v. State, 1 85 So. 3d 429, 432 (¶16) (Miss. Ct. App. 2016). Accordingly , Brooks’s claim f or inef f e ctive assist a nce of counsel is without m e rit. ¶12. Additionally , Brooks claim s his plea was involuntary because he was coerced under the threat o f the death penalty

. The circuit court’s order deny ing Brooks’s PCR m otion noted that “[ h]ad [ Brooks] gone to trial and been f ound guilty [ ,] he would surely f ace the death penalty .” As such, t he circuit c ourt reasoned that it w as logical that Brooks’s counsel would

w a r n him of the possible punishm ents he f aced, w hich included the death penalty

. Thi s Court has recognized that “ the death penalty is a p ossible punishm ent f or c a pital m urder, and it [ is] logical t ha t [ a def endant’s] trial counsel [ would] w a r n[ ] him of this.” Grissom v. State , 66 So. 3d 1280, 1283 (¶16) (Miss. Ct. App. 2011). And Brooks d id not of f er any evidence to substantiate h i s claim that h e was c o erced o r t hreatened to plead guilty

. Furtherm o re, Brooks’s petition to plead guilty shows t hat Brooks af f irm ed he had not been “threatened[ ,]

. . . f

orced, intim idated[ ,] or coerced in a ny m anner to plead guilty ,” and that he of f e red his “plea of ‘guilty ’ f reely and voluntarily and of [ his] own accord[

. ]” During the Rule 1 0 hearing, num erous witnesses contradicted Brooks’s claim that he was coerced into pleading g uilty

. There is no evidence

– apart f rom Brooks’ s o wn assertions – that he was coerced into pleading guilty ; rather, there is evidence in the record to the contrary

. ¶13. As to Brooks’s contention that there is insuf f icient evidence to show that his plea of guilty was voluntarily and intelligently given because t here is no transcript of the plea and
senten c i n g h e a r i n g , this Court has held that “an incom plete

. . . record, of itself , does not

6constitute reversible error,” a nd noted that the “sam e consideration applies to

. . . def iciencies i n t h e t r a n s cript

. . . . ” Stapleton v. State , 7 90 So. 2d 897, 8 99-900 ( ¶9) (Miss. Ct. A p p . 2001). And t he Rule 10 hearing testim ony and transcript was f o und to be a suitable alternative. Accordingly , the circuit court did not err w hen it denied B r ooks’s PCR m otion. II. Denial of Appointed Counsel ¶14. Brooks a r g u e s t hat the circuit court erred when i t denied h is request f or appointed counsel during the Rule 1 0 hearing. There is n o r i g h t t o appointed counsel in PCR proceedings. A l len v. State, 177 So. 3d 1 148, 1152 (¶18) (Miss. Ct. App. 2014). W here an evidentiary hearing is required, it i s w i t h in the discretion of the c ircuit court to appoint counsel. Higginbotham v. State, 114 So. 3 d 9 , 1 7 ( ¶ 2 6 ) ( M i s s. Ct. App. 2012). Here, the circuit court did n o t abuse i ts discretion when it denied Brooks’s request f o r a p p o i nted counsel at the Rule 10 hearing. Theref o re, this issue is without m e rit. ¶15. THE JUD G M E N T O F T H E C O A H O M A C O U N T Y C I R C U I T C O URT DENYING THE MOTION FOR POSTCONVICTION R EL I E F IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO COAHOMA COUNTY. I R V I N G A N D GRIFFIS, P.JJ., BARNES, ISHEE, C ARLTON, FAIR, W ILSON AND GREENLEE, JJ., CONCUR. WESTBROOKS, J., NOT PARTICIPATING.

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