`IN THE COURT OF APPEALS

OF THE

STATE OF MISSISSIPPI

NO. 1999-CP-00728-COA

MICHAEL TAYLOR APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/29/1999

TRIAL JUDGE: HON. W. ASHLEY HINES

COURT FROM WHICH APPEALED: SUNFLOWER COUNTY CIRCUIT COURT

ATTORNEY FOR APPELLANT: PRO SE

ATTORNEYS FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL

BY: DEIRDRE MCCRORY

DISTRICT ATTORNEY: FRANK CARLTON

NATURE OF THE CASE: CIVIL - POST CONVICTION RELIEF

TRIAL COURT DISPOSITION: 08/18/1995: GUILTY PLEA; LIFE WITHOUT THE

POSSIBILITY OF PAROLE IN THE CUSTODY OF

MDOC, PLUS COURT COSTS IN THE AMOUNT OF $1,

188, CHARGING HIM WITH THE CRIME OF CAPITAL

MURDER.

DISPOSITION: AFFIRMED - 04/25/2000; 12/12/2000

MOTION FOR REHEARING FILED: 06/07/2000

CERTIORARI FILED: 12/28/2000; denied 3/29/2001

MANDATE ISSUED: 4/19/2001

BEFORE KING, P.J., PAYNE, AND THOMAS, JJ.

PAYNE, J., FOR THE COURT:

ON MOTION FOR REHEARING

¶1. The motion for rehearing is denied. The original opinion is withdrawn and this opinion is substituted

therefor.

PROCEDURAL POSTURE AND ISSUES PRESENTED

¶2. This case is before the Court on appeal from the judgment of the Sunflower County Circuit denying

Taylor's petition for post-conviction relief. Aggrieved, Taylor perfected this appeal raising the following

issues:

I. WHETHER TAYLOR WAS DENIED DUE PROCESS AND EQUAL PROTECTION
OF THE LAWS BY THE LOWER COURT BECAUSE HE WAS NOT GRANTED A

FULL HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING TAYLOR'S RULE 60(B)

MOTION.

III. WHETHER TAYLOR'S GUILTY PLEA WAS ENTERED KNOWINGLY,

VOLUNTARILY, AND INTELLIGENTLY.

IV. WHETHER TAYLOR WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

We are unmoved by any of Taylor's assignments of error. Accordingly, we affirm the trial court's denial of

post-conviction relief.

FACTS

¶3. Taylor was indicted on one count of capital murder and one count of burglary. Subsequent to the

indictment, Taylor entered into a plea bargain arrangement whereby he pled guilty to capital murder in

exchange for a nolle prosque on the burglary count. Taylor waived his right to jury sentencing, and the trial

court imposed a sentence of life imprisonment without the possibility of parole.

ANALYSIS AND DISCUSSION

I. WHETHER TAYLOR WAS DENIED DUE PROCESS AND EQUAL PROTECTION

OF THE LAWS BY THE LOWER COURT BECAUSE HE WAS NOT GRANTED A

FULL HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF.

¶4. Taylor first alleges that he was denied due process of law and equal protection of the laws by the trial

court's summary dismissal of his petition for relief. This is without merit. A "[p]ost-conviction relief petition

which meets basic pleading requirement is sufficient to mandate an evidentiary hearing unless it appears

beyond doubt that petitioner can prove no set of facts in support of claim which would entitle him to relief."

Robertson v. State, 669 So. 2d 11, 13 (Miss. 1996).

¶5. Taylor met the minimum pleading requirements. However, his supporting evidence, namely the

supporting affidavits from himself, Mattie Taylor George, Brenda Cole, and Robert Cole are not

compelling. While it does not lessen their reliability, each of the affidavits is virtually identical as to content.

What is there is less than sufficient as a basis for setting aside an otherwise valid entry of a plea of guilty by

Taylor.

¶6. While the trial court did not address the affidavits submitted by Taylor in his order denying Taylor's

requested relief,(1) our review of the documentation submitted by Taylor leads us to find that the affidavits

did not contain sufficient information that would have necessitated a full-blown evidentiary hearing. The trial

court found nothing from Taylor's plea hearing indicating that the plea was entered against his will. Taylor

was afforded due process in the trial court's consideration of his petition. This assignment of error is without

merit.

II. WHETHER THE CIRCUIT COURT ERRED IN DENYING TAYLOR'S RULE 60(B)

MOTION.
¶7. Taylor next attacks the trial court's denial of his Rule 60(b) motion seeking to set aside the initial

summary dismissal of his petition.

Rule 60(b) is designed:

for extraordinary relief which may be granted only upon an adequate showing of exceptional

circumstances, and that neither ignorance nor carelessness on the part of an attorney will provide

grounds for relief. Additionally, it has been said that a party is not entitled to relief merely because he is

unhappy with the judgment, but he must make some showing that he was justified in failing to avoid

mistake or inadvertence; gross negligence, ignorance of the rules, or ignorance of the law is not

enough.

Dilling v. Dilling, 734 So. 2d 327 (¶ 20) (Miss. Ct. App. 1999) (citing Stringfellow v. Stringfellow, 451

So. 2d 219, 221 (Miss. 1984)). In his motion for Rule 60(b) relief from the trial court's denial of postconviction relief, Taylor seeks such relief based on the failure of the trial court to grant an evidentiary

hearing on his petition for post-conviction relief. Taylor then relies on the same arguments in his initial

petition to argue why he is entitled to the Rule 60(b) relief. Simply put, Taylor failed to demonstrate an

exceptional circumstance entitling him to Rule 60(b) relief. This assignment of error is without merit.

III. WHETHER TAYLOR'S GUILTY PLEA WAS ENTERED KNOWINGLY,

VOLUNTARILY, AND INTELLIGENTLY.

¶8. Taylor next maintains that his plea was involuntarily, unknowingly, and unintelligently given. In

determining whether the entry of plea of guilty is properly accepted by the trial court, we turn to the wellseasoned rule that, to be valid, a plea of guilty must be entered voluntarily and intelligently. Goss v. State,

730 So. 2d 568, 573 (Miss. 1998) (quoting Banana v. State, 635 So. 2d 851, 854 (Miss. 1994)). "In

order for a guilty plea to be voluntarily and intelligently entered, a defendant must be advised about the

nature of the crime charged against him and the consequences of the guilty plea." Id.

¶9. Taylor cites to the affidavits in the record from his family members indicating that he was coerced into

pleading guilty by his family. As discussed above, these affidavits were insufficient to mandate an evidentiary

hearing. Further, the trial court noted nothing in his order indicative of Taylor's having entered an involuntary

plea of guilty. Taylor further maintains that he was not informed of the possibility that a capital jury could

have sentenced him to life imprisonment with the possibility of parole under Miss. Code Ann. § 99-19-101

(Rev. 1994). However, Miss. Code Ann. § 47-7-3 (Rev. 1993) was amended in 1994 to add subsection

(f), which provides that no person convicted and sentenced under Miss. Code Ann. § 99-19-101 shall be

eligible for parole. Miss. Code Ann. § 47-7-3(f) (Supp. 1999).

¶10. There is an obvious inconsistency in the two statutes in issue, a matter we leave for the legislature to

reconcile; our analysis must look to see whether, despite the inconsistencies between the statutes, Taylor

was the victim of harmful error in the case sub judice. Puckett v. State, 737 So. 2d 322 (¶ 129) (Miss.

1999). We find he was not. Taylor entered a plea of guilty to capital murder in exchange for the State's not

seeking the death penalty. Given the record before us, Taylor has no room for complaint. The transcript of

Taylor's plea hearing, provided to us as an exhibit to Taylor's pleadings, demonstrates that Taylor was fully

aware of the consequences of the entry of his plea of guilty. The trial court explained the punishments

available under the capital murder statute as well as the prohibition against release on parole for this crime.
We find Taylor's plea was voluntarily and intelligently entered. Accordingly, this assignment is without merit.

IV. WHETHER TAYLOR WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL.

¶11. Taylor finally claims that he was denied effective assistance of counsel. Taylor bases this claim on his

assertion that his attorney did not investigate the case, that his attorney coerced him into pleading guilty, and

that his attorney failed to seek suppression of illegally seized evidence.

¶12. The seasoned legal test for determining whether or not a convicted individual received effective

assistance of counsel is found in Strickland v. Washington, 466 U.S. 668, 687 (1984), adopted by the

Mississippi Supreme Court in Stringer v. State, 454 So. 2d 468 (Miss. 1984). To be successful under

Strickland, Taylor must demonstrate 1) that his counsel's performance was deficient, and 2) that his

defense was prejudiced by the deficient performance. Stringer, 454 So. 2d at 476. Taylor carries the

burden of demonstrating that both prongs of Strickland have been satisfied. Leatherwood v. State, 473

So. 2d 964, 968 (Miss. 1985). Moreover, there is a strong but rebuttable presumption that Taylor's

attorney's performance fell within the wide range of reasonable professional assistance. Vielee v. State,

653 So. 2d 920, 922 (Miss. 1995). Additionally, Taylor must show a reasonable probability that he would

have received a different outcome but for the ineffective assistance of counsel. Conner v. State, 684 So.

2d 608, 610 (Miss. 1996). The Strickland test is applied with deference to counsel's performance,

considering the totality of the circumstances, to determine whether counsel's actions were both deficient and

prejudicial. Id. The test is to be applied to the attorney's overall performance. Strickland, 466 U.S. at 695.

¶13. The trial court specifically found that Taylor's counsel had filed at least thirty-one motions on his behalf

including motions seeking to have certain evidence suppressed. The trial court found that the exhibits

submitted by Taylor along with his petition when reviewed against the court file and evidence against him

proved that his attorney provided effective assistance of counsel. Taylor has not demonstrated that but for

his attorney's alleged ineffective assistance in his representation of Taylor during the proceedings below, a

different result would have come from the charges against him. We find this assignment of error holds no

merit.

¶14. THE JUDGMENT OF THE SUNFLOWER COUNTY CIRCUIT COURT DENYING

POST-CONVICTION RELIEF IS AFFIRMED. ALL COSTS OF THIS APPEAL ARE TAXED

AGAINST SUNFLOWER COUNTY.

KING AND SOUTHWICK, P.JJ., BRIDGES, LEE, MOORE, AND THOMAS, JJ.,

CONCUR. McMILLIN, C.J., CONCURS IN RESULT ONLY. IRVING AND MYERS,

JJ., NOT PARTICIPATING.

1. In this instance, the trial court's failure to address the affidavits in support of Taylor's petition does not

lead us to reverse the denial of relief. However, we caution that a trial court's failure to address such

supporting documentation in the future may lead to a different result.