Terry Lee Coleman v. State of Mississippi

IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI

NO. 2019-CP-01110-COA

TERRY LEE COLEMAN APPELLANT

v.

STATE OF MISSISSIPPI APPELLEE

DATE OF JUDGMENT: 06/06/2019
TRIAL JUDGE: HON. ANTHONY ALAN MOZINGO
COURT FROM WHICH APPEALED: MARION COUNTY CIRCUIT COURT
ATTORNEY FOR APPELLANT: TERRY LEE COLEMAN (PRO SE)
ATTORNEY FOR APPELLEE: OFFICE OF THE ATTORNEY GENERAL
BY: BILLY L. GORE
NATURE OF THE CASE: CIVIL - POST-CONVICTION RELIEF
DISPOSITION: AFFIRMED - 05/12/2020
MOTION FOR REHEARING FILED:
MANDATE ISSUED:

BEFORE J. WILSON, P.J., WESTBROOKS AND McDONALD, JJ.

McDONALD, J., FOR THE COURT:

¶1. A Marion County grand jury indicted Terry Lee Coleman for murder in 2008. He

pleaded guilty in 2009 and was sentenced to life imprisonment in the custody of Mississippi

Department of Corrections. On May 28, 2019, Coleman filed a motion for post-conviction

collateral relief (PCR), requesting to withdraw his guilty plea. Finding Coleman’s motion

procedurally time-barred and that Coleman failed to prove an exception to the bar, the circuit

court entered an order denying Coleman’s PCR motion. Coleman now appeals from the

circuit court’s denial of his PCR motion and claims he is entitled to relief due to the lack of

a factual basis for his guilty plea, that he was not informed of his right against self-

incrimination, and that his counsel’s assistance was ineffective. Finding no error in the trial
court’s ruling, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2. On August 11, 2009, in the Circuit Court of Marion County, Terry Lee Coleman

pleaded guilty to murdering Edward Charles Martin Jr. The following facts were presented

and agreed to by Coleman during the plea hearing.

¶3. On June 21, 2008, Coleman, along with others, was playing dice on his father’s

property, which bordered Coleman’s own property. Martin Jr.’s son was one of the

participants in the dice game. An argument between Coleman and Martin Jr.’s son arose, and

gunshots were exchanged before Martin Jr.’s son left the property.

¶4. After hearing about what had happened, Martin Jr. drove to Coleman’s house. As

Martin Jr. pulled into Coleman’s driveway, Coleman came walking from his father’s property

carrying an AK-47. Coleman stopped Martin Jr. at the end of his driveway. Witnesses who

were in a vehicle behind Martin Jr.’s would testify that Martin Jr. took no threatening action,

that he did not say anything, and that Martin Jr. did not get out of his truck. Nonetheless,

Coleman said he believed that Martin Jr. had come to shoot him. Coleman told Martin Jr.

to get off his property and proceeded to beat on the truck’s hood. Upon seeing Martin Jr.

reach down, Coleman shot Martin Jr. one time through the truck’s windshield. During the

plea hearing, when asked if Martin Jr. had a gun, Coleman responded, “I didn’t see a gun,

but he raised his right hand down and I was at home protecting my family.” No gun was

found in Martin Jr.’s truck, and Martin Jr.’s hand was found on the gear shift.

¶5. Coleman, who was represented by counsel, signed and filed a “Petition to Enter the

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Plea of Guilty” on the charge of murder. At a group plea hearing, the circuit court accepted

Coleman’s guilty plea along with pleas from two others charged with different crimes. The

court asked each defendant how he would plead, and the court informed each of them of their

rights individually.

¶6. During the plea hearing, the State explained the proof against Coleman. This included

testimony from Coleman’s father who tried to restrain Coleman from going back home

because Coleman was upset. Witnesses in the vehicle that had pulled up behind Martin Jr.’s

truck would testify that Martin Jr. did not get out of the truck and exhibited no threatening

behavior. The State also said it had proof that Coleman knew Martin Jr.’s truck had a gear

shift. It explained that if there were a trial, testimony would be offered that the community

is small, that Martin Jr. and Coleman grew up together, that Martin Jr. lived around the

corner from Coleman, and that Coleman had been around the truck with Martin Jr. on prior

occasions.

¶7. The Court then addressed Coleman’s attorney and Coleman directly:

THE COURT: All right. So, Faye, with what the State proffered and
assuming the jury believed their witnesses, professionally
do you believe that there would be enough proof to
where the jury would be able to find murder unanimously
in this case?

MS. PETERSON: Yes, Your Honor.

THE COURT: And, Terry, do you agree with that?

TERRY COLEMAN: Yes, sir.

¶8. At the hearing, the circuit judge asked Coleman whether he was satisfied with his

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attorney’s representation: “And has she in your opinion done everything as your attorney she

should have done to properly represent you?” Again, Coleman responded affirmatively.

After confirming that Coleman was aware that a life sentence accompanied a murder

conviction in Mississippi, the circuit court accepted Coleman’s plea of guilty to murder.

¶9. Almost ten years after Coleman pleaded guilty at his sentencing hearing, in May 2019,

Coleman filed a PCR motion in the Marion County Circuit Court, requesting to withdraw his

guilty plea, claiming (1) there was no factual basis for his conviction because the evidence

did not prove every element of the offense for which he was charged, including deliberate

design, (2) that he was not advised as to his right against self-incrimination, and (3) his

counsel’s assistance was ineffective because she failed to file an appeal when he asked and

because she did not inform him of the possibility of filing a PCR motion. The circuit court

denied Coleman’s PCR motion, stating it was procedurally barred because it was not filed

within three years of the date that Coleman pleaded guilty, as required by Mississippi Code

Annotated section 99-39-5(2) (Rev. 2015), and that Coleman failed to prove an exception to

the procedural bar. Coleman now appeals.

STANDARD OF REVIEW

¶10. “When reviewing a trial court’s denial or dismissal of a PCR motion, we will only

disturb the trial court’s decision if the trial court abused its discretion and the decision is

clearly erroneous; however, we review the trial court’s legal conclusions under a de novo

standard of review.” Green v. State, 242 So. 3d 176, 178 (¶5) (Miss. Ct. App. 2017).

DISCUSSION

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¶11. Coleman asserts that the circuit court erred in its decision to deny Coleman’s PCR

motion. He argues that (1) no factual basis was established that he had a “deliberate design

to effect death,” making his guilty plea not knowingly made; (2) that at the sentencing

hearing he was not informed of his right against self-incrimination, and (3) that he had

ineffective assistance of counsel. We find the circuit court did not err in denying Coleman’s

PCR motion.

¶12. The Mississippi Uniform Post-Conviction Collateral Relief Act (UPCCRA), Miss.

Code Ann. §§ 99-31-1 to -29 (Rev. 2015), applies to any person sentenced by a court of

record of the State of Mississippi, including a person currently incarcerated, and provides “an

exclusive and uniform procedure for the collateral review of convictions and sentences.” Id.

§ 99-39-3(1). In the case of a guilty plea, such as Coleman’s, a motion for relief must be

made within three years after the entry of the judgment of conviction unless a statutory

exception applies. Id. § 99-39-5(2). The exceptions include (1) an intervening decision of

either the Supreme Court of the United States or the State of Mississippi “which would have

adversely affected the outcome of his conviction or sentence,” or (2) new evidence that was

not reasonably discoverable at the time of trial, or (3) the sentence has expired or a parole,

probation, or conditional release has been unlawfully revoked. Id. § 99-39-5(2)(a)-(b). The

defendant bears the burden of showing he has met a statutory exception. Wooten v. State,

275 So. 3d 96, 99 (¶9) (Miss. Ct. App. 2019); Blount v. State, 126 So. 3d 927, 931 (¶14)

(Miss. Ct. App. 2013).

¶13. Additionally, errors affecting certain fundamental constitutional rights are also

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excepted from the procedural bars of a PCR motion. Brown v. State, 83 So. 3d 459, 461 (¶6)

(Miss. Ct. App. 2012). Ineffective assistance of counsel can constitute a violation of the

defendant’s fundamental constitutional rights. Chapman v. State, 167 So. 3d 1170, 1173

(¶10) (Miss. 2015). In a PCR motion, the “movant has the burden of showing he is entitled

to relief by preponderance of the evidence.” Kidd v. State, 221 So. 3d 1041, 1043 (¶8)

(Miss. Ct. App. 2016). But merely asserting a fundamental-right violation is not enough to

meet that burden. Scott v. State, 187 So. 3d 679, 681 (¶5) (Miss. Ct. App. 2016). There must

appear to be some basis for the truth of the claim. White v. State, 59 So. 3d 633, 636 (¶11)

(Miss. Ct. App. 2011).

¶14. Coleman pleaded guilty on August 11, 2009. Any PCR motion must be filed within

three years of the time of a conviction, unless a statutory exception applies. To meet the

three-year deadline in this case, Coleman needed to file his motion by August 11, 2012,

which he failed to do. Although Coleman claimed a valid exception to the time-bar, the

circuit court ruled that Coleman failed to establish such an exception and that his motion was

therefore time-barred. We agree.

I. Whether there was a factual basis for Coleman’s guilty plea.

¶15. Coleman asserts the factual basis provided at the plea hearing does not prove the

elements of murder, making his guilty plea unknowing, unintelligent, and involuntary. He

argues this denial of the fundamental right to knowingly, intelligently, and voluntarily plead

guilty is not subject to the procedural time-bar, and therefore the circuit court’s decision

should be reversed. We disagree.

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¶16. A claim of an involuntary guilty plea, albeit involving a constitutional right, is still

subject to the procedural bar. Hughes v. State, 106 So. 3d 836, 839-40 (¶9) (Miss. Ct. App.

2012); see also Porter v. State, 281 So. 3d 935, 937 (¶14) (Miss. Ct. App. 2019). More

similar to the current case, this Court in Green v. State held that a claim of an involuntary

plea due to the trial court’s failure to establish a factual basis, did “not implicate a

fundamental constitutional right and [was still] subject to the time-bar.” Green v. State, 235

So. 3d 1438, 1440 (¶9) (Miss. Ct. App. 2017).

¶17. Coleman argues he entered his guilty plea unknowingly, unintelligently, and

involuntarily. Even if his claim were accurate, it would still be subject to the statutory three-

year time-bar that, as explained, expired almost eight years ago.

¶18. Moreover, Coleman’s assertion that his plea was involuntary due to the lack of a

factual basis lacks merit. It is true that this Court has held that before accepting a guilty plea,

the circuit court must determine that the plea is knowingly, intelligently, and voluntarily

made and that there is a factual basis for the plea. See Collins v. State, 270 So. 3d 63, 66 (¶7)

(Miss. Ct. App. 2018). And “in order for a guilty plea to be considered knowing and

voluntary, the defendant must know the elements of the charge against him.” Grazzier v.

State, 744 So. 2d 776, 778 (¶3) (Miss. 1999). But this Court has also determined the

following:

A factual basis for a guilty plea may be established in a number of ways,
including by a statement of the prosecutor, the testimony of live witnesses, and
prior proceedings, as well as an actual admission by the defendant although it
is not necessary that the factual basis be established with words spoken from
the defendant’s own mouth.

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Turner v. State, 864 So. 2d 288, 292, (¶17) (Miss. Ct. App. 2003) (citation omitted).

Additionally, an affirmative confession to the charge is sufficient for establishing a factual

basis. Boyd v. State, 253 So. 3d 933, 936 (¶9) (Miss. Ct. App. 2018). In Boyd, the State did

not provide a recitation of the evidence, but Boyd admitted he had intercourse with a child,

and all the relevant facts. Id. We found this to be sufficient to establish that his guilty plea

was knowing, intelligent, and voluntary. Further, a bare admission of guilt is enough to

consider a guilty plea valid. Grazzier, 744 So. 2d at 779 (¶7).

¶19. In this case, at Coleman’s plea hearing the circuit court found that his plea was made

voluntarily and intelligently. The circuit judge addressed Coleman specifically to make sure

of this:

Q. Now, Terry, what about you, is there anybody doing anything by way
of anything?

A. . . . No, sir.

Q. So you’re going to do whatever you want to enter, freely and
voluntarily?

A. Yes, sir.

Q. Of your own free will, by your own decision?

A. Yes, sir.

¶20. Similar to Boyd, the plea hearing transcript here shows Coleman agreeing to the facts

of the case and admitting to shooting and killing the victim. This confession was sufficient

to establish the factual basis for Coleman’s guilty plea. Additionally, as previously

addressed, when the judge asked Coleman and his counsel during the hearing whether the

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facts presented at that time by the State, in conjunction with the State’s witness that would

be presented at trial, would be enough proof that a jury “would” unanimously find him guilty

of murder, Coleman and his counsel agreed that a jury would. We agree with the circuit

court, and we find Coleman’s claim alleging a lack of a factual basis making his plea

involuntary to be without merit.

II. Whether Coleman was informed of his right against self-
incrimination.

¶21. Coleman also asserts that he was not expressly informed of his right against self-

incrimination or that he was waiving that right by pleading guilty. We find that this claim

is not an exception to the UPCCRA’s time-bar and find that Coleman was informed of the

consequences of his guilty plea at the time he entered it, including what rights he was

waiving.

¶22. In determining whether the plea is knowingly, intelligently, and voluntarily given, a

trial court must advise the defendant of his rights, the nature of the charge against him, as

well as the consequences of the plea. Yates v. State, 226 So. 3d 614, 619 (¶16) (Miss. Ct.

App. 2017). Caselaw “admonishes us that a defendant must be informed of his constitutional

right to trial by jury, to the right of confrontation, and to protection against self-incrimination

prior to court adjudication that a guilty plea was intelligent and voluntary.” Horton v. State,

584 So. 2d 764, 767 (Miss. 1991) (citing Boykin v. Alabama, 395 U.S. 238 (1969)). Errors

affecting “fundamental constitutional rights” are excepted from the procedural bars of the

UPCCRA. Rowland v. State, 42 So. 3d 503, 507 (¶12) (Miss. 2010). Again, as previously

stated, merely asserting a constitutional right violation does not trigger the procedural bar

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exception; there must at least appear to be some basis for the truth of the claim. Evans v.

State, 115 So.3d 879, 881 (¶3) (Miss. Ct. App. 2013). In Boyd v. State, 155 So. 3d 914, 920

(¶13) (Miss. Ct. App. 2014), we acknowledged that there have been no cases in which the

Mississippi appellate courts “have held that a trial court’s failure to advise a defendant, on

the record, of his right against self-incrimination is a constitutional violation sufficient to

surmount the PCR procedural bars.”

¶23. Even if this claim were not subject to the time-bar, it is totally meritless because the

transcript of the sentence hearing shows the circuit judge explained the nature and

consequences of entering a guilty plea to each defendant, including Coleman:

Again, you understand if you plead not guilty the law presumes you to be not
guilty. The burden is on the State of Mississippi to prove your guilt beyond a
reasonable doubt. You’re entitled to have your attorney present with you at all
stages of the preceding. You’re entitled to a full and complete trial by jury.
The only way you’d be convicted is if all 12 jurors find you guilty. . . . Now,
each of you as a defendant have the absolute right under the Mississippi and
United States Constitution not to testify. If you choose not to testify, nothing
could be said or used against you. Under the Mississippi Constitution each
one of you have the absolute right to testify. So whether you do or don’t
testify, that’s the decision each of you make for yourself.

(Emphasis added).

¶24. The record indicates all the defendants, including Coleman, responded affirmatively

that they understood these rights. The judge also specifically addressed Coleman and asked

him if he understood that he had the right not to testify, but that if he did testify, then his own

attorney could question him and he could tell the jury what happened. Coleman said he

understood this. Because the judge thoroughly questioned Coleman prior to accepting his

plea and explained the rights, including the right against self-incrimination, that he was

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waiving by pleading guilty, we find that the trial court did not error in denying Coleman’s

PCR motion on that claim.

III. Whether there is a basis for Coleman’s claim of ineffective
assistance of counsel.

¶25. Lastly, Coleman alleges he received ineffective assistance of counsel. Coleman

claims that when he asked his attorney about “some type of appeal,” his counsel “did not

advise or discuss filing a notice of appeal. . . .” He states that his counsel should have

advised him that a PCR motion was his only recourse. We find that Coleman’s claim of

ineffective assistance of counsel is without merit and that it lacks factual support except for

his own affidavit.

¶26. As stated previously, ineffective assistance of counsel can constitute a violation of a

defendant’s constitutional rights. Chapman v. State, 167 So. 3d 1170, 1173 (¶10) (Miss.

2015). “Under the Strickland [1] test, in order to succeed on an ineffective-assistance-of-

counsel claim, the defendant must show that his trial counsel’s performance was deficient,

and he was prejudiced by that deficiency.” Magee v. State, 270 So. 3d 225, 229 (¶16) (Miss.

Ct. App. 2018). In Easterling v. State, this Court held that the convicted defendant must

show “that counsel’s representation fell below an objective standard of reasonableness.”

Easterling v. State, 281 So. 3d 243, 250 (¶20) (Miss. Ct. App. 2019). “The defendant must

show unprofessional errors of substantial gravity, and allege such facts with specificity and

detail.” Magee, 270 So. 3d at 229 (¶16) (internal quotation marks omitted). “A claim of

ineffective assistance of counsel must be supported by affidavits other than the defendant’s.”

1
Strickland v. Washington, 466 U.S. 668 (1984)

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Easterling, 281 So. 3d at 250 (¶21). This obligation is not absolute and may be excused by

a showing of good cause for failing to obtain those affidavits. Walden v. State, 201 So. 3d

1042, 1045 (¶15) (Miss. 2016).

¶27. First, by pleading guilty, the right to a direct appeal is waived. Miss. Code Ann.

§ 99-35-101 (Rev. 2015). Because Coleman pleaded guilty, there was no appeal that his

counsel could have filed, and therefore failing to file an appeal did not constitute

representation by ineffective counsel.

¶28. Second, when a defendant challenges his guilty plea in a PCR motion on the grounds

of ineffective assistance of counsel, as Coleman did here, the defendant must show that

counsel’s errors proximately resulted in his guilty plea and that he would not have entered

the plea at all but for counsel’s errors. Covington v. State, 909 So. 2d 160, 162 (¶4) (Miss.

Ct. App. 2005). In this case, by signing his guilty-plea petition, Coleman indicated he was

advised of the nature of his crime and informed of the rights he would waive by pleading

guilty. He presents no details or specifics that his counsel made any error resulting in his

pleading guilty. Coleman stated during his plea hearing he was satisfied with his counsel,

and he thought she had done everything she should have done to properly represent him.

¶29. Finally, Coleman claims that his counsel’s assistance was ineffective because she did

not inform him of the possibility of filing a PCR motion. But he fails to provide details to

support this allegation. Coleman does not say when or how he made this request of his

attorney. What Coleman claims is nothing more than an assertion, similar to that presented

by the defendant in Bass v. State, 888 So. 2d 1187, 1191 (¶21) (Miss. Ct. App. 2004). There,

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we denied Bass’s PCR motion for claiming that his counsel failed to file an appeal without

providing specific facts to support the allegation. Id. Despite recognizing that a lawyer’s

deficient performance may constitute a violation of the defendant’s constitutional rights, the

Mississippi Supreme Court said, “[T]his Court has never held that merely raising a claim of

ineffective assistance of counsel is sufficient to surmount the procedural bar.” Bevill v State,

669 So. 2d 14, 17 (Miss. 1996) (emphasis omitted).

¶30. Here, Coleman failed to file any other affidavits or evidence to support his allegation

of his counsel’s alleged failures or show good cause as to why he cannot provide more than

his own affidavit. Accordingly, we find no abuse of discretion by the circuit court in denying

Coleman’s PCR motion on his claim of ineffective assistance of counsel.

CONCLUSION

¶31. We find no error in the trial court’s denial of Coleman’s PCR motion. Coleman’s

motion was time-barred, and he failed to prove any exception to the procedural bar. The trial

court’s denial of Coleman’s PCR motion is hereby affirmed.

¶32. AFFIRMED.

CARLTON, P.J., GREENLEE, WESTBROOKS, TINDELL, LAWRENCE AND
McCARTY, JJ., CONCUR. BARNES, C.J., J. WILSON, P.J., AND C. WILSON, J.,
CONCUR IN PART AND IN THE RESULT WITHOUT SEPARATE WRITTEN
OPINION.

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