IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
N O. 2014-CP-01131-COA
REGINALD DESMOND WALLACE A/K/A REGINALD WALLACE APPELLANT

v. STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 08/06/2014 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: BILLY L. GORE NATURE OF THE CASE: CIVIL – POSTCONVICTION RELIEF TRIAL COURT DISPOSITION: MOTION FOR POSTCONVICTION RELIEF DISMISSED DISPOSITION: REVERSED AND REMANDED - 02/09/2016 MOTION FOR REHEARING FILED: MANDATE ISSUED: BEFORE IRVING, P.J., BARNES AND ISHEE, JJ. BARNES, J., FOR THE COURT: ¶1. Following his guilty pleas to arm ed robbery , kidnapping, and conspiracy to com m it

arm ed robbery , Reginald Desm ond W alla c e ( R e g i n a l d ) u n s u c c e s s f u l l y s o u g h t p ostconviction
relief (PCR) in t he Madison County Circuit Court. On a ppeal, he argues t hat his guilty pleas

were coerced because the ci r c uit court im p erm issibly r evoked h is appearance bond during
the guilty -plea hearing. Reginald f urther argues that the circuit court w as obligated to accept best-interest pleas despite the f act tha t t h e prosecution of f ered no s e ntencing

recom m endations. W e f ind no m erit to these claim s. However, to p rom ote the j u d i c i a leconom y and expedite a f inal r esolution of the litigation in t his case, we rem and t his case to the c ircuit c ourt f

or an evidentiary h earing regarding Reginald’s claim t hat his f orm er attorney f ailed to com m

unicate a f

avorable of

f er to plead guilty

to a lesser of

f ense. FACTS AND PROCEDURAL HISTORY ¶2. This appeal is the third case that stem s f rom the late Novem

b er 2 011 arm ed robbery
of Kim berly Lewis, the com anager of Sand Dollar L if esty les in Ridgeland, Mississippi, as
she lef t work to m a ke t he store’s deposit. 1 Shortly af t er Lewis got in her car, a m an later
identif ied as Dem arcus Tim m ons exited a silver C h evrolet Cobalt that was parked nearby , and got into Lewis’s car. Arm ed with a p istol, Tim m ons ordered Lewis to drive to a hotel approxim a tely one m ile away

. Lewis f o llowed Tim m ons’s instructions. T he silver Cobalt
f ollowed Lewis’s car. Af

ter Lewis parked at the h otel, T im m o ns t ook the store deposit f rom her, along with som e o f her personal property , including her cell phone. The d river of the silver Cobalt picked up Tim m ons and sped away

. ¶3. The subsequent i nvestigation led authorities to i n t e r v i e w K e n i sha Rush, another

com anager of Sand Dollar Lif esty les. Rush adm itted that her boy f riend, Antonio W allace,

w a s i n volved in the r obbery

. A ntonio and R eginald are brothers. Authorities l a t e r discovered that t he silver Cobalt belonged to Tim m ons’s girlf r iend, Kim

berly Gates. Gates and Rush eventually

revealed that there was a plan to rob Lewis and take the store deposit,

1 T h e tw o p rev io u s ap p e als a re Wa lla ce v. S ta te , 1 6 0 S o
. 3 d 1 1 8 4 (M iss. C t. A p p
. 2 0 1 4 ), an d T

im m o n s v. S ta t e , 1 7 6 S o . 3 d 1 6 8 (M iss. C t. A p p . 2 0 1 5 ). 2which was i nf lated due to a f

ter-Thanksgiving sales. Reginald was im plicated as the driver
of the silver Cobalt, while Gates rode in the backseat. ¶4. Reginald, Antonio, Ti m mo n s , R ush, and Gates were a ll indicted and c harged with

arm ed robbery , kidnapping, and c o n s p iracy to com m i t a r m ed r obbery

. Reginald retained
Ottawa Carter as his attorney

. The record contains a m em orialized plea o f f er f rom the prosecution. In exchange f or Reginald’s guilty pleas t o arm ed robbery and k idnapping, the
p r o s e cution would drop t he c onspiracy charge and recom m e nd c oncurrent sent e n c e s

e f f e c t i v ely equivalent to twenty y ears in the custody of the Mississippi Departm ent o f Corrections (MDOC). However, Reginald allowed the prosecution’s of f er to expire. ¶5. R u s h a n d G a t e s both took plea deals and pleaded guilty to sim p le r o b b e r y . O n Septem ber 24, 2012, Tim m ons and Reginald both f iled petitions to plead guilty to all three charges. At that tim e, Reginald was a f ourth-y ear c rim i nal-justice ma j o r a t J a ckson State University

. In his guilty -plea petition, he acknow l e d g e d that all three of his guilty pleas
would be “open,” in that the prosecution would not recom m end any particul a r s entences. However, by pleading guilty , Reginald would avoid the possibility of receiving lif e sentences f or a r m ed robbery and kidnapping. Dif f iculties involved w ith the n ature o f Reginald’s pleas
and t he f actual basis f

or t hem w i l l b e d i s c u ssed in g reater depth i n the analy s is below.
Suf f i ce it to say , those dif

f iculties f rustrated t h e c i r c u i t judge t o som e extent, which led to the revocation of R eginald’s bond. Ultim ately , the d if f iculties were resolved, and the circuit judge a ccepted R eginald’s guilty pleas. As anticipated, the prosecution did n ot recom m end

3any s entences. The circuit judge requested a presentence i nvestigation report, and p ostponed

Reginald’s sentencing hearing until af ter Antonio’s trial. ¶6. Meanwhile, Reginald discharged Carter a n d hi r e d J o h n C o l e t t e t o r epresent him during the sentencing hearing. Antonio went to t rial i n April 2013. Colette advised Reginald

not t o t e s t i f

y during Antonio’s trial, but Reginald ignored Colette’s advice. 2 During Reginald’s sentencing hearing, the circuit judge opined that Re g i n a l d ’s testim ony at

2 T h is C o u rt su m

m arized t h e ev id en ce p resen ted d u rin g A n t o n io ’ s trial in Wa lla ce , 1 6 0 S o . 3 d at 1 1 8 5 -8 6 (¶¶4 -7 ).
T h ere w as testim o n y at trial th at R u sh ’s b o y f r ien d , A n to n i o
. . . co n c o cted a p lan f o r T i m m o n s, h i s co u sin , t o ro b L ew is i n th e p ark in g lo t o f th e sto r e. [ A n to n io ] th o u g h t h e w o u ld b e reco g n ized if h e r o b b e d L ew is s in ce h e k n ew m an y o f R u sh ’s co w o rk ers. [ A n to n io ] ’s b ro th er, R eg in ald

. . . w o u ld d riv e th e g etaw ay car. Wh en L ew i s n o t i f

ied R u sh th at sh e w as g o in g to th e b a n k to m ak e a d ep o sit, R u sh sen t a tex t m essag e at 1 :0 9 p .m
. to Wallace say in g , “ S h e [ ’ s ] ab o u t to l eav e.” [ A n to n i o ] th en co n tacted R eg in ald , w h o w as in th e car w ith T i m m o n s an d

. . . G ates i n t h e p a r k in g lo t n ear L ew is’s car. R eg in ald a n d G a tes f o l l o w ed L ew i s’s car in to th e h o tel p a r k in g lo t. P h o n e reco rd s sh o w th at [ A n to n io ] an d R eg in ald tex ted an d called e ach o th er se v e r a l t im es b etw een 1 :0 9 p .m
. an d 1 :4 1 p .m . R eg in ald claim ed [ A n to n io ] w a s try in g to d eter h im f ro m ro b b in g L ew is.
T h ere w a s testim o n y th a t [ A n t o n i o ] , T im m o n s, an d R eg in ald sp l it th e ap p ro x im ately eig h t th o u san d d o llars. [ A n to n io ] ’s sh are w as tw o th o u san d f iv e h u n d red d o llars. [ A n to n io ] g av e f iv e h u n d red d o llars to R u sh

. T im m o n s an d R e g in ald each testif ied th at [ A n t o n io ] w as n o t i n v o lv ed in th e ro b b ery an d receiv ed n o m o n ey
. Id

. 4Antonio’s trial was untruthf ul “in that it was not consistent .

. . with reason[ .]” The circuit judge noted that Antonio’s lawy er had asked Reginald a question about a f our-m inute phone
conversation between him a nd Antonio. According to the circuit judge, the question resulted
in “the l ongest pregnant pause [ he had] ever seen[ .]” The circuit judge f urther opined that Reginald “ did not have an a nswer to that question, a nd

. . . t he jury could [ have] reasonably
inf er[ r e d ] t h a t [ he and Antonio] were talking a b out

. . . this robbery [ ,] and w hat t hey were going to do with [ Lewis.]” Noting that Reginald had a rem aining l if e expectancy of thirty

n i n e y ears, the circuit c ourt sentenced him to t hirty y ears f or both a rm ed robbery an d kidnapping, and f

ive y e ars f

or conspira c y . T h e c i r cuit judge set a l l t hree sentences to run concurrently

. ¶7. On April 14, 2014, Reginald f iled a pro se PCR m o tion. He claim ed that he “had no part in the planning or execution” of the crim es, and h is “only crim e
. . . was f ailing to get
out [ of ] the c ar as soon as [ he] becam e aware t hat a crim e was about to take place.” He also
claim ed t hat Carter was inef f ective because he did not inf orm him of “possible def

enses or
any thing benef

i c i al t o [ his] def

ense.” Reginald f

urther claim ed that his pleas were involuntary because C a r ter “‘convinced [ him ]’ that [ his] b est out was an open plea.” Additionally , Reginald argued that Carter “f iled s everal m otions t hat w ere of no ef f ect.” Finally , Reginald claim ed t hat his sentences were overly harsh and m otivated by the circuit judge’s prejudice and bias. ¶8. Am ong other docum ents, R eginald a t tached a letter f rom h is m other, Patricia Greer.

5Although the letter w as sty led as a sworn af f idavit, i t i s n o t n o t a r i zed. Greer’s letter supported Reginald’s claim s t h a t Carter was inef f e ctive, and the circuit court’s sentences

were m o tivated by

prejudice. ¶9. The circuit court ordered the State to respond to Reginald’s PCR m otion. The S tate

com plied, arguing that Reginald was not entitled t o relief

. Af f idavits f rom C arter and Colette were attached to the State’s response. ¶10. Carter’s af

f idavit stated that Reginald l i e d t o h i m a b o u t h i s involvem e nt in the robbery

. Carter f

urther stated t hat Reginald initially told him that Rush would testif y that she

a n d Lewis had “staged the whole thing.” Carter later learned that Reginald h a d b e e n i n v o l ved with the robbery

. Carter conf ronted Reginald, who “adm itted t o being involved , but [ he] still m aintained that the robbery [ had been] staged.” ¶11. According to Ca r t e r ’ s a f f i d a v i t , R e g i n a l d a n d G r e e r r ef used to e ntertain the prosecution’s m em orialized plea of f er because Reginald believed that “Rush would testif y that the robbery was staged.” W hen they learned that Rush would testif y that Lewis was

m erely a victim , R eginald s till “did not want a deal.” Carter’s a f f i davit went on to state that
the m em orialized plea of f e r lapsed, and Reginald also ref used a subseq u e n t o f

f er to plead guilty to the lesser of

f ense of sim

ple robbery

. ¶12. Af ter receiving the State’s response and Carter’s af f idavit, R eginald w rote a letter to

t he circuit judge stating t hat C arter had never inf orm ed him of an of

f er to plead guilt y t o sim ple robbery

. Reginald’s m other wrote a sim i l a r l e t ter. T he circuit court s u bsequently

6dism issed Reginald’s PCR m otion without conducting an evidentiary hearing. 3 Represented

by new retained counsel, Reginald appeals.
STANDARD OF REVIEW ¶13. W e will not d isturb a circuit court’s decision to dism iss or deny a P CR m otion unless
the circuit court abused its discretion. Hughes v. State , 106 So. 3 d 836, 838 (¶4) (Miss. Ct. App. 2012). Questions of law are reviewed de novo. I d

. ANALYSIS
I. Voluntary Guilty Pleas ¶14. Reginald claim s that his g uilty pleas were involuntary

. His claim is based on the f act that the circuit judge revoked h i s b ond during the guilty -plea hearing. According to Reginald, the revocation of his bond coerced him to enter guilty pleas. ¶15. B e f

o re accepting a g uilty plea, a circuit court m ust determ ine t h a t i t i s e n t e r e d voluntarily and intelligently

. W ilbanks v. S

tate , 1 4 So. 3d 7 52, 754 (¶6) ( Miss. Ct. App. 2009). A guilty plea is involuntary if i t was “ i nduced by f ear, violence, deception, or im p roper inducem ents.” U RCCC 8.04(A)(3). A def endant is f

ree to attack a g uilty plea collaterally , but there i s a strong presum ption o f validity t o solem n declarations m ade in open

3 T h e circu it co u rt’s “j u d g m en t o f d ism issal” s tates th at R eg in ald ’s P C R m o tio n w as “n o t w ell[ ] tak en an d sh o u ld b e d e n ied f o r th e reaso n s arg u ed b y th e [ S tate,] an d t h is cau se [ sh o u ld b e ] d ism issed .” U n d er th e circu m stan ces, th e d isp o sitio n is b etter ch aracterized as a d en ial. C h aracterizin g a d i sp o sitio n as a d en i al in d icates “th at th e m erits o f th e P C R m o tio n h ad b e en rev iew ed an d r ej ected [ ,] o r th at [ th e] arg u m en t s w ere b arred [ .] ” Ja ckso n v. S ta te , 6 7 S o . 3 d 7 2 5 , 7 3 0 (¶1 9 ) (M iss. 2 0 1 1 ). 7court. Hannah v. State , 943 So. 2d 20, 25 (¶11) (Miss. 2006). Reginald “bears t he burden

of proving by a preponderance of evidence that [ his] guilty ple a [ s ] w [ ere] i nvoluntary .”
Norris v. State , 162 So. 3d 833, 837-38 (¶20) (Miss. Ct. App. 2014). ¶16. Af ter the prosecutor f

irst recited the f

actual basis, C a r t e r a s k e d t h e c i r c uit court
whether Reginald could sim p ly di s c u s s “ his involvem ent.” The circuit judge said that Reginald h ad to agree with the recited f actual basis, “or he can g o t o trial.” Carter clarif ied
that R eginald wanted to enter best-interest guilty pleas pursuant t o North Carolina v. Alford , 400 U.S. 25, 37 ( 1 9 70). However, the prosecution expected Reginald “to a dm it his
involvem e nt in all three of these f elonies.” The p rosecution added: “[ S]ince Antonio

. . . is
still on the docket, I would like [ Reginald] on the record t o either adm it to this or state unequivocally what he participated in that m eets the elem ents of [ the charges against him ].” ¶17. Af ter asking Regina l d a f

ew prelim inary questions, the circuit judge expressed his

c o n c e r n t hat he could not accept best-interest pleas when t he prosecution was not

recom m ending any sentences. Carter noted that Reginald would avoid the possibility of two lif e sentences by

pleading guilty . The circuit judge responded:
W e ll, I’ve said that I’m going to proceed on t hat basis because [ Reginald] and [ Tim m ons, w ho had recently e n t e r ed g uilty pleas,] s eem to have a p roblem adm itting that they ’re guilty

. And in f act, [ Tim m o ns] wanted to basically say he wasn’t guilty af

ter he p led guilty

. And y o u know what, [ R eginald] is either going to p lead guilty or go to trial. I’m not going to bargain with [ him ]. If he wants to plead guilty , I’ll take the plea. But I tell y ou what right now, I’m not going t o be happy af

ter he pleads guilty if he wants to s tart talking a bout [ how] he didn’t have any

t h ing to do with it. I’m t ry ing to h ead this of f at the p ass f r o m t h e l ast def

endant [ who] pled guilty in f ront of m e on t his. If they ’ r e involved and t hey want t o plead guilty , f ine. I f they ’re n ot involved and they
8don’t want to plead gui l ty , then let’s go to trial. W e can start this tom orrow

m orning. I’m happy with either one of them

. Af ter f urther discussion with Carter, the circuit judge asked Regin a l d w h e t h er he “conspire[ d] to com m it arm ed r obbery with any of th e other co-def e ndants[ .]” Reginald answered, “No, sir.” The circuit judge then announced that Reginald’s trial would begin the
f ollowing day

. ¶18. Af ter f urther discussion with Carter and the prosecution, the circuit judge said:
Mr. W allace, y ou can’t have it both wa y s
. I f y o u don’t want to adm it t hat y ou’re guilty , then I can’t take y our guilty p lea. And that’s f ine with m e , I don’t care. W e’ll start a t rial up tom orrow m orning. But if y ou didn’t conspire with these people to com mi t a r me d robbery , then I’m not going to take y o ur guilty p lea. That’s exactly what I’m getting to, Mr. Carter. These people - - or these p eople, I m eant, when I ’m talking about these peop le, I m ean y o ur client and Mr. Tim m ons. B ut in particular, y o ur client wants to plead guilty , but he wants to say he didn’t do it. It d oesn’t work t hat way
. How can I take a guilty p lea f

rom a def endant who s a y s h e d i d n’t do i t? If y o u can explain that to m e , it would be very helpf ul.
Carter argued that the ci r c u i t j udge could take best-interest pleas. T he circuit judge responded: “[ I]f he w ants to plead guilty , we’ll go f orward. I f he doesn’t, we’ll start the trial up tom orrow. And I don’t care which one it is. Take him over there and talk to him .” ¶19. Af ter additio n a l d i s c u s s ion, the circuit judge asked the prosecution to recite the f actual
basis again. The prosecution com plied. W h en the circuit judge asked Reginald if h e agreed
that the prosecution could “prove the f actual basis,” Reginald responded, “No, s ir.” At that
tim e, the circuit judge said, “Take him into custody . His bond is revoked. W e’re going to
trial tom orrow m orning.” C a rter and the circuit j udge d iscussed t he court’s authority to

9accept best-interest pleas when Reginald stated that the p r o s e c u t i on would not be able to

prove the case as recited i n t he f actual basis. T h e circuit j udge i nstructed Reginald and
Carter to conf

e r with the prosecution. ¶20. The r ecord suggests that Regina l d a n d C a rter m et with the prosecution, because Carter
announced that Reginald was “ ready to enter a plea.” Bef ore going f

orward, the circuit judge explained his hesitation to accept best-interest pleas under the circum stances:
I believe there’s Mississippi Suprem e Court case law that say s the c ircuit judge does not h ave to accept a best-interest plea. I can’t cite the case, but I’m aware [ that] it’s there. And y ou keep talking, Mr. Carter, about [ how Reginald] can plead on a b e st-interest basis because the jury m ight give him lif e. That m ight sound g ood s tanding here. But down the road, when he is in the penitentiary f or
. . . how[ ever] long I sentence h i m, h e m ight be thinking, [ “]well, wait a m inute, the judge could have gi ven m e p ractically lif e,[ ”] which I c a n. Y ou know, if I give him one day short of the rest of his lif e in the penitentiary and then another thirty y e ars and ano t h e r f i v e y ears, then he has got l if e im p risonm ent, f

or a ll practical purposes. And that’s why I s a y , i n these instances, I don’t like best-interest pleas[ .]
Af ter t he prosecution recited the f actual basis in a m a n n e r t h a t did not tend t o im plicate Antonio, Reginald pled guilty to all three charges. ¶21. Later during the hearing, Carter asked the c ircuit judge t o allow Reginald “to rem ain out on his bond.” The circuit judge responded:
W e ll, I took [ Reginald] into custody bef ore because I was of the opinion [ that] he was trif

l ing with the court

. . . try ing to, f or lack o f a b etter word[ ,] ga[ m e] the sy stem , [ and] say he wa s g o i n g to plead g uilty and then not plead guilty and d elay the t rial. And I realize [ that] y o u h ave got to m ake that argum ent , Mr. Carter, but y ou can probably count on one f inger the num

b er of def endants that have pled guilty

and gone out the back d oor a s opposed to the side door. And y ou can count on no f ingers the num

ber t h a t h a v e p l ed guilty t o arm ed robbery , kidnapping[ , ] and conspiracy

. His bond is revoked, he is in c ustody [ , 1 0and] . . . he’ll rem ain in custody until sentencing. Reginald rem a ined i n custody until the sentencing hearing, which occurred on June 4, 2013. ¶22. The Mississippi Constitution provides:
If a person charged with com m itting any of f ense that is punishable by death, lif e im prisonm e nt[ , ] or im

prisonm ent f

or one
. . . y e a r or m ore in the penitentiary or any other state correctional f acility is granted bail[ , ] and (a) if that person is indicted f

or a f elony com m itted while on bail; o r (b) if the court, upon hearing, f

inds p robable cause t h a t the person has com m i tted a f e lony while on bail, then the court shall revoke bail and shall o rder that t he person be d etained, without f

urther bail, pending t rial of the charge f or which bail was revoked.
Miss. C onst. art. 3, § 29(2). W e are u naware of any authority that allows a circuit judge to
revoke a def

endant’s bond based on the appearance that “he was trif ling with the court” or hesitating to plead guilty af t er f iling a petition to do so. Even s o , w e d o n o t f ind that the
circuit court’s revocation of the bond coerced Reginald’s guilty pleas. ¶23. Reginald was bef

o re the circuit judge because he h ad f iled a petition to plead guilty

to all three charges. Reginald w a s aware that the prosecution would not recom m end any particular sentences. In other words, Reginald sought to plead guilty in the blind to all three charges. T o f

i n d t h a t t he circuit judge’s revocation of Reginald’s bond coerced his guilty pleas, we would have t o i g n o r e t h e f act that Reginald had already e xpressed his desire to plead guilty to all three charges. Furtherm ore, the circuit judge stated: “[ I]f he wants to plead guilty , we’ll go f

orward. If he doesn’t, we’ll start the trial tom orrow. And I don’t care which

o ne i t is .” (Em

phasis added). Although this opinion s hould not be c onstrue d a s i mp l i c i t support f or the concept that a circuit judge m a y revoke a c rim inal def endant’s bond o u t of
1 1f

rustration, under the precise circum s tances of this case, we do not f ind t hat the circuit judge coerced Reginald’s guilty pleas. Theref ore, we f ind no m e rit to this issue.
II. No Obligation to Accept Alford Pleas ¶24. Next, Reginald claim s the circuit court was obligated to a ccept his b est-interest guilty
p l e a s
. B est-interest guilty pleas are allowed i n Mississippi. W illiams v. State , 119 So. 3d 404, 4 08 (¶7) (Miss. Ct. App. 2 0 1 3 )

. A n Alford b est-interest p lea allows a def endant to

m aintain his innocence while acknowledging that the prosecution h as suf f icient evidence to convict him

. I

d

. In Alford , 400 U.S. at 26-37, a def endant p leaded g uilty to a lesser charge
of second-degree m

urder to avoid the p o s s i bility of the death penalty if he went to trial on

a f irst-degree-m

urder charge. The United States Suprem e Court held that, although Alf ord continually denied com m itting the m urder, he “ intelligently c o nclude[ d] t hat his i n t e r e s t s require[ d] entry o f a guilty p l e a [ ,] and the record bef o re t he j udge c ontain[ ed] strong evidence of actual guilt.” Id . The Alford Court specif ically disclaim ed the concept “that a
trial judge m

ust accept every c onstitutionally valid guilty plea m erely because a def endant
wishes so t o p l ead. A crim inal def endant does not h ave an a bsolute rig h t u n d e r t h e Constitution t o have his guilty plea a c c e p t e d by t he court[ .]” Id

. a t 38 n.11; see also
Santobello v
. New Y

ork , 404 U.S. 257, 262 (1971) (“There is, of course, no absolute right to have a guilty plea accepted. A court m ay r eject a plea in exercise of sound judicial discretion.”); W

ilson v
. State , 21 So. 3d 5 72, 5 78 ( ¶15) (Miss. 2009) (“A crim inal def endant has no absolute right to have his guilty plea accepted by

a trial court.”).

1 2¶25. Under the c ircum stances, the circuit judge’s reluctance to accept best-interest pleas

was not unf

ounded. Reginald f

aced charges f

or arm ed robbery , kidnapping, and conspiracy

. If a jury f o und Reginald guilty of arm ed robbery , h e could have been s entenced to lif e in the custody of the MDOC. S e e M i s s
. Code A nn. § 97-3-79 (Rev. 2014). He also risked a possible l if

e sentence if a jury f

o und him guilty of k idnapping. Miss. C ode A nn. § 97-3-53 (Rev. 2014). The m axim um sentenc e f

o r c o nspiracy is f

ive y ears in the c u stody of the MDOC, regardless of

whether the conviction is t he r esult of a jury verdict or a guilty

plea. Miss. Code Ann. § 97-1-1(1)(h) (Rev. 2014). ¶26. However, by pleading guilty to arm ed robbery , Reginald f aced a m axim

um possible

sentence o f “a term that is calculated to be le s s than lif e based on [ his r em aining] lif e expectancy .” S

ee Buckley v. State , 119 So. 3d 1171, 1174 ( ¶11) (Miss. Ct. App. 2013). By pleading g uilty to kidnapping, Reginald f aced a m axim

um possible sentence of thirty y ears. Miss. Code Ann. § 97-3-53. At f irst glance, it m ay appear t hat it was unquestionably in
R e g inald’s best interest to plead g uilty to both c h arges. H owever, the prosecuti o n d i d n o t

recom m end any particular sentence, and Reginald could o nly speculate that he would receive

a c om bined sentence that w as in his best interest. Likewise, Reginald could only speculate that the circuit judge would set all of his sentences to run concurrently with one another. ¶27. As the c ircuit judge noted, he had the option of sentencing Reginald to consecutive

sentences of a term r easonably l ess than his r em aining lif e expectancy , thirty y e a rs, and f ive
y ears. See Miss. Code A nn. § 9 9 -19-21(1) (Rev. 2 015) (“W hen a p erson is sentenced to

1 3im

p risonm ent on two (2) or m ore convictions , t he im prisonm ent on the second, or each subsequent c onviction shall, i n t he dis c r e t i o n of the court, com m ence either at t he term ination
of the i m prisonm ent f

or the preceding conviction or run concurrently with t h e preceding conviction.”). The practical ef f ect could have been a sentence that operated as incarceration
f or Reginald’s lif

e in MDOC custody

. Theref ore, we f ind that the c ircuit judge acted within
his d iscretion when he declined to accept best-interest pleas. It f ollows that there is no m erit
to this issue.
III. Assistance of Counsel ¶28. Finally , Reginald claim s he received inef f ective assistance of counsel b ecause Carter
did not com m

unicate the prosecution’s of f er to a l low Reginald to plead guilty to the lesser
of f ense o f “sim

p le” robbery

. 4 Reginald did not r aise this issue in h is PCR m otion. However,
the record includes letters f rom Reginald and Greer stating that th e y f irst discovered the robbery plea o f

f er f rom t he f ollowing statem e nt in Carter’s af f idavit, w hich was attached to the State’s response to Reginald’s PCR m o tion: Although [ Reginald] f

inally agreed that it would b e i n his best interest to take a plea, it was t oo l a[ t]e to accept the plea of f ered by the [ prosecution], as the plea-by date had p assed. Nevertheless, at a proceeding prior to the trial date,

4 In M ississip p i , t h ere is n o o f f en se o f f icially titled as “sim

p le” ro b b ery
. It is lik ely th at t h e ch aracterizatio n r ef ers to ro b b ery as s et f

o rth in M ississip p i C o d e A n n o t ated sectio n 9 7 -3 -7 3 (R ev
. 2 0 1 4 ) (“E v ery p erso n w h o sh all f elo n io u sly tak e th e p erso n a l p r o p erty o f an o th er, in h is p resen ce o r f r o m h is p erso n an d ag ain st h is w ill, b y v io len ce to h is p erso n o r b y p u ttin g su c h p erso n in f e ar o f so m e i mme d i a t e i n j u ry to h is p erso n , sh all b e g u ilty o f ro b b ery .”). T h e m a x im

u m sen ten ce f

o r ro b b ery is f

if t een y ears in M D O C cu sto d y . M iss. C o d e A n n . § 9 7 -3 -7 5 (R e v . 2 0 1 4 ). 1 4[ the prosecution] of f e red to allow [ Reginald] to plead guilty t o sim ple robbery if he would d o so that day

. Rather t han do so, however, [ Reginald] and his m other ref

u s e d t o e v en c onsider this of f er, stating that they could not plead today

. If Reginald was truly u naware of a r o b b e r y plea o f f er until he received Carter’s af f idavit,
then i t would be unreaso n a b l e to expect Reginald’s PCR m otion to include his claim that
Carter was inef

f ect i v e b e c ause he f

ailed to com m

unicate the of

f er. The circuit court’s judgm ent does not s pecif

ically a ddress Reginald’s a nd G reer’s allegations that Carter f ailed

to com m u nicate a robbery plea of

f er. ¶29. T o d e m o nstrate inef f ective assistance of counsel, Reginald m ust p r o v e t h a t : ( 1 )
“counsel' s p erf

o rm ance was def

icient,” a n d ( 2 ) h e s uf

f ered prejudice as a result. See
Strickland v. W

ashington , 466 U .S. 668, 687 (1984). Additionally , a prisoner “m ust plead
claim s of i nef

f ective assistance of counsel w ith s pecif i city , and t he claim m

u st be supported by af f idavits oth e r t h a n his own.” McBride v
. State , 108 So. 3d 977, 980 (¶11) (Miss. Ct. App. 2012) (citing R obertson v. State , 669 So. 2 d 11, 13 (Miss. 1996)). “However, the f act that the requisite af

f idavits are m issing does not preclude a trial court f r om e xam ining a [ PCR m otion] and ruling on its m erits.” Keith v
. State , 999 So. 2 d 383, 387 (¶7) (Miss. Ct. App. 2008). “To the contrary , t he trial court is required to exam ine ‘[ t]he original m otion, togethe r w i t h a ll f

iles, records, transcripts[ ,] and correspondence relating to t he j udgm ent under attack . . . .’” Id . (quoting Miss. Code Ann. § 99-39-11(1) (Rev. 2007)). ¶30. The United States Suprem e Court has held: [ A]s a g eneral rule, d ef

ense counsel has the duty to com m unicate f o rm al of f ers
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r o m t h e prosecution to accept a plea on term s a n d conditions t hat m ay b e f avora b l e t o t h e accused. Any exceptions to that rule need not be explored here, f or the of f er was a f

orm al one w ith a f

i xed expiratio n date. W hen def ense counsel allowed the of f e r to expire w ithout advising the def endant or a l l o w i n g him t o consider it, def ense counsel did not render the ef f ecti v e assistance the Constitution requires.
Missouri v
. Frye , 132 S. Ct. 1399, 1408 (2012). The record in t h i s case contains a sworn
statem ent f

rom f orm er def

ense c ounsel that there w a s a plea of f er that was arguably
f avorable 5 to Reginald, and two unsworn statem e nts that Reginald was unaware of the plea
of f er. Considering t he Suprem e Court’s clear, unequivocal position that an attorney ’s f ailure

to com m unicate a f

a v o r able plea of

f e r qualif ies as inef

f ective a ssistance of counsel, the

m anner in which the issue arose, and the f act that t he issue a

p pears to rem ain unresolved, we now f ace som ewhat of a procedural dilem m a. ¶31. Reginald’s PCR m o tion did not include a claim that Carter f

ailed to com m

unicate a robbery plea of f er, as he was allegedly unaware of the c l aim at that t im e; h e did, however,
raise it i n the circuit court b y way of a letter af ter he received the S tate’s response. The
suprem e court has held that an evidentiary h earing is necessary to resolve cont e s t e d f a c t s regarding w h e t h e r an attorney properly inf orm ed a client prior to the client’s guilty plea.
Alexander v. State , 605 So. 2d 1170, 1173 (Miss. 1992). A contested f act m ust be m aterial

to m erit an evidentiary hearing. Meeks v. State , 781 So. 2d 1 09, 114 (¶13) (Miss. 2001). The
circuit j udge is responsible f o r resolving the f

a ctual dispute regarding whether Carter f ailed

5 T h e p recise term s an d co n d itio n s o f th e alleg ed u n c o m m u n i c a t e d p lea o f

f er are u n clear. 1 6to c om m

unicate an of

f er to p lead guilty to robbery

. See Culpepper v. State , 1 48 So. 3d 386,
390 (¶16) (Miss. C t. A pp. 2014). “[ C]redibility d eterm inations are within the sole province
of trial judges – not appellate judges.” Id

. (citing Johns v. S tate , 926 So. 2d 188, 194 (¶29) (Miss. 2006)). ¶32. Und e r t he circum stances, to f ind that the issue is sim

p ly procedurally barred would
be an invitation to a p erm issible successive PCR proceeding. Mississippi Code Annotated
section 99-39-5(1)(e) ( R ev. 2015) expressly p rovides that a petitioner m a y seek r elief when

“ t h e r e e xists evidence of m aterial f a cts, not previously presented and heard, that requires
vacation of the conviction or sentence in the interest of justice[ .]” Additionally : If n ewly d i scovered evidence would likely produce a dif

f erent result and the proponent shows that the evidence w as discovered since the plea, that i t could not have been discovered bef ore the plea by t he e x ercise o f due diligence, t hat it is m a terial to t he i ssue, and that it is not m erely cum ulative, o r im

peaching, then such evidence justif

ies a successive challenge.
Jones v. State , 897 So. 2d 195, 197 (¶12) ( Miss. Ct. App. 2004) (citing Miss. Code Ann. § 99-39-23(6) (Supp. 2003)). Although the circuit court did not err in its resolut i o n o f the
issues t hat Reginald originally raised in his P C R m otion, we reverse the circuit court’s judgm ent and rem and the case f or an evidentiary

hearing on the issue as t o w hether Carter
f ailed t o com m

unicate an of

f er to plead guilty to the lesser o f f ense of robbery

. W e f

ind that
rather than awaiting a perm issible successive PCR m o tion, this co u r s e o f a ction better
prom otes the ju d i c i a l econom y and o perates as a m o re ef f icient m eans to expedite a f inal
decision. However, n o thing in this opinion s hould be taken to intim a te any v iew on the

1 7m erits of

the issue to be resolved at the evidentiary hearing on rem and. ¶33. T H E J U D G M E N T O F T H E M A D I S O N C O U N T Y C I R C U I T C O U R T DISMISSING T H E M OTION F OR POSTCONVICTION RELIEF I S REVERSED, AND THIS CASE IS REMANDED F OR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. ALL COSTS OF T HIS APPEAL ARE ASSESSED TO MADISON COUNTY. LEE, C .J., IRVING AND GRIFFIS, P.JJ., ISHEE, F A IR, JAMES AND WILSON, JJ., CONCUR. C ARLTON, J., DISSENTS WITHOUT S E P A R ATE WRITTEN OPINION. GREENLEE, J., NOT PARTICIPATING.

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