Lonnie Ulmer a/k/a Lonnie E. Ulmer Jr. v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2018-CA-00499-COA

LONNIE ULMER A/K/A LONNIE E. ULMER JR. APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 03/21/2018
TRIAL JUDGE: HON. ROBERT B. HELFRICH
COURT FROM WHICH APPEALED: FORREST COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: THOMAS M. FORTNER
VALERIE MOSS ANDREWS
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: ABBIE EASON KOONCE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: REVERSED, VACATED AND REMANDED
03/17/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., LAWRENCE AND C. WILSON, JJ.

LAWRENCE, J., FOR THE COURT:

¶1. Lonnie Ulmer pled guilty to second-degree murder in 2014.1 He was sentenced to a

term of forty years in the custody of the Mississippi Department of Corrections (MDOC),

with twenty years to serve, the remainder suspended, and five years of post-release

supervision. Ulmer subsequently filed a motion for post-conviction relief (PCR) and raised

three issues: (1) his plea was not knowingly, intelligently, and voluntarily made; (2) he

received ineffective assistance of counsel; and (3) there was no factual basis for his plea to

1
Ulmer was originally indicted for first-degree murder in 2011.
second-degree murder.

¶2. Following an evidentiary hearing, the circuit court denied Ulmer’s motion. Ulmer

appealed. After review, we find Ulmer’s plea was not knowingly, intelligently, and

voluntarily made as result of the erroneous advice given to him by his trial counsel. Finding

this issue dispositive, we decline to address Ulmer’s remaining issues. Accordingly, we

reverse the denial of post-conviction relief, vacate Ulmer’s guilty plea and remand this case

to the Forrest County Circuit Court for further proceedings.

FACTS

¶3. Before Ulmer pled guilty in 2014 to second-degree murder, his attorney told him he

would be eligible for “trusty-earned time,” which included thirty days’ credit for every thirty

days served. In other words, Ulmer was under the impression that he would only have to

serve half of whatever sentence he received when he pled guilty to second-degree murder.

That was not the case. After Ulmer was incarcerated, he learned that the crime of second-

degree murder was ineligible for trusty-earned time.2 Ulmer filed his PCR motion on January

6, 2017, and claimed that his plea was involuntary. Specifically, he argued that he relied on

erroneous advice from counsel.

¶4. Ulmer attached an affidavit to his PCR motion from his trial attorney, Candance

Rickman. Rickman’s affidavit and evidentiary hearing testimony indicates that she was

2
Mississippi law and MDOC policies define which crimes are eligible for trusty-
earned time. See Miss. Code Ann. § 47-5-138.1 (Rev. 2015).

2
appointed to represent Ulmer in 2014. In 2013, the Mississippi Legislature denominated the

crime of second-degree murder in Mississippi Code Annotated section 97-3-19(1)(b) (Rev.

2006); 2013 Miss. Laws ch. 555, § 1 (S.B. 2377); see also 97-3-19(1)(b) (Supp. 2019). The

district attorney informed Rickman that the State was willing to reduce Ulmer’s charge from

deliberate-design murder, which carried a sentence of life imprisonment, Mississippi Code

Annotated §§ 97-3-19(1)(a) & -21(1) (Supp. 2013), to second-degree murder, which carried

a potential sentence of twenty to forty years in the MDOC’s custody. Miss. Code Ann.

§§ 97-3-19(1)(b) & -21(2) (Supp. 2013). Rickman stated that she and “other public

defenders throughout the state believed that a sentence for second-degree murder would be

eligible for trusty-earned time.” Mississippi Code Annotated section 47-5-138.1 (Supp.

2014) permitted trusty-earned time, allowing certain offenders to received credits of thirty

days off their sentences for every thirty days served. In her affidavit and sworn testimony,

Rickman testified that she told Ulmer he would be eligible for trusty-earned time. Notably,

Rickman stated, “[B]ased on that advice, I believed Lonnie Ulmer pled guilty to second-

degree murder. I do not believe that he would have pled guilty if he had been advised that

the twenty[-]year sentence would have to be served day for day.”

¶5. Ulmer also submitted a sworn statement of specific facts within his personal

knowledge in accordance with Mississippi Code Annotated section 99-39-9(1)(d) (Supp.

2009). Ulmer stated that based on Rickman’s advice, he thought he was eligible for trusty-

earned time when he pled guilty to second-degree murder. He also stated that because he had

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already served four years in Forrest County jail, he thought he would only have to serve six

more years if he received the sentence of twenty years recommended by the State and if he

received credit for time served. Finally, Ulmer stated, “I pled guilty upon the advice of my

attorney [] that I would be eligible for trusty-earned time. If my attorney had correctly

advised me that I was not eligible for trusty-earned time, I would not have pled guilty.”

¶6. After reviewing Ulmer’s PCR motion, the circuit court held an evidentiary hearing.

Rickman testified at the hearing consistently with her affidavit. Again, Rickman admitted

that she had erroneously informed Ulmer that he was eligible for trusty-earned time.

Rickman also testified that she did not think Ulmer would have pled guilty if she “had told

him correctly that he would have to serve day for day.” The circuit court produced two

written orders denying the relief requested in the PCR motion. From that denial, Ulmer

perfected his appeal to this Court.

STANDARD OF REVIEW

¶7. We review the denial of post-conviction relief after an evidentiary hearing under a

clearly erroneous standard. Johns v. State, 926 So. 2d 188, 194 (¶29) (Miss. 2006). “A

finding of fact is ‘clearly erroneous’ when, although there is evidence to support it, the

reviewing court, on the entire evidence, is left with the definite and firm conviction that a

mistake has been made.” Id. “This Court must examine the entire record and accept that

evidence which supports or reasonably tends to support the findings of fact made below,

together with all reasonable inferences which may be drawn therefrom and which favor the

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lower court’s findings of fact.” Id. (quoting Mullins v. Ratcliff, 515 So. 2d 1183, 1189 (Miss.

1987)). “[T]he trial judge, sitting in a bench trial as the trier of fact, has sole authority for

determining credibility of the witnesses.” Id.

ANALYSIS

¶8. Ulmer argues that his plea was not knowing, intelligent, and voluntary because he was

affirmatively misinformed by counsel that he would receive trusty-earned time if he pled

guilty to the reduced charge of second-degree murder, and he pled guilty in reliance on that

erroneous information. As a result, Ulmer also argues that his counsel’s assistance was

ineffective.

¶9. A plea is involuntary if a defendant is affirmatively misinformed regarding the

possibility of parole and pleads guilty in reliance on that information. See Fairley v. State,

834 So. 2d 704, 706 (¶5) (Miss. 2003); see also Washington v. State, 620 So. 2d 966, 967-70

(Miss. 1993). When a defendant claims that he received ineffective assistance of counsel

“[i]n the context of a guilty plea, the defendant must show that his counsel’s errors

proximately resulted in the guilty plea and, but for counsel’s error, the defendant would not

have engaged in the guilty plea.” Magee v. State, 270 So. 3d 225, 229 (¶16) (Miss. Ct. App.

2018) (internal quotation marks omitted). “Our supreme court has held that a defendant who

alleges that his plea is not voluntary because of his reliance on his attorney’s faulty advice

regarding the possibility of parole, is entitled to an evidentiary hearing on the question of

voluntariness.” Stewart v. State, 845 So. 2d 744, 747 (¶10) (Miss. Ct. App. 2003) (citing

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Washington v. State, 620 So. 2d at 967).

¶10. Here, the circuit court held an evidentiary hearing and denied the relief requested by

Ulmer. In fact, the court issued two orders—the order denying the PCR motion and the order

clarifying the order denying the PCR motion. The first order was filed on March 21, 2018,

and the second (clarifying) order was filed on February 7, 2019. In both orders, the circuit

court stated that Ulmer’s claim (that he pled guilty in reliance on advice from his attorney

that he would receive trusty-earned time) was “belied by the transcript of the plea hearing

and his petition to plead guilty to second-degree murder.” (Emphasis added). The circuit

court also referenced the fact that Ulmer was informed of his constitutional rights, his

minimum and maximum sentences, the nature of the charge, and the consequences of his

plea. In the order clarifying judgment, the circuit court did not add any additional facts or

analysis to Ulmer’s first issue that his plea was not knowing, intelligent, and voluntary.3

¶11. At the outset, it should be noted that the facts of this case are strikingly similar to

Tiller v. State, 440 So. 2d 1001, 1002 (Miss. 1983). In Tiller, the supreme court reviewed

a case in which the defendant alleged he had entered a guilty plea in reliance on his

attorney’s advice that he would be eligible to earn “good time” toward early release. Id. The

supreme court reiterated that “mistaken advice of counsel may in some cases vitiate a guilty

plea.” Id. at 1006 (citing Baker v. State, 358 So. 2d 401 (Miss. 1978)). The court further

3
The clarifying order addressed in more detail the other issues: ineffective assistance
of counsel and insufficient factual basis for his plea.

6
found that at the time Tiller’s plea was entered, “earned time” was being granted for those

convicted of armed robbery and that Tiller’s attorney, apparently aware of this, informed his

client of such, and Tiller then chose to plead guilty. Id. About seven months later, the

MDOC modified its “good time” policy, and Tiller was not eligible for any more good-time

credit. Id. at 1003. The court found that Tiller’s guilty plea “was substantially infected by

erroneous advice of counsel regarding his eligibility for good time.” Id. at 1006. Most

importantly, the supreme court reversed and remanded for an evidentiary hearing, finding

that “[i]f [Tiller] can prove what he has alleged, Tiller’s plea as a matter of law was

involuntary.” Id. at 1002. The facts of this case were proven by affidavits and by testimony

during the evidentiary hearing.

¶12. Here, after hearing those facts at the evidentiary hearing, the circuit court found that

Ulmer’s proof was “belied” by the plea colloquy and the plea petition. During Ulmer’s plea

hearing, the circuit judge asked Ulmer if anyone had “promised” him “anything” or

“threatened” him to get him to plead guilty and Ulmer answered, “[N]o sir,” to both

questions. The only information the judge discussed with Ulmer concerning his sentence or

the amount of time he could serve was whether he understood the “minimum and maximum

sentences that could be enrolled on this plea” and if Ulmer understood that as “originally

charged” he could have received a “life in prison” sentence. That is the extent of the plea

transcript as it concerns the issues before this Court on the PCR motion.

¶13. The circuit court’s factual determination that the plea transcript “belied” the testimony

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presented by affidavits and during the evidentiary hearing is clearly erroneous. During the

plea colloquy, the judge did not discuss or mention Ulmer’s eligibility of trusty-earned time.

Further, nowhere in the plea hearing transcript did the judge inform Ulmer that any term of

incarceration would be served day for day. Simply put, the judge did not say anything that

could contradict or make Ulmer question the advice he had received from his attorney.4

¶14. Since the plea transcript does not contradict the proof presented by Ulmer, we must

now move to the plea petition. Ulmer signed the plea petition and the answers therein sworn

to under oath. The plea petition does not address any of the issues raised in the PCR motion.

The plea petition stated that the range of the sentence was twenty to forty years. Further the

plea petition had two other general statements that may provide some limited probative value

to the question before this Court:

I believe that my attorney has done all that anyone could do to counsel and
assist me, and I am satisfied with the advice and help my attorney has given
me.

....

I also understand that if I plead ‘GUILTY’ the Court may impose the same
punishment as if I had pled ‘NOT GUILTY,’ stood trial and was convicted by
a jury. I also understand that the sentence imposed is up to the Court, that the
Court is not required to carry out any understanding made by me and my
attorney with the District Attorney, and further the Court is not required to

4
It is not unusual that the circuit judge did not question Ulmer concerning any advice
his attorney may have given him. The judge had no idea or any way to know or suspect that
Rickman provided Ulmer erroneous advice. Further, the judge could not be expected to
envision that a lawyer would simply guess at and answer such an important legal question
without researching the answer or at least calling the MDOC to seek an answer.

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follow the recommendation, if any, of the District Attorney.

The plea petition did not mention trusty-earned time, parole, or early release. The plea

petition did not mention day-for-day time or an MDOC policy or the fact that the court or the

attorney cannot control the ultimate application of Mississippi law or MDOC policy. Thus,

the plea petition did not contradict in any shape or form Ulmer’s erroneous expectation

about trusty-earned time, parole, or early release. The petition’s statement that the judge

could sentence a person to the maximum sentence did not alleviate Ulmer’s erroneous

assumption as a result of the wrong advice given by his attorney. Had the plea petition

contained the standard language included in some written petitions, that neither the circuit

court nor anyone else could guarantee or give advice as to early release or parole and that

those decisions are a matter between the individual and the MDOC, maybe the plea petition

would have, in fact, “belied” the testimony presented by Ulmer. As it stands, it was clearly

erroneous for the circuit court to conclude the plea petition belied the testimony presented

in the sworn affidavits or the testimony produced at the evidentiary hearing.

CONCLUSION

¶15. In conclusion, we find that Ulmer’s plea was not knowingly, intelligently, and

voluntarily entered because he pled guilty in reliance on erroneous advice from counsel.

Therefore, we reverse the denial of post-conviction relief, vacate Ulmer’s guilty plea, and

remand this case to the active docket of Forrest County Circuit Court for further proceedings

consistent with this opinion.

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¶16. REVERSED, VACATED AND REMANDED.

BARNES, C.J., J. WILSON, P.J., WESTBROOKS, TINDELL, McDONALD,
McCARTY AND C. WILSON, JJ., CONCUR. GREENLEE, J., DISSENTS WITH
SEPARATE WRITTEN OPINION, JOINED BY CARLTON, P.J.

GREENLEE, J., DISSENTING:

¶17. Because I find that Ulmer was not entitled to post-conviction relief, I dissent.

¶18. Our “standard of review for [the] denial of [post-conviction relief] after an evidentiary

hearing is the clearly erroneous standard.” Kidd v. State, 221 So. 3d 1041, 1043 (¶8) (Miss.

Ct. App. 2016) (quoting Davis v. State, 980 So. 2d 951, 954 (¶5) (Miss. Ct. App. 2007)). “A

finding of fact is ‘clearly erroneous’ when . . . the reviewing court . . . is left with [a] definite

and firm conviction that a mistake [was] made.” Johns v. State, 926 So. 2d 188, 194 (¶29)

(Miss. 2006) (citing Bryan v. Holzer, 589 So. 2d 648, 659 (Miss. 1991)). However,

questions of law are reviewed de novo. Mosley v. State, 150 So. 3d 127, 130 (¶6) (Miss. Ct.

App. 2014) (citing Purnell v. State, 126 So. 3d 949, 951 (¶4) (Miss. Ct. App. 2013)). That

said, Ulmer bore “the burden of showing that he [was] entitled to relief by a preponderance

of the evidence.” Watkins v. State, 170 So. 3d 582, 585 (¶10) (Miss. Ct. App. 2014).

¶19. On appeal, Ulmer argues that the circuit court erred by finding Ulmer’s guilty plea

was voluntary. The majority agrees with Ulmer, holding that it was clearly erroneous for the

circuit court to conclude that the plea colloquy and plea petition contradicted the evidence

and claims presented by Ulmer. According to the majority, the plea-hearing transcript and

the plea petition “did not contradict in any shape or form Ulmer’s erroneous expectation

10
about trusty-earned time, parole, or early release.” Ante at (¶14). I disagree for the following

reasons.

¶20. For a defendant’s plea to be knowing, intelligent, and voluntary, the trial judge “must

advise the defendant of his rights, the nature of the charge against him, and the consequences

of his plea, including the applicable minimum and maximum sentences.” Worth v. State, 223

So. 3d 844, 850 (¶19) (Miss. Ct. App. 2017).

¶21. A review of the transcript of Ulmer’s plea hearing shows that the circuit court advised

Ulmer of his rights, the nature of the charges against him, and the consequences of his plea.

As noted by the majority, the court asked Ulmer if he understood the minimum and

maximum sentences of second-degree murder and that his potential sentence would

otherwise be life in prison if he was convicted of deliberate-design murder. Additionally, the

court asked Ulmer if he had discussed his plea petition with Rickman and whether he

understood everything contained in the petition. That plea petition explicitly stated, in part:

I know that if I plead “GUILTY” to the charge(s) of [second-degree murder]
the possible sentence which may be imposed upon me is imprisonment for a
term of from 20 years (minimum) to 40 years (maximum) and/or fined an
amount of $ ______ (minimum) to $10,000 (maximum).

Thus, it is clear the circuit court fully advised Ulmer of the nature of the charge, the effect

of his plea, and his possible sentence. Ulmer responded that he understood he was waiving

his rights and the nature of his possible sentence. It therefore appears that Ulmer’s plea was

knowing, intelligent, and voluntary.

¶22. But a plea may be rendered involuntary if the “defendant is affirmatively misinformed

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regarding the possibility of parole and pleads in reliance on the misinformation.” Thomas

v. State, 881 So. 2d 912, 916 (¶10) (Miss. Ct. App. 2004) (citing Fairley v. State, 834 So. 2d

704, 706 (¶8) (Miss. 2003)). “An allegation that the defendant pled guilty in response to

counsel’s mistaken advice may vitiate the plea, because it indicates the defendant may not

have been fully aware of the consequences of the plea.” Sylvester v. State, 113 So. 3d 618,

622 (¶12) (Miss. Ct. App. 2013) (emphasis added) (quoting Readus v. State, 837 So. 2d 209,

212 (¶9) (Miss. Ct. App. 2003)). “[W]hen the movant attaches an affidavit of another who

supports the allegation, the trial court may be required to conduct an evidentiary hearing.”

Id. at 621 (¶10). When the only support the defendant offers is his own affidavit, and it “is

contradicted by unimpeachable documents in the record,” the supreme court has held that an

evidentiary hearing is not required and that the trial court may summarily dismiss the PCR

motion. Gable v. State, 748 So. 2d 703, 706 (¶12) (Miss. 1999).

¶23. In other words, the law requires the circuit court to determine whether Ulmer

presented sufficient evidence that he was erroneously advised of his eligibility to receive

trusty-earned time. Ulmer attached two affidavits and a personal statement to his PCR

motion. The first affidavit, “Affidavit of Candance Rickman,” was from his attorney at the

time he entered his guilty plea. In it, Rickman acknowledged that she misadvised Ulmer that

“if he pled guilty . . . to Second Degree Murder and the sentence was twenty (20) years, he

would receive Trusty Earned Time of thirty (30) days extra credit for every thirty (30) days

he served and that he could be released after serving a total of ten (10) years.” According

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to Rickman, she “d[id] not believe that [Ulmer] would have pled guilty if he had been

advised that the twenty (20) year sentence would have to be served day for day.” The second

affidavit, “Affidavit of Rossie McCormick,” was from Ulmer’s mother. McCormick stated

that Rickman also informed her of Ulmer’s eligibility to receive trusty-earned time. She also

stated that Ulmer told her over the phone that “he would [have never] pled guilty to Second

Degree Murder if he had been advised that he would have to serve the twenty (20) year

sentence day for day.” Finally, Ulmer attached a personal statement to his PCR motion.

Ulmer stated that he “pled guilty based upon the advice of [his attorney] that [he] would be

eligible for Trusty Earned Time.” He further stated that he would not have pled guilty had

he known he was not eligible for trusty-earned time.

¶24. “Our supreme court has held that a defendant who alleges that his plea is not voluntary

because of his reliance on his attorney’s faulty advice regarding the possibility of parole, is

entitled to an evidentiary hearing on the question of voluntariness.”5 Stewart v. State, 845

So. 2d 744, 747 (¶10) (Miss. Ct. App. 2003) (citing Washington v. State, 620 So. 2d 966, 967

(Miss. 1993)). Ulmer made these allegations in the context of trusty-earned time in his PCR

motion, and his allegations were corroborated by affidavits in the record. Therefore, Ulmer

was entitled to (and granted) an evidentiary hearing.

¶25. A circuit court may summarily dismiss a movant’s PCR motion without conducting

5
See Sylvester, 113 So. 3d at 623 (¶19) (finding that Sylvester’s eligibility for trusty-
earned time was “analogous to eligibility for parole or the [regimented-inmate-discipline]
program”).

13
an evidentiary hearing if the misunderstanding that was created by the erroneous advice was

corrected by the circuit court during a voluntariness inquiry. Sylvester, 113 So. 3d at 623

(¶17) (citing Thomas, 881 So. 2d at 917 (¶13)). To determine whether the circuit court

corrected the erroneous advice, this Court has reviewed the contents of a plea-hearing

transcript and a petitioner’s guilty-plea petition. See id.; Thomas, 881 So. 2d at 917 (¶13)

(reviewing the plea transcript and noting that the plea petition was indiscernible because it

was not in the record); accord Rodolfich v. State, 858 So. 2d 221, 224 (¶11) (Miss. Ct. App.

2003).

¶26. The majority holds that it was clearly erroneous for the circuit court to conclude that

the plea hearing and plea petition “belied,” or contradicted, the evidence presented by Ulmer.

Ante at (¶¶12-14). I disagree.

¶27. Both the majority and Ulmer rely heavily on Tiller v. State, 440 So. 2d 1001 (Miss.

1983). Ante at (¶11). In that case, Tiller petitioned for leave to withdraw a guilty plea

entered for an indicted charge of armed robbery. Tiller, 440 So. 2d at 1002. In his petition,

Tiller alleged that he entered his plea in reliance upon bad advice given by his attorney

concerning his eligibility to earn “good time” toward early release while in custody. Id. That

advice was contrary to the law at the time it was given. See id.; accord Miss. Code Ann.

§§ 47-7-3, 47-5-139 (Supp. 1982); cf. Odom v. State, 498 So. 2d 331, 334 (Miss. 1986)

(distinguishing Tiller by finding that the attorney’s advice to Odom was correct at the time

it was given and thus affirming the circuit court’s judgment denying Odom’s motion to set

14
aside his guilty plea). Without granting an evidentiary hearing, the circuit court summarily

dismissed Tiller’s petition, finding that his petition and affidavit “failed to demonstrate a

reasonable probability to grant the relief requested.” Id. at 1003. On appeal, our supreme

court reversed the circuit court’s dismissal and remanded the case to provide Tiller the

opportunity to prove by an evidentiary hearing that his allegation rendered his plea

involuntary as a matter of law. Id. at 1006.

¶28. I find Tiller distinguishable from the instant case. Tiller is one case that is part of a

long line of cases that hold a petitioner is entitled to an evidentiary hearing if he has alleged

that he entered his guilty plea in substantial reliance upon the erroneous advice regarding his

“good time” eligibility. Tiller, 440 So. 2d at 1006; see also, e.g., Coleman v. State, 483 So.

2d 680, 681-84 (Miss. 1986); Thinnes v. State, 196 So. 3d 204, 209-10 (¶¶15-22) (Miss. Ct.

App. 2016); Sylvester, 113 So. 3d at 623 (¶19). Unlike Tiller, the circuit court here granted

Ulmer an evidentiary hearing to review the merit of his claims. It was not until after that

hearing that the circuit court ruled the plea transcript and plea petition “belied” Ulmer’s

evidentiary-hearing testimony and evidence.

¶29. The majority further contends that because the circuit court did not discuss Ulmer’s

eligibility of trusty-earned time at the plea colloquy, and because the plea petition did not

mention trusty-earned time, parole, or early release, it was error for the circuit court to find

that the plea transcript and plea petition belied Ulmer’s evidence. Ante at (¶¶13-14). At the

plea colloquy, the circuit court asked:

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[COURT]: Has anybody led you to expect [that] the State or the District
Attorney [would] recommend any sentence less than [forty years
with twenty years served]?

[Ulmer]: No, sir.

[COURT]: Do you understand the minimum and maximum sentences that
could be enrolled on this plea?

[Ulmer]: Yes, sir.

[COURT]: As originally charged, it would be life in prison; do you
understand that?

[Ulmer]: Yes, sir.

....

[COURT]: Has anybody promised you anything in order to get you to plead
guilty?

[Ulmer]: No, sir.

(Emphasis added). Further, the plea petition stated, in part:

I also understand that if I plead “GUILTY” the Court may impose the same
punishment as if I had pled “NOT GUILTY,” stood trial and was convicted by
a jury. I also understand that the sentence imposed is up to the Court, that the
Court is not required to carry out any understanding made by me and my
attorney with the District Attorney, and further the Court is not required to
follow the recommendation, if any, of the District Attorney.

In his subsequent petition and accompanying affidavits, Ulmer claims that his attorney

promised that he (Ulmer) would be eligible for trusty-earned time if he pled guilty to second-

degree murder. But at the plea hearing, Ulmer stated he was not promised anything to plead

guilty to second-degree murder. Therefore, it is clear that the plea hearing and plea petition

16
contradict his claims now on appeal.

¶30. Additionally, because the circuit court asked Ulmer if he had received any promises

regarding his plea, it was Ulmer’s responsibility at that time to inform the circuit court of his

attorney’s promise to trusty-earned time. The majority makes light of this fact in a footnote:

“It is not unusual that the circuit judge did not question Ulmer concerning any advice his

attorney may have given him [because] [t]he judge had no idea or any way to know or

suspect that Rickman provided Ulmer erroneous advice.” Ante at n.4.

¶31. That said, the circuit court in this case was vested with the duty to determine issues

of credibility. See Sharp v. State, 152 So. 3d 1212, 1214 (¶10) (Miss. Ct. App. 2014)

(finding that the trial judge, “sitting as the trier of fact, is tasked with resolving all credibility

issues that arise in a PCR hearing”). After conducting the evidentiary hearing and listening

to the testimony of the parties, the circuit court made those credibility determinations and

found that the plea hearing and plea petition belied Ulmer’s PCR claims and proof. Given

that, and the fact that a contradiction clearly exists in the record, I cannot conclude that

circuit court’s decision was clearly erroneous. Johns, 926 So. 2d at 194 (¶29) (citing Bryan,

589 So. 2d at 659).

¶32. Notwithstanding that conclusion, I add that our supreme court has stated that earned

time may be awarded by the MDOC and that the earning of “time” is a matter of grace or

privilege. Ross v. State, 584 So. 2d 777, 779 (Miss. 1991) (interpreting Mississippi Code

Annotated section 47-5-142(1)-(2) (Supp. 1990)). In Sylvester, this Court reiterated that

17
notion: “The Legislature clearly empowered MDOC with the sole authority to grant [trusty-

time, earned-time, and meritorious-earned-time allowances].”6 Sylvester, 171 So. 3d at 533

(¶9) & n.3. Because of this fact, defense attorneys should be reluctant to give promises to

defendants about MDOC policies because those policies are subject to the discretion of the

MDOC. However, if the attorney does make such promise to the defendant (that he or she

will be eligible for earned-time allowances as part of the guilty plea), then it is ripe for

discussion with the judge at the time of the plea hearing, not two or more years after the fact.

¶33. Finally, it is no secret that as time passes, evidence may erode, making it difficult for

the State to prove its case. Thus, allowing defendants to vacate their guilty plea years after

it was entered may, in certain circumstances, be fraught with danger. For the forgoing

reasons, I dissent.

CARLTON, P.J., JOINS THIS OPINION.

6
See Miss. Code Ann. § 47-5-138.1(1) (Supp. 2014) (“[A]n offender in trusty status
as defined by the classification board of the [MDOC] may be awarded a trusty-time
allowance of thirty (30) days’ reduction of sentence for each thirty (30) days of participation
. . . .” (emphasis added)); Miss. Code Ann. § 47-5-138(5) (Supp. 2014) (“[A]ny inmate may
receive an earned time allowance of four and one-half (4½) days for each thirty (30) days
served if the department determines that the inmate has complied with the good conduct and
performance requirements of the earned time allowance program.”); Miss. Code Ann. § 47-
5-138(6) (“The department shall develop rules, terms and conditions for the earned-release
program,” and “[t]he commissioner shall designate the appropriate hearing officer within
the department to conduct revocation hearings for inmates violating the conditions of
earned-release supervision.” (emphasis added)); Miss. Code Ann. § 47-5-142(2) (Rev. 2011)
(“Subject to approval by the commissioner of the terms and conditions of the program or
project, meritorious earned time may be awarded . . . .”).

18